Reflections On Copyright Law

I’ve been having a bit of a disagreement with theobromophile at her blog Helvidius, a Pachyderm over the lawsuit filed by students of Mclean High School against an anti-plagiarism service.

The anti-plagiarism service, which works by archiving millions of papers, is used by teachers to check students’ work for cheating. The students claim that having their work archived without permission is copyright infringement. For these kids to win $900,000 in damages simply because a teacher wanted to make sure they weren’t cheating would strike me as an absurd outcome in the absence of any real damage done, but the ruling could very well come down in their favor. However, I am less interested in the legal arguments of this particular case than in how our copyright law ought to look.

In the spirit of freedom of expression, the law recognizes exceptions in which the use of copyrighted material without permission from the copyright holder can be considered fair use. One of the questions asked in determining if the exception applies is whether or not the copyrighted material has been used for profit, as is indisputably the case with this anti-plagiarism service.

Our knee-jerk reaction when we hear of copyrighted material being used for the financial gain of others is condemnatory. And with good reason. We assume that the party using the copyrighted material without permission will take for themselves the profit that rightfully belongs to the one who originally developed the material. Besides being harmful to the interests of the original author, such a practice were it to be condoned would have harmful repercussions for society in that the incentive to create original work would be diminished for all.

Now I ask this:
Is the above reasoning applicable to a company which turns a profit by archiving copyrighted material for use in providing a service that combats cheating? Is the archiving of material in itself damaging to the copyright holders?

I don’t think so. The use to which these materials are given is completely irrelevant to their actual content. So long as the company is prohibited from using or distributing the materials beyond the scope of the service they provide, the students are in no way denied whatever gains they might some day accrue for creating the work. In short, this is not a zero-sum situation in which one party can only benefit by causing harm to the other. Because of that, I find opinions to the effect that “the company is making $ off the work of others” misleading. Sure they are. Is it such a terrible thing?

While we consider possible harm we should also consider possible benefits. (and there is legal precedent for weighing the social utility of the purpose for which the copyrighted material is used, by the way) I won’t go into the details of how the widespread problem of cheating has spread wider with the increase in usage of the internet, or of the testimonies teachers give to the effect that the anti-cheating services perform a service which they cannot efficiently do on their own. Advocates of the students’ position quickly dismiss these benefits, but suffice to say that benefits do exist.

Rights are useful legal constructs, but only to the extent that the reasoning behind them serves a desirable end. Must we define our copyright law so tightly as to protect rights simply for the sake of protecting rights? Am I totally off-base here?

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16 responses to “Reflections On Copyright Law

  1. Very insightful post, and well argued.
    What’s theobromophile saying?

  2. She would rather see the anti-plagiarism service go out of business than see them archive students’ work without permission. You can take a look over at her blog where she articulates her position.

  3. That’s a blatant lie, dahlin! 😉

    I would rather see the anti-plagerism COMPANY (service making it seem as it its primary function is the public good, not its own profit) figure out a way to conduct its operations in a lawful manner.

    Our copyright laws simply do not state that “public good” is an exception to infringement, nor that infringement must produce immediate economic harm.

    Students are not the most sympathetic of plaintiffs, and anti-plagerism “services” are the most sympathetic of defendants. Nevertheless, the fact remains that people who invested time and energy into their work are being deprived of their copyright (which, by definition, is control over its dissemination). Sympathy for one side is a lousy way to decide a case or make law: such is the foundation of discrimation and legislation of morality.

  4. EDIT: “…that infringment must produce an immediate economic harm in order to be actionable.”

  5. PS. A judge gets to decide how much the copyright infringement is worth. There are two types of remedies: injunctions and damages. If there is no economic harm, there are no damages, but the students will still win their suit: the company can be enjoined from continuing its unlawful work.

  6. C’mon now. My ISP is a company whose primary interest is to make money, but we still call it a service. We call lots of commercial enterprises services. You’re nitpicking.

    Also, I never stated that our copyright laws require that infringement produce immediate economic harm to be actionable. I’m not sure where you got the idea that I did.

    As for public good, let’s remember that public good is the whole reason we have copyright laws in the first place! Really. Anyway, mine was never a judicial argument but a legislative one. I thought I had made that clear.

    I looked over at your blog today and I see you are misrepresenting my position all over again. Not only do I think students are lousy cheats who deserve no protection, I’m against the rule of law and for anarchy. That’s a first for me. Nice 🙂

  7. Sympathy for one side is a lousy way to decide a case or make law: such is the foundation of discrimation and legislation of morality.

    What are you talking about? ALL law serves the purpose of legislating morality.

  8. By your own words, you claim that a lawsuit is the best tactic for cheating students.

    Law does not legislate morality; it allows us to live together. Is it moral to abandon your parents if you can afford to help them survive? No, but the law lets you do it. Is it moral to give your baby up for adoption instead of raising it yourself? Arguably, no, but the law lets you do it.

    I’m talking about the fact that you want (or seem to champion) different laws for students and for the rest of the world. As a 25-year-old who invests significant time in academic pursuits, I find this to be offensive.

    UCLA has a law school. Why not cite one of their professors? 🙂 Why not actually quote a guy who doesn’t mis-quote the Constitution?

    If that’s who you’re citing, I think I’ve won. Art. I, Sec. 8, Cl. 8 states, in its entirety: “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Nothing about the public good.

    I cited US copyright law on my blog. Try reading it. My position will start to make a lot more sense, which is that the company violated copyright law at the time of the infringement and the students are entitled to injunctive relief and damages as appropriate. Of course, you enjoy misrepresenting that, don’t you?

  9. I would insist that law does legislate morality. Every single law serves the purposes of enforcing what we as a society deem to be morally good. The absence of some law about this or that doesn’t prove otherwise.

    We decide it’s immoral for people to be murdering each other so we legislate against that. We decide it’s immoral for people to be stealing from each other so we legislate against that. We decide it’s immoral for the poor to be allowed to go hungry or thirsty, so we legislate against that. It’s not incorrect to say that the law allows us to live together because this is a moral good as well. But we digress into philosophy…

    By your own words, you claim that a lawsuit is the best tactic for cheating students.

    Nope, I never say that. I said refusing to give consent to have their paper checked and archived by the anti-plagiarism company would be an obvious course of action for a cheater to take. I never alleged that the students pushing this suit are cheaters themselves.

    I’m talking about the fact that you want (or seem to champion) different laws for students and for the rest of the world. As a 25-year-old who invests significant time in academic pursuits, I find this to be offensive.

    Well I’ve been think more along the lines of public education, and particularly public education of minors (as per the details of the case that brought the suit). There already is legal precedent for treating students differently than ordinary citizens, like when there is a conflict between individual rights and the academic goals of the institution. A private institution, of course, plays by different rules.

    “To promote the progress of science and useful arts”

    You don’t consider that a public good? Seriously?

    My position will start to make a lot more sense

    theo, your position already does make sense notwithstanding it is not my own. Is there no room for dissenting opinions? Does not agreeing with your position mean I must be misrepresenting it? Where exactly have I done this?

  10. Regarding the public good, which is where most of our disagreement lies (note that I will repeat on my own blog, with Fifth Amendment issues as well, being primarily concerned with the legal aspects of the case):

    The article you cited states that Art. I, Sec. 8 states: “The Congress shall have power …to provide for the … general welfare of the United States To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; [emphasis added]”

    This is simply untrue. The ACTUAL text says NOTHING about the public good! Frankly, I think that Prof. Besser ought to be fired for his academic dishonesty over this, but that’s just me and I get cranky when people mis-quote their sources.

    Here is the link to Art. I, Sec. 8 in its entirety:
    http://www.law.cornell.edu/constitution/constitution.articlei.html#section8

    I will not clutter the comments by posting all of it here. The relevant section merely states, “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;”

    There is NO REQUIREMENT that it be for the public good; it only need to be to promote sciences (in the odd language of the late 18th century, “useful arts” were engineering inventions and “sciences” were what we think of as arts; some of this remains, as we talk about the “art” in patent law).

    From a legal perspective, there is no requirement that a particular copyrighted work promote the public good; there is no requirement that its protection promote a good; and there is no exception for the public good. Exceptions for “fair use” (Sec. 107) are NOT for the public good, even if the public good is an incidental benefit thereof.

    Yes, we treat students differently, but we don’t have separate rules for them. Allow a clarification of a statement that makes perfect sense to a con law nerd: we curtail First Amendment freedoms for the sake of public safety; the classic example is that one may not cry “fire” in a crowded movie theatre. We apply tthe same rules to students (First Amendment freedoms unless the restriction is narrowly tailored to meet a compelling state interest); by the virtue of being in a crowded school where people are involuntarily associated with each other, students are more frequently regulated in the name of meeting a compelling state interest. That does not mean that their freedoms stop at the school doors (the Supreme Court is quite explicit about that!): the State must meet the same high burden of proof when curtailing their rights.

    As I said, my issue is that, as the law stands now, anti-plagerism internet sites ought to be shut down. They are in CLEAR violation of copyright law and, furthermore, their blatant and willful infringement ought to cost them. I also dislike laws that punish the best in our society: the students who are the most creative, original, and thoughtful stand to lose the most by losing control of their work.

    My teachers and professors would occaisonally copy my essays or tests to use as model exam answers or to add to the curriculum. They ALWAYS asked first, even when my name was removed from it. I was always happy to oblige, but would have been very put out if one of them commandeered my work without my consent.

  11. We decide it’s immoral for people to be murdering each other so we legislate against that. We decide it’s immoral for people to be stealing from each other so we legislate against that. We decide it’s immoral for the poor to be allowed to go hungry or thirsty, so we legislate against that. It’s not incorrect to say that the law allows us to live together because this is a moral good as well.

    Yes and no. You could also state that a society which allows people to kill each other will quickly degrade into anarchy (honour killings, revenge killings, blood fueds) with the strongest, not the best (however defined), on the top. Ergo, there is a social benefit to not allowing people to kill each other.

    Likewise, a society that permits stealing, larceny, rape, or any other forcible taking of bodily integrity or property is not a society that will long flourish. Therefore, legislation against it.

    As for the poor: we don’t demand that people eat and drink, and, really, meet a libertarian sometime. There’s a lot of people who don’t like tax dollars being used for charity, as such is the province of church or community centers or the like. That debate is the same debate here. I simply do not understand why you would state that we are legislating morality, as an absolute truth, when it is significantly more likely that we legislate against socially undesireable behaviour that, generally, coincides with morality. Correlation does not equal causation, and a side effect can hardly be deemed the one true reason for an action.

  12. Pingback: Copyrights and the Constitution « Helvidius, a Pachyderm

  13. Pingback: Legislating Morality « Den of Hydralisks

  14. Pingback: LIKELIHOOD OF CONFUSION » Blog Archive » Reflections on copyright law

  15. Pingback: A short and good piece of thought on the anti-plagiarism service « Korea IP Law Blog

  16. Dress it up any way you want, they’re still profiting from someone else’s work.

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