Law Suit Turned In At Turnitin.com

Turnitin.com, a popular paper and exam submission service used by schools and their students, has recently been served with a law suit as opposed to the usual papers and exams.

Turnitin.com is a service that is used to verify whether a student cheated on an exam or paper. Basically, the school and teacher requires the students to submit their assignments to the website as the only method to turn in the assignment. Recently, a group of students decided to sue the service provider, alleging copyright infringement, among other things.

Just from a cursory glance of the story, I can identify several very interesting legal issues in this case, and most point to a victory for the students in my opinion.

Most importantly, the students allege copyright infringement, since the service keeps an archive of all of the documents that are submitted, copies them internally, and uses them to compare to other assignments. On its face, this is clearly copyright infringement, since the service makes copies and the students - arguably at least - have not authorized the copying. The service claims that this is a fair use pursuant to the Copyright Act and fair use case law.

Here, I think that the fair use claim is quite interesting but probably a loser. Fair use is best described as an implied license to copy based upon the assumption that a reasonable copyright holder would have authorized the use in question. Usually, we see successfully fair use claims in the areas of research, education, private non-commercial uses, etc. Here, the entire work is copied, the works in question are original works that are probably highly creative, and the purpose of the copying is to support the website's business model. The only thing that really goes in favor of the website is the fact that the use is arguably related to education, and the use does not really harm the market value of the works, since the students probably have no plan to sell the works in question.

I think that the main point is that the entire business model is based around this fair use claim, and court usually frown upon such a practice.

The website also argues that the students have authorized the copying. However, this claim is a loser regarding the high school and middle school students, since those students are not of legal age to authorize the copying. More interesting is the fact that an agreement to licence copyrights must be clear and unambiguous, and in writing. Therefore, even if the students are over 18 and there is something like a stipulation on the course syllabus or even a clause on the website that states that the student agrees to authorize the use, such a contractual term is probably insufficient to properly license copyrights.

Another interesting issue is the constitutional law angle. In some cases, a school may require the parents and/or students to authorize the copying. However, public institutions may not be allowed to make such a demand. Essentially, the institution would require people to sign away constitutional rights (copyrights are outlined in the constitution) as a condition precedent for educational services. This is sure improper in many cases, like a public high school or even a public college.

This is just a short outline of some of the more interesting legal issues, and I am very curious how the case proceed. Personally, I think that the website will settle, since they have much more to lose. The students are being represented by a pro bono attorney, and theoretically can proceed to trial, and if they lose, they don't really lose much at all. The website on the other hand does not have unlimited funds, and if they lose, their entire business is essentially shut down. Therefore, I believe that the website will quickly settle this case.

Common Sense Now Allowed

Pursuant to a recent Supreme Court case, judges are now allowed to use common sense!

To those unfamiliar with patent litigation, this statement may seem a bit ridiculous. However, in the past judges in patent litigation were not supposed to use their own common sense. Rather, they were supposed to use objective evidence and testimony to determine whether an invention was simply obvious and not patentable.

'Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, in the case of patents combining previously known elements, deprive prior inventions of their value or utility,' Justice Anthony Kennedy wrote in KSR International Co. v. Teleflex Inc.. 'The results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts.'

I personally am very happy with this ruling. In the past, almost ridiculous "inventions" were granted patents since the "inventor" simply took an existing technology and tried to patent its use for a specific purpose or business model. For example, in a famous patent case a patent for a system of calculating portfolio values was held valid. However, the "invention" was basically the use of common computer networking techniques, which were invented about 10-20 years prior to the litigation, for the purposes of financial transactions. Clearly, an obvious application of a common technology, and now that judges are allowed to use their own common sense, astute judges can nip these frivolous litigations in the bud.