Let me preface this with the standard warning that I am not a lawyer. Any commentary I add herein is based on my working knowledge of copyright in the context of being an educator and an occasional producer of content. Furthermore, I will argue largely on the side of TurnItIn.com mostly because I believe that they have not made the strongest possible arguments so far and because I think that the students’ use of copyright law to challenging the system is ridiculous, not because I necessarily believe that TurnItIn.com is morally or ethically sound.
While I think I had been vaguely aware of these lawsuits, the first I really read about them was on Techdirt — “Plagiarism Checker Sued For Copyright Infringement”
Back in 2002 there was some discussion over whether or not, Turnitin, a popular plagiarism checker that many schools and universities use, was violating students’ copyrights. The program worked by comparing any uploaded works to a large database of previous works. However, it would then add those new works to the larger database. Many students began to question not just why they were being treated as criminals first, but also why Turnitin was allowed to use their content in its database without first licensing the works from the students. While there had been occasional stories wondering something similar over the past few years, now it appears that two high school students have decided to step up and sue the company for copyright infringement. This could get interesting for a variety of reasons. The students clearly thought this out ahead of time — registering the copyright on the papers, which gives them the ability to sue for statutory damages, rather than just be made whole. At least one also had explicit instructions in the paper that it not be included in the Turnitin database — and those instructions were ignored.
While I’d love to argue the point about being treated like criminals and being guilty until proven innocent (mostly on the grounds that TurnItIn.com is more a protection of an honest student’s work against unauthorized copying, blah blah blah…), I think that’s a debate that isn’t going to move anywhere, so I’ll try to stick to the copyright arguments.
A pdf datasheet titled “Copyright and Privacy” on TurnItIn.com says, in part:
The archiving of digital fingerprints of papers is permitted under the current laws of the United States, the United Kingdom, Canada, Australia, and New Zealand, among others.
I think the first key is in the use of “digital fingerprints.” I’m not at all sure how the service could work as specified if they only keep some sort of digital fingerprint (perhaps a hash?) of each submitted paper, so right away I’m none too thrilled with this file. The full text of the file doesn’t really go much further than that in terms of actual reasons why their use of students’ work would fall under fair use.
A legal opinion document presumably written by Foley & Lardner, posted on TurnItIn.com (though rather than finding an obvious link to it on TurnItIn.com, I found it through an Ars Technica article on the lawsuits) is a bit more informative:
Hence, by itself, teacher submission of a student work to Turnitin is within the scope of the evaluation license provided by the student to the teacher on submission of the work for grading. The implied license may not extend to other aspects of the TURNITIN system, such as archiving, however, such aspects are allowable as “fair uses” of the copyrighted material.
Now, here’s where I start to get really edgy about the whole thing. My suspicion is further heightened by a Washington Post article titled “McLean Students Sue Anti-Cheating Service”:
“All of these kids are essentially straight-A students, and they have no interest in plagiarizing,” said Robert A. Vanderhye, a McLean attorney representing the students pro bono. “The problem with [Turnitin] is the archiving of the documents. They are violating a right these students have to be in control of their own property.”
…
Andrew Beckerman-Rodau, co-director of the intellectual property law program at Suffolk University Law School, said that although the law regarding fair use is subject to interpretation, he thinks the students have a good case.
“Typically, if you quote something for education purposes, scholarship or news reports, that’s considered fair use,” Beckerman-Rodau said. “But it seems like Turnitin is a commercial use. They turn around and sell this service, and it’s expensive. And the service only works because they get these papers.”
So, looking at all this, I see two big issues here. First, what rights, if any, do the students have to control papers they submit as a requirement of a class? Second, is the archival comparison use actually fair use?
What rights, if any, do the students have to control papers they submit as a requirement of a class?
I would claim that students have little or no rights to control this work. I think the general idea set forth in the legal opinion commissioned by TurnItIn.com is largely correct, though perhaps too narrow in saying that the student implicitly licenses their work to be graded and evaluated by the teacher. I would make the case that in the context of the class, it is entirely up to the teacher to decide on reasonable conditions under which the work is submitted—this already includes the requirement to submit the paper through a service such as TurnItIn.com and I see no reason why this wouldn’t naturally extend to saying that it is a requirement to allow TurnItIn.com to archive the paper for ongoing use. Moreover, it is not uncommon for teachers to keep archives of work submitted by previous students to compare to newly turned-in work to check for plagiarism.
Is the archival comparison use actually fair use?
I would claim that, especially due to the commercial nature of TurnItIn.com, that the archival comparison is not fair use. I think the argument against it being fair use is particularly strong if the full text of the paper is used, whereas using some sort of hash of the paper might be arguable.
In both questions, I believe that a disclosure about the use and a requirement that students agree to the use in order to submit the paper ought to be sufficient to preclude any of this copyright litigation.
Warner Crocker at GBM
