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Turnitin Whether You Want To Or Not
R. Alex Whitlock
Eugene Volokh
draws our attention to an interesting article about a bunch of students suing anti-plagiarism site Turnitin.com for copyright infringement:
Turnitin.com is a commercial service that aims to help educators catch plagiarism in student papers. Schools require that student papers be submitted to the site, which (1) checks each student paper against its database, and (2) adds each student paper to its database so that future papers can be checked against it. I take it that the database already contains papers from commercial term paper mills, encyclopedia entries, and the like; but adding student papers helps spot students who are copying from classmates, or from friends at other schools, as well as students who are copying from publicly available sources.
But, the high school student plaintiffs say, step 2 violates our copyright: You folks are making money by copying our papers onto your servers. The consent you get from us is inadequate because we are coerced to give it (especially plausible, I take it, when the students are students at public high schools, and when they are within the compulsory school attendance age range). And your use is not fair use, chiefly because it's commercial. (Here's turnitin.com's legal analysis, which argues that the use is indeed fair.)
I had always thought, erroneously it seems, that when you turn in a paper for a grade you are "compensated" for it by getting a grade and so you no longer hold the exclusive rights to the paper. I assumed that the teacher, professor, or school had rights to do such things as reproduce without permission (as an example to future classes or part of some compilation) and I would have thought that this fell into this category. But I hadn't really considered the fact that a company is theoretically profiting off of students' work, which adds another element to it.
The lawsuit itself is ironic because the plaintiffs are trying to prevent something that would (theoretically) prevent someone else from stealing their work.
The question is what kind of recourse should a student have? The plaintiffs in this case are resentful of the guilty-until-proven-innocent stance that the site (and use of the site) takes. First they investigate the author's work (accusing him of cheating) and then if it's a-go they put it in a database to make sure that no one else uses it (accusing them of selling their papers). Should a student have a choice as to whether or not his work is part of that enterprise? Particularly when school attendance is compulsory, leaving no way to opt out at all?
I don't know what the law says so I will leave that to Volokh, other lawyers, and the judges. But despite compulsory attendance and any objections the students may have, I think that ethically Turnitin is in the clear. If a student demands his work be protected, he shouldn't turn it in for credit.
Addendum: Note that by "not turning it in for credit" I am referring to the specific paper whose copyright the student is interested in protecting. I am not advocating that he or she not turn in anything at all. As an example I was under the impression while in college that any paper that I turned in was no longer solely my intellectual property and so I would not have turned in something that I might want to make money from later. Turns out the precaution may not have been necessary, but I don't see it as an unreasonable state of affairs for academic papers.
Observations
Sorry, RAW, but I have to disagree.
Education at the school is compulsory, and the students are required to hand the papers in. Not handing in the papers isn't just punishable by lack of grades, but by being held back, and by other disciplinary actions (suspension, detention, etc).
Further, not handing in the papers results in a black mark on their academic record, which can result in all sorts of problems when trying to move on to higher education.
In a very real sense, once Turnitin gets involved, the students are in a no-win scenario: they are accused first of cheating and then of selling their papers, then their papers (to which courts have ruled in the past they still control the copyright to) are automatically added to Turnitin's database.
http://www.washingtonpost.c...
The most damning point for Turnitin is that their system does allow for instructions that a work NOT be archived, but Turnitin apparently - and routinely - disregards these instructions. In other words, Turnitin were on notice that these students' papers were copyrighted and that the students did NOT authorize Turnitin's retention of a copy, but Turnitin did it anyways.
Having seen how Turnitin operates, they're not "ethically in the clear": rather, they're a shady and underhanded company that I'd rather see vanish.
Before we go any further, four questions:
1. Would you similarly object if a school set up its own database to check and make sure that one student did not copy from another? If not, where do you see the distinction?
2. Would you object to a non-profit organization doing what Turnitin does?
3. Do you think that Turnitin is just a lousy company that needs to be shut down or do you think that what they their entire business model (house a database to check for plagiarism) is fundamentally wrong?
4. Would you object to a company performing similar services to universities, to which attendance is not compulsory?
Four questions, each in turn:
1) First of all, the school has a limited right to retain student records. They also (in this instance) are not sharing their database across the country. They also - unless you have an argument to the country - are not making money by their retention of such a record. Each of these is a key point as to where the school's retention would be fair use, where Turnitin's is copyright infringement.
2) As for a non-profit organization, such as an alliance of schools, I would see less of a problem. However, there is still the problem of the school distributing its database - the work of its students - without permission to an outside organization. That presents a problem, so yes, I'd see a problem there too.
3) I think Turnitin's business model is, as they are presently set up, fundamentally wrong. There is the added problem that they are misrepresenting their project, as they do not check for plagiarism but rather for string matches.
4) A company performing similar services for universities is an interesting case. Attendance to the university is not compulsory. There is a lot more leeway for a university to have their students sign a contract allowing the use of Turnitin when the student applies to the school or signs up for a class in which Turnitin will be used, as a condition of enrollment. At the university, the students are also of legal age to enter such a contract, something that cannot be said of high-school or lower students.
Were a university to not require and be open about the use of Turnitin, however, and only inform the students about their papers being entered into the database AFTER some incident with it, then I would find the university in the wrong and guilty of copyright violation for not getting the permission and allowing the students to opt out (either of Turnitin, were they to have that option, or else of the University in favor of enrolling elsewhere) altogether.
Although, it does beg an interesting case in which Turnitin becomes "compulsory" because use of Turnitin, or some service with the same database, became a mandatory part of accreditation for the universities. Were that to happen, I'd have to reexamine whether the line had once again been crossed.
Okay, I can better understand where your objections are coming from. I still don't agree agree in the abstract, but we've come to different conclusions on the rights a student should have over his own work once he turns it in and I take the more limited view. Regarding Turnitin specifically, I could be wrong in my understanding of the specifics. I am less interested in their specific fate as that of a business model that relies on centralized information from across the country, which I can support but you oppose.
As regards Turnitin specifically:
- They're doing it without permission.
- They're doing it without *getting* permission, at least from the people who have the copyright themselves.
- They're doing it without legal contract with those who have a right to make such.
That's three knocks against them right there.
On the larger point, the centralized database is a problem in general. Eventually, given enough papers, you're going to have a rash of false positives - the "infinite monkeys" dilemma writ to the tune of millions of students, all assigned roughly the same topics and research materials.
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