5 ms·

Storing students' papers for plagiarism detection is 'Fair Use'

22 points by furyg3 18y ago

viggity 18y ago
It always seemed like fair use to me
jellicle 18y ago
Turnitin's user agreement requires students to sign over all rights to their work: "You hereby grant iParadigms a non-exclusive, royalty-free, perpetual, world-wide, irrevocable license to reproduce, transmit, display, disclose, archive and otherwise use in connection with its Services". This court case is actually about clickwrap agreements, not fair use. Though the courts spent a fair amount of time blathering about fair use, the clickwrap agreement was already decisive. The only reason that the fair use argument was even mentioned was because one of the plaintiffs "hacked" the system, using a password not intended for him and (apparently) not agreeing to the clickwrap agreement. There's actually a really ugly line of reasoning in the cases about making contracts with minors. The minors were required to use Turnitin (sign over their copyright in their papers for free) by their schools. Since Turnitin didn't coerce them (the schools did), it's not a contract of adhesion. Since they received some consideration from it (the ability to graduate from their schools!), they cannot escape from the contract due to their being minors. SO: as a business owner, if you can get schools to require that students do X which benefits you, they have no hope of escaping from it legally, even if X is grossly unfair to the students. Let's consider: how much would Stephen King's/Madonna's/Oprah Winfrey's/Barack Obama's student papers be worth today? We don't know, because no one required them to use an archiving service that could sell them later on. But in just a few years, some people from the Turnitin.com generation will be reaching superstardom, and Turnitin can sell copies of their student papers to all comers. I suspect that the value of selling specific student papers will far exceed all other revenues ever realized by Turnitin.
- batasrki 18y ago
  I was about to make the same point, only not is so much detail. If the schools REQUIRE students to submit their papers in order to receive a grade, the binding agreement might not as well be there, since the students have no choice but to agree. Why didn't the students' lawyers focus on this point?
- cduan 18y ago
  The case is not about clickwrap agreements. Footnote 8 reads: > In light of our "fair use" analysis, we decline to address the question of whether the terms of the Clickwrap Agreement created an enforceable contract between plaintiffs and iParadigms. In other words: the court ignored the clickwrap agreement issue, because the fair use analysis was decisive.
  - jellicle 18y ago
    And the lower court found that the clickwrap agreement was fully enforceable. So: lower court found it enforceable, higher court declined to address it, that's it. The higher court is essentially being lazy here.
Celcius 18y ago
In my school (a Swedish University) we sometimes have to turnin our papers via Urkund which is similar to TurnIn, although we don't sign anything in doing so. I read that I can opt-out of having my paper used outside of my local university though, I'm not sure why that would matter to me but at least that's something. The main thing that worries me with outsourcing these types of things is that how could you defend yourself if the system finds you guilty of plagiarism when the source isn't open. It's not like false-positives can't happened and it seems perfectly reasonable that it should happened with an increasing rate as the system grows. I've learned to use wikis, version control systems (which granted I should have been using prior to that anyways..) and other ways of keeping a history of how my work progresses so that if I at some point would have to defend myself I can actually show the entire process behind something and not just the finished product. My biggest fear when it come to being accused of cheating is getting called out on the spot and then not being able to answer because my brain shuts down, like how many people curse themselves for not being able to answer job-interview engineering questions even though they knew the answer. Instant expulsion unless I guess you proclaim you are guilty and beg for your life, then maybe come of with a warning.
briansmith 18y ago
This is a good issue to teach students about civil disobedience. If you are an A student and you refuse to turn your papers in to turnitin, are your teachers really going to fail you? No, they won't. Especially since No Child Left Behind, A-level students are a prized asset to every school. Schools will really pay attention if a bunch of A-level students work together against a school policy, risking their own GPA. Send out a press release to the local press about your protest and your entire city will be working with you. Nobody likes these kinds of "guilty until proven innocent" policies. Even a single student protesting alone really risks very little by refusing to submit his paper to turnitin. Teachers want their students to succeed, and it is difficult for them to explain to a parent "I gave your student a lower grade on a technicality even though his work was excellent." Some teachers might try to play hard ball but if you are persistent you will win.
- JimmyL 18y ago
  Aside from the high school alluded to in this story, I've never seen Turnitin used in a high school context - one would think that HS papers generally aren't sophisticated enough to make it difficult to tell if there's been some plagiarizing. In the university context, however, I've seen it used pretty heavily - and if you think that professors won't give out failing grades for people who refuse to submit their papers to it, you're (in my experience) dead wrong, seeing as the edict to make student use it generally comes down from the department heads. We had a small controversy about this a few years ago at my old school. Some very smart students refused to submit their papers, and got Fs on them (for papers which all parties agreed were A- or better work). They eventually took it all the way through the university grievance process to the school Senate, where the decision was overturned and the new policy created: you can either submit your paper to Turnitin, or you can hand in all your notes and rough drafts with the work to be graded.
  - dhimes 18y ago
    My wife just confirmed that my son uses it and he's a freshman in a public high school.
  - silencio 18y ago
tsally 18y ago
Personally, I'd sue the University for making me sign over the rights of my written work to a company in order to get a grade. I'd be fine if I was just giving them the right to archive it, but the license says that it is a "a non-exclusive, royalty-free, perpetual, world-wide, irrevocable license to reproduce, transmit, display, disclose, archive and otherwise use in connection with its Services". Seriously? As anyone who writes often knows, it's a difficult process, and I'll be damned if I sign over the right to reproduce by writing to a company royalty-free. I'm an English minor and I haven't encountered this yet, but if I do I'll be sure to keep the HN community apprised.
- dhimes 18y ago
  ... especially if "its Services" changes. They simply need to be able to (1) archive; and (2) reproduce in a grievance hearing should someone contest a charge of plagiarism. I suspect that is all they are really trying to be able to do. But a couple of bad quarters have a way of making business models change.
palehose 18y ago
A friend of mine told me that she had basically used one well written generic paper to get though almost all of the essays required in college because the subject of her paper was so generic and applicable to the field she was studying (psychology). If TurnItIn were to "catch" someone for re-using their own work, I would say that TurnItIn is violating the fair use of the student because it is penalizing the student for being able to re-use previous drafts that were written by the student. I'm sure teachers don't condone the idea of students re-using previously submitted work from another class, but I think that it is a legitimate right and just shows how ignorant some teachers are who accept papers on generic subjects. There are probably other specific places where TurnItIn could arguably be abusive of ownership beyond fair use, but there needs to be a specific context to the situation.

22 points by furyg3 18y ago

It always seemed like fair use to me

Turnitin's user agreement requires students to sign over all rights to their work: "You hereby grant iParadigms a non-exclusive, royalty-free, perpetual, world-wide, irrevocable license to reproduce, transmit, display, disclose, archive and otherwise use in connection with its Services". This court case is actually about clickwrap agreements, not fair use. Though the courts spent a fair amount of time blathering about fair use, the clickwrap agreement was already decisive. The only reason that the fair use argument was even mentioned was because one of the plaintiffs "hacked" the system, using a password not intended for him and (apparently) not agreeing to the clickwrap agreement. There's actually a really ugly line of reasoning in the cases about making contracts with minors. The minors were required to use Turnitin (sign over their copyright in their papers for free) by their schools. Since Turnitin didn't coerce them (the schools did), it's not a contract of adhesion. Since they received some consideration from it (the ability to graduate from their schools!), they cannot escape from the contract due to their being minors. SO: as a business owner, if you can get schools to require that students do X which benefits you, they have no hope of escaping from it legally, even if X is grossly unfair to the students. Let's consider: how much would Stephen King's/Madonna's/Oprah Winfrey's/Barack Obama's student papers be worth today? We don't know, because no one required them to use an archiving service that could sell them later on. But in just a few years, some people from the Turnitin.com generation will be reaching superstardom, and Turnitin can sell copies of their student papers to all comers. I suspect that the value of selling specific student papers will far exceed all other revenues ever realized by Turnitin.

batasrki 18y ago
I was about to make the same point, only not is so much detail. If the schools REQUIRE students to submit their papers in order to receive a grade, the binding agreement might not as well be there, since the students have no choice but to agree. Why didn't the students' lawyers focus on this point?
cduan 18y ago
The case is not about clickwrap agreements. Footnote 8 reads: > In light of our "fair use" analysis, we decline to address the question of whether the terms of the Clickwrap Agreement created an enforceable contract between plaintiffs and iParadigms. In other words: the court ignored the clickwrap agreement issue, because the fair use analysis was decisive.
- jellicle 18y ago
  And the lower court found that the clickwrap agreement was fully enforceable. So: lower court found it enforceable, higher court declined to address it, that's it. The higher court is essentially being lazy here.

Celcius 18y ago

In my school (a Swedish University) we sometimes have to turnin our papers via Urkund which is similar to TurnIn, although we don't sign anything in doing so. I read that I can opt-out of having my paper used outside of my local university though, I'm not sure why that would matter to me but at least that's something. The main thing that worries me with outsourcing these types of things is that how could you defend yourself if the system finds you guilty of plagiarism when the source isn't open. It's not like false-positives can't happened and it seems perfectly reasonable that it should happened with an increasing rate as the system grows. I've learned to use wikis, version control systems (which granted I should have been using prior to that anyways..) and other ways of keeping a history of how my work progresses so that if I at some point would have to defend myself I can actually show the entire process behind something and not just the finished product. My biggest fear when it come to being accused of cheating is getting called out on the spot and then not being able to answer because my brain shuts down, like how many people curse themselves for not being able to answer job-interview engineering questions even though they knew the answer. Instant expulsion unless I guess you proclaim you are guilty and beg for your life, then maybe come of with a warning.

briansmith 18y ago

This is a good issue to teach students about civil disobedience. If you are an A student and you refuse to turn your papers in to turnitin, are your teachers really going to fail you? No, they won't. Especially since No Child Left Behind, A-level students are a prized asset to every school. Schools will really pay attention if a bunch of A-level students work together against a school policy, risking their own GPA. Send out a press release to the local press about your protest and your entire city will be working with you. Nobody likes these kinds of "guilty until proven innocent" policies. Even a single student protesting alone really risks very little by refusing to submit his paper to turnitin. Teachers want their students to succeed, and it is difficult for them to explain to a parent "I gave your student a lower grade on a technicality even though his work was excellent." Some teachers might try to play hard ball but if you are persistent you will win.

JimmyL 18y ago
Aside from the high school alluded to in this story, I've never seen Turnitin used in a high school context - one would think that HS papers generally aren't sophisticated enough to make it difficult to tell if there's been some plagiarizing. In the university context, however, I've seen it used pretty heavily - and if you think that professors won't give out failing grades for people who refuse to submit their papers to it, you're (in my experience) dead wrong, seeing as the edict to make student use it generally comes down from the department heads. We had a small controversy about this a few years ago at my old school. Some very smart students refused to submit their papers, and got Fs on them (for papers which all parties agreed were A- or better work). They eventually took it all the way through the university grievance process to the school Senate, where the decision was overturned and the new policy created: you can either submit your paper to Turnitin, or you can hand in all your notes and rough drafts with the work to be graded.
- dhimes 18y ago
  My wife just confirmed that my son uses it and he's a freshman in a public high school.
- silencio 18y ago

tsally 18y ago

Personally, I'd sue the University for making me sign over the rights of my written work to a company in order to get a grade. I'd be fine if I was just giving them the right to archive it, but the license says that it is a "a non-exclusive, royalty-free, perpetual, world-wide, irrevocable license to reproduce, transmit, display, disclose, archive and otherwise use in connection with its Services". Seriously? As anyone who writes often knows, it's a difficult process, and I'll be damned if I sign over the right to reproduce by writing to a company royalty-free. I'm an English minor and I haven't encountered this yet, but if I do I'll be sure to keep the HN community apprised.

dhimes 18y ago
... especially if "its Services" changes. They simply need to be able to (1) archive; and (2) reproduce in a grievance hearing should someone contest a charge of plagiarism. I suspect that is all they are really trying to be able to do. But a couple of bad quarters have a way of making business models change.

palehose 18y ago

A friend of mine told me that she had basically used one well written generic paper to get though almost all of the essays required in college because the subject of her paper was so generic and applicable to the field she was studying (psychology). If TurnItIn were to "catch" someone for re-using their own work, I would say that TurnItIn is violating the fair use of the student because it is penalizing the student for being able to re-use previous drafts that were written by the student. I'm sure teachers don't condone the idea of students re-using previously submitted work from another class, but I think that it is a legitimate right and just shows how ignorant some teachers are who accept papers on generic subjects. There are probably other specific places where TurnItIn could arguably be abusive of ownership beyond fair use, but there needs to be a specific context to the situation.