Jerry Brito

John McCain claims fair use, tells Fox News copyright lawyers to jump in a lake.

Turnitin and Google Book Search: same thing?

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The Washington Post reports today on a couple of Virginia high school students who are suing anti-plagiarism service turnitin.com for copyright infringement. According to press accounts, the service is used by 6,000 schools, including Harvard and Georgetown. The way it works is that students turn in papers to their teachers by submitting them through Turnitin’s website. Turnitin then compares the submitted papers to a snapshot of the web, to databases of published articles, and to its own database of millions of other student papers. The problem is that the submitted papers are added to the company’s database of student papers without student permission. Plaintiffs in the case specifically marked their papers asking that they not be archived but they where nonetheless. The students have a website at dontturnitin.com.

What’s striking to me is how similar this is to Google Book Search. It remains to be seen whether Turnitin will make a fair use defense, but their past statements suggest that they will. (Here is a PDF of a legal opinion that Turnitin commissioned.)

Google is copying books without the copyright owners’ consent and storing them in a searchable database, just as Turnitin does with student papers. Google copies the whole book, but argues it’s a fair use because they only display a “snippet” of the text in search results. Turnitin also copies the whole work and only displays snippets to teachers if there’s a plagiarism match. Both Google and Turnitin make commercial use of the works they copy and they both arguably serve educational purposes. And If Google’s use doesn’t affect the “potential market” for licensing books to be included in searchable databases, then Turnitin’s use certainly doesn’t affect the potential market for licensing papers to be included in a plagiarism database.

So, can these cases be distinguished? If not, are they both fair use? I’m still thinking about this one, and I’d like to hear what your analysis is.

Cross-posted at TLF. You can leave and read comments there. →

Mar 30, 2007 | Comment | Tags: copyright, fair use, google books

TPW 2: REAL ID, fair use, and Univision fined

The new episode of Tech Policy Weekly hosted by yours truly is now online. In the show this week, the REAL ID Act gets hot in the states and in Washington, Rep. Rick Boucher introduces a watered-down copyright fair use bill, and the FCC slaps it largest fine ever on Spanish-language broadcaster Univision. On the show are Tim Lee, Adam Thierer, and Jim Harper. You can use the player below to listen to it right here, or click here to subscribe via iTunes.

Mar 1, 2007 | Comment | Tags: fair use, fcc, podcasts, real id, univision

Search, cache, and copyright

Google has lost its copyright appeal against Belgian newspaper publishers. There seem to be conflicting reports about what exactly Google was found liable for. Here’s the WSJ:

A Belgian court ruled Tuesday that Internet search engine Google Inc. violated Belgian copyright law when it published snippets and links to Belgian newspapers on its Web site without permission.

And here’s the AP:

A Brussels court ruled in favor of Copiepresse, a copyright protection group representing 18 mostly French-language newspapers that complained the search engine’s “cached” links offered free access to archived articles that the papers usually sell on a subscription basis.

Snippets and entire cached pages are very different things. But whatever the case, what this case highlights is how unsettled copyright law is as it applies to search engines (and I’ll limit myself to just the U.S.). As for snippets, sure, there’s Kelly v. Arriba Soft, which found that indexing photographs and displaying their thumbnails is a fair use. But that’s just one circuit’s opinion, which is very persuasive, but not controlling in other circuits. Then there’s Perfect 10 v. Google, which cuts in the opposite direction.

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Feb 13, 2007 | Comment | Tags: belgium, copyright, fair use, google, newspapers

For markets, for fair use

In an op-ed in The American today (and also in comments to National Journal on the reintroduction of the Boucher fair use bill), PFF’s Patrick Ross writes that those of us who advocate reversing the DMCA and strengthening fair use rights have little faith in markets. According to him, curtailing the DMCA means government intervention in emerging markets.

What arguments like Patrick’s ignore is that copyright is unlike other property rights, copyright is a different animal. This is evident in the fact that the power to create copyright is one of the enumerated powers of Congress laid out in the Constitution. Copyright would not exist but for the grace of Congress. If Congress decides to create copyrights, it has complete discretion (within constitutional bounds) to set the outlines of copyright. Congress can decide, among many other parameters, that copyright is for only one year or for 100 or for any length of time in between. Therefore, whatever market in copyrighted works emerges once Congress has created copyright, it must conform to the shape of the copyright Congress created.

Patrick writes:

It’s easy to forget that when we purchase digital content, we are in fact purchasing a set of rights to that content, rights shaped by current technologies, as well as the expectations of both creators and consumers. When those rights are sold to us, there are some uses that the creator does not authorize. As we discover new ways of using content, those uses begin with the creator, who can then decide the terms on which he wants to sell them.

As I have shown, though, the shape of these rights are not just set by contract, but by Congress as well. (The reason why is a bit beyond the scope of this blog post, but suffice it to say it’s because ideas, unlike tangible property, are not scarce, and copyright is less property right than government grant.) Patrick continues:

I can see why a consumer, having paid for a song or a movie once, wouldn’t want to pay for it a second or third time in order to use it on another platform. However, when the market offers sets of flexible rights, consumers will be able to buy only the rights they want. If you want to listen to music only on your home stereo, say, but not in your car, then in the future you may be able to pay less–you won’t have to buy (and then not use) the right to listen in your car, as you do today.

What Patrick is arguing against here is a notional fair use right to format-shift or place-shift. I wonder if he’s also against a right to time shift since you could contractually limit consumers to only watch your content from noon to one on Tuesdays.

Patrick writes that “Congress should only alter the state of a market when there is a sign of market failure.” Quite true. However, another legitimate rationale for Congressional intervention is government failure. First carved out by common law courts and later codified by Congress, fair use is one of the outlines of copyright. To the extent one has to circumvent an anti-copying measure in order to make fair use of a work, the DMCA has hobbled fair use (and, some free-marketers would say, replace it with rent-seeking and barriers to competition). Repealing the DMCA will affect markets for copyrighted works just as its enactment did. This is because, in effect, Congress shapes the market. It is within its constitutional power to do so. Those of us who favor a less-restrictive interpretation of fair use are in fact seeking more vibrant markets in culture.

Cross-posted at TLF. You can leave and read comments there. →