Plagiarism Detection Software and Copyright

I stumbled over an interesting legal note published in the Florida Law Review about copyright considerations with respect to forcing students to submit their papers to a plagiarism detection system that stores the papers or a derivative work such as a fingerprint. 

Samuel J. Horovitz, Two Wrongs Don't Negate a Copyright: Don't Make Students Turnitin if You Won't Give it Back, 60 Fla. L. Rev. 229 (2008). Available at: http://scholarship.law.ufl.edu/flr/vol60/iss1/5

Horovitz gives an in-depth analysis of the legal aspects of Turnitin's assertions that their use of students' intellectual property is fair-use and serves to defend their own intellectual property. His note is extensively referenced and points out some deep flaws in Turnitin's reasoning. For example, if Turnitin indeed defended students' IP, then they would be informed when someone else used their paper. This is not the case – only the teacher submitting the second paper is informed. And bizarrely, giving a paper to Turnitin is unfair to other companies that offer plagiarism detection systems or are paper mills (even though they are illegal in some states!). Horovitz concludes:

Plagiarism is a growing problem that evades a simple solution. Academic institutions must, in the interests of fairness, academic integrity, and scholastic progress, do all they can to prevent, detect and deter plagiarism. Counteracting plagiarism, which concerns the writing process, promotes ethical behavior and fosters a culture of academic trust. It is thus important for anti-plagiarism mechanisms likewise to be ethical and to foster academic trust. Turnitin, a solution to the plagiarism problem popular among academic institutions, infringes students' copyrights. Turnitin's key selling point, its massive database, is largely the product of archiving and copying of student-authored works. Both copyright law and copyright policy—the latter differing substantially from plagiarism-prevention policy—dictate that this archiving is not a fair use and infringes copyrighted works. Thus, to the extent that lack of concern for—and indeed mandated infringement of—student copyrights is unethical and fosters distrust in the academic community, use of the Turnitin system is counterproductive to the objectives of plagiarism prevention and is both an inappropriate and an ineffective remedy. Schools that use Turnitin also expose themselves to potential liability. Therefore, schools must seek alternative solutions to the plagiarism problem.