We’re Not The ©ops – Copyright, “Compliance” and Communications

A few weeks ago I led a session at the annual Enhancing Quality Staff conference, which is aimed at library staff members from around the Twin Cities who are not formally “librarians”. I’ve found the participants at this conference uniquely willing to engage in dialogue with me and with one another, so it’s a really special opportunity to try new approaches and cover new topics. This year, I presented a not-new topic in a new-ish format. Participants asked for slides, but those alone don’t cover the full breadth of the discussion – so here’s an attempt at that.

As always, I am a lawyer, but I’m not -your- lawyer, and this is not legal advice. Even more than usual, this is not legal advice. This is TOTALLY BIASED ADVOCACY.

text slide: institutional "compliance"
Institutional “compliance”

What does institutional “compliance” mean to you? In many institutional/organizational settings, a “compliance” officer is someone who is responsible for making sure the organization complies with all applicable rules, regulations, and policies. The idea of compliance is pretty closely tied to the idea of risk reduction; compliance officers try to make sure the organization doesn’t run the risk of violating any applicable rules.

Photo of a policewoman directing traffic in the rain, with police cars and a fire truck behind her
Traffic cop

For example, at the University of Minnesota, the Compliance Office tries to make sure people are following laws and regulations around food safety, research ethics, student finances, travel and procurement regulations… and copyright. But unlike some other areas of law and regulation, there are a lot of judgment calls and grey areas in copyright. On possible approach to risk management around copyright is to try to ensure library users never do anything remotely risky or unclear. But I advocate for a different approach.

Text slide: allowing users to exercise their own judgment
Allowing users to exercise their own judgment

“Really??? Just letting people -do- stuff? Isn’t that…”

Image of hands held under running water with text, 'abdicating responsibilities?'
Abdicating responsibilities?

Okay, so first, a basic legal principle:

Text slide: Basic principle of liability: independent actors are independently responsible for their independent actions
independent actors are independently responsible for their independent actions

We don’t try to make sure our library users are following the law in a lot of other areas: for example, most libraries tolerate (or even embrace) a wide variety of approaches to personal interactions among users in our spaces. Obviously, there are some times when law or ethics may compel you intervene in the actions of another – for example, most library staff members would intervene (or might even be legally compelled to intervene) if a parent or guardian became physically abusive with a child in one of our libraries. But much of the time, it’s a -bad- idea to try to control other people’s behavior. It can -create- liability where none would otherwise exist. For example: many libraries might have a policy that states that only certain staff members can or should intervene in a physical altercation between adults in the library – both for staff safety, and to limit organizational liability.

So, what am I saying about copyright, here?

Text slide: Let people make copies without getting permission or paying? ENCOURAGE THAT??
Let people make copies without getting permission or paying?

That doesn’t just sound like staying out of a situation where a staff member might get hurt, or that might expose the organization to liability. That sounds…

photo of brownish tabby cat sneaking along the top of a fence or wall. Text: sneaky

That sounds…

Photo of macaque monkey crouched to the side of a wall, peering over with one paw on the wall. Text: SHADY

That sounds…

Close up photo of small child's face, the child is directing its eyes sideways, as if suspicious
downright unethical

Okay. You want to talk ethics?

“IV. We respect intellectual property rights and advocate balance between the interests of information users and rights holders.”
ALA Code of Ethics

Is a teacher reading a book aloud to her class “respecting” copyright? What does it mean to “respect” copyrights?

Photo of teacher in a classroom holding a book up as she stands before her 4th-or-5th-grade-sized students at their desks
Teacher “respecting” copyright?

(At this point in the EQS session, we broke into small groups, to discuss the question. The following photo shows the wide variety of things people talked about in their small groups:)

photo of whiteboard, transcribed below
Respect (IP) brainstorming

The discussion was wide-ranging. Groups reported back that they had discussed:

  • whose rights are we respecting? Creators’, or publishers’?
  • citing sources
  • personal/individual use
  • sourcing things online
  • copying library CDs when you have spent $100s on tickets and artist merchandise
  • due diligence vs cutting losses (i.e., how much resources to devote to things like rights clearance, especially of materials where no final answer can ever be found?)

Obviously, a crew of deep, considerate, and critical thinkers. But let’s go back to the teacher reading to students example. Is she respecting copyrights if she reads to them without payment or permission?

“… the following are not infringements of copyright: (1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction...”
17 USC § 110(1) – the Classroom Use Exemption

Or would she be DISrespecting copyright, if she paid or asked permission – since there’s an explicit provision in the law authorizing nonprofit in-class performance or display?

What about other exceptions that explicitly authorize certain kinds of uses? Is it “respecting” copyright to seek permission or pay to do things that are authorized by law? Lots of people don’t know about the provisions that explicitly authorize certain uses by religious groups, or at horticultural fairs. (17 USC § 110(3) and (6), respectively!)

Is it “respecting” copyright to try to get permission for use of public domain materials?

Line drawing of woman's head and shoulders, on old discolored paper
Da Vinci’s “Cleopatra” drawing

Is it “respecting” copyright to try to hide that something is in the public domain, in order to tell people they need to seek your permission, or pay you to use it?

And what about fair use? Fair use is a flexible area of law – but it can also be characterized as uncertain.

Jello mold on a plate, the bottom half is opaque and cream-colored, with embedded bits of other food; the top layer is clear green jello
Fair use: the jello of copyright law.

If we want to “respect” copyright law, can we do so by relying on that squiggly fair use? Courts have said that copying from unpublished memoirs in a newspaper was NOT fair use, but copying from unpublished letters and journal entries for a biography was fair use. Sampling a single note in a commercial recording was NOT fair use, but 2 Live Crew commercially releasing their own version of Roy Orbison’s “Pretty Woman” against the express wishes of the Orbison estate was fair use.

Well, however squiggly it is, fair use is part of copyright law. And the law says that fair use is “not an infringement of copyright.” There are also some other pieces of the ALA Code of Ethics that might be worth a visit, here.

VI. We do not advance private interests at the expense of library users, colleagues, or our employing institutions.”
ALA Code of Ethics

Copyright law should not expand the rights of copyright holders without sufficiently considering or benefitting the public interest. When the balance between rights holders and information users needs to be restored, librarians should engage with rights holders and legislators and advocate on behalf of their users and user rights.”
Copyright: An Interpretation of the Code of Ethics
Adopted by ALA Council on July 1, 2014

If we decide that fair use is too squiggly for us to handle, are we putting a private interest ahead of that of our users? Are we abdicating our role as advocates for the public interest in copyright?

Respecting the law, and complying with it, may sometimes involve not seeking permission, not seeking to pay – and even, sometimes, pushing on where the “boundaries” of squiggly fair use are perceived to be. Respecting copyright by making use of the -exceptions- to the ownership rights it creates can produce great public benefit.

Family snapshots laid out across a computer keyboard, with a scanned image from another snapshot visible on the computer monitor

The law already recognizes the public’s interest around copyright in a lot of ways (as in the exceptions outlined above.) There are also exceptions specifically for libraries, in 17 USC § 108. We can do a lot, if we stick to those!

But the provisions of section 108 are not the only copyright exceptions applicable to libraries, and we can do even more things, if we make use of all the public-interest provisions of the law.

Screenshot of the Hathi Trust Digital Library website, with caption Authors Guild v Hathi Trust
Authors Guild v. Hathi Trust

The Hathi Trust Digital Library (which involves many different partner organizations, but for which the University of Michigan bears primary organizational responsibility), took on a variety of projects to build on the books scanned via the Google Books project. Hathi has invested more in researching the public domain status of the works, done more to make them accessible to users with print disabilities, and done more to make them searchable and usable for researchers. They did all this knowing that others disagreed on whether their activities were fair use, and knowing they would likely have to go to court to defend their actions. But when they did go to court, the judges agreed with them.

I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants.”- AG v. Hathi District court opinion

Now we -all- know more about what kinds of uses are fair uses.

But aren’t ©OPS Good Sometimes?

I confess, when I first met people who wanted me to help them police and control their library users around copyright, I couldn’t understand it. Most of the folks asking for help along those lines didn’t seem like power-tripping control freaks. Eventually, I realized they really did have a deeply service-oriented goal.

Same image of policewoman directing traffic as above, with a text overlay - "I need to help people understand what they can and can't do."
“I need to help people understand what they can and can’t do.”

At least some of them were concerned with -preventing their users from getting into legal trouble-. On the other hand, some of them had a different orientation to communicating about copyright with users.

Photo of two hands holding up a andwritten sign that says "I am totally okay with you violating copyright by ripping our CDs & DVDs... and might show you how"
I am totally okay with you violating copyright by ripping our CDs & DVDs… and might show you how http://librarian-shaming.tumblr.com/post/63012809025

This attitude also bugs me a little – not just the encouragement to break the law – but much more so, the absolute failure to recognize that library users may be legally allowed to do these things. This person actually has the same misunderstanding of copyright as those who want to tell users “No” a million times, just a different follow-on action. Whereas I can think of a close-to-infinite list of at least plausibly fair uses: ripping in service of a use covered by the Classroom Use Exemption; ripping to make a mashup song; ripping to make a remix video; ripping for computational analysis…

But these ideas that copyright has a clear right-and-wrong are pretty sticky. A lot of people feel that even legally permitted copying is a little bit “wrong” most of the time. And just learning more about copyright doesn’t always shift those beliefs. The way that organizations often communicate about copyright to their constituents may reinforce that feeling that copying is a “wrong” action.

Notice from an Office Depot copier: COPYRIGHT INFRINGEMENT is Punishable by Fine and Imprisonment (and much more very small print)
Office Depot copier warning

What might a library communication that’s not aimed at “compliance” – that admits that “compliance” is a fraught question in relation to a law that both outlines rights for owners -and- exceptions to all of those rights – look like?

Public sign that says: the law requires that we tell you this (outlines copyright rights of owners); the law does not require that we tell you this (outlines rights of users) Learn More - Know Your Copyrights
Copyright information from the University of Michigan

An underlying consideration that I think is essential to considering how much effort libraries should expend towards “compliance” with copyright laws: users who have their own homes to go to, with their own technologies to play around with, and their own internet connections to send and receive through, get to make their own decisions about how they use any materials they check out of our libraries. We can help them to make informed choices about their actions through outreach and education programs, but ultimately, placing “compliance”-oriented limits on what can be done in the library, is just limiting in-library users.

Or, in an alternate view, is…

text slide: differentially censoring individuals without independent technology access
differentially censoring individuals without independent technology access

This kid was always going to be able to make his own cover-song videos and post them online, and reap the benefits of that, because he and his mom had the necessary tools & technologies at home.

still of a video of Justin Bieber, about age 11, playing an acoustic guitar
A Very Young Justin Bieber

But do you want your library to be the place that told these kids they couldn’t make an original song and video about their favorite snack foods, and reap the benefits of -their- subsequent popularity, because trademark law might not permit it?

Slide Image Credits
Policewoman: Talk to the hand CC by-nc-nd Tom Fassbender
Hands in water: Washing hands CC BY-NC-ND SCA Svenska Cellulosa Aktiebolaget
Cat: Sneaking cat CC BY Hans Pama
Macaque: Sneaky beggar CC by-nd Kevin Botto
Shady toddler: Sneaky Eyes CC by-nd Big D2112
Teacher: Reading Aloud to Children CC by-nc-sa Judy Baxter/OldShoeWoman
Jello: Under the Sea Jell-O Mold CC by Carol at puresugar.net
Office Depot copier warning photo: Office Despot copyright warning CC by-sa Cory Doctorow
Digitization: Working on old photos CC by-nc-nd Vermegrigio

Copyright Report, Vol. 5

Googacle (Oracle America, Inc. v. Google, Inc.)
This long-running case has previously touched on issues of copyrightability of APIs, on 5/25, a jury found that Google’s use of them was fair use.

Star Trek fan film (Axanar)

Academic/Higher-ed news/info

General copyright news/info

Techlaw news/info

Just Awesome

  • RT @Lin_Manuel: “…and no one shall make them afraid.
    They’ll be safe in this nation we’ve made.”
    An honor to sing for you tonight.
    (Gabrielle Giffords & astronaut husband Scott Kelly at Hamilton
  • PLos crow video

    Open science research video: a crow that understands fluid volume. (Gets good after 1:02) Yay @PLOS!

Does [X] ‘count’ as published?

To a copyright lawyer, this question sounds like it’s probably about one of two things: was some work ‘published’ for the purposes of fair use analysis, or was the work ‘published’ for the purposes of public domain status determination. (It is often more likely to be fair use to copy from published material, and there are TONS of different ways in which the act of publication (and its date, if it occurred) affect the public domain status of a work. Go look at Peter Hirtle’s magic headache chart, if you’re curious about that.)


engraving/drawing of of students using printing press in the late 1800s
Does my student newspaper article
count as “published”?
(Image from 1869 “Catalog of the Hampton Normal and Agricultural Institute)

Students and recent graduates often ask things like, “Does my thesis count as published?” Other authors of academic content may ask similar questions such as whether a blog post or pre-print ‘counts as published’. The issue underlying these questions is that many academic journals (and most publishers of other academic content) have a policy of only accepting work that has not been previously published. Many journals also require that authors not submit their work for possible publication at more than one publication simultaneously. There is a premium placed on “newness” and “originality” of publications in academia.

I was aware of this as a general consideration in academic publishing when I first started in my current position, so I wasn’t surprised that authors had “does this count as published?” questions that were not really copyright-related at all. But I -was- surprised when I first encountered a journal editor who asked -me-, “Now, what are the rules about what’s not eligible because it’s been published?” Turns out a lot of academics think ‘what counts as published’ is a universal and externally-applied rule. Fact is, it’s an internally-created rule, has almost nothing to do with copyright, and even publications that phrase their “originality” requirements the same way may have different interpretations of what ‘counts’ as published in such a way as to disqualify it for submission to the journal.

Most journals and/or publishers, however, do have a public webpage with some information about what they consider as disqualifying prior publications. Authors may not realize they can look there, but it often answers the question readily.

Submission of an article implies that the work described has not been published previously (except in the form of an abstract or as part of a published lecture or academic thesis or as an electronic preprint, see ‘Multiple, redundant or concurrent publication’ section of our ethics policy for more information), that it is not under consideration for publication elsewhere, that its publication is approved by all authors and tacitly or explicitly by the responsible authorities where the work was carried out, and that, if accepted, it will not be published elsewhere in the same form…”
Example of publisher information, from the journal “Biology of Blood and Marrow Transplantation

Sometimes, the publisher site will refer to a disciplinary standard on the issue – and it is quite interesting to note that there are variations on the issue between disciplines! Some consider a conference paper disqualifying, and some don’t! The standards are evolving actively right now in many disciplines, as they consider how they want to handle “pre-print” servers (physics and CS has had arXiv for forever, but many other disciplines are only starting to explore this kind of research distribution.)

Important to note: Many journals/publishers do not consider thesis or dissertation ‘publication’ to disqualify a work for submission! Sometimes that’s explicitly stated in their author information (as above.) Sometimes it’s not in their author information, but they still don’t think it’s disqualified! So if an author is concerned a student work may be disqualified because of ‘publication’, and the public information doesn’t address that, it’s never a bad idea to ask an editor or other publication staff.

In general, if an author is not sure if their work ‘counts’ as published in such a way as to disqualify it for submission to another academic publication, it doesn’t usually hurt to ask!

Graffiti that says, in French, "Initially, I had an idea for my first tag... sorry"
Does graffiti count as “published”?
Image “Pardon” CC BY Môsieur J. [version 9.1]

Copyright Report, vol. 4

Georgia State University (Cambridge University Press et al v. Patton/Becker)
April 01, 2016 – not an April Fool’s prank: District Court issued remand opinion in Georgia State case; down to 4 infringing uses; GSU held to be prevailing party.

Google Books (Authors’ Guild v. Google)
April 18, 2016 – Supreme Court denies certiorari in the Google Books case; 2nd Circuit decision stands.

Higher-ed and academic-focused news/info:

General copyright news/info

Tech news/info

Supreme Court Denies Cert in Authors Guild v. Google

Scanning books in order to make them searchable is fair use. (The Author’s Guild asked the Supreme Court to review the previous court’s opinions that Google Books’ scanning project is fair use, the Supreme Court decided not to hear the appeal (‘denied cert (certiorari)’), and that means the Second Circuit’s opinion on the case stands.)

This morning’s Supreme Court order list (PDF)

This case began shortly before I started law school, and has been an undercurrent throughout my legal career. It’s probably not -entirely- over at this point; Google may still ask for attorneys’ fees, for instance! However, it’s fascinating to reflect on this outcome from a lens of where we were about six years ago, when Jonathan Band and Tricia Donovan put out the “Google Books Settlement March Madness flowchart” (original here) for the Library Copyright Alliance.

I’ve (VERY roughly) highlighted where we seem to have ended up, from among the massive web of paths posited then:

Complex flowchart entitled GBS March Madness: Paths Forward for the Google Book Settlement - actual path taken from litigation through appeal is highlighted
Click to embiggen

Who knew? This is a pretty great outcome for libraries and the public. A lot of those other paths would’ve been even longer, and with less-clear outcomes.

Update: the Library Copyright Alliance have updated their ongoing “family tree” of the case to reflect today’s cert denial. It’s a great way to see the full process as it actually played out, as compared to in the nest of hypotheticals above.

UMN Copyright Report, #3

Trying a blog-based option for better readability..


“Dancing Baby” Appeals Court Decision Stands Minus the “Fair Use” Algorithms – Hollywood Reporter
Court revises its opinion, but confirms earlier decision that rightsholders must consider fair use before issuing takedown notices
fairuse takedowns DMCA UMNCrpt003

The Monkey Selfie Monkey just filed an appeal – Motherboard.com

publicdomain litigation UMNCrpt003

Court rules copyright is infringed by 8 second video clips – TechnoLlama

Detailed analysis of -European- court ruling that copyright is infringed by 8 second video clips
video europe fairdealing UMNCrpt003

Does fair use knowledge change creative behavior?

Presentation by on how fair use changes behavior, empirical research on success of the best practices
fairuse UMNCrpt003

International and Comparative User Rights in the Digital Economy – Program on Information Justice and Intellectual Property

Recorded video and links to research papers from this American University law school event.
legalscholarship UMNCrpt003

Other Intellectual Property and Techlaw

Direct link to PDF of CA state appellate opinion invalidating “browsewrap” licenses
First? California appellate ruling on validity of “browsewrap” Terms of Use. Invalid. Court provides guidance. [pdf]
licensing litigation ofinterest

For what its worth, many 1st amendment experts see little threat to press freedom from Hulk/Gawker verdict

NYT analysis of the Hulk Hogan/Gawker ruling
1AM ofinterest UMNCrpt003

If the FBI Is So Worried About Car Hacking, Why Is It Fighting Encryption? | Motherboard

If the FBI Is So Worried About Car Hacking, Why Is It Fighting Encryption? via privacy security crypto federal UMNCrpt003

More on the fight over a vendor trademarking site names in Yosemite Nat’l Park

U.S. steps up fight over Yosemite names, takes fight to TTAB via TM ofinterest UMNCrpt003

Non-legal Techie Info

Open Source Photogrammetry: Ditching 123D Catch – We Did Stuff
Interesting post showcasing wide variety of open-source software alternatives that build 3D models from photos. 3Dscanning opensource ofinterest UMNCrpt003

WowSuchJake on Twitter

The only correct way to actually store passwords. – privacy security users libraries ofinterest UMNCrpt003

Research Life

AllTrials – American Medical Association joins AllTrials
The American Medical Association just signed up to AllTrials, a project to increase transparency around clinical trials.
researchsharing researchethics researchpractices UMNCrpt003

Author Services Sharing your work

Nancy’s twitter comments: If you must go w/ toll-access publisher, Taylor&Francis does a good job explaining their preset options for sharing
researchsharing openaccess publisherinfo UMNCrpt003

new skills, same as the old skills | Feral Librarian

Chris Bourg, of the MIT Libraries, on what is -not- changing about librarianship
libraries librarians UMNCrpt003

Sick of Impact Factors | Reciprocal Space

British researcher’s thorough review of the problems with impact factors. (Post from 2012, shared at recent open access conference.)
researchsharing researchpractices scholarsaboutscholarship UMNCrpt003

Just Neato

DPLA Primary Source Sets
We’re meeting with our Education Advisory Committee this weekend—their primary source sets have been a big hit:
ofinterest UMNCrpt003 DPLA

CopyrightLibn on Twitter

Minnesotans are just inherently socialists, I think.
UMNLibraries ofinterest UMNCrpt003

Siva Vaidhyanathan on Twitter

The First Lady, the Queen, and Ms. Misdemeanor enjoy a moment at UMNCrpt003 justawesome ofinterest

© enforcement/compliance is not the right mindset for libraries

I got a question from a libraryperson recently, about user activities that had never occurred to me as copyright concerns before. This spurred some thoughts, also connected to some talks I have given about how libraries can support our users with respect to copyright.

To be clear, this wasn’t a situation where I wasn’t sure if this copyright-implicating activity was permitted. This was an activity -I was not sure actually touched on any of the rights of a copyright holder-. Since I can’t give legal advice, I did not offer a final opinion. (Offering one publicly here would still be inappropriate because the questioner may be able to identify themself in this description.)

It’s also worth noting here that “actively gives you info that they’re going to infringe” requires -knowing which activities are unquestionably infringing. There are VERY FEW of those. (“I am ripping these DVDs to sell copies on the street” = pretty unquestionably infringing. “I am ripping these DVDs to make remix videos” = quite possibly legal. “I am ripping these DVDs” = not enough information to know anything!) Many of the enforce-y questions libraryfolk send my way are based on the idea that “infringing” is easily defined and easily avoided, and that any uncertainty on either front is a sign of some sort of moral failing.

My questioner’s creative copyright thinking was, on it’s own, a good thing! We should think creatively or speculatively about possible copyright infringement theories, because it’s good to try to anticipate problems. But creative anticipation of copyright problems -in conjunction with- an abundance of caution is not a good thing. We shouldn’t be doing the content industry’s work for them, especially when it comes to users, some of whom -only have access to content, connectivity, and technology- through us.

Second Circuit issued opinion in Google Books case!

I am supposed to be taking a vacation day to get things done around the house today. Which means I’m motivated to share info about the case, but too lazy to do a full post. Time to set up a Storify account!

Plagiarism-detection software harms students

Students are often not terribly clear about what constitutes plagiarism. You may chalk this up to inadequate instruction in high school or first-year undergraduate writing classes. But I’ll let you in on a secret: academics, in general, are not always clear about what constitutes plagiarism. Despite this real-world lack of clarity, plagiarism-detection software often presents itself as providing clear and concrete answers about plagiarism. Recently, I met a student who was unkindly caught up in the confluence of these rough waters.

Muddier than we think

Sure, most folks in the academic world agree with a roughly-sketched definition of plagiarism as “passing off someone else’s ideas as your own” or “using someone else’s work without proper credit”. But when you get into the details of what “passing off” or “proper credit” are, academic disciplines, communities of work or practice, and cultures and subcultures rapidly diverge. The cite-for-every-factual-statement-or-reference-and-then-cite-some-more practices of legal academia would be distasteful to researchers in many scientific disciplines, in which it is usually accepted that you do not have to provide citations for commonly understood facts and basic ideas. And while academics in the US and many other countries valorize original compositions, some cultures encourage copying from ones predecessors as a form of demonstrating competence within a field.

When I encourage a roomful of academics to consider the ethics of Roy Lichtenstein’s copying of comic-book panels, the tenor of the discussion often turns on whether there are any fine arts faculty members in the room. (Very generally speaking, fine artists are more in favor of his kind of copying than folks in other disciplines.)

And I can’t begin to count the amount of minutes I’ve spent explaining to senior faculty members, K-12 teachers, graduate students, undergraduates, librarians of every stripe, and many more people, that in the U.S. legal system, there is no legal cause of action for plagiarism; and that plagiarism is an entirely distinct issue from copyright. (You can infringe copyrights without plagiarizing, and plagiarize without infringing.)

Detection software – a questionable solution

Into this world of confusion that people don’t seem to know they’re confused about, enter the Internet (which supposedly makes plagiarism tons easier than before), high teaching loads (and increasingly reliance on underpaid adjuncts), and greater emphasis on writing-enriched college curricula. I get why plagiarism-detection software -exists-, I just don’t think it’s helping as much as people think it does. A number of other folks have written great critiques of this kind of software on a number of points. I’ve always worried about false positives (but trusted that thoughtful instructors would probably control for that), about the false sense of security it may be giving (false negatives), the costs to campuses, and most importantly about the semi-extortionate practice of requiring students to hand over their intellectual property to a system that will use it against them and their peers.

So I’ve had my concerns about this software for a while, but more recently I’ve been aware that many of the major plagiarism-detection services have started marketing separately direct to students. This strikes me as something institutional subscribers should be -very- concerned about: this is double-dipping, and it’s encouraging an arms race between different market segments for plagiarism-detection.

Adding up to a stressed-out student

Recently I encountered a student with some plagiarism-detection problems I hadn’t seen before. First, he was using a plagiarism-detecting software of his own volition, before submitting a piece of writing. He ran his work through Grammarly, and received a report of “matches”; content that might be plagiarized. I’m not entirely certain how the software framed this, whether it was presented as instances of plagiarism or as simply matches to existing content, but from the student’s seeming level of anxiety, I suspect the former. Concerningly, he had to pay the software provider to learn what these supposed matches were. (I think the initial submission may have been free, but do not know whether they retained his paper for future submissions to be matched against.)

Once he had paid, the matches that they revealed to him were extremely generic pieces of academic-ese prose, from sources he had never read or even heard of, in disciplines entirely unrelated to his work. Although I have his permission to talk about his experience, I don’t want to quote the specific phrases, because they might identify him to Grammarly. They were along the lines of these examples: “results illustrate these and other basic principles of” or “our methods were both efficient and reproducible, as evidenced by” (roughly this length and style of content.) While I literally just made up those examples, I wouldn’t be surprised if they matched in a search against a large database of writing samples.

Again, I don’t know that these were presented as definitely plagiarised, but the student was deeply concerned about how to deal with the situation, while seeming otherwise a pretty well-informed and level-headed person. I suggested he could talk about it with an academic advisor if he had ongoing concerns about whether he might get in trouble for copying language from sources he hadn’t read. Hopefully, an advisor would agree that this is not actually an issue.

You may find the student’s confusion and concern evidence of a poor understanding of what constitutes plagiarism, but I find it pretty understandable. First, as I said above, a lot of students (even graduate students, as he was) are still a bit unclear on plagiarism, and matches like these may confuse further. But it’s also understandable even if he does fully understand that he can’t have plagiarised from sources he never read: he does not know whether his work will be run through other plagiarism detection software, or whether those evaluating his work will be able to recognize a false positive.

This student suffered actual harm: financial harm from the highly-questionable business practice of identifying “matches” and then charging users to see what the matches are. (I would be less concerned if Grammarly had charged entirely up-front, or if the first couple of matches had been identifiable for free, so the student could have seen they were false positives without paying.) But there’s also a more nebulous harm, someone made him nervous enough to want to know the content of the “matches” the software had identified, and to be unsure how to proceed when the matches were from works he hadn’t consulted. While I think there are other factors contributing there, I’m pretty sure that the existence and use of plagiarism-detection software (and the way that software is marketed and sold) is undermining students’ confidence in their own work, and creating legitimate concerns for them as to how it will be received by evaluators.

Proquest/SIPX Copyright Resource reviewed

I received multiple email forwards this morning about a “New Complimentary Copyright Guide for Libraries and Instructors” from SIPX. A couple of those forwards included a suggestion that I review. So, here’s a review:

This resource is 100% accurate.

It is nicely formatted.

It is also really boring.

The basic information it contains is:
1)  You don’t always have to pay, to be in compliance with copyright laws. You may already have the right to use the resource via a license, fair use or fair dealing may apply, or you may need to seek permission and it may involve payment.
2)  Works that don’t display a © are not free of copyrights.
3)  Works that are freely available online are not free of copyrights.
[4) SIPX has products that may help with workflows related to these issues.]

I sincerely hope that anyone with copyright as a major part of their job duties already knew all of those things. I’m fairly certain most library staff members already knew all of those things. Except 4. 4 is a good thing to know, I guess, if you’re looking for those kinds of products, but it’s not quite as essential as 1-3.

Also worth noting, this resource is only available after you’ve disclosed extensive information about yourself and your institution via a registration form. SIPX thinks that this information might be of value for people to talk about more broadly (it might!), and says they plan to share anonymized versions of the info later on. This information is also probably pretty useful to their marketing efforts. In fact, it is probably slightly more useful for their marketing than for the broader campus/library copyright-related communities.

Considering this as a transaction between you and SIPX, you’re giving information of value about yourself (I’ll concede, potentially of real value to the community, as well as of real value to SIPX), in exchange for something of pretty minimal value, copyright-information-wise. You can draw your own determinations about whether that transaction is one you want to make.