Teachers everywhere face the challenge of detecting plagiarism by students. Sadly, both Tim and I have dealt with this problem in the recent past. One tool is services such as Turnitin, which compare students’ (uploaded) work to a database of existing papers and sources. The Washington Post reports that students at McLean High in northern Virginia object to educators’ use of Turnitin based on intellectual property grounds, among other complaints.
I take no position on some of the objections, such as that using Turnitin makes students feel as though they’re being treated as guilty. (In a world, though, where students routinely pass through metal detectors before entering schools, and can be subject to drug testing if they want to engage in extracurricular activities, IP concerns seem less gripping.)
However, the IP complaint struck me as interesting. The only plausible ground seems to be copyright – patent and trade secret simply aren’t at issue, and I don’t think there’s any use of the papers in a way that implicates whatever (minimal) trademark rights the students might have in them. There’s a reasonable prima facie case of copyright infringement: Turnitin uploads (copies) each student’s entire paper and stores it indefinitely. Future checks of submitted work might load a copy of prior works into the server’s RAM (which constitutes copying, at least in the Ninth Circuit), or might simply rely on an index of key terms and phrases (Google is currently fighting over whether this is an infringement of copyright). I assume most of the student papers are non-fiction (history papers, book reports, and so forth), which means that copyright protection for them is less expansive; such works employ uncopyrightable facts and ideas (such as that the Protestant Reformation generated the Counter-Reformation) and thus enjoy less protection. So, while the works probably have relatively minimal novel creative expression, and thus copyright in them is likely thin, Turnitin engages in repeated copying of the works, which probably infringes.
The standard move here is to poke at whether Turnitin might claim fair use or another affirmative defense to infringement. But the more likely defense involves contract. A smart school would have students sign, as a condition of enrollment, an agreement licensing any papers to the school for this purpose, and permitting the school to in turn issue a license to entities such as Turnitin. A really pushy school might even specify that student papers are works for hire. Contracts can re-allocate, and even override, copyright’s entitlements. Since attending school is mandatory, schools have strong leverage to force students to sign such contracts: the consideration is being permitted to take classes and to receive grades (vitally important to ambitious students at places like McLean, with their eyes on top colleges).
If McLean and other schools haven’t worked out this sort of contractual arrangement, the students might have a stronger case, though I suspect the schools and Turnitin would argue for an implied license. (If Turnitin is in fact infringing, aren’t the schools liable for contributory infringement?)
In short, I think that the students’ claims sound more in the moral rights zone: they don’t like how their work is being used, and that it’s without their express consent. That said, as someone responsible now for policing plagiarism, I think services like Turnitin are quite socially valuable, and I suspect an adjudicating court would take this into consideration, even if subjectively, in evaluating an infringement claim.
Thoughts? I’d welcome an argument that this is more clearly infringement, and that the licensing argument doesn’t hold up.