Plagiarism and Copyright

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.

18 Responses to “Plagiarism and Copyright”

  1. I’m not sure what rights attach to students’ papers, but I think it’s still as maybe. A student plagiarizing is definitely infringing on property and, in many states, the law. It’s a balancing act. Are students’ archival rights — I see no evidence that Turnitin is even thinking about distributing archived papers — worth more or less than the value in catching plagiarists? I think the answer is clear.

  2. [...] PS: Info/Law beat me to the punch on this one! Trackback URL: http://madisonian.net/archives/2006/09/26/privacy-via-ip-claims/trackback/ [...]

  3. This is somewhat tangential to your point (though not the post heading), but I’m not entirely sure that “plagiarism” and “copyright infringement” exist in two separate mental spaces. One seems to definitely be informing our concept of the other, and I’m not so sure that’s a good thing.

    I blogged along these lines last year, about a plagiarism accusation regarding a student paper that strikes me as a complete non-issue, but that there were significant sanctions attached to.

  4. John: I think it’s possible to plagiarize without infringing on IP rights. Elementary school students do this all the time: they paraphrase an article from Encyclopedia Brittanica without attribution. Brittanica‘s copyright is pretty thin, since the material on nuclear fission or the Battle of Hastings is almost entirely factual – the student probably evades copyright infringement by paraphrasing (since the encyclopedia’s rights are likely limited to the exact expression of the facts). However, this is clearly passing off another’s intellectual work as one’s own.
    I also do have to take issue with your balancing act. I can create a brilliant movie based on, say, a David McCullough book – one that exposes a wide audience to important historiography and that creates significant social value – and it’s still clearly copyright infringement. Our test isn’t about value, but about permission – in part because we have difficulty agreeing on the metric for value. Hence, we leave it up to the author.
    Cathy: I think that my response to John above deals somewhat with your concern. In looking at your blog posting, the key issue seems to be the level of intellectual debt one owes to the inspirational source. If I read Code and other laws of cyberspace and write a well-researched and cited paper on Internet law, it’s hard to argue that I should have to cite Larry Lessig. However, if I read the book and then write an attack on the New Chicago model of the 4 modalities for shaping human behavior, and don’t cite Lessig, I’ve clearly failed in a substantial scholarly duty and have plagiarized. Hence, I suspect we’d need to know more about the hypo that National Jurist posed.
    I’d also raise the possibility (clearly shaped by my undergraduate experience, where we were threatened if we failed to cite a conversation with someone else that sparked an idea) that we might want to impose a higher duty on students – since they are learning about the rules of scholarship and scholarly communication, we need to make sure they’re particularly assiduous about crediting sources. This probably goes double for law students, who are about to enter a profession with important, codified, enforceable codes of ethical behavior regarding use of sources and disclosure generally.

  5. I can create a brilliant movie based on, say, a David McCullough book – one that exposes a wide audience to important historiography and that creates significant social value – and it’s still clearly copyright infringement. Our test isn’t about value, but about permission – in part because we have difficulty agreeing on the metric for value. Hence, we leave it up to the author.

    I would say we have no difficulty agreeing. The rights to derivatives of an creator’s original work produced of his own volition and initiative are so valuable that they outweigh even the potential social benefits of an unauthorized derivative work (your movie). I’m asserting that the rights to archival (no derivatives, no reproduction, no distribution) of a student’s paper (produced at the behest of his teacher rather than of his own volition) do not outweigh the social benefits of cutting down on plagiarism.

  6. John, I think Google would agree rather strongly. As with Google, I think your argument becomes more powerful if Turnitin indexes the file – into a series of keywords and phrases, perhaps – rather than storing it as a discrete entity. If not, though – if the company does store a complete version of the file – then there is in fact reproduction: they’re making a copy of the paper, even if just during the upload process. It’s likely in future searches that part or all of the paper is loaded into the server’s memory – another reproduction. Under, at least, the 9th Circuit’s view of copyright, this is infringing reproduction.

    So, I think we agree on the social calculus: Turnitin is performing a valuable service, and student’s don’t have much copyrightable material anyway, so we should be ready to immunize any possible infringement. With that said, I do think there’s a decent doctrinal case that Turnitin has infringed. My derivative works example was inapt, but the same theory applies: we defer to the owner of the copyright to make judgments about when to allow copies to be made, even if copying is highly socially valuable, unless that particular copying is immunized by a defense such as fair use.

    Does this make sense? I’m trying mostly to sharpen the area where we seem to take a different tack on the IP issue here.

    thanks, Derek

  7. I think its great that these kids are standing up to protect their rights—not necessarily to their “intellectual property” (more below), but their right to be presumed innocent. I wish college students would be more proactive in this area, though I do think the Turnitin backlash is coming, along the lines of growing campus “free culture” movements.

    Whatever form that movement may take, I’m not sure copyright is the most important issue with plagiarism detection services (PDSs), though like Derek I’m curious to hear more on this (in my experience, university general counsels just roll over and say, “what turnitin says”). If you’ll forgive this comment on the Info/Law site, I’d like to look at this aspect from only a quasi-legal standpoint: that is, whatever we can ultimately patch together from existing laws never meant to cover these domains, we should also ask, do we want students to see their work as intellectual property? The purpose of education is not to produce commercial products, but to learn through the process of writing (the inspiration of the writing across the curriculum movement) and then to have that learning assessed. Yes, plagiarism—especially when that means fraud, the submission of a purchased or entirely copied paper—disrupts that process, and it should prevented (the WPA [Writing Program Administrators] site has best practices) and punished appropriately when discovered. Nonetheless, policing all students, instead of using that time to explain why academic work is cited (while noting that many forms of writing are not) does not create a productive learning experience, and so contradicts the purpose of writing in the first place.

    But let me turn to one of the alternatives advanced, that of an agreement license. In fact, turnitin does recommend, or at least has in the past, that teachers have students sign a permission. Of course, the question easily becomes, whether we’re talking high school or college students, how freely can that permission be given? Usually the choice is sign or drop the course. Assuming the students took the course because it is required or of high interest or applicability, their options are actually quite limited. In a time in which we fret about student engagement, is a coercive environment what we want to create?

    I was also intrigued by the concept that non-fiction papers have “relatively minimal novel creative expression” and so are less subject to copyright. That may be true, but unfortunately “originality” is precisely what PDSs do check for (see TII’s “Originality Report,” which sets the bar at 100%, or a “similarity index” of zero) presumably because this is what teachers want; it is why, in fact, they have such high standards for what constitutes an “unplagiarized” work. Yet as you point out, it may be impossible, or at least highly unlikely for students to have original ideas on the Protestant Revolution, or numerous other mundane topics assigned regularly. In which case, why not let them turn in cut and pasted work to show that they know how to gather knowledge on this?

    But I don’t want to veer to far from originality: postmodernism taught us that the pastiche that is discourse makes originality impossible, while historical studies have revealed its highly contingent and constructed nature (see numerous works by Martha Woodmansee and Peter Jaszi, for example). But you don’t have to jump on the post-structuralist bandwagon to see that in our everyday, information-overloaded lives it is extremely difficult, if not impossible to track back to ascertain the roots of our ideas. And if we find this hard, let me say that it positively stymies students who are now living in fear of plagiarism prosecution. (Thus I strongly disagree with the comment that we should “impose a higher duty on students.” Why should students have to carry the load of more stringent requirements than most “real life” writing, including that of their profs? In fact, that strikes me as the epitome of unfairness—they are learners after all, just becoming acclimated to what is often a very foreign culture of source use.)

    Putting aside the historically and ideologically freighted concept of originality, though, there are other concerns. In many course, students are encouraged to reveal themselves in written work—to express their opinions, discuss personal histories, engage in political debate, etc. Will students be as willing to do so knowing that their work will be stored in a digital database by a commercial third party not involved in the pedagogical relationship? When I recently took part in a pilot program to test a TII knock-off, one of my students called the technology “Big Brother.” While this might be a bit more paranoid than I am willing (on my good days) to go, given public concerns about database/information privacy on one hand, and overzealous government surveillance on the other, not to mention the place where those two overlap, can we as teachers in all honesty dismiss such concerns? Do we really want to add this layer of anxiety into our classrooms?

    My biggest worry about PDSs is that they can become a substitute for good teaching. Except in its most extreme, plagiarism is not a binary thing, easily categorized as yes or no. There are many gray area, from influence, to “patchwriting,” to incorrect citation, to out-and-out obvious fraud (see Rebecca Howard’s acclaimed Standing in the Shadow of Giants). Much of the discussion forgets that the behavior the term references is multi-valanced. Unfortunately, this has real-world, often unhappy results. Nonetheless, the plagiarism panic continues its pathological course: faculty are obsessed with this topic. Maybe if we try to put less energy into policing and more into thinking how to better engage our students, we’d accomplish the same results: better, fresher, more honest writing.

    I know this post has gotten too far away from the purely legal domain, but I hope it sheds light on the “social calculus” of plagiarism, of which the law is only one part.

  8. Lisa points out that students may be asked to give away their IP rights in order to submit an assignment. That sounds awfully like an instance of a contract made under duress. What choice does the student have or risk a failing grade or having to drop the course? There is an implied threat here. IANAL, and maybe this is a wild goose choice, but can someone comment on the idea of duress in relation to contracts in this instance?

    Also, assuming one does believe that Turnitin provides an important service (I’m not convinced of the necessity; read the WPA statement on plagiarism), is it worth thinking about plagiarism as an ethical issue concerning IP? A student’s paper is not stored in the database to serve the learning outcome of the individual student, but rather to prevent the possibility in the future that the student might give away a copy and to be used to verify that some other student has cheated. The exception would be reusing an assignment, but I don’t believe that’s the reason why people are turning to Turnitin.

    From my perspective, it’s highly ironic that in attempting to prevent one form of unethical use of IP by a tiny minority of students (a very, very tiny minority if we take plagiarism to be “intentional” misuse as we should), Turnitin makes questionable ethical use of every student’s writing when there is no indication of wrong doing; storing the papers only serves detecting and preventing future action. It’s sort of like putting an ankle bracelet on everyone to prevent them from breaking the law because people will know that the police will be able track them if they do. That would be a great deterrent for crime.

  9. Fascinating discussion – thanks, Charlie and Lisa. A few thoughts:
    - I suspect a duress claim would have trouble on contract law grounds. Contracts are voidable on the grounds of duress if one party was forced to agree due to a wrongful threat that precluded the exercise of that party’s free will. The key issue is whether a threat to fail a student if the student does not submit his / her homework to Turnitin is “wrongful.” (As a general matter, a good article is Dawson, Economic Duress-An Essay in Perspective, 45 Mich. L. Rev. 253 (1947) – old but useful.) We accept that teachers are within their rights to give students a failing mark for a variety of reasons related to maintaining academic standards: for example, failure to attend class, disruptive behavior, failure to complete assignments, etc. It’s a maxim in contract law that it’s not duress to threaten to do something which one has a legal right to do. Hence, I suspect the duress claim would not work – especially if one viewed the teachers / school as acting in loco parentis in this regard.

    There seem to be at least two key questions here. First, is Turnitin’s use of the students’ papers unethical? We might potentially view Turnitin as an agent of the students – it serves them by preventing others from plagiarizing their work. (We assume students desire this, and that if they do not, they should.) Storing the papers in the database doesn’t presume anything about the authors of those papers; it simply uses them as base material for future comparisons. In essence, Turnitin may be a collective bargain: you store your paper to check mine, and vice-versa; in this way, both of our papers are protected against plagiarism. This may be a bit of a devil’s advocate argument, but I think there’s something to it.

    Second, it strikes me that the key is how Turnitin is used. If, as McLean does, schools employ it as a tool for students to check their work before handing it in, that strikes me as much more acceptable – students can object to any analyses of their work that they see as unfair or unfounded. If schools use it for the first time after submission, and don’t apply some sort of rule of reason to TII’s findings, that’s harder, especially if the alleged failing is of improper citation rather than wholesale copying.

    And a question: part of both of your posts seems to be that the overt use of TII or other PDSs puts students into a context of suspicion. Would it work better if faculty used PDSs without telling students, then dealt with alleged plagiarism cases without revealing the method of detection? Why would it be worse to run papers through TII than to Google key phrases from papers (I’ve done this with student assignments and found copying), or to peruse encyclopedias / common sources for the topic assigned to look for copying? Is there something about automation that worsens the discomfort of students with checks on academic integrity?

    /Derek

  10. Thanks for the clarification on duress.

    Interesting point about the “agent of the students” approach. I don’t think it works since the rhetoric of plagiarism detection marketing doesn’t focus on that argument (at least not that I have seen). Seems unlikely that institutions are making that argument either.

    And yes. I would agree that it would certainly make a difference when students are able to receive an analysis of a draft prior to final submission. That creates an opportunity for student learning. But I don’t think it validates at all the idea that student papers should be stored. Students don’t use each others’ papers as sources in their writing, so one isn’t going to accidentally misattribute or miscite another student’s writing. Storing a paper only serves to prevent and catch cheating in this regard.

    Why would it be worse to run papers through TII than to Google key phrases from papers (I’ve done this with student assignments and found copying), or to peruse encyclopedias / common sources for the topic assigned to look for copying?

    I tend to agree with you in part, and I would reveal the method of detection. Teachers have an obligation to supply evidence for any accusation. But it’s one thing to run a paper through Turnitin or a Google search which the teacher suspects of plagiarism, and quite another to run them all through automatically. Orwell’s 1984 and NSA wiretapping come to mind.

    Since you mention academic integrity, you might appreciate the Conference on College Composition and Communication Intellectual Property Caucus’s (CCCC-IP) statement on plagiarism detection services. CCCC-IP makes some interesting arguments about how use of PDS’s are in violation of academic integrity principles as they are defined by The Center for Academic Integrity.

    Let me change directions and point out something Turnitin mentions in their instructor guide since it is about copyright and an issue you have mentioned yet,

    If the paper is from another instructor’s class, we cannot provide direct access to the paper. To view the paper, you must first request permission from the instructor in possession of the paper by clicking the permission request button 4. We will then auto-gen­erate an e-mail detailing your request. If permission to view the paper is granted, a copy of the paper will be sent back to you via e-mail.

    Whether or not Turnitin has the right to store the paper in the first place, the student as copyright owner should be the one to grant permission to share it with another teacher if the other teachers is at another institution. This might also be a FERPA violation since the paper could be considered part of the student’s educational record. Interestingly, I posted about this in a discussion with a Turnitin rep and it was ignored.

  11. I’m glad the Turnitin.com issue has come up on a law site. As I understand it, IP differs from copyright. So a writer, student or otherwise, has a copyright over the expression of ideas in a paper, but will not have IP rights for those ideas since they’re often writing about matters that are known facts, already published, and so on.

    Is that distinction correct?

    As to copyright, Turnitin.com claims the following:

    The consistent opinion of our attorneys, plus those of the several schools that have looked into it, including the University of California, is that fair use does in fact allow us to store the student’s papers. Here is a summary of the reasoning:

    We believe that use of the student’s paper would be deemed fair because rather than constituting infringement, the use prevents infringement of that
    paper from occurring. The student’s paper is only being used to catch someone who might have stolen from it. That’s the primary purpose of the use and so it would likely be accorded even more deference than other recognized purposes of fair use such as education, commentary and research because its promotion of the underlying goal of the copyright statute, i.e., to promote creativity, is higher.

    This comes from their statement on copyright, full letter available here: http://bedfordstmartins.com/technotes/workshops/fullcopyright.htm

    I haven’t heard of any protest or challenge to Turnitin.com‘s use of student work which goes to the heart of this analysis and argument by their lawyers.

    They argue also that their use of student work is transformative, that the essays aren’t stored as works so much as they are embedded in alogrithmic code that chunks them out into searchable lexical units.

    The objection from students then might be along the lines of, I don’t care that your service “protects” my work. It’s mine, and I don’t want to protect it that way. It’s mine, and while it can’t be read in any meaningful communicative sense once it’s transformed into data bits in your program, I don’t want to contribute it to your program where it becomes an asset to you. Why should you make money off of my work, even if it that work plays a very minor role in your doing so? I want out.

    At McGill University, a student opted out, and a professor gave him an F for not submitting his paper to Turnitin.com. The student appealed that grade and the professor had to accept the paper and the grade was changed, to a B, I think. So at McGill, there’s an opt out.

     Turnitin.com even recommends, in the letter above, that students be given an option, an alternative. If U. and highschools take that advice to heart, then there shouldn’t be an issue.

    It’s a matter of telling faculty that if you want to use Turnitin.com in your course, you can, but you also have to give students an alternative if they ask for it.

     Turnitin.com‘s betting most students would just as soon use the service. If teachers present at as a tool for learning –we’re going to use this to help find matching text so you can learn better what to site– and less in the drug test, you’re presumed guilty mode some default to, then many of these issues would go away.

    Give students choice and make the program a benefit to their learning, and they’ll likely choose it.

  12. The fair use claim is a new one. I hadn’t heard that before. I must say that I’m instinctively skeptical. Fair use is a defense – it immunizes otherwise infringing activity – so Turnitin would need to be sued before this became an issue. (I suppose they could file a declaratory judgment suit if a potential plaintiff became sufficiently aggressive.) Under U.S. law (17 U.S.C. 107), fair use is adjudicated based on, at minimum, four factors: purpose and character of the use, nature of the work at issue, amount and substantiality of the portion used, and effect of the use on the market or potential value of the work. The last three factors are easy: the works at issue are, presumably, mostly factual (making fair use easier); they’re copied at least once in their entirety (making fair use harder, though of course Turnitin will argue for “chunking” the work up and therefore it’s not really used in its complete form); and there isn’t really a market for these works (making fair use easier).

    The critical question, I suspect, is how a court would characterize the use. I think it’s commercial: Turnitin is a for-profit entity. Education is typically focused upon non-profit schools and universities; if this distinction didn’t exist, any corporation supporting or involved with education would gain a large measure of protection from copyright infringement.

    In short, if I were Turnitin, I wouldn’t bet much on the fair use claim.

    And there’s no way the use is transformative. Transformation involves adding new copyrightable material, which TII certainly does not. That part of the argument is simply bunk.

    To respond to Charlie: can you outline more the FERPA argument? By analogy, what if a teacher posts papers on the wall outside the classroom for visitors to read and admire?

    The agency claim may be a stretch, but it might have merit even if the PDSs aren’t currently employing that rhetoric. Clever lawyers can find all sorts of things when lawsuits are involved.

    Thanks for the link to the guidelines; I’ll have a look.

    /Derek

  13. I just came across an absolutely eye-opening anti-Turnitin article with tons of evidence to support many claims. I had no idea how much Turnitin violates students’ rights.

    The Well-Known Secret about Turnitin.com

  14. Consider, it you will, 4th Amendment. Turnitin is a search to detect plagiarism. Turnitin then seizes the work for duplication and future search. For my daughters, their high school has no reasonable cause to suspect them of plagiarism, yet requires them to submit all written work to Turnitin. What is the implied definition of “papers,” as our forefathers wrote in the 4th? Turnitin searches and seizes…

  15. Derek,
    Some additional points. I am currently enrolled in an accredited online MBA program. I currently work for an IT and consulting firm that supplies services to pharma companies. I am currently in the middle of a discussion with an instructor and the university administration regarding the use of the Turnitin software. At the graduate level, the issue of “creative work” becomes much larger. It is conceivable that a paper which I submit for a course at the university may contain an outline or thesis for consulting work which my company engages in. If I were to further expand on that idea and submit it to a client as a proof of concept, what could potentially happen is that the client could submit that against the Turnitin database and my original, copyrighted work would show up as a plagiarized work. That would do irreparable harm to my reputation with the client as well as have an adverse financial impact on my employer.

    Additionally, a study completed by the University of Indiana determined that the best solution was to utilize servers that were owned and operated by the university and used solely for the purpose of checking U of I student works. That would avoid the whole issue of students needing to give permission. http://www.indiana.edu/~bfc/docs/AY04/circulars/B24_bckg.htm
    Also, since it is the instructor and not the holder of the copyright that gives permission for the release of the work to another party, it is also possible that someone could get a hold of a creative work and utilize it for financial gain.

  16. I believe that another one of the issues that was presented by the students (as read in Maclean’s Magazine) was that as an “author” or creator of the content, that they should also be entitled to some form of financial compensation. Based on the fact that they had to turn their own work into some company. Granted Turnitin does provide a service, and in a recent poll done by Maclean’s magazine, it was found that a staggering 56+% of high school and university students anonymously admitted to cheating and/or submitting wholly or partially, someone elses papers and homework. Amazing!!

    There is of course an option for these students to submit their work to a website that will pay for their work such as a “Profit Sharing” Site, or some other online service willing to compensate students and authors for their original work.

  17. Late to the party here, but:

    In California, it’s unconsitutional (and illegal, per Ed Code) to charge a fee for any instructional or extra curricular activity at a public school (Hartzell v. Connell). Isn’t forcing a student to license their property to a third party a defacto fee? The rights obviously have value (even de minimis) or else iParadigms wouldn’t make you sign/click a 7000 word contract to assign those rights in order to turn your paper in.

  18. Hey Jim,

    Interesting – can one simply build a fee into something else, or is charging anything (even to defray costs) out? How does this work for school fundraisers?

    My assumption (I’d have to recheck the Turnitin terms) is that the students are granting a non-exclusive license to their work. If we approach this formally, we might well think this is a “fee” – it has some non-zero value, and it’s essentially a forced transfer. If I were to respond as a formalist, I’d say that there’s no forced transfer: students are welcome not to license their work, and in return will receive a failing grade. So, it’s “voluntary.” (Would this work if field trips were “voluntary,” but necessary in order to receive a passing grade? Hmmm.)

    A more modern cop-out would be to simply note that the license has so little value that, while it might be consideration under contract law, it’s not a fee. I suspect the outcome would depend on how CA courts define “fee.”

    Thanks for commenting!