Let’s get straight the historically profound benefits of making information available online — Scribd this time.

Two days ago I wrote about the court decision holding that the video hosting service Veoh is protected by the ”safe harbor provisions” of the Digital Protection Millennium Act from liability if any of the service’s users upload videos that infringe existing copyrights. One of the reasons Veoh is entitled to those protections is that it uses adequate technological safeguards to police the content its users upload.

So I don’t expect there is much of a chance that a new lawsuit against Scribd, a web site that hosts documents uploaded by its users, will will succeed or even survive a motion to dismiss for failure to state a claim, a procedural device that ends the lawsuit at its very beginning by means of a court determination that even if everything the plaintiff alleges is true she is not entitled to legal relief. As Geek.com reports, the lawsuit alleges copyright infringement by Scribd not because it hosts copyrighted materials but because the software it uses to detect copyrighted materials before they are published on the site allegedly uses copyrighted materials:

A children’s author in Texas has leveled a strange lawsuit against the company, claiming that the company infringes copyright, but not by hosting infringing works on its service.

No, her claim is even weirder: she maintains that Scribd prevents copyrighted material from being placed on the site by copying the text of copyrighted books and other publications into its copyright infringement detection software, which therefore infringes copyright itself!

The claim may not be as weird as Geek.com believes, though it is likely not to survive long. The original legal challenge to the Google Books Project by the Authors Guild and individual authors holding who were identified was premised largely on the contention not that Google was going to make those authors’ copyrighted works available. It wasn’t. It was only going to make those works searchable so that snippets could be brought up by researchers who could thereby identify and by library loan or purchase obtain relevant works they never otherwise would have found without traveling from Palo Alto, California to Ann Arbor, Michigan to Oxford, England. So what was the problem? The authors alleged that the fact Google was copying their works in their entirety to create the database that would yield the snippets constituted copyright infringement.

And in A.V. v. iParadigms, LLC, 544 F. Supp. 2d 473 (E.D. Va. 2008), aff’d in part and remanded, F.3d 630(4th Cir. 2009), plaintiffs were students who alleged that iParadigm’s Turnitin plagiarism detection system — used by schools throughout the country to detect plagiarism committed by students — constituted copyright infringement. Schools that use Turnitin require each student turning in a paper to submit it through Turnitin. Turnitin then compares the paper to its database and prepares a report that rates the similarities of the paper to papers in its database. In addition, Turnitin adds the paper it is rating to the database, thereby constantly growing and increasing the effectiveness of that database.

The students alleged that they owned the copyright in their papers and that IParadigms was infringing those copyrights by copying those papers and using them as part of the Turnitin database. But last March the federal court hearing the lawsuit dismissed it.

There are several interesting points to make about the decision. First, I read the trial court decision (that was later affirmed by the U.S. Court of Appeals for the 4th Circuit) on Scribd (here). Scribd is a tremendous resource for me — a lot of legal documents are not available online, and a lot of valuable ones that are available online are behind paywalls even though they cannot be copyrighted (including a lot of court decisions). Scribd is a solution to this problem, providing a central clearinghouse where lawyers can upload legal documents to make them available to the general public.

The value of resources like Scribd is one of the reasons I find criticisms like that Chris Castle directed at the decision in the Veoh case so maddeningly unhelpful. If one looks at sites like Veoh and Scribd as doing nothing but making available for free works that people would otherwise pay for, then it is much easier to rant and rave that those sites are nothing but distributors of stolen merchandise and to rationalize a stubborn refusal to admit that copyright must be balanced against strong competing interests in free speech and the exchange of ideas. But if you see these sites as profoundly gratifying resources that make the internet the greatest innovation in the history of information technology, the fact that media companies (and even independent writers, artists, and musicians) can readily identify infringing uses that do slip through detection programs does not seem so profoundly troubling. Those copyright owners can quickly employ the DMCA’s notice-and-takedown procedures, which many criticize as too friendly to the copyright holders.

Why would you use copyright to stifle marvelous new innovations? Copyright exists to encourage, not stifle, invention.

So a legal attack on Scribd, even if it is not as “weird” as it might seem on first blush, is something I will scrutinize carefully.

Second, it seems odd that Scribd would be attacked for committing copyright infringement resulting from a mechanism it is employing to minimize copyright infringement by its users and for which it is rewarded by the immunity conferred by the DMCA safe harbor provisions.

Third, a spokesperson for Scribd, as Wired reports, explains that Scribd does not copy works in their entirety as part of its copyright detection system; rather, it “creates a digital fingerprint, or a ‘hash,’ to identify infringing copies.”

Most importantly, even if Scribd did copy the entirety of the copyrighted works only to use those copies to prevent users from uploading and making available to readers those copyrighted works, the decision holding that Turnitin’s similar use of copies copyrighted materials to detect plagiarism is illuminating. The trial court, affirmed in this reasoning by the 4th Circuit Court of Appeals, explained that “iParadigms, through Turnitin, uses the papers for an entirely different purpose [than those the plaintiff did or could], namely, to prevent plagiarism and protect the students’ written works from plagiarism . . . by archiving the students’ works as digital code.” Thus, while the court recognized that iParadigms profits from its use of the student works, the court found that iParadigms’ use of plaintiffs’ works was “highly transformative” because it adds a “further purpose or different character” to the copyrighted works and “provides a substantial public benefit through the network of educational institutions using Turnitin.” Slip op. at 14.

In affirming the trial court’s decision, the 4th Circuit added to this reasoning and described as “clearly misguided” the argument that   Turnitin’s  use of the plaintiff’s copyrighted papers cannot be considered transformative “because the archiving process does not add anything to the work — Turnitin merely stores the work unaltered and in its entirety”:

The use of a copyrighted work need not alter or augment the work to be transformative in nature. Rather, it can be transformative in function or purpose without altering or actually adding to the original work. See, e.g., Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1165 (9th Cir. 2007) (concluding that Google’s use of copyrighted images in thumbnail search index was “highly transformative” even though the images themselves were not altered, in that the use served a different function than the images served). [Turnitin's] use of plaintiffs’ works had an entirely different function and purpose than the original works; the fact that there was no substantive alteration to the works does not preclude the use from being transformative in nature.

562 F3d at 639.

So let’s get it straight: what Scribd is doing is of tremendous value to society as a whole. It’s use of copyrighted works to minimize the availability on its site of copyrighted works is entirely different than and in no way diminishes the value of the copyrighted works to the owners of the copyrights. A copyright is not ownership of property like title to a car is — it does not give the owner control over any use of that car the owner doesn’t approve. There are a lot of good reasons for these differences. First, if someone else uses your car, you can’t. If someone else uses your copyrighted work, you can still use it too. If they use it for a use you never would have, what’s your problem? And if that other person’s use is doing a lot of good, why should the law confer on you a power to stop it? (Even your ownership of physical property is limited by restrictions imposed for the social good.) Finally, copyrighted works are works of expression, and we have a constitutional right to free expression. The limitation on copyright imposed by fair use is precisely a means of balancing the copyright holder’s interests against this profound social interest in free expression.

It’s an amazing world. In the name of legal rights that exist to promote progress and innovation, people everywhere are trying to stop revolutionary innovations they plainly don’t realize the value of. One of these days I’ll have to talk about the Google Book Project settlement and the fights raging in connection with it. Some are more legitimate than others. But let’s be clear: Google is trying to make available online for research purposes (not in ways that would displace the markets for the works themselves) the contents of major research libraries from around the world. Doesn’t everyone realize what an amazing and unprecedented advance this is for the life of the mind, for anyone anywhere who ever has had an interest in doing research?