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?