The United States District Court for the Eastern District of Virginia has pronounced judgement in the case of four students who sued iParadigms, the company selling the Turnitin plagiarism detection service, for violation of copyright. The opinion can be read online at http://www.nacua.org/documents/AV_v_iParadigms.pdf. Two blog articles brought this to my attention, Plagarism Today and ©ollectanea.
The minors filed suit against iParadigms alleging copyright infringement, because they are required to give iParadigms the use of their own papers as part of their school's fight against plagiarism.
iParadigms filed countersuit accusing the students of all sorts of hacking violations, as one of the four had used an account to submit his paper that was not his school account, but one he found on the Internet, and other details. They had, for example, agreed to the terms of service with no modifications allowed, then put a modification at the top of their papers forbidding Turnitin from keeping a copy of their papers.
The way Turnitin works, is that a school contracts with Turnitin for plagiarism detection services, although there is no guarantee that Turnitin can indeed find all plagiarisms - and my test of the service in 2007 was rather sobering, as they were only able to discern correctly plagiarism or not in half of the 20 test cases.
The teachers set up a submission account with Turnitin, and the students are required to set up their own account and submit their papers to Turnitin, which send an "originality report" to the teacher with the paper and keep a copy for their own database. The students are required to agree to a "Clickwrap Agreement" giving Turnitin permission to so use their papers. There is no opt-out option, that is, the student cannot decide if they want Turnitin to keep a copy of their papers or not. This is a decision the school and/or the teacher makes for the student.
There is also a "Usage Policy" that is linked to, but which is does not have to be agreed to explicitly, meaning that you have to pay their legal fees if anything you do in using the site violates third party rights or breaches the contract they just forced you to "sign".
The judge decided, rightly so in my opinion, that the students have no case against Turnitin, but rather against the school, which is forcing them to use this service in this manner or get a zero mark for the assignment. But the cynical remark quoted from another case ("[i]f parents do not like the rules imposed by those schools, they can seek redress in school boards or legislatures; they can send their children to private schools or home school them; or they can simply move") completely disregards that many poorer families have no other choice than to use the public schools where they reside.
The judge also ruled that Turnitin's use of their original papers was "fair use". I quite disagree with this. The judge noted that the papers was just stored in "digital code", so it was not published as a paper. I see fair use as being using a portion of a text, not the text in it's entirety. And the expression used in the original paper is exactly the same if it is written on a typewriter, or stored in ASCII code. If they were only storing a hash code, this might be different, although that could be construed as a derivative work.
I object to a student being forced to give Turnitin their own original expressions for Turnitin's use for making money. The judge noted that they can still do what they want to with their works - but that is not the point for me. Digital media changes intellectual property, and it is time that the courts begin to understand this. Turnitin is making money off of the honest students' work because there are so many cheaters and teachers don't want to do the plagiarism detection themselves, but leave it to a company that promises more than it can be expected to deliver.
The judge states: "iParadigms' use in no way diminishes the incentive for creativity on the part of students. On the contrary, iParadigms' use protects the creativity and originality of student works be detecting any efforts at plagiarism by other students". Why on earth a judge would take advertising copy to be the truth is beyond me. It is impossible to detect "any efforts at plagiarism", one can only get lucky and detect some attempts.
Continuing, the judge found no basis for iParadigms countersuits. The "Usage Policy" is not binding, as they could not prove that the students saw it. The accusations of hacking were found to be unfounded. They agreed to the "Clickwrap Agreement" - this is why the charge against iParadigms is unfounded.
I do not understand why iParadigms cannot respect the intellectual property rights of students and give them the choice of deciding if they want Turnitin to keep a copy or not. I hope the students file suit against their respective schools. The schools need to learn that their job is to teach students about plagiarism and to themselves check for plagiarisms, not turn the responsibility for this over to a third-party. Perhaps they need to start thinking about new ways of assessing what students have learned, instead of asking for the same old papers over and over again.
An interesting point to the fair use analysis is the "transformative" use for the greater good. This is, for example, what Google and Co. do when they index your site. They make copies for the greater good. Of course, there is an opt-out: you can set a robots.txt file, and well-mannered search machines will keep out. But the result of this is that there is a much broader fair use possible as seen by the court than many copyright owners think they have under current laws. It will be interesting to see download sites for music and films using exactly this fair use defense - a transformative use for the greater good - the next time the music companies sue them.