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High School Students' Copyright Infringement Lawsuit Against Anti-Plagiarism Site Rejected:

I blogged about this two years ago, and concluded that the site would and should win under the fair use doctrine. Yesterday, the Fourth Circuit accepted the site's fair use claims. Here's my summary of the matter from last year, though you might instead just read the Fourth Circuit opinion:

Turnitin.com is a commercial service that aims to help educators catch plagiarism in student papers. Schools require that student papers be submitted to the site, which (1) checks each student paper against its database, and (2) adds each student paper to its database so that future papers can be checked against it. I take it that the database already contains papers from commercial term paper mills, encyclopedia entries, and the like; but adding student papers helps spot students who are copying from classmates, or from friends at other schools, as well as students who are copying from publicly available sources.

But, the high school student plaintiffs say, step 2 violates our copyright: You folks are making money by copying our papers onto your servers. The consent you get from us is inadequate because we are coerced to give it (especially plausible, I take it, when the students are students at public high schools, and when they are within the compulsory school attendance age range). And your use is not fair use, chiefly because it's commercial....

Turnitin.com's strongest fair use argument (which would be needed if the court concludes that the student did not voluntarily consent to the use of their works) is that though their use is commercial, it is

  1. transformative — it copies the papers not to use them as papers (as opposed to, say, a Napster user, who copies a song to play it as a song), but rather to use them to check other papers for plagiarism --

  2. is in aid of others' nonprofit educational mission, and

  3. does not interfere with the students' market for their own works, since the students' works are worthless, and in any event if they are worth something (say, because the students can sell them as newspaper op-eds or articles in literary magazines), Turnitin's archiving of the papers wouldn't interfere with that value.

The students' strongest response would essentially be that if Turnitin is making money from the students' works, the students are entitled to a share of that, and Turnitin's using the works for free interferes with the students' ability to license their papers to Turnitin itself. The most familiar analogy here would be if Steven Spielberg decides to make a movie out of your novel. It may well be that the movie won't interfere with the value of your novel -- it may even increase your sales--— but his making the movie without paying you interferes with your right to license movie rights to the novel. (Some condemn this as circular reasoning, but I don't think that's quite right, and in any event it is precisely the reasoning that lets authors profit from selling movie rights to their books, and that bars moviemakers from just using the books for free and claiming fair use.) If anything, the students would say, our case is even stronger because our works are unpublished, and the unpublished status of a work is generally seen as cutting in favor of the work's owner and against the fair use claims of the user.

[But] I'm pretty sure Turnitin would and should win, because (1) the value of the licensing rights in their papers would in any case be next to nil, (2) Turnitin's use is transformative -- in the sense that it uses the original to make something that's very different (much as a parody or a photo search engine that presents thumbnails of others' photos is transformative, though not quite in the same way) -- and therefore is not within the authors' legitimate licensing rights (cf. the Supreme Court's holding that "there is no protectible derivative market for criticism"), and (3) the unpublished status of plaintiff's work should only matter when the defendant is trying to publish the work (or a version of the work), which it isn't doing.

Whadonna More:
Any volunteers to try the 5A angle against compelled-attendance government schools? If the schools respond by submitting student papers to Turnitin themselves so students aren't forced to self-incriminate, there would be a new copyright-infringing step to complain about.
4.17.2009 1:39pm
theobromophile (www):
I know very little copyright law (touched upon American copyright briefly in an international IP course), but it seems as if Turnitin.com isn't really "transforming" the student's works in the traditional meaning. While the papers are going from electronic copy to a database, there is absolutely no creative change to the papers. In fact, the entire point of turnitin.com is that the use of the students' works is not transformative! If it were, the database would be useless.
4.17.2009 1:43pm
allan (mail):
The value of the student's work is virtually nil? Why don't we let the market decide that. The value to the company has some value, surely.

The value argument can certainly be used for songs and other works. If Apple is selling a song for a $1 per use, that is, for all intents and purposes, nil.

The same goes for a writer whose works are put onto a magazine's electronic database.

And, unless schools are paying nothing for the service, the database (and, therefore, its parts, i.e., papers) are worth something so someone.

I think the students have a much stronger case than commercial artists. Commercial artists intend to put their works in the public market, students do not. If I don't want my work published, why, exactly, can someone do just that?
4.17.2009 1:49pm
allan (mail):
One more point.

What if I want to sell my paper so someone else can plagiarize it? It is not a criminal offense. But this service is reducing the value of my work. That is not fair to me, as the author, and I should be compensated fairly.
4.17.2009 1:51pm
David M. Nieporent (www):
I know very little copyright law (touched upon American copyright briefly in an international IP course), but it seems as if Turnitin.com isn't really "transforming" the student's works in the traditional meaning. While the papers are going from electronic copy to a database, there is absolutely no creative change to the papers. In fact, the entire point of turnitin.com is that the use of the students' works is not transformative! If it were, the database would be useless.
It's not that it literally transforms the work, but that the use is transformed. Rather than treating it as a paper and caring about the contents, it's being treated as a database entry, solely for the purpose of comparing with other papers to detect plagiarism.
4.17.2009 1:53pm
theobromophile (www):
David - I would agree, except that:
1. the "database" use of the paper still "care[s] about the contents," because, without that, the database would be useless; and
2. copyright owners have the right to derivative works; I fail to see how a database wouldn't be a protected derivative work.
4.17.2009 1:59pm
David M. Nieporent (www):
What if I want to sell my paper so someone else can plagiarize it? It is not a criminal offense. But this service is reducing the value of my work. That is not fair to me, as the author, and I should be compensated fairly.
Setting aside whether it's criminal -- in our overcriminalized society, there's probably a law against it -- I don't think a court is going to be overly sympathetic to the claim, "It destroys my ability to sell the work to people who want to use it to cheat in school." (Remember: any other use of the work other than turning it in as one's own work would in no way be affected by Turnitin.)

In any case, copyright law does not protect the value of a work in that sense. It only protects the value of a work from copying that acts as a substantive good for the work. Destroying the value of a work by labeling those who buy it as a "cheaters" is not relevant for copyright purposes.
4.17.2009 2:04pm
D.O.:
I am not a lawyer and know nothing about copyright law (and other law as well), but it seems to me that an importent reason to not "copyright" this use is because each individual work is immersed into the large database and not used in fact individually. Let's compare it to this situation. Suppose I amassed a database of movies without asking for copyright holders' permission and now sell a service of comparing movie fragments against this database with answers like "This particular clip contains 3sec. from the movie 'Gone mad, back soon'". Would I infringe anything?
4.17.2009 2:05pm
David M. Nieporent (www):
1. the "database" use of the paper still "care[s] about the contents," because, without that, the database would be useless; and
The database doesn't care about the contents qua contents, but just as patterns to match against other documents to determine whether they're the same.
2. copyright owners have the right to derivative works; I fail to see how a database wouldn't be a protected derivative work.
Because it's a change in the purpose and use, not a mere change in the form.
4.17.2009 2:07pm
Dan Weber (www):
What if I want to sell my paper so someone else can plagiarize it? It is not a criminal offense. But this service is reducing the value of my work. That is not fair to me, as the author, and I should be compensated fairly.

Just because it reduces the value doesn't mean it's not allowed. If I write that Micheal Bay's latest movie sucks, and even show some clips from it that demonstrate why it sucks, that's generally recognized as being protected under Fair Use.

The value argument can certainly be used for songs and other works.

If this was about music, we would have a place with an online repository of music that could tell you what songs you had compared to those in its database, but didn't ever try to sell you that music.

A better real-world comparison might be if I built up a library of articles from the New York Times, and let people search them, and told them the name and date of the article their words appeared in, but didn't give them any substantial part of that article that was found.
4.17.2009 2:08pm
MartyA:
Do we have any idea who is financially backing these students? I can think of lots of folks who would not want something they didn't write but said they did checked against such a data base.
4.17.2009 2:14pm
Aggle:
What if I were a high school student, and offered my services to the school district to check all turned in papers against my own, to make sure no one had plagiarized me? At a proportional cost to what Turnitin charges, my work then has the exact same value to me as it does to Turnitin.

Right? Would Turnitin be infringing then?
4.17.2009 2:14pm
David M. Nieporent (www):
What if I were a high school student, and offered my services to the school district to check all turned in papers against my own, to make sure no one had plagiarized me? At a proportional cost to what Turnitin charges, my work then has the exact same value to me as it does to Turnitin.

Right? Would Turnitin be infringing then?
No. Turnitin might be diminishing the value of your services, but that again has nothing to do with copyright, which is concerned with the value of the copyrighted work.
4.17.2009 2:22pm
Dilan Esper (mail) (www):
I'm sympathetic to the students, because when you turn in a compulsory assignment, you are turning it in for a grade. You aren't giving the professor permission to publish it, whether in a book or in a plagiarism database. If you showed your book manuscript to an acquaintance and he went out and published it in a database, that would be a copyright infringement.

That said, due to the importance of there being a competing market in the fair use analysis, the students properly lost here. As crappy and uncivil as it is for a professor to appropriate a student's work without the student's permission, it is pretty clearly a fair use under the law.

A professor who respects his or her students, however, would ask permission and only put papers in the database where the student has consented.
4.17.2009 2:22pm
Eugene Volokh (www):
Theobromophile: What do you think of the court's transformativeness analysis? It goes into some of the matters you mention, I think.

MartyA: It looks like the students' lawyer is the father of one of the students.

Dilan: Why is it crappy and uncivil for a professor to try to facilitate checking for plagiarism? I suppose it's a bit disrespectful in that it suggests that the students might otherwise facilitate others' cheating -- he's not trusting them to just not pass it along to plagiarism sites and to others. But that strikes me as no different from proctoring exams, or other things that recognize that some students might cheat.
4.17.2009 2:27pm
David M. Nieporent (www):
I'm sympathetic to the students, because when you turn in a compulsory assignment, you are turning it in for a grade. You aren't giving the professor permission to publish it, whether in a book or in a plagiarism database.
Setting aside that I think you're slightly mistaken on the fact pattern -- the teacher (not professor; this is high school) isn't doing it, but requiring the student to do it -- I don't see what that has to do with anything. Obviously you aren't giving the teacher permission; that's why we're talking about fair use. Fair use by definition only applies in situations where no permission has been granted.

A professor who respects his or her students, however, would ask permission and only put papers in the database where the student has consented.
Well, that wouldn't have much value to anybody then. People who didn't plan to sell their term papers to cheaters would consent, and people who did plan to sell their term papers to cheaters would refuse.
4.17.2009 2:28pm
Gabriel McCall (mail):
Any volunteers to try the 5A angle against compelled-attendance government schools? If the schools respond by submitting student papers to Turnitin themselves so students aren't forced to self-incriminate, there would be a new copyright-infringing step to complain about.


There is no compulsory self-incrimination here. Students are compelled to attend school; they are not compelled to turn in papers. The self-incrimination can only occur if the student voluntarily chooses to engage in grade-seeking activity.

"Attending school" is not at all synonymous with "doing schoolwork", as any teacher will tell you.
4.17.2009 2:31pm
Dilan Esper (mail) (www):
Dilan: Why is it crappy and uncivil for a professor to try to facilitate checking for plagiarism? I suppose it's a bit disrespectful in that it suggests that the students might otherwise facilitate others' cheating -- he's not trusting them to just not pass it along to plagiarism sites and to others. But that strikes me as no different from proctoring exams, or other things that recognize that some students might cheat.

Because the student is giving you HIS PERSONAL WORK PRODUCT, something that you have no right to, ONLY because he or she is required to give it to you to get a grade. He isn't giving it to you to show to your wife, or post on a bulletin board, or incorporate into your stand-up comedy routine.

Similarly, he is not giving it to you to put into a plagiarism database.

You are taking something that you have the awesome power to FORCE a student to give to you, and betraying the student by putting it to a use that the student never gave you permission to use it for.

Yes, it's a fair use. But it's crappy, and it's based on a fundamental misunderstanding of who that paper belong to. It's the student's, not yours.
4.17.2009 2:38pm
A Law Dawg:
<blockquote>Because the student is giving you HIS PERSONAL WORK PRODUCT,</blockquote>

Or so he claims.
4.17.2009 2:42pm
Dilan Esper (mail) (www):
Well, that wouldn't have much value to anybody then. People who didn't plan to sell their term papers to cheaters would consent, and people who did plan to sell their term papers to cheaters would refuse.

So what? We could require that students take polygraph tests or submit to brain scans to stop plagiarism too. The ends don't justify the means.

Again, I reiterate-- this is definitely a fair use, because there is no commercial market for the paper that is interfered with by the plagiarism database. It's not infringement. It's just really shabby, and shows you that professors don't fudamentally understand who those papers belong to.
4.17.2009 2:42pm
Dilan Esper (mail) (www):
Because the student is giving you HIS PERSONAL WORK PRODUCT

Or so he claims.

Note, A Law Dog, it's the papers of the honest students which are being misappropriated and placed in the database, not the plagiarizers.
4.17.2009 2:43pm
Philistine (mail):
I think my main "gut level" objection is it seems turnitin (and the schools) are getting actual financially valuable material from the students, who are getting nothing in return.

Rather than copyright, could this be seen as a takings issue? At least against public schools?

Conceptually, is this any different than schools requiring students to fill out (anonymous) surveys and then using those surveys to get money from advertisers? I assume that would be problematic, but maybe not.

--Philistine
4.17.2009 2:43pm
A Law Dawg:
Again, I reiterate-- this is definitely a fair use, because there is no commercial market for the paper that is interfered with by the plagiarism database. It's not infringement. It's just really shabby, and shows you that professors don't fudamentally understand who those papers belong to.


Please.

In my life before law school I was an educator, and in *one assignment* 33 of my 55 students plagiarized from various sources all over the net. The notion that students are so unimpeachable that comparing their work to somebody else's somehow establishes a grievance is silly.
4.17.2009 2:45pm
David M. Nieporent (www):
Yes, it's a fair use. But it's crappy, and it's based on a fundamental misunderstanding of who that paper belong to. It's the student's, not yours.
Again, I don't understand your point. Everyone agrees that the paper doesn't belong to the teacher. Everyone -- well, not literally everyone, but you do -- agrees that it's fair use. Every fair use, by definition, involves using something that doesn't "belong to" you, for a purpose unauthorized by the actual copyright owner.

So why is this fair use any more "crappy" or "uncivil" or "shabby" for those reasons than any other fair use of any other copyrighted work?
4.17.2009 2:48pm
Gabriel McCall (mail):
The notion that students are so unimpeachable that comparing their work to somebody else's somehow establishes a grievance is silly.


But that's not the question at issue. The question is not whether it is legitimate to test my paper for plagiarism; the question is whether you can, without paying me, use my paper as part of your for-profit business to test other papers.
4.17.2009 2:49pm
Dilan Esper (mail) (www):
In my life before law school I was an educator, and in *one assignment* 33 of my 55 students plagiarized from various sources all over the net. The notion that students are so unimpeachable that comparing their work to somebody else's somehow establishes a grievance is silly.

It isn't that they are unimpeachable. I will stipulate, if you want, that 99 percent of students plagiarize.

It is still wrong to misappropriate the work of the 1 percent without their permission. Not actionable copyright infringement, but highly immoral.

Put clearly-- the student turns in his work for no other reason than he or she is forced to. And the student does it because he or she needs to do it to get a grade. Under that circumstance, to use that paper for ANY other purpose than to grade it is a violation of trust and shows a professor who doesn't understand who that paper belongs to.
4.17.2009 2:50pm
A Law Dawg:
But that's not the question at issue. The question is not whether it is legitimate to test my paper for plagiarism; the question is whether you can, without paying me, use my paper as part of your for-profit business to test other papers.


That's the issue in the case, which I find a fair question. My post was a response to Dilan Esper, who said the professors were being "shabby".
4.17.2009 2:51pm
A Law Dawg:
Under that circumstance, to use that paper for ANY other purpose than to grade it is a violation of trust and shows a professor who doesn't understand who that paper belongs to.


Plagiarism vetting *is part of the grading process*.
4.17.2009 2:52pm
Dilan Esper (mail) (www):
So why is this fair use any more "crappy" or "uncivil" or "shabby" for those reasons than any other fair use of any other copyrighted work?

Because the student never published this work or fixed it in a tangible medium expression for any other reason than he or she was compelled to do so.

In most fair use cases, you have a work that is voluntarily placed into the marketplace of ideas and is thus subjected to comment, criticism, parody, and transformation.

(By the way, fair use law does reflect this distinction. The publication of JD Salinger's leters, for instance, was found not to be a fair use.)
4.17.2009 2:52pm
Dilan Esper (mail) (www):
Plagiarism vetting *is part of the grading process*.

A Law Dog, get the freaking point! Paper 1 is turned in by student A. It is original, and is copied into the database without student A's permission.

Paper 2 is turned in by student B. It is tested against the database.

We aren't challenging what happened to Paper 2 and student B's rights. We are talking about paper 1 and student A's rights.
4.17.2009 2:54pm
IPLawyer:
The value of the student's work is virtually nil? Why don't we let the market decide that. The value to the company has some value, surely.



The value for licensing the works is likely de minimis, but you are right, it isn't "nil." With that said, one of the classic justifications for the fair use doctrine is in circumstances of market failure. In this case, Turnitin.com would have a very strong market failure argument because the transaction costs in seeking to license every high school student's paper would be cost prohibitive.
4.17.2009 2:57pm
A Law Dawg:
A Law Dog, get the freaking point! Paper 1 is turned in by student A. It is original, and is copied into the database without student A's permission.

Paper 2 is turned in by student B. It is tested against the database.

We aren't challenging what happened to Paper 2 and student B's rights. We are talking about paper 1 and student A's rights.


I understand the point.

Suppose an alternative:

Professor assigns a paper. He issues grades but does not return a physical copy of the submitted work.

Each semester he gives the same assignment, and employs a research assistant to vet each submitted paper against all the previously submitted papers the professor has kept in his filing cabinet.

Is this shabby to you?

Suppose also that each professor in the department thinks this is a good idea, and they adopt the same system. Each paper is placed in a central filing cabinet in the faculty office, and assistants painstakingly vet each paper.

Is this also shabby?

Is it shabby if those papers are scanned into PDF, the physical copies destroyed, and the assistants do their vetting through electronic copies?

Is this shabby?

Please explain at what step the professor has transformed from a prudent educator into faceless trampler of student rights.
4.17.2009 3:00pm
Dan Weber (www):

A creator has the right to not have his works published. But being put in a database somewhere isn't publishing.
4.17.2009 3:02pm
IPLawyer:
(By the way, fair use law does reflect this distinction. The publication of JD Salinger's leters, for instance, was found not to be a fair use.)



There's much that distinguishes the Salinger example: the defendant's use was not transformative and was classically commercial in nature. Furthermore, Salinger's letters were much more valuable... so he had a much stronger argument that defendant's publication seriously denigrated the letters' market value.
4.17.2009 3:05pm
Tony Tutins (mail):
Discovering that the aphorism "one man's trash is another man's treasure" applies to your school papers naturally makes you want to collect your share. But the actual cash value of any one paper is almost nil.

The most appropriate solution here is compulsory licensing: Require all students to agree to allow their homework to be submitted to the plagiarism database. Or they can decline to turn in homework and fail the class: the choice is theirs.
4.17.2009 3:09pm
Dilan Esper (mail) (www):
Each semester he gives the same assignment, and employs a research assistant to vet each submitted paper against all the previously submitted papers the professor has kept in his filing cabinet. Is this shabby to you?

Quite a bit less. It's a lot different to put those papers in his filing cabinet than it is to give them to a commercial business for publication.

Please explain at what step the professor has transformed from a prudent educator into faceless trampler of student rights.

That's sophistry. Simply saying that the commercial service is doing something more efficiently than the school could doesn't negate the fact that the professor is turning that paper over to a commercial service for publication without the student's consent.

But to answer your question, it is actually shabby for that student's paper to be shown to ANYONE other than the professor and any assistant he uses for grading.
4.17.2009 3:10pm
Dilan Esper (mail) (www):
A creator has the right to not have his works published. But being put in a database somewhere isn't publishing.

Actually it is.
4.17.2009 3:10pm
Dilan Esper (mail) (www):
There's much that distinguishes the Salinger example: the defendant's use was not transformative and was classically commercial in nature. Furthermore, Salinger's letters were much more valuable... so he had a much stronger argument that defendant's publication seriously denigrated the letters' market value.

Which is, again, why I think this is a fair use. I just think it's crappy conduct. I was using the Salinger example to show people why there's a big difference in the student's interests here vs. someone who puts out his work to a mass audience and then has the work subjected to traditional fair use.
4.17.2009 3:12pm
pintler:

I just think it's crappy conduct.


It seems that:
-it's good for society, because it results in better educated children
-it's better for the student who might be tempted to plagiarize, because it will encourage them to actually learn instead
-it's better for the straight arrow students, because they aren't penalized for doing the right thing

Who is the individual who is worse off than if we just have rampant plagiarizing?
4.17.2009 3:21pm
Dan Weber (www):
A creator has the right to not have his works published. But being put in a database somewhere isn't publishing.

Actually it is.

Well, here's what the Fourth Circuit says:
In fact, the Turnitin digital archiving process does not involve any review of the submitted works at all, ven by those at iParadigms. Thus, no employee of iParadigms read or reviewed the works submitted by plain-tiffs. We find no basis whatsoever for concluding that iParadigms’ use of the plaintiffs’ papers undermined their right to first publication.
4.17.2009 3:22pm
Daryl Herbert (www):
[Turnitin's use] does not interfere with the students' market for their own works, since the students' works are worthless, and in any event if they are worth something (say, because the students can sell them as newspaper op-eds or articles in literary magazines), Turnitin's archiving of the papers wouldn't interfere with that value.

But it does affect the value of their papers.

Specifically, it negatively impacts their ability to sell the papers to the next class.

Plagiarism isn't illegal. It isn't a crime. Turnitin's use of their work has a chilling effect on lawful commerce.
4.17.2009 3:27pm
David M. Nieporent (www):
That's sophistry. Simply saying that the commercial service is doing something more efficiently than the school could doesn't negate the fact that the professor is turning that paper over to a commercial service for publication without the student's consent.
First, as I pointed out above, your facts are wrong. The teacher -- not professor -- is not turning anything over to anybody. The teacher is requiring the students to turn their papers over to that commercial service.

Second, it's not for publication. It's for storing in a database for the purpose of catching cheaters. (Whether that meets some hypertechnical definition of "publication" in copyright law -- in my opinion, and that of the court's, it does not -- it certainly doesn't meet the standard lay definition of publication.

Third, it's not "sophistry" at all, since it was a question, or rather a series of questions. He asked at what point it became shabby. You didn't really want to answer the question, perhaps because you realized how far out on a limb you were going? You haven't explained why doing it more efficiently makes it "shabby." (Well, you did use the word "commercial," but your next statement makes it clear that your argument doesn't actually turn on the commercial nature of Turnitin at all, but on the weird notion that a student doing a high school paper is engaged in a sacred activity of some sort that creates a teacher-student bond akin to that of lawyer-client.)
4.17.2009 3:29pm
New World Dan (www):
Discovering that the aphorism "one man's trash is another man's treasure" applies to your school papers naturally makes you want to collect your share. But the actual cash value of any one paper is almost nil.

It is important to note, however, that the value is still greater than zero. This can be proven by Turnitin's desier to keep a copy of it. Furthermore, there are important scarcity aspects that play in here. The value to an organization like Turnitin is enhanced by fewer copies floating around. Turnitin's position in the market depends on them having copies and other similar organizations not having copies. It may also diminish the student's own future use of the paper. I've turned in essentially the same paper with minor editing to two different classes before.

In some ways, what Turnitin is doing is comparable to file sharing. The spot damage is negligable, but on a macroscopic level, it becomes hugely significant.
4.17.2009 3:30pm
Dilan Esper (mail) (www):
It seems that:-it's good for society, because it results in better educated children-it's better for the student who might be tempted to plagiarize, because it will encourage them to actually learn instead-it's better for the straight arrow students, because they aren't penalized for doing the right thing Who is the individual who is worse off than if we just have rampant plagiarizing?

It's just that you violate the sacred relationship of trust between professor and student by appropriating something that doesn't belong to the professor to get there.

Look, lots of things benefit the common good. That doesn't mean that we should run roughshod over the legitimate expectations of students and appropriate their work and publish it through a commercial enterprise without their permission to get there.
4.17.2009 3:33pm
NaG (mail):
I think "A Law Dawg" hits the point, but let's make it even simpler.

Professor assigns a writing project. Each student turns in a paper. While grading those papers, the Professor realizes that Student A and Student B turned in the exact same paper. Based on some arguments I'm seeing in this comment thread, some people seem to think that the Professor would be violating one of those Student's copyright rights in acting upon this clear case of plagiarism, since he would be using one paper to screen the other. It doesn't matter whether there is a database of papers from the past, or even whether the database is run by the Professor or an outside group. The argument for the pro-student side essentially demands that nobody can use any student's work to determine whether plagiarism has occurred, which makes the detemination of plagiarism impossible.

I guess to me I don't see the "use" as similar. Copyright protects certain kinds of uses of a work, but not every conceivable use. I am not violating Stephen King's copyright to his novel "Carrie" if I burn a copy of the book for heat. Or use it as a doorstop. And I don't think that comparing King's book to other books to determine if newer authors are ripping off his writing style would be an impermissible use, either. Heck, I've seen teachers who hold on to exceptional assignments and then read them to the class, after the grades are handed out, to give an example of what was possible with the assignment. I have a hard time seeing the problem with that.

However, I think it would be an impermissible use to download all "A" papers for a particular assignment into a database and then run a program that will derive a "prototypical A paper" for that assignment that will then be used for profit/advantage.
4.17.2009 3:34pm
NaG (mail):
Daryl: "Plagiarism isn't illegal. It isn't a crime."

I'm not sure sure that there is no case where plagiarism could be construed as a crime -- wire fraud comes to mind for me. But one thing's for sure: plagiarism can definitely lead to civil liability.
4.17.2009 3:41pm
David M. Nieporent (www):
But it does affect the value of their papers.

Specifically, it negatively impacts their ability to sell the papers to the next class.

Plagiarism isn't illegal. It isn't a crime. Turnitin's use of their work has a chilling effect on lawful commerce.
Already responded to above, but to reiterate:

1) It may well be illegal. I'll bet a zealous prosecutor can find some statute to squeeze this into.

2) To the extent your statements are true, so what? They have nothing to do with copyright law, which protects the work from competition, not from "chilling." If I write, "Dan Brown is a hack writer, and the Davinci Code was derivative crap," and back it up with excerpts from his book, that would certainly negatively impact his ability to sell his books to future readers (assuming I was influential enough of a review that anybody cared what I thought). But that's not what copyright law prevents.
4.17.2009 3:41pm
David M. Nieporent (www):
It's just that you violate the sacred relationship of trust between professor and student by appropriating something that doesn't belong to the professor to get there.
You know, I was mocking you when I used the word "sacred." I didn't mean for you to take it seriously and adopt it as your own position.

There is no "sacred relationship of trust," and since the teacher isn't doing anything at all, let alone doing it behind the student's back, "trust" can't be at issue anyway.
4.17.2009 3:44pm
Dilan Esper (mail) (www):
Well, you did use the word "commercial," but your next statement makes it clear that your argument doesn't actually turn on the commercial nature of Turnitin at all, but on the weird notion that a student doing a high school paper is engaged in a sacred activity of some sort that creates a teacher-student bond akin to that of lawyer-client.

Commercial makes it worse, but yes, a professor shouldn't be showing that paper to ANYONE who isn't grading it.
4.17.2009 3:45pm
ASlyJD (mail):
Question:

Why does a student have any copyright in his papers?

Why isn't it an example of a work-for-hire, wherein the copyright belongs to the commissioner of the work, i.e. the teacher?

While writing a school paper isn't paid, (in fact the student and his family pays taxes for the privilege of being educated) it might otherwise fit the criteria for a work-for-hire:
1) Who has the right to control the work (the point in question, but if the teacher has the right to not return the paper, as many profs do, this seems that the teacher has this)
2) The amount of skill required. (High school papers by definition don't require artisan skill.)
3) Whether the employer has the right to assign additional projects (by definition, the teacher has the right to continue to assign additional papers)
4) Whether the employee pays his own taxes (obviously not)
5) Whether the commissioner is a business entity (obviously not)
4.17.2009 3:46pm
Dilan Esper (mail) (www):
Based on some arguments I'm seeing in this comment thread, some people seem to think that the Professor would be violating one of those Student's copyright rights in acting upon this clear case of plagiarism, since he would be using one paper to screen the other.

Not at all. Because it doesn't involve giving that paper to anyone else.

The student's expectation is that the professor will have the paper. And perhaps the assistant / grader will have the paper. But nobody else will. And certainly not a commercial service.
4.17.2009 3:47pm
David M. Nieporent (www):
In fact, Dilan, by your logic, if the teacher said, "You turned in a good essay, Mr. Esper. Please come up here in front of the class and read it, so that your classmates can understand what they should be doing," that teacher would also be violating this "sacred trust."
4.17.2009 3:48pm
Dilan Esper (mail) (www):
Why does a student have any copyright in his papers? Why isn't it an example of a work-for-hire, wherein the copyright belongs to the commissioner of the work, i.e. the teacher?

That would be a serious abuse of the work-for-hire doctrine, which is premised on the idea that the employee received fair compensation in lieu of the copyright.

Of course, if professors want to pay students for the right to put their papers in turnitin (or if, even better, turnitin wanted to pay the students), that would be a lot different situation. But the students should still get to opt out.
4.17.2009 3:49pm
A Law Dawg:
1) It may well be illegal. I'll bet a zealous prosecutor can find some statute to squeeze this into.


Especially if the professor requires it to be turned in by webpage, and his TOS forbids plagiarism! God help us if someone commits suicide after reading a plagiarized paper.
4.17.2009 3:50pm
Dilan Esper (mail) (www):
You turned in a good essay, Mr. Esper. Please come up here in front of the class and read it, so that your classmates can understand what they should be doing

I would have a right to refuse to do so.

Let's say a teenage girl wrote an essay about her harrowing experience getting pregnant and having an abortion. She turns
it in thinking only the professor is going to read it. How would you view the teacher in that hypothetical if he made that request?
4.17.2009 3:51pm
Perseus (mail):
Put clearly-- the student turns in his work for no other reason than he or she is forced to. And the student does it because he or she needs to do it to get a grade.

And the student creates the work for no other reason than to submit it for a grade. So I see nothing objectionable about conditioning acceptance of the work for a grade with consenting to have it checked for plagiarism by a third party, whether it be a TA or a commercial service that does the same thing.

Require all students to agree to allow their homework to be submitted to the plagiarism database. Or they can decline to turn in homework and fail the class: the choice is theirs.

That's how it works in my classes.
4.17.2009 3:52pm
A Law Dawg:
I agree with Dilan Esper that work-for-hire would be inappropriate, at least in the compulsory-ed High School setting, where your choices are comply or fail.
4.17.2009 3:53pm
Dilan Esper (mail) (www):
So I see nothing objectionable about conditioning acceptance of the work for a grade with consenting to have it checked for plagiarism by a third party, whether it be a TA or a commercial service that does the same thing.

You've missed the point to.

NOBODY is saying the professor can't require that the student RUN the paper through the database to establish it isn't plagiarized.

We are saying that it is improper for a professor to require that student's paper, intended to be read by nobody other than the professor and/or another grader, be given to a commercial service (or indeed, anyone else).

It's the CREATION of that database, not its use, that is improper.
4.17.2009 3:55pm
pintler:

It's just that you violate the sacred relationship of trust between professor and student by appropriating something that doesn't belong to the professor to get there.


At least when I was in school, which has been a while, I'm not sure that work I handed in was considered my property. This was all pre word processing, and it was normal to hand in the only extant copy, hand written, and never get it back.

In particular, graded tests might be handed out and then collected again - precisely because the teacher hoped to use the same test again next year (pre word processing, typing up those mimeograph masters was pretty tedious compared to today).

With that background, do you feel a teacher who retains a student's completed test is taking the student's property?
Does it matter if the handed in work is a multiple choice test, a test with essay questions, or a term paper?

I guess I thought of school kind of like those 'entries will not be returned to contestants' sweepstakes - my 'property interest' in a class was getting the grade, and the teacher could and frequently did keep the 'work product', to do with more or less as they wanted.

If a professor was getting publishable papers, and publishing them as his own work, then I'd be on board. I dunno if I have the same problem w/ turnitin.com.

I do wish there was a way turnitin.com didn't end up with a monopoly; that part bothers me a little.
4.17.2009 3:55pm
David M. Nieporent (www):
Why does a student have any copyright in his papers?
Because he created it and fixed it in a tangible medium. That's all that's required.
Why isn't it an example of a work-for-hire, wherein the copyright belongs to the commissioner of the work, i.e. the teacher?
Because a student isn't an employee.

Works made for hire have a specific set of statutory requirements, and a student paper doesn't fit, well, any of the requirements.
4.17.2009 3:57pm
Dilan Esper (mail) (www):
With that background, do you feel a teacher who retains a student's completed test is taking the student's property?
Does it matter if the handed in work is a multiple choice test, a test with essay questions, or a term paper?


Again, this is silly. Keeping the assignment so that it can be assigned again is different than giving it to someone. And yes, essays and term papers are more personal than multiple choice tests.

The point, though, is that the student turns things in so they can be graded, not so they can be given to someone else and used for some other purpose.

In the end, as I said, the issue of whether it is the student's legal "property" is moot, as it is a fair use. But while that IS the law, the law OUGHT to be different.

To throw out one other thing, it is my understanding that schools DO respect this rule in another context-- to do RESEARCH on student exams, a professor would have to get informed consent under IRB procedures. Otherwise it would be considered a serious breach of academic ethics.

So how come academic ethics preclude the teacher from using the exams for research without student's consent, but not handing them over to a commercial service?
4.17.2009 4:01pm
Perseus (mail):
That would be a serious abuse of the work-for-hire doctrine, which is premised on the idea that the employee received fair compensation in lieu of the copyright.

Why isn't the grade (and the professor's comments and suggestions for improvement) considered (more than) fair compensation?
4.17.2009 4:03pm
Justin Levine:
I'm a huge supporter of fair use and think that courts have generally interpreted the concept far too narrowly.

With that said, both the court's and Professor V's use of the word "transformative" makes no sense whatsoever.

Traditionally, the "transformative" test has applied towards defenses of making derivative works from the underlying copyrighted work. New elements would need to be added to the work itself in order for it be "transformative".

But what the court (and Professor V.) now argue is that an EXACT cloned copy of a work can be transformative as long as it is USED differently from what the original author intended. In other words, if I make an exact unauthorized copy of a fine art painting, it will be "transformative" if I use it as a door mat as opposed to hanging it on my wall.

That reasoning is just plain silly.

But then again, most legal reasoning is just plain silly when it comes to fair use analysis. The four part "test" for fair use consists of concepts that are infinitely flexible to allow courts to bend them whichever way they want in order to suit a pre-determined outcome in a case that they happen to favor. [It is similar to the equally flawed "Lemon Test" in Establishment Clause cases, which allows judges to decide cases based on their personal opinions and then provides cover for them by allowing to wrap those opinions inside legal-sounding rhetoric.]

The court (and Professor V.) should be honest here and just say that the work isn't transformative in this case, but that we will find fair use anyway because other factors point to the fact that the use was indeed "fair".

[ This comment is copyrighted 2009 by Justin Levine. :-P ]
4.17.2009 4:05pm
David M. Nieporent (www):
I would have a right to refuse to do so.
I'm curious what you think the origin of this "right" is.

Are all assignments requiring oral reports violations of a sacred trust?

Let's say a teenage girl wrote an essay about her harrowing experience getting pregnant and having an abortion. She turns it in thinking only the professor is going to read it. How would you view the teacher in that hypothetical if he made that request?
Why on earth would she think that only the teacher is going to read it? It's a school assignment, not a conversation with a priest.

Even if that were a reasonable expectation in the abstract, however, how can it possibly be a reasonable expectation here, when the students know in advance that they're expected to submit their papers to turnitin?
4.17.2009 4:05pm
NaG (mail):
So, Dilan, just so I'm clear, you have no problem with a professor using student papers to seek out plagiarists -- your only problem is with a third party receiving the papers to facilitate the same use?
4.17.2009 4:07pm
Dilan Esper (mail) (www):
The court (and Professor V.) should be honest here and just say that the work isn't transformative in this case, but that we will find fair use anyway because other factors point to the fact that the use was indeed "fair".

I think Professor Volokh's being completely honest here and that's a cheap shot.

That said, I think "transformative" use is sometimes a red herring in fair use cases and it is here-- the real point is that there's no market for these papers that turnitin is interfering with. That's the most important prong of the fair use test anyway.

I have all sorts of problems with this (as you can see above), but as legal analysis it looks unimpeachable to me.
4.17.2009 4:07pm
David M. Nieporent (www):
So how come academic ethics preclude the teacher from using the exams for research without student's consent, but not handing them over to a commercial service?
I know you're reading my posts, because you've responded to other ones, but you keep saying this when it's just not true, and I keep pointing out that it's not true, and yet you keep saying it anyway. The teacher is not handing them over to a commercial service. The students are.

Also, I don't think IRB rules have much to do with "academic ethics."
4.17.2009 4:08pm
Dilan Esper (mail) (www):
So, Dilan, just so I'm clear, you have no problem with a professor using student papers to seek out plagiarists -- your only problem is with a third party receiving the papers to facilitate the same use?

I don't think the issue is plagiarism, as opposed to using the papers as fodder for the professor's stand up comedy routine or posting it on the faculty lounge bulletin board.

I don't care what purpose it is-- the teacher shouldn't be giving or showing or causing that paper to be transmitted to anyone who isn't grading it.
4.17.2009 4:09pm
Dilan Esper (mail) (www):
I know you're reading my posts, because you've responded to other ones, but you keep saying this when it's just not true, and I keep pointing out that it's not true, and yet you keep saying it anyway. The teacher is not handing them over to a commercial service. The students are.

That's a distinction without a difference. It's the teacher who is forcing the students to give their papers to a commercial service who has no business receiving them because they aren't the grader.

No different than if the teacher gives them to turnitin him- or herself.

Are all assignments requiring oral reports violations of a sacred trust?

No, but that wasn't your hypothetical.
4.17.2009 4:11pm
David M. Nieporent (www):
But what the court (and Professor V.) now argue is that an EXACT cloned copy of a work can be transformative as long as it is USED differently from what the original author intended. In other words, if I make an exact unauthorized copy of a fine art painting, it will be "transformative" if I use it as a door mat as opposed to hanging it on my wall.

That reasoning is just plain silly.
Your reasoning may be, but the reasoning of the court is different, and not "silly" at all. No, putting a painting on a door mat is not transformative; merely changing the medium is not changing the purpose of the use. Now, you may not like that, but that's the law, not special reasoning of this court. You have a mistaken view of what "transformative" means; you did the last time we discussed this case, too. It's the use that must be transformed, not the physical work itself. (You have the right to disagree with what the law should be, but not to call a court's reasoning "silly" because it has the audacity to focus on what the law actually is.)
4.17.2009 4:14pm
David M. Nieporent (www):
Are all assignments requiring oral reports violations of a sacred trust?

No, but that wasn't your hypothetical.
I know. I was extending the hypothetical to determine the outlines of your argument; we now know you draw a line between these. Let's move on, because maybe I'm getting somewhere:

That's a distinction without a difference. It's the teacher who is forcing the students to give their papers to a commercial service who has no business receiving them because they aren't the grader.

No different than if the teacher gives them to turnitin him- or herself.
No, it's different in that the only principle I've been able to derive from your arguments, as bizarre as I think they are, is that it's unethical to do this without the student's knowledge. But here the students did know.

And that brings us back to the oral report. You don't think an oral report is a violation of a sacred trust -- I guess because the student knows that it will be public rather than private. But they know here, too!
4.17.2009 4:18pm
NaG (mail):
Dilan: "I don't care what purpose it is-- the teacher shouldn't be giving or showing or causing that paper to be transmitted to anyone who isn't grading it."

Ah, but here, determining plagiarism is an integral part of the grading process. After all, an "A" paper that turns out to be plagiarized is suddenly an "F" paper.

I would think that any student realizes that papers they submit for grading will be subject to some amount of review to determine plagiarism, whether that review is conducted by the professor or someone else.
4.17.2009 4:20pm
David M. Nieporent (www):
NaG, Dilan is not saying that checking a paper for plagiarism is wrong. He's saying that using a paper to check for other people's plagiarism is wrong.
4.17.2009 4:24pm
Dilan Esper (mail) (www):
Thanks David.
4.17.2009 4:30pm
Dilan Esper (mail) (www):
And that brings us back to the oral report. You don't think an oral report is a violation of a sacred trust -- I guess because the student knows that it will be public rather than private. But they know here, too!

An oral report isn't fixed in a tangible medium of expression. If the professor required that the oral report be recorded, didn't allow the student to opt out, and then transmitted the recordings to another party not involved in the grading, we'd have the same problem as we do here.
4.17.2009 4:32pm
NaG (mail):
David: I understand. My point is that a prime way to determine plagiarism is by comparing papers to each other. If using a paper to check for other people's plagiarism is wrong, then, per my earlier example, two students that hand in identical papers cannot get in trouble because the only way to determine that plagiarism occurred is by using one paper to compare it to the other.
4.17.2009 4:34pm
Justin Levine:
<i>"No, putting a painting on a door mat is not transformative; merely changing the medium is not changing the purpose of the use. Now, you may not like that, but that's the law, not special reasoning of this court."</i>

It is only "the law" by virtue of the reasoning of the court - so yes, it is silly because the underlying reasoning is silly.

If a million exact copies of a painting are made in order to be used as doormats for people to wife their feet on as opposed to be admired on a wall, and you then declare that to be "transformative", then the whole concept has no useful meaning.

Dilan - I don't see ho my comments are a cheap shot since I wasn't accusing Professor V. of being dishonest, I just accused him of not being honest with himself (a big difference I think).
4.17.2009 4:39pm
Dilan Esper (mail) (www):
NaG:

Don't forget this database also contains papers from term paper mills. Those papers are not at issue.

Also not at issue is any paper that a student voluntarily submits into the database, or regarding which a student sells a license to turnitin.

The papers at issue are ones that a student has not consented to have published in turnitin's database (or where the consent was simply extracted from the student by the teacher).

So the database could still function, just not as well, without these papers.
4.17.2009 4:40pm
eeyn524:
Suppose a public school district located in the same state as Turnitin decided they were tired of paying for the service.

They start an eminent domain action demanding that Turnitin hand over all of the papers for what is undeniably a public use. Not the database structure or indices, just the text of the papers. Using the same reasoning being posted here, the school district declares that the value of the property is zero and that is the amount Turnitin will be compensated.

Would this work?
4.17.2009 4:43pm
David M. Nieporent (www):
An oral report isn't fixed in a tangible medium of expression. If the professor required that the oral report be recorded, didn't allow the student to opt out, and then transmitted the recordings to another party not involved in the grading, we'd have the same problem as we do here.
"Fixed in a tangible medium of expression" is a copyright term; you've made it pretty clear that you're making an ethical argument, not a copyright one (indeed, you agreed with the fair use analysis). So I don't see the relevance of that portion of your comment. As for the rest, my point was that oral reports inherently involve "parties not involved in the grading" -- i.e. the rest of the students in the class, to whom the oral report is given. Or do you now mean to imply that an oral report as a class assignment is inherently unethical unless the student has the option of refusing to perform it before the class as a whole, and instead has the right to insist on doing it only before the teacher/grader?
4.17.2009 4:43pm
ArthurKirkland:
A cursory examination of Turnitin's privacy policy reinforces my inclination to oppose enabling the company and the teachers to force students (or those student who wish to be graded) to permit original works to become part of Turnitin's profit-generating database.

If a student doesn't want to be obligated to police (1) evolution of Turnitin's stated policy with respect to use and/or disclosure, (2) Turnitin's security, or (3) evolution of Turniti's practices, the student should not be assigned those obligations as a cost of being graded. A student should not be exposed to the risk that a successor or vendor would be less scrupulous (or forced to accept responsibility for detecting and addressing any problem deriving from that risk).

I recognize that the "Privacy Pledge" relates to "personal data" that may or may not include the database of submissions. I doubt Turnitin would be more protective of submissions than of names, telephone numbers and the like. I also note that Turnitin is willing to provide a submitted paper to a teacher (other than the teacher related to the submitted paper). That creates large "cat out of the bag" risks no author should be obligated to accept. It also appears to eviscerate Turnitin's claim to maintain confidentiality of papers. If an unrelated teacher wishes to read a submission, that teacher should contact the author to negotiate terms.

I also perceive issues associated with submissions that contain personally identifiable information (I once was involved in litigation regarding a work by a prominent author who work was claimed to contain personally identifiable information concerning a student). How does Turnitin propose to avoid breach of laws forbidding dissemination of that information? (Also, as I read Turnitin's policy, Turnitin will disclose the name of a submission's author to an unrelated teacher in some circumstances, which circumstances do not appear to include the author's consent.)

Turnitin's website contains a great deal of bluster about bulletproof legal positions and the opinions of multiple law firms and one 1,000-lawyer firm. In my experience, that level of bluster often accompanies serious reservations about the propriety of one's legal position. I suspect Turnitin is cruising (profitably, at the moment) for a legal bruising. It has the advantage of greater resources, lack of interest among most student authors, and the like. But none of that excuses teachers and school districts from responsibility for coercing students to feed the database.
4.17.2009 4:45pm
Dilan Esper (mail) (www):
"Fixed in a tangible medium of expression" is a copyright term; you've made it pretty clear that you're making an ethical argument, not a copyright one (indeed, you agreed with the fair use analysis). So I don't see the relevance of that portion of your comment.

It's a distinction with a difference, because when you fix something in a tangible medium of expression, it makes further distribution possible.

As for the rest, my point was that oral reports inherently involve "parties not involved in the grading" -- i.e. the rest of the students in the class, to whom the oral report is given.

But that's part of the curriculum-- to teach people how to present in public. (It's worth noting, though, that schools allow students to get out of this on Americans with Disabilities Act grounds.) It benefits the student to do the oral presentation.

There's no curricular benefit to the student to publish his paper in a database without consent or compensation. He's already received his grade.
4.17.2009 4:47pm
pintler:

NaG, Dilan is not saying that checking a paper for plagiarism is wrong. He's saying that using a paper to check for other people's plagiarism is wrong.


How do you do the one without the other? As was posted earlier, if the teacher is reading a stack of essays, and notices two are similar, the teacher is building a database of content in her head as she reads then, and comparing subsequent papers to that database, and adding them to that database as she reads.

Whether the database is in her head and she does the processing herself, or all the teachers have the papers graded by a TA hired for the job and the database is in his head, or the 'database' is a file cabinet in the faculty room, or on a disk at a service bureau, it seems like the same functional process.

If it's OK to share with another grader, like a TA, why isn't the service bureau just another grader? You could set up an assembly line, right - person A grades the multiple choice part, person B does essay question 1, person C does essay question 2, etc. Why is having person D do the plagiarism check so fundamentally different?
4.17.2009 4:48pm
Dilan Esper (mail) (www):
Whether the database is in her head and she does the processing herself, or all the teachers have the papers graded by a TA hired for the job and the database is in his head, or the 'database' is a file cabinet in the faculty room, or on a disk at a service bureau, it seems like the same functional process.

This is not intended as an exact analogy, but a thought experiment. Suppose your doctor justified placing your most private medical records and genetic test results into a massive, commercial database that could be accessed by anyone who chose to subscribe, all over the country. And the doctor justified it by saying "well, I already let anyone in my office look through your file".

Are those two things really the same thing?
4.17.2009 4:51pm
Perseus (mail):
It's the teacher who is forcing the students to give their papers to a commercial service who has no business receiving them because they aren't the grader.

I really don't see much of a difference between outsourcing a portion of the grading process to a commercial service and outsourcing it to a TA (who, say, only checks for plagiarism).
4.17.2009 4:54pm
David M. Nieporent (www):
It is only "the law" by virtue of the reasoning of the court - so yes, it is silly because the underlying reasoning is silly.
Justin, it's a definition, not "reasoning" per se, so it can't be "silly." You can want the law to define "transformative use" differently -- and maybe another proposed definition would lead to better outcomes -- but that can't make this definition wrong.

You haven't presented any argument why this definition is bad; you've just argued that the word "transformative" shouldn't refer to the purpose/use of the material.
4.17.2009 4:54pm
NaG (mail):
Dilan, your comparison between student papers and medical records fails because one is subject to copyright and the other is subject to other regulations. There is no reason to treat them the same.

For the same reason that students reasonably expect their papers to be subject to plagiarism scrutiny, I, like Perseus, do not see the big difference between handing a paper to a TA for that purpose, or to a commercial company maintaining a database. And that is if, of course, it is the professor handing over those papers and not the students themselves, which David points out is an important distinctive factor in this case.
4.17.2009 5:04pm
David M. Nieporent (www):
This is not intended as an exact analogy, but a thought experiment. Suppose your doctor justified placing your most private medical records and genetic test results into a massive, commercial database that could be accessed by anyone who chose to subscribe, all over the country. And the doctor justified it by saying "well, I already let anyone in my office look through your file".

Are those two things really the same thing?
I agree that the answer is "No." However, not only don't I think it's an exact analogy, but I don't think it's analogous at all. First, people think medical records are personal and private; they don't think school papers are.

Second, turnitin doesn't actually let its "subscribers" access the papers. All they get is a "Yes, it's plagiarized" or "No, it isn't." Turnitin is more like contributing your medical records and genetic test results anonymously to a database, so that researchers can learn how to treat certain diseases. I think most people would have few problems with that.
4.17.2009 5:05pm
IPLawyer:

If a million exact copies of a painting are made in order to be used as doormats for people to wife their feet on as opposed to be admired on a wall, and you then declare that to be "transformative", then the whole concept has no useful meaning.




Justin,

I think your example misses the mark because a key element in assessing tranformativeness is market failure. Where there is a market failure, a court is much more likely to regard a use as transformative. Take for instance Perfect 10 v. Google (holding that Google's use of images for purposes of thumbnail indexing to be fair use). Do you agree with the outcome in that case? The example you have given would not be regarded as transformative because it would be something a rights owner could easily license.
4.17.2009 5:08pm
AnthonyJ:
Why is turnitin.com any less fair use than the fact that the teacher can look at the paper?

Consider the following proposals:
a) It's legitimate for a teacher to receive a paper.
b) It's legitimate for a teacher to require students to turn in papers, as a prerequisite for passing a course.
c) It's legitimate for a teacher to keep copies of a paper, both for archival purposes and for plagiarism comparison.
d) It's legitimate for a teacher to subcontract out any portion of the grading process, as long as it's clearly stated that this will be done.
e) The subcontractor inherits rights (a) and (b), to the degree they are necessary for the aspect of the grading process being carried out by the subcontractor.
f) Turnitin.com is a subcontractor, carrying out one specific subset of the grading process (plagiarism checking).
g) Archiving of papers is necessary to the portion of the grading process being carried out by turnitin.com.
h) Ergo, turnitin.com has the right to keep copies of a paper.

What is the error here?
4.17.2009 5:12pm
Dilan Esper (mail) (www):
Dilan, your comparison between student papers and medical records fails because one is subject to copyright and the other is subject to other regulations. There is no reason to treat them the same.

I knew that, which is why I said "thought experiment". The point was to get you thinking about the difference between one person reading something and putting it in a database.

Of course, it utterly failed, because the moment you do anything like this on the internet, people immediately scream "FALSE ANALOGY!".

Sigh.
4.17.2009 5:13pm
Dilan Esper (mail) (www):
Turnitin is more like contributing your medical records and genetic test results anonymously to a database, so that researchers can learn how to treat certain diseases. I think most people would have few problems with that.

And yet, that would be illegal without consent, and it would also be illegal to condition receipt of some other benefit on consent.

Of course, as I acknowledge, medical records are different. Still, it shows you that there's something fishy about just appropriating something that doesn't belong to you and putting it in a database somewhere.
4.17.2009 5:15pm
Dilan Esper (mail) (www):
Turnitin.com is a subcontractor, carrying out one specific subset of the grading process (plagiarism checking).

You know, I only have to repeat this 7 million times, but WE ARE NOT TALKING ABOUT TURNITIN'S ROLE IN GRADING THE PAPER. We are talking about Turnitin's role in COLLECTING papers that have already been graded and USING those papers for another purpose that is of no benefit to the student.

We all agree that you can give the paper to a teaching assistant (subcontractor) to grade. But can the teaching assistant then show the paper to all of his friends, or publish it on the internet?

Focus on the placement of the paper in the database, not on the use of turnitin as a grading tool.
4.17.2009 5:17pm
Perseus (mail):
This is not intended as an exact analogy, but a thought experiment. Suppose your doctor justified placing your most private medical records and genetic test results into a massive, commercial database that could be accessed by anyone who chose to subscribe, all over the country.

Your hypothetical examples exhibit a pattern in which the information being conveyed is peculiarly personal in nature. But these are professors, not priests or physicians.
4.17.2009 5:22pm
NaG (mail):
Dilan, the fact that use of the medical records in such a fashion would be "illegal without consent" is specifically because medical records are legally treated differently from student papers. I think this is an analogy better left scrapped.
4.17.2009 5:24pm
AnthonyJ:

You know, I only have to repeat this 7 million times, but WE ARE NOT TALKING ABOUT TURNITIN'S ROLE IN GRADING THE PAPER. We are talking about Turnitin's role in COLLECTING papers that have already been graded and USING those papers for another purpose that is of no benefit to the student.

The point is, if it's legitimate for a professor to archive papers for plagiarism comparison, it's legitimate for turnitin.com to do the same thing. Having the professor keep a copy also provides no benefit to the student.
4.17.2009 5:25pm
NaG (mail):
Dilan: "We are talking about Turnitin's role in COLLECTING papers that have already been graded and USING those papers for another purpose that is of no benefit to the student."

It is of no benefit to a student for there to be a service in which it can be ensured that no other student plagiarizes their work?

Dilan: "But can the teaching assistant then show the paper to all of his friends, or publish it on the internet?"

No. But that's not what is happening here, either. If you agree that the TA can review the paper in comparison to other papers for plagiarism without a problem, then there is no reason why that cannot be farmed out to a third party. I simply do not see where you find an expectation on the part of students that their papers will not be reviewed to detect plagiarism. That is part of the grading process, and it necessarily requires that their paper be compared to other papers.
4.17.2009 5:29pm
Dilan Esper (mail) (www):
The point is, if it's legitimate for a professor to archive papers for plagiarism comparison, it's legitimate for turnitin.com to do the same thing.

No, it isn't.

At some point, you guys are simply going to have to understand that anything one person can do /= something that can be referred to a large corporation to be done with a huge database. Medical records are simply the obvious example that demonstrates the point-- however, it's just as true in lots of other areas.
4.17.2009 5:34pm
Dilan Esper (mail) (www):
It is of no benefit to a student for there to be a service in which it can be ensured that no other student plagiarizes their work?

If the student feels that is a benefit to them, the student can always authorize turnitin to perform that function. But the student should get to make that choice-- some students won't mind if their papers are copied or wouldn't want their papers in a database even if it would prevent copying, and their preferences count too.
4.17.2009 5:36pm
Dilan Esper (mail) (www):
I simply do not see where you find an expectation on the part of students that their papers will not be reviewed to detect plagiarism.

If someone puts a gun to your head, I suppose that you wouldn't have an expectation that you will keep your wallet either. Coerced relaxations in one's expectations don't count.
4.17.2009 5:37pm
Dilan Esper (mail) (www):
OK, folks, another hypothetical. Suppose that, in an effort to combat grade inflation, which harms high-achieving students, schools agree to transmit all students' grades, without their or their parents' consent, to fightgradeinflation.com, which pools all grades nationwide to develop a national grading curve that schools can follow in order to curve their own grades and ensure that their grading is consistent with national averages. The way it works is that the grades are maintained by the corporation in their database, and they simply check each class against the national curve and automatically re-curve the grades in that class. So, they claim to protect all students' privacy.

Anything wrong with that, or perfectly OK?
4.17.2009 5:43pm
AnthonyJ:
Nothing forces you to turn in a paper, and by turning in a paper you are in fact granting the teacher the right to do certain things with that paper -- in particular, you're granting the teacher the right do to those things necessary and appropriate to the grading process. If you feel your work is so valuable it shouldn't be subject to this process, you have two choices:
1) You can turn in a different essay, which you value less.
2) You can fail.

Note that either of these options successfully preserves the market for selling the paper in the future (to someone else who wishes to turn it in as their own work), at a cost that you cannot use the paper for your own benefit. Nothing in the law says it should be possible to sell the same paper twice, however.
4.17.2009 5:48pm
AnthonyJ:

Suppose that, in an effort to combat grade inflation, which harms high-achieving students, schools agree to transmit all students' grades, without their or their parents' consent, to fightgradeinflation.com

If done without consent, it's problematic, but mandatory consent (i.e. you consent or you fail) is perfectly legitimate. You are describing the way standardized national tests such as the SAT already work.
4.17.2009 5:53pm
Dilan Esper (mail) (www):
Anthony:

The fact that the student has no choice (turn it in or fail) is exactly what confers a responsibility on the school / teacher not to put the paper to a use beyond the scope of the consent or to give it to someone who isn't grading it.

If he or she hadn't have been required to do so by nature of the assignment, the student would have never conferred his or her intellectual property to the teacher in the first place.

You shouldn't be able to force people to give you something they wouldn't otherwise give you and then use that as carte blanche to do whatever you want with it even though you never got the broader consent.
4.17.2009 5:54pm
Dilan Esper (mail) (www):
You are describing the way standardized national tests such as the SAT already work.

So because there is such a thing as an SAT, that gives schools the right to nationalize ALL grades and to compromise students' privacy without their consent? Seems wrong to me.
4.17.2009 5:56pm
Plastic:

Why isn't the grade (and the professor's comments and suggestions for improvement) considered (more than) fair compensation?

Because it wouldn't comply with minimum wage laws (more so for some than others).
4.17.2009 6:31pm
Perseus (mail):
Because it wouldn't comply with minimum wage laws (more so for some than others).

A student submits an otherwise worthless (in the market) piece of work (created only because the instructor requires it), and in return receives a grade, which in most cases will lead to a degree that will dramatically increase lifetime earnings potential. The only person who might conceivably be earning less than the minimum wage are the TAs (and underpaid faculty).
4.17.2009 7:08pm
Plastic:
Perseus:
The mere possibility for the some unspecified future payment by an unknown 3rd party might be a perk, but it cannot be considered a wage until it's realized.
4.17.2009 7:30pm
AnthonyJ:
The lack of minimum wage would be more interesting if there was in fact any requirement that school pay you anything at all. You don't get paid to take tests or do homework either.

You can make an argument that all compulsory schooling is a violation. However, you can't really claim that your essay is justified any higher level of compensation than anything else you do in school.
4.17.2009 8:01pm
Avatar (mail):
The SAT is not compulsory. You don't want to go to college, you don't take it. Hell, if you want to take the ACT instead, plenty of colleges are fine with that.

Classroom papers are compulsory in ways that the SAT is not. Say you get a speeding ticket; it's compulsory to pay the fine. Well, no, it's not compulsory - you can refuse to pay the fine, and you'll be imprisoned. So really it IS compulsory, on pain of punishment.

If you don't do your papers and you flunk your class, the school can require you to do certain things (to attend additional summer classes, or conversely, NOT to attend extracurricular activities). Furthermore, if you do not fulfill those additional requirements, you can receive disciplinary action, including removal from class and reassignment. So it's not compulsory, but really it is, on pain of punishment.

It's different in college, of course, since you're an adult and there really isn't a compulsory element. On the other hand, if you consider college to be a contractual agreement between the student and the school, it's somewhat disingenuous of the school to add additional riders to the contract subject to the whim of individual professors, since that can change the character of the student's agreement in the middle of the contract. To wit, if you're a student who feels strongly about this issue, you can look for a college that doesn't require Turnitin submission of papers... but if one of your professors starts using it, you don't have any other recourse other than "don't take that professor's class", and if that professor is the only one offering a class that's required for your degree field... Certainly the college isn't interested in offering a refund for the tuition paid so far!
4.17.2009 8:13pm
David M. Nieporent (www):
OK, folks, another hypothetical. Suppose that, in an effort to combat grade inflation, which harms high-achieving students, schools agree to transmit all students' grades, without their or their parents' consent, to fightgradeinflation.com, which pools all grades nationwide to develop a national grading curve that schools can follow in order to curve their own grades and ensure that their grading is consistent with national averages. The way it works is that the grades are maintained by the corporation in their database, and they simply check each class against the national curve and automatically re-curve the grades in that class. So, they claim to protect all students' privacy.

Anything wrong with that, or perfectly OK?
Perfectly OK (ethically speaking, I mean; sounds kinda dumb as a plan).


Turnitin is more like contributing your medical records and genetic test results anonymously to a database, so that researchers can learn how to treat certain diseases. I think most people would have few problems with that.

And yet, that would be illegal without consent, and it would also be illegal to condition receipt of some other benefit on consent.
But all that says is that Congress could ban Turnitin; it doesn't say anything about the ethics of Turnitin.
4.17.2009 8:33pm
D.O.:
May I contribute another angle to the discussion. It is sad to think that the only reason students do turn papers in classes is to receive a grade. A (good) teacher must analyze these papers, see what needs to be corrected/improved, and get to students with the advice. It would be extremely silly to do so if paper in fact is plagiarized. Given that possibility of plagiarism is enormous with the kind of information exchange that we have, the antiplagiarism service is a necessary pedagogical tool rather than a way of angry professors to avenge misbehaving kids. As to copy- and other rights why everybody thinks that a school student has any right to their work? It is supposedly a result of a coursework that is at least a cooperative effort of a student and a teacher. Any thoughts about that?
4.17.2009 9:48pm
Steve Donohue (mail) (www):
The 1Ls at Chicago thank you for alerting us to this during our spring brief which just happens to be on transformative use.
4.17.2009 11:33pm
Suzy (mail):
D.O., I like your thought. One thing missing from this discussion is that whatever else a student may wish to accomplish with an assignment, it is primarily produced for the professor as evidence of learning and achievement. We could also imagine a website maintaining a database of such papers not for detecting plagiarism, but for comparing quality, patterns in organization or the use of evidence, and other features that would assist objective assessment of an assignment.

Handing papers to turnitin.com is indeed very much like handing them to a paid TA, who may well assemble a database of past papers to assist with grading without violating any code of ethics. Individual privacy is probably better protected by a site like turnitin where the submissions can be anonymized, rather than with a TA who actually knows who wrote what, and is more likely to share common acquaintances with a student. If you want the medical records analogy (which is difficult for reasons already stated), turnitin is more like submitting facts of your record with no personally identifying info, vs. the TAs who are like workers in a small-town doctor's office, able to connect your files to you personally.

The ethics question is raised not by the very fact of a third party keeping and using the assignment, especially when the goals are consistent with their intended purpose of demonstrating achievement for an assessment. The ethics question is raised when anyone--professor or student--uses assignments in a way that works against this purpose. So it is not right for a professor to pass around your paper to his friends at a dinner party and make sport of it, just like it's not right for you to let your sorority sister review your old exam from the house's database. But if a student simply saved the questions from Chem 101 without saying which prof's section it was, and without supplying answers, that would be a legitimate way to help other students prepare. Both professor and student are involved in this process of demonstrating and assessing quality.

Consider the other side for a moment... would it be okay for a university to require that each professor's assignments and exams be placed into a large national database that helps students to prepare for typical assessments, as long as no personally identifying information of the professor or course was included? Universities already frequently demand that professors make their syllabi available in databases so that students can determine if they want to take a course, or so that the work of the professors can be assessed--and this is with all personally identifying information of the author attached. Is that wrong?
4.18.2009 12:27am
EPluribusMoney (mail):
I think Dilan's sacred trust is a fantasy. Students, as legal infants, have no rights except a few basic constitutional ones.

I would think a teacher (or school board) could make up whatever rules they want:
You must submit your paper to the service or not be graded.
Papers will not be returned.
Papers must be read aloud if requested.
4.18.2009 12:34am
EPluribusMoney (mail):
I mean high school students, of course, not college.
4.18.2009 12:39am
bowman:
"Again, I reiterate-- this is definitely a fair use, because there is no commercial market for the paper that is interfered with by the plagiarism database."

You have no idea what you are talking about.

There used to be websites where you could purchase/sell pre-written papers. I could have, but chose not to, sell the papers I wrote to those sites or directly to individual students.

If someone wished to keep track of the names of the teachers to whom the papers would be given, each paper written could be sold over and over to satisfied customers for years...if not for this program destroying the commercial market for the paper.

If you truly think a paper has no commercial value, I suggest you go to a college dorm and ask someone how much it'll cost to get someone to write you a paper.
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Now to move on to another point, isn't it part of Turnitin's business model to knowingly violate copyrights?

The schools know the students are using papers which rightly belong to the author who might or might not have sold the student a copy.

The school gives a copy of the work to Turnitin.

Turnitin accepts those copies knowing in advance that many of them are not the work of the student but instead the work of another author who owns the copyright to the work. The supposed "consent" the school got from the student is meaningless if the student was not the author since the student can't consent to give up a copyright he doesn't own.

Turnitin keeps those copies and uses them to make profit without any intention of compensating the person who owns the intellectual property.

Every time a Turnitin response comes back to the school that the work is plagiarized, it seems to me as if Turnitin is at the same time confirming that it again violated a copyright.

The Turnitin site claims over 10 billion web pages crawled and archived. As an author who's written extensively, under a variety of names, for 14 years on the internet, I'm curious what work of mine that they have on file and if they can prove that they've never done anything with my work beyond what they've disclosed.

As a perpetually impoverished writer, I wonder how much money I'd get from a lawsuit against Turnitin if I sold some of my writings to a number of students and Turnitin proved it had my writings on file and were attempting to limit the market for my work.

More humorously, at this point if I went back to college, I'd have a devil of a time proving to a teacher that my work was my own unless I successfully avoided having to write a paper about any subject that has ever interested me.
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If term papers can't exist in the internet age without teacher's having to worry about plagiarism, I'd suggest doing away with term papers.

There's this wonderful invention called an "essay test" where a student has to write extemporaneously in order to show a mastery, or at least an understanding, of a subject.

If schools insist on having term papers, they need to figure out how to detect plagiarism without resorting to paying a company to use my writings without compensating me.

I'm not terribly thrilled with a student plagiarizing me. But at least the student is displaying good taste and might learn something if he bothers to read what he steals. A company like Turnitin appropriating my work with a webcrawler, however, is just in it to make a buck for themselves while incidentally keeping me from choosing to go into the term paper distribution business for myself.
4.18.2009 1:11am
Suzy (mail):
If a professor changes the assignment such that your formerly useful paper is now worthless to paying customers, is that a similar problem?
4.18.2009 1:34am
Perseus (mail):
would it be okay for a university to require that each professor's assignments and exams be placed into a large national database that helps students to prepare for typical assessments

It would be a violation of the collective bargaining agreement at my university. Creating new assignments and exam questions is a tedious process. I don't care about course syllabi.

But at least the student...might learn something if he bothers to read what he steals.

Wishful thinking.
4.18.2009 2:05am
David M. Nieporent (www):
Now to move on to another point, isn't it part of Turnitin's business model to knowingly violate copyrights?
No. Did you not catch the whole discussion of "Fair use"?

As a perpetually impoverished writer, I wonder how much money I'd get from a lawsuit against Turnitin if I sold some of my writings to a number of students and Turnitin proved it had my writings on file and were attempting to limit the market for my work.
None whatsoever. Again, copyright does not protect the value of a work against criticism; only against creating a substitute for that work.
4.18.2009 2:34am
Tony Tutins (mail):
DMP: Bowman is arguing that turnitin.com is destroying the market for recycled term papers. This goes beyond fair use just as surely as if I were to give away Bowman's work product for free:


Bowman: Psst! Hey kid, ya wanna buy my Modern European History 301 term paper? I got an A on it.

Lazy student: Maybe. Did you have to submit it to the turnitin.com database?

Bowman: Yeah. So?

Lazy student: It's useless to me now man. The prof will know it wasn't my own work.
4.18.2009 2:42pm
David M. Nieporent (www):
Bowman is arguing that turnitin.com is destroying the market for recycled term papers. This goes beyond fair use just as surely as if I were to give away Bowman's work product for free:
I know what Bowman is arguing, but destroying the market for something by labeling it as plagiarism is not what copyright law covers. (It's not Turnitin's copying that destroys the market; it's the fact that Turnitin tells people that the paper is plagiarism.)
4.18.2009 2:45pm
Tony Tutins (mail):

It's not Turnitin's copying that destroys the market; it's the fact that Turnitin tells people that the paper is plagiarism.

True. But copying is a necessary precondition for plagiarism detection. It is "but-for" causation.
4.18.2009 7:54pm
David Schwartz (mail):
A friend of mine was recently asked to see the Dean of his college and his Professor to answer a charge of plagiarism. Apparently, huge chunks of his paper had been found on some web site.

He went in and looked at the web site. It was excerpting the very paper he had turned in, with proper attribution.

My wife recently returned to college and one of her Professors requires the use of turnitin. The Professor has a specific requirement for the turnitin original content score -- though turnitin has *no* ability to determine if content is original or not. (Since it simply detects matches with no ability to state which of the two is original.)

To respond to the original argument:

transformative — it copies the papers not to use them as papers (as opposed to, say, a Napster user, who copies a song to play it as a song), but rather to use them to check other papers for plagiarism.
Who says the paper's original use is "as papers"? Why can't their original sue be to check for plagiarism? That seems to be the only commercial use they have, so why is that not original?

is in aid of others' nonprofit educational mission, and
This fails to separate checking against a database with adding to a database. Checking against the database, sure. The only reason the two halves are linked is because a for-profit organization chooses not to provide one without the other. Surely a non-profit organization could aid its missing by getting paid to infringe other copyrights for material they don't own as well, were they allowed to do so.

does not interfere with the students' market for their own works, since the students' works are worthless, and in any event if they are worth something (say, because the students can sell them as newspaper op-eds or articles in literary magazines), Turnitin's archiving of the papers wouldn't interfere with that value.
Actually, it decimates the value. Even the student himself cannot claim it as original for he risks misuse of turnitin's database. He loses the ability to license it to turnitin. In fact, this is probably the only commercial value most such works have.
4.18.2009 8:13pm
David Schwartz (mail):
I know what Bowman is arguing, but destroying the market for something by labeling it as plagiarism is not what copyright law covers. (It's not Turnitin's copying that destroys the market; it's the fact that Turnitin tells people that the paper is plagiarism.)
Turnitin does no such thing. It does not say, "this paper is plagiarism". What it does is provide you with excerpts that share chunks of text with the paper. It is your decision whether or not that makes one or the other paper plagiarism.

For example, one paper might cite the other with attribution. That's not plagiarism.

It is more akin to what amazon does with books, permitting you to search through large numbers of books and pull up the page of any book with text that matches your search.
4.18.2009 8:18pm
David M. Nieporent (www):
True. But copying is a necessary precondition for plagiarism detection. It is "but-for" causation.
Irrelevant. Again, consider a book review that calls a book really really crappy, and provides excerpts from the book to prove it. Such a book review might well destroy the market value of the book. But copyright law would have nothing to say about that; that's just not the sort of market value protected by copyright law.

Even if the copying of the excerpts was a "necessary precondition" for proving how bad the book was, it wouldn't matter. That's simply not what copyright law addresses.
4.18.2009 8:41pm
David M. Nieporent (www):
Turnitin does no such thing. It does not say, "this paper is plagiarism". What it does is provide you with excerpts that share chunks of text with the paper. It is your decision whether or not that makes one or the other paper plagiarism.
Whether Turnitin says "This paper is plagiarism" or "This paper duplicates these large sections of other papers in our database" is irrelevant to the point, which is that this isn't something copyright law addresses.


transformative — it copies the papers not to use them as papers (as opposed to, say, a Napster user, who copies a song to play it as a song), but rather to use them to check other papers for plagiarism.

Who says the paper's original use is "as papers"? Why can't their original sue be to check for plagiarism? That seems to be the only commercial use they have, so why is that not original?
I've read this four times, and can't make heads or tails of it. Nobody writes a school paper to check to see whether someone else plagiarized it; that doesn't make any sense. And in any case, the only papers at issue in this case were ones written "as papers."


Actually, it decimates the value. Even the student himself cannot claim it as original for he risks misuse of turnitin's database.
I don't know what this means. I'm not sure if you're repeating the plaintiffs' rejected argument that they feared having their papers mislabeled as plagiarized, but (a) that has nothing to do with copyright law, and (b) was speculative, as there was no evidence in the record that any such mislabeling had happened.
He loses the ability to license it to turnitin. In fact, this is probably the only commercial value most such works have.
The problem is, that's circular; that argument would swallow the fair use exception altogether. By definition, all fair use causes the copyright owner to lose the ability to license the material for the purpose of the fair use. (For instance, if book reviewers can quote my book in a book review, then I lose the ability to license my book to book reviewers for the purpose of writing book reviews.)
4.18.2009 8:51pm
David Schwartz (mail):
I've read this four times, and can't make heads or tails of it. Nobody writes a school paper to check to see whether someone else plagiarized it; that doesn't make any sense. And in any case, the only papers at issue in this case were ones written "as papers."
Nobody writes a school paper so that they can check if it was plagiarized. The write a school paper so that their professor can check if it was plagiarized. By all evidence, this is the only conceivable commercial use of such work. How is this use transformative if it's the sole, intended commercial use?
4.19.2009 12:36am
David Schwartz (mail):
The problem is, that's circular; that argument would swallow the fair use exception altogether. By definition, all fair use causes the copyright owner to lose the ability to license the material for the purpose of the fair use. (For instance, if book reviewers can quote my book in a book review, then I lose the ability to license my book to book reviewers for the purpose of writing book reviews.)
Right, but in this case, he loses the sole commercial use for his work. A use the plantiff's in this case specifically want to explot for themselves when they author these works.
4.19.2009 12:37am
David M. Nieporent (www):
Nobody writes a school paper so that they can check if it was plagiarized. The write a school paper so that their professor can check if it was plagiarized.
No, they write a school paper for a grade, not so their professor can check if it was plagiarized; their professor checking it for plagiarism is incidental to the process of grading it.

By all evidence, this is the only conceivable commercial use of such work. How is this use transformative if it's the sole, intended commercial use?
Because "commercial use" is irrelevant. For one thing, it's false, there's no "intended commercial use." Nobody says, "I'm going to write a school paper so I can sell it to Turnitin," which doesn't make any sense. A school paper, by definition, is written for school. They write it for a grade.

(And if one did write a paper to sell to Turnitin, it wouldn't be a problem because Turnitin wouldn't have it unless one submitted it to Turnitin, at which point one would have consented.)

Right, but in this case, he loses the sole commercial use for his work. A use the plantiff's in this case specifically want to explot for themselves when they author these works.
That they "want" to exploit it is irrelevant; it has nothing to do with why they create it. They create it for a grade.

(And it doesn't have any commercial value for that purpose anyway; why would Turnitin want to pay people to create works?)
4.19.2009 2:54pm
David Schwartz (mail):
Because "commercial use" is irrelevant. For one thing, it's false, there's no "intended commercial use." Nobody says, "I'm going to write a school paper so I can sell it to Turnitin," which doesn't make any sense. A school paper, by definition, is written for school. They write it for a grade.
These plaintiffs are in fact saying exactly that. They'd like to write papers so they can sell them to turnitin, but they cannot do so because their professors are giving them to turnitin at no charge.

This argument is circular and would make any use fair use. If we start by presuming a use is fair, nobody will create a work specifically to profit from that use, so it will never affect an intended, primary commercial use.

We are talking about the only commercial use for a work being fair use against a person who specifically states that he would like to profit from that use.
4.19.2009 6:26pm
David M. Nieporent (www):
These plaintiffs are in fact saying exactly that. They'd like to write papers so they can sell them to turnitin, but they cannot do so because their professors are giving them to turnitin at no charge.
No, they are not saying that, because it would be false. Turnitin's use in no way interferes with the papers being written, because they have to write the papers anyway. These are school papers, not commercial products.
4.20.2009 12:11am
David Schwartz (mail):
No, they are not saying that, because it would be false. Turnitin's use in no way interferes with the papers being written, because they have to write the papers anyway. These are school papers, not commercial products.
Your argument is partly circular and partly false. First, they're only not commercial products because this very case has said so. If this case said turnitin had to pay for the papers, then they would be commercial products.

Second, they don't have to write them anyway. They are free to write them or not write them. They simply have to write them in order to get a grade.

If we didn't recognize a copyright in musical works, you could just as well argue that people are going to play music anyway and that no commercial market is affected. But this argument would be circular, the only reason there is no commercial market is because the only commercial use has been deemed a fair use. The same thing would happen to musical works if a similar ruling held up in that arena. You would argue that bands make music anyway, perhaps to fill concert halls.
4.20.2009 3:37am
David M. Nieporent (www):
Your argument is partly circular and partly false. First, they're only not commercial products because this very case has said so. If this case said turnitin had to pay for the papers, then they would be commercial products.
No, they're not commercial products because they're not commercial products, but school papers. The fact that one may repurpose them later doesn't change the fact that they were written for school.
Second, they don't have to write them anyway. They are free to write them or not write them. They simply have to write them in order to get a grade.
This is sophistry; they have to write them for class. Indeed, if they didn't write them for class, Turnitin wouldn't have them. Turnitin didn't break into their houses and steal the essays out of their desks; the students submitted the essays to Turnitin as part of their teacher's requirement for getting class credit for them. The only works at issue in this lawsuit are essays written for class. Courts are not required to accept absurd hypotheticals, such as a student who refuses to write a paper even though required for a school assignment but then decides to do so for the pennies that Turnitin would pay for it.

Your music hypothetical is flawed, because we know that there is a commercial market for music. But there is not the slightest evidence that there would be any market for these papers in the absence of Turnitin's fair use of these papers. Turnitin has no incentive to pay people to write papers for it; that wouldn't make any sense as a business model. Turnitin is trying to compile a database of papers already written, not to provide incentives for students to compose new essays.

(What you're not understanding is the point of the fourth fair use factor (the effect on the market value of the work). It's not to figure out some hypothetical revenues that the author might be missing out on (again, all fair use prevents the author from getting revenues from licensing the work for that purpose); profit in copyright is only an instrumental good, not the purpose of copyright. The ultimate purpose of protecting copyright is to provide an incentive for authors to create the works in question. If bands couldn't profit off selling records, there would be less music made. But if students couldn't profit by selling their school essays to turnitin, there would be no effect on the number of school essays written. That alone isn't dispositive, but it's a key factor in why this is fair use.)
4.20.2009 11:50am
Dan Weber (www):
Is there any chance that the Twilight author's college roommate had to submit her short story to TurnItIn?

Anyway, back to the serious:
But if students couldn't profit by selling their school essays to turnitin, there would be no effect on the number of school essays written,
I disagree; we would probably see more essays written, as students are forced to write their own instead of using a paper that a dozen other students have turned in.

It occurs to be that there might be a case here of someone whose job was writing papers for college students was seeing the market of their work suffer by TurnItIn's policy. But they weren't the ones who took the issue to court, and violations might well be between the student and the writer.
4.20.2009 1:45pm
David M. Nieporent (www):
It occurs to be that there might be a case here of someone whose job was writing papers for college students was seeing the market of their work suffer by TurnItIn's policy. But they weren't the ones who took the issue to court, and violations might well be between the student and the writer.
Well,

1) If one's job is writing papers, and one did one's job, one would not run afoul of Turnitin, which only catches plagiarism, not ghostwriting.

2. Of course, if professional paper writers are trying to re-sell those papers to multiple clients rather than writing original papers for each, they would indeed suffer from Turnitin.

3. But that's not a valid copyright claim.
4.20.2009 3:14pm
David Schwartz (mail):
Your music hypothetical is flawed, because we know that there is a commercial market for music.
How do we know this? If copying music was deemed fair use, maybe there would be no commercial market for music. We only there is such a market because one developed once people were allowed to protect them using copyright.

But there is not the slightest evidence that there would be any market for these papers in the absence of Turnitin's fair use of these papers.
And there never will be if this decision stands. Yet, if it falls, Turnitin may be forced to pay for the essays it collects, and then there will be a market. Competitors may offer to pay more.

Turnitin has no incentive to pay people to write papers for it; that wouldn't make any sense as a business model.
Why not? Isn't their value based largely on the number of works they can compare a particular paper to? If you were choosing between turnitin and a competitor, wouldn't the number of works in their database be a determining factor?

Turnitin is trying to compile a database of papers already written, not to provide incentives for students to compose new essays.
Turnitin is trying to compile as large a database as they possibly can because database size controls the value of their service.

The ultimate purpose of protecting copyright is to provide an incentive for authors to create the works in question. If bands couldn't profit off selling records, there would be less music made. But if students couldn't profit by selling their school essays to turnitin, there would be no effect on the number of school essays written.
This argument is bizarre and absurd. Would there really be less music made? Seriously? Would garage bands stop meeting and playing? Would people stop singing in the shower?

There would be less *commercial* music made. There would be fewer recordings *sold*. But the impact on the production of musical works would be negligible.

Yes, this ruling reduces the commercial market in such essays, perhaps ultimately to zero.
4.20.2009 3:48pm
Dan Weber (www):
Why not? Isn't their value based largely on the number of works they can compare a particular paper to?

Only if their customers are idiots.

Antivirus companies do this, too: "Oh, we stop 3.4 million viruses!" "Oh yeah, well we stop 4.9 million!" Most of these variations are total bullshit.

A paper someone wants to sell to Turnitin is a paper Turnitin doesn't want. It makes their database bigger, but people who aren't impressed by size realize that's a silly measure.
4.20.2009 4:04pm
David Schwartz (mail):
A paper someone wants to sell to Turnitin is a paper Turnitin doesn't want.
Why is this so? If I, for example, buy a term paper from an online term paper vendor, and it's not in turnitin's database, they very much want it.

If I write a paper and can choose between selling it to students to use as their own or selling it to turnitin, why would turnitin rather not have it?

Assume a competitive service to turnitin. Assume the competitor has this paper and turnitin doesn't. Assume there are also copies of this paper floating about, maybe the author gave them out, maybe a professor handed them out as an example paper. Why would turnitin not want to have this paper just because someone wants to sell it to them?

Heck, I could see turnitin *buying* papers from online paper vendors just to add them to their database. Why would these not be the papers they most want?
4.20.2009 5:11pm
David M. Nieporent (www):
Why is this so?
Because the only people who have an incentive to sell a paper to them are people who don't intend to sell it to cheaters.

Heck, I could see turnitin *buying* papers from online paper vendors just to add them to their database. Why would these not be the papers they most want?
They are - but they're not the papers that people would be willing to sell to Turnitin! That's the point!. Only honest people would be willing to sell their papers to turnitin, and those papers have virtually no value to turnitin.
4.20.2009 6:40pm
David M. Nieporent (www):
Why is this so?
Because the only people who have an incentive to sell a paper to them are people who don't intend to sell it to cheaters.

Heck, I could see turnitin *buying* papers from online paper vendors just to add them to their database. Why would these not be the papers they most want?
They are - but they're not the papers that people would be willing to sell to Turnitin! That's the point!. Only honest people would be willing to sell their papers to turnitin, and those papers have virtually no value to turnitin.
4.20.2009 6:42pm
Dan Weber (www):
Why is this so? If I, for example, buy a term paper from an online term paper vendor, and it's not in turnitin's database, they very much want it.

They don't want a paper that some random schmoe on the Internet claims to have bought from an online vendor. As you get to later, they'll buy the papers through a trusted third-party if they want them. They've scoured Wikipedia already, whether by grabbing it themselves or organically by students who think they can get away with submitting articles from there.

If I write a paper and can choose between selling it to students to use as their own or selling it to turnitin, why would turnitin rather not have it?

Because no one is going to be stupid enough to sell a paper to them and then sell it to someone else. They aren't going to sacrifice 3¢ in exchange for the student's fee. And if they don't care if the student gets nailed, they'll just use a stock paper or one they cribbed from Wikipedia.

Assume a competitive service to turnitin

Okay, if that floats your boat.

Assume the competitor has this paper and turnitin doesn't. Assume there are also copies of this paper floating about, maybe the author gave them out, maybe a professor handed them out as an example paper. Why would turnitin not want to have this paper just because someone wants to sell it to them?

Maybe they don't want random people shitting into their database.

If some professor has passed out a sample paper, and one student is stupid enough to pass it off as his own to a turnitin-using professor, then there will be other students stupid enough to do the exact same thing.
4.20.2009 6:43pm
David M. Nieporent (www):
Oops. Pretend I only posted once.
4.20.2009 6:44pm
David Schwartz (mail):
They are - but they're not the papers that people would be willing to sell to Turnitin! That's the point!. Only honest people would be willing to sell their papers to turnitin, and those papers have virtually no value to turnitin.
This is false for at least two major reasons:

First, people not inherently honest or dishonest. They respond to incentives and generally prefer honest profit because of the various risks associated with dishonest gain. Many people who might otherwise try to sell their papers might be quite happy to make a modest gain selling their papers to anti-plagiarism services instead.

Second, you assume that the victim always at least acquiesces to the plagiarism. There might be plenty of people who don't want their papers plagiarized and a cash payment might be the only additional incentive they need to submit them.
4.20.2009 7:59pm
David M. Nieporent (www):
First, people not inherently honest or dishonest. They respond to incentives and generally prefer honest profit because of the various risks associated with dishonest gain. Many people who might otherwise try to sell their papers might be quite happy to make a modest gain selling their papers to anti-plagiarism services instead.
You're still managing to miss the point. Let's try again. There are four possibilities from the point of view of a seller:

1. Sell to Turnitin and other students.
2. Sell to Turnitin but not other students.
3. Sell to other students but not Turnitin.
4. Sell to neither.

Case 3 and 4 are irrelevant to the issue we're discussing, which is whether Turnitin would buy the papers. Turnitin has no incentive to buy the papers in Case 2, as those papers do nothing for it. That leaves case 1. Turnitin would be happy to buy those papers, but the sellers wouldn't take that option. (Why? Think about it: because if you sell your paper to someone and to turnitin, that's a good way to get the crap beaten out of you (if you're an individual) or to lose all your customers (if you're a business.)) In other words, as we keep trying to explain to you, turnitin only wants to buy the papers of people who won't sell to it; people who will sell to it provide no value.
4.20.2009 10:40pm
David M. Nieporent (www):
Your music hypothetical is flawed, because we know that there is a commercial market for music.

How do we know this?
Empirically. Billions of dollars are spent on music.

Turnitin has no incentive to pay people to write papers for it; that wouldn't make any sense as a business model.

Why not? Isn't their value based largely on the number of works they can compare a particular paper to? If you were choosing between turnitin and a competitor, wouldn't the number of works in their database be a determining factor?
If you believe that, go ahead and write a paper and try to sell it to turnitin. If your theory were accurate, then they should be willing to pay you for it. (This fair use ruling is irrelevant, because they don't have access to your paper to copy it; the only way they can get it is to buy it from you.)


This argument is bizarre and absurd. Would there really be less music made? Seriously?
Seriously. Did you not realize that many people compose music professionally?
Would garage bands stop meeting and playing? Would people stop singing in the shower?
Some -- the ones hoping to one day strike it rich -- would, some -- the ones doing it purely as a hobby -- wouldn't. And no, but of course people in the shower generally sing pre-existing songs, rather than composing new music spontaneously, and in any case copyright wouldn't protect them either way.
4.20.2009 11:14pm

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