Ruling in Student Suit against Turnitin

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.

Professor caught publishing student's paper

[Note: I am quoted in one of the articles below, so this may be construed as blatant self-promotion]

Spiegel-Online reporter Hermann Horstkotte reports on a professor of Slavic Studies at the University of Bonn who has been as harshly reprimanded as possible for publishing a paper from a student as his own back in 2001. For some strange reason he hired this student a few years after her graduation, and when she saw her own text on Danill Charms published in his name in a book published in honor of a colleague, she saw red and informed the university ombud for good scientific practice.

The university has taken away his privileges - he may no longer examine students, spend money (he'll have to run to the dean for every pencil he needs), or hire people. Since he only has a few years until retirement, this is practically early retirement with full pay, a rather bizarre punishment, but it makes sense within the German system of professorships, where a tenured professor cannot be fired short of being found guilty of committing a crime so bad the sentence is for 90 days or more of jail.

It takes just one Google search to find his name, and to find 260 publications listed. How many of them are plagiarisms, just this one? Why would someone in such a position do such a thing?

Horstkotte also has an article in the Rheinischer Merkur entitled "Sinners in Professoral Robes" (German professors used to wear robes up until the end of the 60s) in which he goes over a number of the juicier stories to hit the light of day in the past year or so. He quotes the organization of university professors in Germany, Deutschen Hochschulverband, insisting that cases involving ethics problems and dishonesty be publicly discussed. They promise to name names and to publicly denounce members who do not conduct themselves properly. It is to be hoped that this might actually happen, but don't hold your breath. In Germany there is a veil of secrecy wrapped around most of the cases of dishonesty that I have encountered in the past 6-7 years.

The Story of ß - A Plagiarism

The German blogosphere is alive with the story of the German ligature sz (ß) - a book called ß - Ein Buchstabe wird vermisst (ß - a letter goes missing) by Frank Müller.

The first entry is from a printer, Martin Z. Schröder, from his blog SchreibenIstBlei (Writing is leaden). He had written an article for the newspaper Süddeutsche Zeitung in May 2007 about this wonderful letter that causes computers and typesetters headaches but is actually quite beautiful.

The publishing house Eichborn Verlag (a large, successful publishing house that puts out many popular books every year) sent him a notice of the book and asked if he wanted to review it. Since the title was similar to his article title he asked for, and received, a copy to review with the request not to write anything about it before the release date, March 3, 2008.

As he began reading it was, as they say, déjà vu all over again. He recognized his article spread throughout the book, and published the bits on his blog before March 3 - seeing as how he had written the paragraphs last year, he didn't see the need to respect this date.

The blog readers pounced on available copies of the book (I tried to obtain a copy, but too late). They found most of the rest of the book in other places: The wonderful book by Judith Schalansky, Fraktur Mon Amour; advertising copy; newspaper articles that are available online; a printer's magazine, SIGNA; a book Falsch ist richtig (false is correct); and anytime the writing is suddenly very clear, the paragraphs are taken from the Wikipedia articles on Fraktur and the Antiqua-Fraktur dispute pages (links are to the WP-EN versions).

Things started happening. This Frank Müller (there are others, who were quick to point out that it was not them) wrote to Schröder by email, saying that the plagiarism was not intentional and had happened through a technical problem and time pressure. Just like the excuses my students bring, although no technical problem can explain this - it is just careless research and use of CTRL-C + CTRL-V too much. Schröder is a good guy, doesn't call his lawyer, but thinks perhaps the book should not be sold.

The publisher agrees, and on February 26 they announce that they are withdrawing the already printed books as had been planned and ask the authors of the plagiarized bits to excuse what has happened. The printers are sad - they hate printing books for the garbage can. But this cannot be healed by an errata list.

The blogosphere explodes. There are articles, comments, analyses, trackbacks all over the place - but not in print media, strangely enough. There are comical discoveries: Amazon misreads the ß (which is transcribed as ss in modern German, not sz) and files the book under " Bücher > Fachbücher > Geschichtswissenschaft > Neuzeit > Nationalsozialismus > SS" (The SS was as Nazi organization).

Three days later, Frank Müller publishes an article UNVERGEßEN (unforgotten) in the Süddeutsche Magazin about the ß. He does not mention his book, but this has a bitter taste to it - why was this not pulled when the book was discovered to be a plagiarism? Why is there no comment on the online version? Parts of this article are taken from his book, and they happen to be plagiarisms...

Bloggers are now writing nasty letters to the SZ, but still no official note of this. If you can read German, here is a selection of blog articles about it: Literaturcafe (they report that literaturkritik.de deleted Müller's entry on his own book, but that can still be found in Google's cache) - Thilo Baum - IGDA - kLog - Fontblog - ....

Update (March 5): Spiegel Online has finally reported on this, that is a well-read, mainstream online medium in German.

Update 2 (March 7): The Süddeutsche has permitted one of the plagiarized, Martin Z. Schröder, to publish an article about the plagiarism, appropriately titled "Der Schamesrote Buchstabe" (The Scarlet Letter).