Turnitin and Copyright Protection: Worse Than the Disease?

by Mike on 3/29/2007

in Copycat Law, First We Kill All the Lawyers

UPDATE (3/27/08): This case has been decided.

Ted Frank at Overlawyered weighs in on this Washington Post story about a lawsuit against anti-plagiarism service Turnitin:

There are entrepreneurs who come up with good ideas for services and products, and entrepreneurs who come up with good ideas for lawsuits against the first group.

Unfortunately, Ted doesn’t spend any time applying his considerable legal talents to the question of whether the lawsuit has any merit or the more important question of whether Turnitin is doing anything wrong here. I can’t imagine an entreprenuer’s idea to be a “good” one if it’s flatly illegal. I’d like to do what Ted didn’t. From Turnitin’s web page, here’s what they do:

Every paper submitted is returned in the form of a customized Originality Report. Results are based on exhaustive searches of billions of pages from both current and archived instances of the internet, millions of student papers previously submitted to Turnitin, and commercial databases of journal articles and periodicals.

Emphasis mine. The company takes all the papers submitted to it, and inserts those papers into a proprietary database which it then uses for commercial gain. Apparently, the company also uses excerpts from its database in its reports, where those excerpts have been re-used by a later author.

Assuming for a moment that high school students’ papers have the required originality to acquire copyright protection — and of course they do — does the Turnitin method infringe the copyrights of those students? To the extent that Turnitin 1) copies the papers, 2) distributed the papers, or 3) creative derivative works of the papers, it does infringe. I’m having a hard time imagine how the company could do all it says it does without doing all three: copying, distributing, and creating derivatives.

Does Turnitin have a valid defense? There are two likely possibilities: fair use, and license. License is the easiest to dispose of: the students did not choose to submit their papers to the company; their school did. Unless there’s some kind of voluntary written agreement by the students to participate in the program, I doubt there is anything here that could be considered permission by the students to have their work used.

Fair use is a slightly tougher question. The factors courts look at are:

  1. Character of the use;
  2. Nature of the work to be used;
  3. How much of the work is used; and,
  4. What effect would the use have on marketing of the work?

In this case the answers are: 1) commercial; 2) covers the whole spectrum from factual to creative; 3) complete use in the database, but excerpted use for reports; and 4) probably minimal, as few of these papers would ever see commercial publication.

Many courts will apply the fourth factor more heavily when considering fair use, so it’s impossible to predict exactly how a court would rule on this. I suspect, though, that the involuntary use of the complete papers for financial gain would, at least in some courts’ eyes, fall outside the fair use realm.

At the very least, these students can make a case that their copyrights have been infringed. Turnitin may present a successful defense, but that wouldn’t render the students’ claims frivolous in any way. Ted’s half-hearted slap at the plaintiffs is probably undeserved: their case has arguable merit, and it’s not being pushed by some lawyer just out to make a buck. According to the Post, he’s working pro bono. (Although it’s not impossible for such work to result in a fee award from the courts, it’s a pretty risky way to earn a living.) AlI can say is, if it were my papers being submitted, I’d be pretty pissed too.

  • http://www.entertainmentweakly.com/blog tim

    Students DO consent to their papers being submitted to Turnitin.com. We are all required to have a full legal thing about it on all our syllabi, before the semester starts, so students can elect whether or not to take a class knowing their work is checked against and submitted to turnitin.com.

  • http://www.entertainmentweakly.com/blog tim

    Students DO consent to their papers being submitted to Turnitin.com. We are all required to have a full legal thing about it on all our syllabi, before the semester starts, so students can elect whether or not to take a class knowing their work is checked against and submitted to turnitin.com.

  • marcel

    Can you copyright something you stole from someone else? No. Based on several studies and interviews with instructors, cut and paste plagiarism is rampant in education. In some countries, it is perfectly accepted.

    If Turnitin was used as designed, as a teaching tool, allowing the students to do a self-check of their papers, this lawsuit probably never would have happened. Many users are not aware that you can opt out of having your paper submitted to the database for archiving purposes. Most people are ignorant to the fact that a large percentage of the student papers that are submitted consist of words and ideas taken from other authors without proper citation or acknowledgment. The student that initiated this whole scam lawsuit is a D level student. Do you think it is fair to the honest, hardworking students when the cheaters get better grades on papers by using what someone else wrote? Wake up people!!

  • marcel

    Can you copyright something you stole from someone else? No. Based on several studies and interviews with instructors, cut and paste plagiarism is rampant in education. In some countries, it is perfectly accepted.

    If Turnitin was used as designed, as a teaching tool, allowing the students to do a self-check of their papers, this lawsuit probably never would have happened. Many users are not aware that you can opt out of having your paper submitted to the database for archiving purposes. Most people are ignorant to the fact that a large percentage of the student papers that are submitted consist of words and ideas taken from other authors without proper citation or acknowledgment. The student that initiated this whole scam lawsuit is a D level student. Do you think it is fair to the honest, hardworking students when the cheaters get better grades on papers by using what someone else wrote? Wake up people!!

  • http://www.essayfraud.org/turnitin_john_barrie.html Paul

    That’s a load of garbage, Tim. You call that a CHOICE? Hmm, let me see, students must either sign the contract, or they can CHOOSE to get an “F” on every paper or “find another school.” Great options there, Timmeh! This is a classic case of undue influence to coerce students into involuntarily ceding their intellectual property rights–under duress–to a profiteering, corporate giant. The corporate giant propers to the tune of $20,000,000-$100,000,000 (John Barrie recently admitted that Turnitin’s business DOUBLES every 12 months) in revenue per year off the backs of MINORS, while the students do not get a PENNY in compensation for their time, reources, or douments. Hmmm, sounds like indentured servitude to me!

  • http://www.essayfraud.org/turnitin_john_barrie.html Paul

    That’s a load of garbage, Tim. You call that a CHOICE? Hmm, let me see, students must either sign the contract, or they can CHOOSE to get an “F” on every paper or “find another school.” Great options there, Timmeh! This is a classic case of undue influence to coerce students into involuntarily ceding their intellectual property rights–under duress–to a profiteering, corporate giant. The corporate giant propers to the tune of $20,000,000-$100,000,000 (John Barrie recently admitted that Turnitin’s business DOUBLES every 12 months) in revenue per year off the backs of MINORS, while the students do not get a PENNY in compensation for their time, reources, or douments. Hmmm, sounds like indentured servitude to me!

  • http://perpetualbeta.com/ Mike

    @Tim: according to the lawsuit, these students specifically did not consent. So Turnitin either made a mistake – in which case they are liable – or purposely ignored the lack of consent – in which case they’re in bigger trouble – or the complaint is incorrect, in which case Turnitin will almost certainly win, possibly even winning their attorneys fees.

    @marcel: Even according to Turnitin’s website, 70% of the papers they receive have no problem. So if Turnitin steals the original work of those students for its own economic gain, aren’t they part of the problem rather than the solution?

    And as far as your “D-student” allegation goes, at least one of those kids claims to be an A-student. Your statement to the contrary could be considered defamation against them.

  • http://perpetualbeta.com Mike

    @Tim: according to the lawsuit, these students specifically did not consent. So Turnitin either made a mistake – in which case they are liable – or purposely ignored the lack of consent – in which case they’re in bigger trouble – or the complaint is incorrect, in which case Turnitin will almost certainly win, possibly even winning their attorneys fees.

    @marcel: Even according to Turnitin’s website, 70% of the papers they receive have no problem. So if Turnitin steals the original work of those students for its own economic gain, aren’t they part of the problem rather than the solution?

    And as far as your “D-student” allegation goes, at least one of those kids claims to be an A-student. Your statement to the contrary could be considered defamation against them.

  • Rose

    Ah, Marcel. On another blog you posted as “anonymous,” stating the same thing: that “the student who initiated this whole scam lawsuit is a D level student.” Maybe you are referring to one of the Tempe, Arizona students who are among the four student plaintiffs. I have no knowledge about them (I doubt you do either.” I am well acquainted with the seven McLean High School seniors who created the Committee for Students’ Rights in opposition to the school’s mandatory Turnitin policy, the group that started the petition against the policy (signed by the majority of the student body). None of them are plaintiffs in the lawsuit because, in the face of their opposition, the principal decided to make Turnitin mandatory only for freshmen and sophomores. So at least the two plaintiffs from McLean are underclassmen. I know all of the original senior committee members to be very good students, none of them “D-level,” and it is my understanding that the two plaintiff students (unnamed in the complaint because they are minors) are excellent students as well. The students have not sued because they want to be able to cheat. And, while Turnitin sometimes says that you can opt out of having your paper archived, in practice they refuse to delete student papers from the database when asked. Many people (you included) seem to be ignorant (your word) to the fact that numerous educators have tested the Tuntin system and found it really doesn’t work — read the Business Week Online article from early April. In fact, a little more research into the whole issue, along with a reading of the complaint, might help you. A very good, informative website to check out is: donturnitin.com. You have been disparaging this mythical “D-level” student all over the blogospere. Please stop. You don’t know what you’re talking about.

  • Rose

    Ah, Marcel. On another blog you posted as “anonymous,” stating the same thing: that “the student who initiated this whole scam lawsuit is a D level student.” Maybe you are referring to one of the Tempe, Arizona students who are among the four student plaintiffs. I have no knowledge about them (I doubt you do either.” I am well acquainted with the seven McLean High School seniors who created the Committee for Students’ Rights in opposition to the school’s mandatory Turnitin policy, the group that started the petition against the policy (signed by the majority of the student body). None of them are plaintiffs in the lawsuit because, in the face of their opposition, the principal decided to make Turnitin mandatory only for freshmen and sophomores. So at least the two plaintiffs from McLean are underclassmen. I know all of the original senior committee members to be very good students, none of them “D-level,” and it is my understanding that the two plaintiff students (unnamed in the complaint because they are minors) are excellent students as well. The students have not sued because they want to be able to cheat. And, while Turnitin sometimes says that you can opt out of having your paper archived, in practice they refuse to delete student papers from the database when asked. Many people (you included) seem to be ignorant (your word) to the fact that numerous educators have tested the Tuntin system and found it really doesn’t work — read the Business Week Online article from early April. In fact, a little more research into the whole issue, along with a reading of the complaint, might help you. A very good, informative website to check out is: donturnitin.com. You have been disparaging this mythical “D-level” student all over the blogospere. Please stop. You don’t know what you’re talking about.

  • http://powertolearn.com/ Diane

    What I find interesting about turnitin.com is that school are using as judge, jury and exectioner rather than a teaching tool. If a kid turns in a paper on a topic with limited sources available – something new in the news for example – his or her paper could be compared to 100 papers by students on the same topic and found to be 100% plagiarized – 1% per paper.
    For more see http://www.powertolearn.com/articles/parenting_with_technology/article.shtml?ID=47

  • http://powertolearn.com Diane

    What I find interesting about turnitin.com is that school are using as judge, jury and exectioner rather than a teaching tool. If a kid turns in a paper on a topic with limited sources available – something new in the news for example – his or her paper could be compared to 100 papers by students on the same topic and found to be 100% plagiarized – 1% per paper.
    For more see http://www.powertolearn.com/articles/parenting_with_technology/article.shtml?ID=47

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