Doug got me thinking when he said, "If you put in a substantive amount of the "plagiarized text," the hash that is stored is output as identical to the original work that has been collected by the company." If the hash is substantive enough to prove plagiarism, then it seems the defense that it's not the original text will fail. I would bet that a 128 bit rate MP3 has less of the original data of any wav file than that hash, and no one would use that argument for saying that an MP3 is not copyright infringement. Besides, the hash is a derivative work if it is not a complete version of the original, and the students have clear rights of both ownership and preparation of derivative works. That is, unless the hash is a parody ;-) Charlie Lowe Department of Writing Grand Valley State University
Dear Aoir-ers - What's in the hash? I assumed it was a very partial sketch of the paper, including things like the title, the first paragraph (perhaps) some keywords and the bibliography. For my perspective on students' handing in others' work, this would be enough to sink the ship! How would this breach the student's copyright if they have copied the paper to begin with???? Cheers, Denise Denise N. Rall, PhD thesis, "Locating four pathways to internet scholarship" School of Env. Science, Southern Cross University, Lismore NSW 2480 AUSTRALIA Tues: Room T2.17, +61 (0)2 6620 3577 Mobile 0438 233 344 http://www.scu.edu.au/schools/rsm/staff/pages/drall/ Virtual member, Cybermetrics Group, University of Wolverhampton, UK http://cybermetrics.wlv.ac.uk/index.html ____________________________________________________________________________________ No need to miss a message. Get email on-the-go with Yahoo! Mail for Mobile. Get started. http://mobile.yahoo.com/mail
This'll help: http://en.wikipedia.org/wiki/Hash_function http://en.wikipedia.org/wiki/Cryptographic_hash_function On Mar 12, 2007, at 9:34 PM, Denise N. Rall wrote:
Dear Aoir-ers -
What's in the hash? I assumed it was a very partial sketch of the paper, including things like the title, the first paragraph (perhaps) some keywords and the bibliography.
For my perspective on students' handing in others' work, this would be enough to sink the ship!
How would this breach the student's copyright if they have copied the paper to begin with????
Cheers, Denise
Denise N. Rall, PhD thesis, "Locating four pathways to internet scholarship" School of Env. Science, Southern Cross University, Lismore NSW 2480 AUSTRALIA Tues: Room T2.17, +61 (0)2 6620 3577 Mobile 0438 233 344 http://www.scu.edu.au/schools/rsm/staff/pages/drall/ Virtual member, Cybermetrics Group, University of Wolverhampton, UK http://cybermetrics.wlv.ac.uk/index.html
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On Mar 12 2007, Denise N. Rall wrote:
Dear Aoir-ers -
What's in the hash? I assumed it was a very partial sketch of the paper, including things like the title, the first paragraph (perhaps) some keywords and the bibliography.
No -- it's an alphanumeric string created from the text according to a specific algorithm -- think of it as a condensation of the values of the symbols in the text (kind of like Hebrew Gematria, if you are Kabbalistically inclined).
How would this breach the student's copyright if they have copied the paper to begin with????
I would tend to be more concerned about the copyright of the students who weren't plagiarizing. But, even plagiarized papers may have sections of original authorship, and the original selection and arrangement of unoriginal material can also qualify for copyright. Just because it's plagiarized doesn't mean there isn't originality for purposes of copyright. Those are separate questions. DLB -- Dan L. Burk Oppenheimer, Wolff & Donnelly Professor University of Minnesota Law School 229 19th Avenue South Minneapolis, MN 55455 ********************************** voice: 612-626-8726 fax: 612-625-2011 bits: burkx006@umn.edu
In response to the original question - is there precedent - I think the closest thing could possibly be the Google cache copyright case that was closed last year (in which Google was sued under the auspices that its caching function breached a web page creator's copyright). Story can be found here: http://www.theregister.co.uk/2006/01/27/google_cache_copyright_breach_ruling... In short, a few points, in Google's favor: Google's use was deemed Fair Use because: Google did not create the article, rather, the user "created" it when they placed a request with Google to serve the page. In other words, the page would never have been printed or seen the light of day had the user not clicked the button. The plaintiff was perfectly aware in advance of what would happen and did nothing to stop it. The parallel here would be if a school required students to accept accept use of TurnItIn - which is a legitimate action (consider the requirement to sign a non-compete or non-disclosure agreement as a legitimate requirement for employment, or an agreement to sign an academic honesty statement) - in order to be part of the student body. There was no evidence that Google profited from the feature in a way that outweighed its beneficial and "transformative" use. IMHO, this is the point at which the Turnitin question is most in the air - it could be decided either way. The plaintiff was unable to prove that his own market for his work was infringed upon. No offense to undergraduates, but given the average quality of the undergrad paper, I suspect that this would hold true for Turnitin as well. Google acted in good faith. Google, as a service provider, is permitted to store temporary copies of material under the DMCA. This does not match the Turnitin case precisely, but I think it has many relevant parallels to consider. -Alexis
On Mar 12 2007, Alexis Turner wrote:
In response to the original question - is there precedent - I think the closest thing could possibly be the Google cache copyright case that was closed last year (in which Google was sued under the auspices that its caching function breached a web page creator's copyright).
No. The decision is not irrelevant, but also not really on point. As I mentioned earlier, I have analyzed the most relevant precedent here in the context of Google Book project: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=949937&high=%20mereology specifically, the Matthew Bender and Tasini cases. The Google v. Perfect 10 and Kelly v. ArribaSoft holdings also have some bearing. Turnitin's strongest argument is that their database is transformative and contains no copies of the papers, only relational data *about* the papers. The hashes have no separate value other than for plagiarism detection -- the hashes are not substitutes for the papers in the market (assuming there is any market for student papers). There is a long line of cases holding that intermediate, temporary copying in the process of creating a transformative work is fair, bolstering the argument that the intermediate copy is fair. That argument almost perfectly parallel's the Google Book project rationale. The major difference, as I mentioned earlier, is that the public benefit argument for Turnitin is not as strong. DLB -- Dan L. Burk Oppenheimer, Wolff & Donnelly Professor University of Minnesota Law School 229 19th Avenue South Minneapolis, MN 55455 ********************************** voice: 612-626-8726 fax: 612-625-2011 bits: burkx006@umn.edu
Dan said:
Turnitin's strongest argument is that their database is transformative and contains no copies of the papers, only relational data *about* the papers. The hashes have no separate value other than for plagiarism detection -- the hashes are not substitutes for the papers in the market (assuming there is any market for student papers). There is a long line of cases holding that intermediate, temporary copying in the process of creating a transformative work is fair, bolstering the argument that the intermediate copy is fair.
Actually, Turnitin has posted an extensive analysis of these issues as PDFs (pertaining to each country of operation) on their website at http://www.turnitin.com/static/usage.html. I've only read the 10-page Australian version, but it seems that Turnitin's strongest argument is, firstly, to claim "Service Provder" status and therefore "Safe Harbour" provisions under the DCMA and secondly, to ensure that all submissions of student works are covered by a non-exclusive licence. In other words, all student work submitted is correctly licenced and hence THERE IS NO INFRINGEMENT OF THE STUDENTS' COPYRIGHT when the copy is made. *Of course* Turnitin makes a copy of the paper - they don't seem to dispute this - but their argument is that they're entitled to because they're a service provider and that in any case, the students give them permission to copy the papers. Whether or not it's a hash and whatever a hash is are completely irrelevant. Stop ignoring the obvious. What is interesting, though, is the reliance of Turnitin on the universities informing students that their work will or might be submitted and what this means ... that scares me a bit. They also rely on jurisdictional issues by claiming that any "reproduction if it is stored on the Turnitin server while it is subjected to the checking process" performed is "not performed in Australia" (it's done in Oakland, California), hence Australian Copyright laws cannot apply. That might be interesting to challenge. There is also a supplementary opinion directly addressing the issues I raised in my last post of the possibility of the copy (ie the "hash", which they refer to as a "digital fingerprint" being an "adaptation" (or "derivative work" as Dan discussed) and of the derivation of commercial benefit from the students' work. This opinion is a response to comments by the President of the Melbourne Postgrad Students Assn in The Australian newspaper and they conclude it is unlikely that the hash is an adaptation for the purposes of the Copyright Act 1968, and that, in any case, it happens in Oakland. In all of this, the lawyers' only reservation seems to be over the question of whether, in the absence of an explicit licence granted by the student on submission of their assignment, an implied licence is granted and what this might cover. They conclude that it is most likely that "an implied license exists for assessors to utilize a plagiarism service such as the one conducted by Turnitin." They suggest that the best risk-minimisation strategy is to get the students to sign a licence on their submission cover sheet ... If a licence exists for a copy to be made, there is no infrigement. QED. Which brings us back to the point of whether a uni can reasonably and ethically expect students to grant such a licence as an administrative proceedure - but that's discussed elsewhere. Cheers, Hughie
On Mar 12 2007, Hugemusic wrote:
Dan said:
Turnitin's strongest argument is that their database is transformative and contains no copies of the papers, only relational data *about* the papers. The hashes have no separate value other than for plagiarism detection -- the hashes are not substitutes for the papers in the market (assuming there is any market for student papers). There is a long line of cases holding that intermediate, temporary copying in the process of creating a transformative work is fair, bolstering the argument that the intermediate copy is fair.
Actually, Turnitin has posted an extensive analysis of these issues as PDFs (pertaining to each country of operation) on their website at http://www.turnitin.com/static/usage.html. I've only read the 10-page Australian version, but it seems that Turnitin's strongest argument is, firstly, to claim "Service Provder" status and therefore "Safe Harbour" provisions under the DCMA
This has nothing to do with the copyright status of their database -- it goes to access of their website. The safe harbor provisions address vicarious and contributory liability, not direct liability. And, even if we are thinking in terms of third party liability, the safe harbor provisions have a scienter requirement that would make them inapplicable.
and secondly, to ensure that all submissions of student works are covered by a non-exclusive licence.
Which, of course, they don't need if there is no underlying copyright problem. You can't address the licensing question until you have resolved the question of the underlying rights.
*Of course* Turnitin makes a copy of the paper -
That is a different question than whether the hash is a copy. they don't seem to
dispute this - but their argument is that they're entitled to because they're a service provider and that in any case, the students give them permission to copy the papers. Whether or not it's a hash and whatever a hash is are completely irrelevant.
No, it is the key issue to this and to a range of other database questions.
They also rely on jurisdictional issues by claiming that any "reproduction if it is stored on the Turnitin server while it is subjected to the checking process" performed is "not performed in Australia" (it's done in Oakland, California), hence Australian Copyright laws cannot apply.
Probably wrong under conflicts principles.
In all of this, the lawyers' only reservation seems to be over the question of whether, in the absence of an explicit licence granted by the student on submission of their assignment, an implied licence is granted and what this might cover. They conclude that it is most likely that "an implied license exists for assessors to utilize a plagiarism service such as the one conducted by Turnitin."
This depends on the reasonable expectations of the parties. A few years ago, it would have been fairly easy to argue that the students' expecation did not extend to copying by a plagiarism service. Of course, the more people use Turnitin, the more likely it becomes a reasonable expectation. DLB -- Dan L. Burk Oppenheimer, Wolff & Donnelly Professor University of Minnesota Law School 229 19th Avenue South Minneapolis, MN 55455 ********************************** voice: 612-626-8726 fax: 612-625-2011 bits: burkx006@umn.edu
did nothing to stop it. The parallel here would be if a school required students to accept accept use of TurnItIn - which is a legitimate action (consider the requirement to sign a non-compete or non-disclosure agreement as a legitimate requirement for employment, or an agreement to sign an academic honesty statement) - in order to be part of the student body.
These are not nearly parallel. You're asking students to send their papers to a for-profit company *not of their own choosing* for assessment. That's radically different from asking them to sign an academic honesty statement, and certainly different from the legal mire that is non-compete and non-disclosure agreements. Schools already provide a legitimate plagiarism detection tool - they're called "faculty". ;-) [If those faculty don't feel that they're able to detect plagiarism - well, that's another track of discussion.] --e
In the sense that an employee/student/etc of a community/school/business signs an agreement that may not be in their best interest, but is free to go elsewhere if they do not wish to sign, it is exactly the same thing. Personally speaking, I do not believe in random drug testing. Ergo, I will not join an organization in which this is required of me. Likewise, if a student does not wish to use Turnitin, they may attend a different institution. They are the same scenario, provided the employee/student/whathaveyou is apprised of the situation in advance of joining the organization. And, yes, I would apply your term "legal mire" to all of these types of agreements, precisely because their moral value is NOT clearly defined. As this conversation illustrates, reasonable, educated people can disagree on the nature of this software, which also means that the courts can disagree. Do not underestimate the issue by assuming it is so black and white. -Alexis On Tue, 13 Mar 2007 elw@stderr.org wrote: ::> did nothing to stop it. The parallel here would be if a school required ::> students to accept accept use of TurnItIn - which is a legitimate action ::> (consider the requirement to sign a non-compete or non-disclosure agreement ::> as a legitimate requirement for employment, or an agreement to sign an ::> academic honesty statement) - in order to be part of the student body. :: ::These are not nearly parallel. :: ::You're asking students to send their papers to a for-profit company *not of ::their own choosing* for assessment. That's radically different from asking ::them to sign an academic honesty statement, and certainly different from the ::legal mire that is non-compete and non-disclosure agreements. :: ::Schools already provide a legitimate plagiarism detection tool - they're ::called "faculty". ;-) [If those faculty don't feel that they're able to ::detect plagiarism - well, that's another track of discussion.] :: ::--e ::
I think Dr. Wright forgets that students pay to be at a university and that universities serve them (the customer). This has gone unrecognized in the Turnitin discussion. Also, employment agreements are to protect the "for profit" trade" knowledge. elw@stderr.org wrote:
did nothing to stop it. The parallel here would be if a school required students to accept accept use of TurnItIn - which is a legitimate action (consider the requirement to sign a non-compete or non-disclosure agreement as a legitimate requirement for employment, or an agreement to sign an academic honesty statement) - in order to be part of the student body.
These are not nearly parallel. You're asking students to send their papers to a for-profit company *not of their own choosing* for assessment. That's radically different from asking them to sign an academic honesty statement, and certainly different from the legal mire that is non-compete and non-disclosure agreements. Schools already provide a legitimate plagiarism detection tool - they're called "faculty". ;-) [If those faculty don't feel that they're able to detect plagiarism - well, that's another track of discussion.] --e _______________________________________________ The air-l@listserv.aoir.org mailing list is provided by the Association of Internet Researchers http://aoir.org Subscribe, change options or unsubscribe at: http://listserv.aoir.org/listinfo.cgi/air-l-aoir.org Join the Association of Internet Researchers: http://www.aoir.org/ --------------------------------- Now that's room service! Choose from over 150,000 hotels in 45,000 destinations on Yahoo! Travel to find your fit.
"Dr. Wright forgets that students pay to be at a university and that universities serve them (the customer). This has gone unrecognized in the Turnitin discussion." Waaaitttt a minute!! This is neo-capitalist crap. We have been in the grip of economic rationalism too long at this point! Students are not "customers" of universities. Students apply to a university for the opportunity to demonstrate that they are worthy of an accreditation that is handed out at the university's discretion. There are certain benefits (social, economic, cultural) that (hopefully) accrue with gaining this accreditation and student must demonstrate that they are worthy of it. Once upon a time, (in some places) very little tuition fees were paid except as an extra to improve the students' chances of measuring up. Certainly, the universities did not require a student to pay them directly; academic merit (ie the probability of successful accreditation) was the main criterion for admission. (Ignoring exclusion because of race, gender, etc for a minute). You can't "buy" a university degree, at least not from universities that matter. The university (often with government oversight) sets the standard for accreditation. If the student does not measure up, they miss out. They took their chance and failed. Many former student are in this category. Some - like me - learn from the experience and try again. If they don't like the conditions, they can go elsewhere, but they have no access to a degree for which the university deems them unworthy ... there is no guarantee the uni will let them try and there's no guarantee the uni will pass them. The whole problem of plagiarism is that it is cheating on this process; claiming a level of worthiness that is not your own. The university is quite right to take all measures to prevent people who do so from gaining the accreditation they seek - they are not worthy. The uni is entitled (nay, required!) to do whatever it takes at that point. If they pass one fee-paying student who has not met the standard, they are devaluing the efforts of all the other fee-paying students who did meet it - which is better service??? Of course, anyone who's taught at a university for any length of time knows that ?recent? forces are bringing pressure to change this in favour of the model described below. But the university is quite entitled to set the conditions for accredition regardless of fees paid ... there is no customer service guarantee (at least in theory). I was wondering about this line this morning and it needs to be addressed. Cheers, Hughie ----- Original Message ----- From: "James Whyte" <whyte.james@yahoo.com> To: <air-l@listserv.aoir.org> Sent: Wednesday, March 14, 2007 5:15 AM Subject: Re: [Air-l] turnitin issue
I think Dr. Wright forgets that students pay to be at a university and that universities serve them (the customer). This has gone unrecognized in the Turnitin discussion.
Also, employment agreements are to protect the "for profit" trade" knowledge.
elw@stderr.org wrote:
did nothing to stop it. The parallel here would be if a school required students to accept accept use of TurnItIn - which is a legitimate action (consider the requirement to sign a non-compete or non-disclosure agreement as a legitimate requirement for employment, or an agreement to sign an academic honesty statement) - in order to be part of the student body.
These are not nearly parallel.
You're asking students to send their papers to a for-profit company *not of their own choosing* for assessment. That's radically different from asking them to sign an academic honesty statement, and certainly different from the legal mire that is non-compete and non-disclosure agreements.
Schools already provide a legitimate plagiarism detection tool - they're called "faculty". ;-) [If those faculty don't feel that they're able to detect plagiarism - well, that's another track of discussion.]
--e _______________________________________________ The air-l@listserv.aoir.org mailing list is provided by the Association of Internet Researchers http://aoir.org Subscribe, change options or unsubscribe at: http://listserv.aoir.org/listinfo.cgi/air-l-aoir.org
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The problem is not whether faculty can *detect* plagiarism, the problem is whether faculty can prove it. (Remember the emails on this very topic that students should be considered innocent until proven guilty?) mark
Schools already provide a legitimate plagiarism detection tool - they're called "faculty". ;-) [If those faculty don't feel that they're able to detect plagiarism - well, that's another track of discussion.]
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On Mar 12 2007, Charlie Lowe wrote:
If the hash is substantive enough to prove plagiarism, then it seems the defense that it's not the original text will fail. I would bet that a 128 bit rate MP3 has less of the original data of any wav file than that hash, and no one would use that argument for saying that an MP3 is not copyright infringement.
Hm, for some purposes the MP3 might not be. Copyright is not very well equipped to deal with the distinction, or the lack of distinction, between record data and relational data (nor between data and software). Under some parts of the statute, data that encodes a copyrighted work is treated differently than data *about* a copyrighted work. (Can you explain the difference? I'm not sure I can. But courts, including the U.S. Supreme Court, seem to think they can.)
Besides, the hash is a derivative work if it is not a complete version of the original, and the students have clear rights of both ownership and preparation of derivative works. That is, unless the hash is a parody ;-)
It is not clear that the hash is a derivative work. Tasini and several other cases suggest that it is not a "copy" under the statute, that is, that it is not a fixation of the students' work of authorship. US courts are divided on whether a derivative work needs to be a copy or not. My guess is that it is not a derivative work because it does not incorporate the students' original expression. DLB -- Dan L. Burk Oppenheimer, Wolff & Donnelly Professor University of Minnesota Law School 229 19th Avenue South Minneapolis, MN 55455 ********************************** voice: 612-626-8726 fax: 612-625-2011 bits: burkx006@umn.edu
burkx006@umn.edu wrote:
On Mar 12 2007, Charlie Lowe wrote:
It is not clear that the hash is a derivative work. Tasini and several other cases suggest that it is not a "copy" under the statute, that is, that it is not a fixation of the students' work of authorship. US courts are divided on whether a derivative work needs to be a copy or not.
My guess is that it is not a derivative work because it does not incorporate the students' original expression.
This is an interesting question in this particular case (interesting to me anyway :) because what you are saying is that the hash itself does not incorporate th students' original expression. The problem that I have with this logic is separating the hash function from the output of the system. If I put this into turnitin.com: Perhaps the most obvious theory that hypertext embodies and makes explicit is Julia Kristeva's (1986) notions of intertextuality: Kristeva, influenced by the work of Bakhtin, charts a three-dimensional textual space whose three "coordinates of dialogue" are the writing subject, the addressee (or ideal reader), and exterior texts; she describes this textual space as intersecting planes which have horizontal and vertical axes ... The result I get is this: Perhaps the most obvious theory that hypertext embodies and makes explicit is Julia Kristeva's (1986) notions of intertextuality: Kristeva, influenced by the work of Bakhtin, charts a three-dimensional textual space whose three "coordinates of dialogue" are the writing subject, the addressee (or ideal reader), and exterior texts; she describes this textual space as intersecting planes which have horizontal and vertical axes ... with a notice that all of the text matches. Well, huh, looks like exactly the original expression to me. I should note that this chunk of text is from an essay I published in an online journal in 1996, so the text itself is a lot more public than a student paper. But nonetheless, I hold the copyright to this text and I certainly was never asked permission for its inclusion in the turnitin.com database (although I can see how this would in fact be considered fair use -- the point here is that the output of the hash matches the input (the students' papers, or in this case, the works scraped from the web). So only if the system isn't actually used will you be able to claim that the storage function does not represent a derivative work. (If I put the whole essay I wrote in, I get the whole essay back out as matching...and it's in the same order/structure as the original). Of course, now I want to go review Tasini and see how whether the storage and output have been conflated or are seen as separate functions... Doug
On Mar 12 2007, Douglas Eyman wrote:
This is an interesting question in this particular case (interesting to me anyway :) because what you are saying is that the hash itself does not incorporate th students' original expression. The problem that I have with this logic is separating the hash function from the output of the system.
If I put this into turnitin.com:
Perhaps the most obvious theory that hypertext embodies and makes explicit is Julia Kristeva's (1986) notions of intertextuality: Kristeva, influenced by the work of Bakhtin, charts a three-dimensional textual space whose three "coordinates of dialogue" are the writing subject, the addressee (or ideal reader), and exterior texts; she describes this textual space as intersecting planes which have horizontal and vertical axes ...
The result I get is this:
Perhaps the most obvious theory that hypertext embodies and makes explicit is Julia Kristeva's (1986) notions of intertextuality: Kristeva, influenced by the work of Bakhtin, charts a three-dimensional textual space whose three "coordinates of dialogue" are the writing subject, the addressee (or ideal reader), and exterior texts; she describes this textual space as intersecting planes which have horizontal and vertical axes ...
with a notice that all of the text matches. Well, huh, looks like exactly the original expression to me.
First of all, "original expression" is a term of art in copyright. I wasn't talking about the "original expression" in the colloquial sense. I was talking about expression that orginates with an author, i.e., copyrightable expression. But in any event: yes, you get out of Turnitin something identical to what you put in. But that text is not (as far as we know) what is being stored in their database. They are storing an alphanumeric string that looks quite different. Tasini and Matthew Bender appear to say that the ability to re-assemble text into its original format is not relevant to the question of copying. What is relevant is what is actually on the disc or memory device. That result is not entirely compatible with some of the early digital memory cases (like Williams Electronics). But it seems to mean that storing data about a work is not a copy, while storing the actual digitized work is. How you differentiate *storing instructions for making a copy* from *storing a copy*, is, as a matter of machine function, a bit of a mystery to me. But that is a result of a lot of mistakes the courts made in the early 1980s, and there's probably not a whole lot we can do about it now. DLB -- Dan L. Burk Oppenheimer, Wolff & Donnelly Professor University of Minnesota Law School 229 19th Avenue South Minneapolis, MN 55455 ********************************** voice: 612-626-8726 fax: 612-625-2011 bits: burkx006@umn.edu
participants (10)
-
Alexis Turner -
burkx006＠umn.edu -
Charlie Lowe -
Denise N. Rall -
Douglas Eyman -
elw＠stderr.org -
Hugemusic -
James Whyte -
Mark Warschauer -
Michael Zimmer