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!

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.

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.

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.

The Well-Known Secret about Turnitin.com

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

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.

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.

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