21 Comments

This is a tricky one.
Anecdote: A PHD candidate (friend of mine) was cited for probable plagiarism via turnitin at 50% likelihood or greater. I helped him research that paper and read the final copy. I assure you it was original. Nevertheless, does turnitin lay claim to the IP rights of papers they have cataloged? What if one of said papers turns out to have a component that is valuable, such as a molecular discovery which leads to a cancer break through? Who gets paid?

This is actually a legitimate question though. The commercial service is make use of other people’s copyrights (namely the right to reproduce).

However, the question is whether the students have standing to sue for other copyrights. I doubt it.

Except for public schools, this could be handled very easily: as a condition of getting into the school, students sign a contract with the school and Turnitin, licensing Turnitin to archive their work and use it for certain purposes.

However, I’d feel pretty uncomfortable about requiring a student to give up an intellectual property right in order to attend a school, which for all practical purposes he is required by law to attend…

I side with the students on this one. Unless the students granted permission for the papers to be archived, why should Turnitin be able to make a profit off of their work?

It’s no different than a service that offers song lyrics for a fee, which is impermissible without permission from the copyright holder. Or the controversy surrounding Google’s attempt to catalogue books and other copywritten material.

Ted, I think you missed the boat on this one. The students’ case is at least plausible, and the company’s defenses are a toss-up at best. We’re not looking at a frivolous lawsuit here – this is a legitimate dispute over legal rights to control one’s own work.

Again, just because a lawsuit is mentioned here doesn’t mean that it’s frivolous in the narrow or broad sense, though I think Turnitin’s use of the documents in a database is fair use. The argument the students are using is materially equivalent to the copyright arguments used against search engines. If copyright law can be used to shut down search engines, that’s a problem with copyright law, rather than the search engines.

“Who gets paid?”

Todd, based on your hypothetical, neither Turnitin nor the author of the paper gets paid.

Being the author or copyright owner of a paper explaining a discovery does not create a property right in the discovery. And it doesn’t matter if the author/owner is the one who made the discovery. 17 U.S.C. 102(b).

Markm: I could see such an agreement as a condition for admission to college or graduate school, but not for high school, as in addition to your argument regarding compulsory attendance, the students are likely to be minors.

Ted: Do you draw a distinction between search engines and this service because the service is fee-based? 17 U.S.C. § 107 notes that whether a service is for-profit is a factor determining fair use.

Imagine a hypothetical world where there were no computers, but Turnitin consisted of a staff of autistic savants who were capable of reading a paper and mentally comparing it against their knowledge of previous papers submitted to Turnitin, and their conclusions were double-checked against a very large file cabinet containing all the papers. No copyright action would lie.

I don’t see a functional distinction just because a computer is used, so long as Turnitin isn’t selling copies of the paper itself.

Google and Yahoo and Ask run their search engines for profit, so I fail to see Justinian’s point. Whatever their fair use defense is, it’s not that they’re non-profits.

Well, if turnitin made illegal copies of those documents it put in its hypothetical file cabinets, that would be a copyright violation.

I agree that Google and Yahoo are for-profit enterprises, but I draw a distinction because they don’t charge the users of the service, only advertisers. But the most important difference here is that Google and Yahoo are cataloging electronic information that individuals freely put on the Internet. Turnitin is taking paper documents (and some email submissions, I’m sure) and putting them in electronic form, and then selling a form of access to them.

§ 107 doesn’t make the distinction you do between charging users or charging advertisers. Google makes electronic copies of web pages. That something is on the web doesn’t make it any less subject to copyright than if it were on paper. Every distinction you make either doesn’t exist or is a distinction without a difference.

I wasn’t arguing that something on the web is less subject to copyright law. (If anything, thanks to the DMCA, it’s more so.)

What I was arguing is that Google indexes electronic web pages which are by their definition public. Turnitin is taking private paper documents and putting them in electronic form, and then selling access to those once-private documents.

Google doesn’t get in trouble over indexing Overlawyered, for example. But they are running into conflict over scanning and indexing books.

Anyway, the solution to me is simple: Allow students the option opt-out of having their papers sent to turnitin.

There’s a deep difference between Google or other search engines and Turnitin. Any website author has a defined means to decline having their site indexed. (robots.txt) As this lawsuit exists, there’s obviously no way for these students to decline their essays being stored.

I’ve never used Turnitin, but I speculate that when it reports plagarism, it probably republishes the original document for comparison. I think that this should be fair use, but copyright laws seem to keep being strengthened.

Morally, I think that the students are in the right. They should have control of the proliferation and persistent storage of their work. Otherwise, is Turnitin not creating yet another database on Americans full of unremovable material. What happens if the Turnitin database gets hacked?

The devil is in the details of this one. Who submits the papers in the first place? If the students then there is an implied license, if the teacher then is that not an illegal copy upon initial entry into their database? When I submit a paper to a teacher, the only purpose is to have it graded, no license for any other activity is granted or implied. I realize that some teachers make copies for their personal records, that is fair use, submitting it to a company for archiving/comparison/retrieval is beyond the scope of “normal” usage and I personally would not consider it covered by fair use.

When a paper is submitted for peer review the peers have severly limited rights to the original work. So even considering this service as some form of peer review doesn’t cover them with the needed permissions, in my opinion. But this all depends on what the students and when and if they agreed either implicitly or explicitly. On the other hand, most states allow minors to rescend contracts.

Ted: But Google gives copyright holders a multitude of ways to opt-out of their spidering and caching (robots.txt files, removal forms, etc.). I don’t think that Turnitin does anything similar.

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. 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!!

Like a lot of litigation problems, this seems like a problem created by destroying a market. As a college student in the mostly-market university system, I get to decide whether to attend a college which requires turnitin.com use (I do) and in that slightly convoluted way get decide whether to grant turnitin license to use my papers. In the half-market of high school education, though, students who attend public school may not really have that choice to make.

Maybe one of the rights students have to sort-of-forfeit (accept limitations on) to make the socialized education system “work” is the right to their intellectual property?

I should’ve read Volokh before commenting, since he says what I say (but better) and then goes on to say a lot more (but more insightfully). /blush

I take comfort in the value of my perspective as a student who has granted turnitin.com consent to store my papers (kidding!).

Hmm, let me see, students can either sign the contract, or they can CHOOSE to get an “F” on every paper or “find another school.” Great options, eh! 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 (Turnitin) 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 documents that Turnitin monetizes without students’ willing permission. What Turnitin and the school is doing is nothing short of indentured servitude!

How is either the size of turnitin.com relevent at all? And isn’t “profiteering” a fancy, derogatory word for “in business”?

The problem, like so many in a socialized system, probably has no good answer. But portraying turnitin.com as a “profiteering corporate giant” is just throwing vocabulary (and capital letters) at the company instead of trying to address the core issue of what rights students are forced to give up to make their forced education work…

From the discussion over on Volokh, students upload their papers to turnitin.com, and there is a click-through contract that presumably licenses turnitin.com to store and make certain uses of the papers. This is fine for college students, but high school students are generally too young to agree to a contract, probably don’t know enough to understand the contract, and are coerced to agree to it (in the case of public schools).

Not that I think that typical schoolwork has any market value or that turnitin.com is exploiting students in any way – but the law should be the same for all. If it was a private individual making similar use of basically worthless documents to which a large corporation held copyright, what do you think the chances of beating a copyright suit would be?