Thursday, March 29, 2007

Students Turn the Copyright Tables

The terms "students" and "copyright" are usually coupled in news stories with "peer-to-peer" and "piracy." Yesterday's Washington Post (hat tip to PV in DC) has an article in which students are the plaintiffs.

Maria Glod Washington Post Staff Writer Thursday, March 29, 2007; Page B05
Two McLean High School students have launched a court challenge against a California company hired by their school to catch cheaters, claiming the anti-plagiarism service violates copyright laws.
The lawsuit, filed this week in U.S. District Court in Alexandria, seeks $900,000 in damages from the for-profit service known as Turnitin. The service seeks to root out cheaters by comparing student term papers and essays against a database of more than 22 million student papers as well as online sources and electronic archives of journals. In the process, the student papers are added to the database.

Two Arizona high school students also are plaintiffs. None of the students is named in the lawsuit because they are minors. "All of these kids are essentially straight-A students, and they have no interest in plagiarizing," said Robert A. Vanderhye, a McLean attorney representing the students pro bono. "The problem with [Turnitin] is the archiving of the documents. They are violating a right these students have to be in control of their own property."
Turnitin officials did not return calls for comment yesterday. A Fairfax County schools spokesman said the system would not comment on pending litigation.
The legal dispute comes amid a debate over the best way to ensure students are doing their own work at a time when the Internet can make it easy to cheat. Many educators, including Fairfax County school officials, say Turnitin is an effective way to police for plagiarism.
Attorneys for the company and various universities and public school systems, including Fairfax , have concluded that the service doesn't violate student rights. Turnitin is used by 6,000 institutions in 90 countries, including Harvard and Georgetown universities, company officials have said. Some public schools in Arlington, Prince George's and Loudoun counties use the service.
According to the lawsuit, each of the students obtained a copyright registration for papers they submitted to Turnitin. The lawsuit filed against Turnitin's parent company, iParadigms LLC, seeks $150,000 for each of six papers written by the students.
One of the McLean High plaintiffs wrote a paper titled "What Lies Beyond the Horizon." It was submitted to Turnitin with instructions that it not be archived, but it was, the lawsuit says.
Kevin Wade, that plaintiff's father, said he thinks schools should focus on teaching students cheating is wrong.
"You can't take a person's work and run it through a computer and make an honest person out of them," Wade said. "My son's major objection is that he does not cheat, and this assumes he does. This case is not about money, and we don't expect to get that."
Andrew Beckerman-Rodau, co-director of the intellectual property law program at Suffolk University Law School, said that although the law regarding fair use is subject to interpretation, he thinks the students have a good case.
"Typically, if you quote something for education purposes, scholarship or news reports, that's considered fair use," Beckerman-Rodau said. "But it seems like Turnitin is a commercial use. They turn around and sell this service, and it's expensive. And the service only works because they get these papers."

19 comments:

Your friendly transactional lawyer. said...

Can I say I don't get it? Either the company is totally crazy or the plaintiffs don't have a leg to stand on.

When I first heard about this, I thought the students were caught cheating and brought suit for copyright infringement--so I thought that there was a standing issue (e.g. it's not their copyrights). Maybe I'm not understanding the facts.

Who's doing the submitting to this service? Students, teachers?

What are the terms of use of the system?

To some extent, this company seems like it's just asking for trouble if it is archiving and using for an expensive commercial purpose everything submitted to the system since the original authors of the works may not have consented for use in that manner (e.g. when a professor does it), though there may be some sort of implied consent to do the check (not the archive).

I'm waiting for the reply brief.

Crosbie Fitch said...

It seems the students are saying their work should be judged upon its merits at face value - that the teachers should not be permitted to utilise computerised plagiarism detection measures.

Or is this acceptable if no money changes hands?

Nothing wrong with commerce.

What I'd suggest the college should do is offer 'Originality Verification Certificates' as an optional extra to students - to be indicated on all their grade certificates.

No doubt employers/universities will discriminate accordingly.

I daresay students will gladly pony up the extra dollars to have their work certified as original.

Crosbie Fitch said...

It seems the students are saying their work should be judged upon its merits at face value - that the teachers should not be permitted to utilise computerised plagiarism detection measures.

Or is this acceptable if no money changes hands?

Nothing wrong with commerce.

What I'd suggest the college should do is offer 'Originality Verification Certificates' as an optional extra to students - to be indicated on all their grade certificates.

No doubt employers/universities will discriminate accordingly.

I daresay students will gladly pony up the extra dollars to have their work certified as original.

Chris said...

An interesting facet of this case is how it would be analyzed under fair use factor (4). Ostensibly, there is no real market for high school term papers. But, could the students claim that by just taking their work, turnitin.com is harming a potential market--the market for high school term papers among cheating-detection services?

Under factor (4), the copyright owner can always claim "But, you could have paid me for that use, therefore you're harming a market." That argument only seems to win if there are other buyers in the market.

This is an issue for documentary filmmakers, who have taken to obtaining rights to just about every work in their documentaries. For example, if the film contains a snippet of a song that happened to be playing on the radio, the filmmaker often will either get the rights or dub in a different song that he does have the right to.

Now, you can make a pretty good claim that these are fair uses and that no permission is needed, but the determination seems to hinge on factor (4). Ordinarily, this would be a slam-dunk: nobody is going to buy the documentary instead of buying the original song. But, here's where the documentary filmmaker runs into trouble--because so many other documentary filmmakers have licensed snippets, an entire market has grown up around such licensing.

Anonymous said...

It's an interesting academic argument that implicates many of the same sort of fair use issues presented in the Google Book dustup . . . i.e., is making a "copy" of a protected work for purposes of including it in a commercial database an act of infringement, or is it fair use?

However, it seems to me that in this instance, this suit will have minimal impact, given that the the company has a very easy and quick fix for the future. If the school / professor submitting the papers for analysis simply requires that, as part of turning a paper in for grading, the student grants a limited license to the school and the archiving / checking company, problem solved. (Heck, that sort of language in a syllabus would probably suffice, especially for for college classes.)

LKB in Houston

Your friendly transactional lawyer. said...

As pointed out at "concurring opinions" the most affected market may actually be for "high school papers." That is, the $100 paper you can buy from other sites--do a google search, there's lots of companies.

If the paper is added to the database, the paper now becomes worthless to the author since it will be a known cheater's paper.

Thus the fourth prong probably shouldn't favor the defendants.

Anonymous said...

See http://turnitin.com/static/pdf/datasheet_ip.pdf for TurnItIn's views on the IP issues involved. It does not mention the case at hand. In fact it even mentions possible objections to its service on page 2 -

“Turnitin is making money by stealing my intellectual property.”

Multiple law firms have concluded that Turnitin operates in full accordance with the intellectual property and privacy laws of the United States, Canada, the United Kingdom, Australia, and New Zealand. Not one legal challenge to our service has emerged from the thousands of secondary schools, colleges, and universities who successfully use our service around the world every day. Schools have a right and an obligation to use the best system available to weed out plagiarism and fairly grade student work.

Well so much about no legal challenges.

Fred von Lohmann said...

Seems to me that much will depend on the "terms of service" that students agree to when uploading, how those terms are presented, whether students have a meaningful choice. I predict the outcome will have more to do with EULA law than copyright.

Anonymous said...

Fred,

According to the Washington Post, the plaintiff high school students are all under the age of majority.

Their doesn't seem to be any indication that their parents or guardians agreed to any purported contract or EULA. Could the school have agreed on their behalf?

Fred von Lohmann said...

Ah, right, the complaint specifically has each of the plaintiffs voiding the EULA terms, which is their right as minors. Clever.

A variety of useful background information, including the complaint, has been posted by the plaintiffs at Dontturnitin.com.

Richard said...

It seems to me that the students have a pretty good case, at least if you assume the following reasonable to assume facts:

They did not agree to have their papers uploaded (or, their guardians didn't).

Turnitin makes a copy of their papers.

There is a market for high school papers. (This isn't even really necessary, is it? Couldn't being in the database harm the market value of the student's writing if s/he wants to, say, submit a version of the paper as an article to a magazine?)

Anonymous said...

Thanks, Fred.

Incidentally, after a quick scan through the complaint, I notice something curious:

o The plaintiffs allege infringement of previously unpublished works.

o But the plaintiffs do not allege that the school had an obligation to refrain from publishing their works. (Although, given existing student privacy laws, that might be easy to establish).

o Neither do the plaintiffs allege that defendant published their previously unpublished works.

Why aren't the students alleging that Turnitin has extinguished their ability to sell typical "First North-American Publishing Rights", or to otherwise commercially license their works along industry-standard terms?

Dan said...

I imagine that, as a result of this and similar suits, one day schools at all levels will require their students, and their parents/guardians in the case of minors, to sign lengthy contracts full of legalese discussing such issues as intellectual property rights to students' work. And America will be even more buried in legalistic mumbo-jumbo than it already is.

Anonymous said...

dan,

In Owasso Public Schools v. Falvo (2002), Justice Kennedy noted:

“First, the student papers are not, at that stage, ‘maintained’ within the meaning of §1232g(a)(4)(A). The ordinary meaning of the word ‘maintain’ is ‘to keep in existence or continuance; preserve; retain.’”

Second, Justice Kennedy noted:

“The Court of Appeals was further mistaken in concluding that each student grader is ‘a person acting for’ an educational institution for purposes of §1232g(a)(4)(A). 233 F. 3d, at 1216. The phrase ‘acting for’ connotes agents of the school, such as teachers, administrators, and other school employees.”

Could a school district require parents or guardians to enter into a publishing contract for student assignments, and still receive federal funds?

Anonymous said...

Pardon the ignorance, but it appears the pivotal issue, at least if this case is disposed of on licensing terms, is whether the students did or could grant an enforceable license.
Have federal courts adopted state law on minors and contracts for this purpose, ala CCNV v. Reid? Or have courts created interstitial federal law out of whole cloth on this issue?

William Patry said...

I think the question of whether minors can enter into a license is a state law question. The issue of minors' competence arose in a joint authorship case in the Second Circuit in Merchant v. Levy involving Frankie Lymon and the (aptly named) Teenagers (and the aptly names song "Why do Fools fall in Love") as well as the infamous Morris Levy.

Supportive Dad said...

My daughter has a class that requires her to submit her work to turnitin.com or she will not receive credit. She is in High School and an A student. Every teacher, including the one requiring her to submit her work to turnitin.com, recognize her as an honest student. Yet, when she turns in her paper next Friday, it is likely her teacher will give her an "F" because she refuses to have it submitted to turnitin.com. She is willing to fight for the right of control over her written work.

William Patry said...

Dear Supportive Dad, I am very sorry to hear about your daughter's predicament and admire deeply both of your courage. I hope that some public interest groups might help out.

Supportive Dad said...

I wanted to post an update. My daughter was asked by her teacher to reconsider her position, but she declined to do so. She turned in her paper and included a cover letter stating her position again. She also included portions of turnitin.com's user agreement that she did not agree with.

Today was the first day back in school after the holiday break. She received her graded paper: 92 out of 100, with no comments about her refusal to participate in turnitin.com.

This was a great relief to her and us.

One other comment - I directed her to your blog which she enjoyed reading. We thank you for your supportive words in response.