U.S. Circuit Court of Appeals Rules that Turnitin's Fight Against Plagiarism Does Not Violate Student Intellectual Property Rights: A Dissenting Opinion

U.S. Circuit Court of Appeals Rules that Turnitin's Fight Against Plagiarism Does Not Violate Student Intellectual Property Rights: A Dissenting Opinion

Stephen Sharon is a recent graduate of Touro Law School in New York where he focused on intellectual property.  Stephen was also the first place winner of the Nathan Burkan Memorial Competition sponsored by the American Society of Composers, Authors and Publishers (ASCAP) for his submission of a case study about the legal battle between four Virginia students and Turnitin.

Plagiarism has existed around the world for ages, but since the introduction of the world wide web it has been growing exponentially.  Understandably, schools have long searched for ways to curb plagiarism.  Thousands of schools have signed up with Turnitin.com to deter and detect plagiarism and many swear by its effectiveness.  Problem solved, right?  Not by a long shot.  Not only are students forced into using the service against their will, but Turnitin violates their intellectual property rights, and possibly even some privacy laws along the way.  How can a company out to do good do so much wrong you ask?  Keep reading and I'll show you.

The Turnitin system is straightforward.  Students submit their papers online and Turnitin compares the papers to its archive and generates an originality report so that teachers can decide whether a student plagiarized or not.  The heart of the problem is that the archive contains previously submitted student works and every time a student submits a paper it gets added to the archive even if they object.  Turnitin claims that students agree to the terms of service when they click "I agree" and therefore grant Turnitin a perpetual, world-wide, irrevocable license to reproduce, transmit, archive, and otherwise use the student papers.  Although contracts entered in this manner are ordinarily enforceable, this one should not be for two reasons.  First, the students are often minors and have the right to rescind contracts they entered upon reaching majority.  Secondly, the contracts are procedurally and substantively unconscionable. 

On March 11, 2008 the  United States District Court  for the Eastern District of Virginia dismissed the first argument by saying that the students accepted the benefit of the contract and have no way of returning it.  On April 16, 2009 the 4th Circuit Court of Appeals affirmed the District's Court decision.  However, we need not discuss whether the students can return the benefit they received as it is patently clear they received no benefit from this contract.  The District Court singled out standing to sue and ability to submit their papers for grading as benefits the students received.  The students had the ability to do both of these things before they clicked "I Agree" and therefore it is entirely illogical to claim that clicking a button granted them these benefits.  With no benefits to return (because they never got any in the first place) they can rescind the contract thereby revoking the license they granted earlier. 

Furthermore, the contract is unconscionable and should be voided in its entirety.  A contract between a multimillion-dollar business with a legal team and a 12 year old is the paradigm of unequal bargaining power.  The contract prevents students from submitting DMCA take down notices, prohibits them from receiving injunctive relief, and even goes so far as to say that the license survives termination of the user agreement.  With no meaningful choice but to agree to the terms or risk failing all of their classes students have agreed to this preposterous agreement.  Even someone with no legal training can spot the injustice in allowing a contract on these terms to survive.

I could spend the next 5,000 words analyzing the copyright and fair use issues (and in fact I have, see http://ssrn.com/author=1259310 or the upcoming issue of the Touro Law Review for the complete paper), but the clearest way to visualize how the students should have prevailed in the Turnitin case is with a chart listing each of the fair use factors.  Everyone in the Unites States automatically owns the copyright to original works of authorship that they produce.  17 USC §106 entitles students to the following relevant exclusive rights:  (1) to reproduce the copyrighted work, (2) to prepare derivative works, and (3) to distribute copies of the copyrighted work.  Turnitin adds the papers to its archive violating #1, creates an originality report violating #2, and distributes student papers to teachers that request them violating #3.  If it was not clear earlier it should be now that Turnitin is up to its neck on the copyright infringement claim.  Their saving grace has been the very next statute in the code (§107) which codifies the fair use factors, which are weighed together to determine if a particular use of a copyrighted work is "fair".  Let's take a look at the chart I promised just a moment ago:

The Fair Use Factors of §107

Ruling in favor of: District Court / Circuit Court

Who the District Court and Circuit Court of Appeals should have favored and why: 


1) The purpose of the use and whether it is commercial


Turnitin / Turnitin

 Students. Turnitin's use was not transformative, was for commercial use, and of questionable public benefit.


2) The nature of the copyrighted work


Neither party or Turnitin / Neither party or Turnitin

 Neither party or Students. Student essays are original and creative works entitled to the highest level of copyright protection.  Rather than focus on this fact though (as required by case precedent) both courts instead focused on the less traditional question of what the impact on the incentive to produce new works by the students would be if Turnitin prevailed.  Admittedly, the students striving for top grades would have the same incentive to write original essays, but all students may be turned off to education in general if their intellectual property rights are violated throughout their academic careers. 


3) The portion of the work used


Neither party or Turnitin / Neither party or Turnitin

 Students. 100% of the students' works are copied.  Technically, this doesn't preclude a finding a fair use, but it certainly doesn't favor a finding of fair use.  


4) The effect of the use on the potential market


Turnitin / Turnitin

 Students. The potential market is right in front of us in the form of a multimillion dollar company that markets its vast collection of student papers as its largest asset.  If the average student only lives until 80 their copyrights won't expire for 150 years from now.  That covers an immense period of time over which to conclusively find that there is no potential harm. 

Keep in mind that no single factor is dispositive, but the students have compelling arguments for why they should have been favored in each of the four factors. 

Turnitin's final legal blunder relates to privacy.  COPPA (The Children's Online Privacy Protection Act of 1998), FERPA (The Family Educational Rights and Privacy Act), and PIPEDA all aim to protect personal information from collection and disclosure.  COPPA provides that it is unlawful for an online service directed to children to collect personal information from a child and requires the operator to obtain verifiable parental consent for the collection, use, or disclosure of personal information.  FERPA dictates that schools and their agents must have written permission from a parent or adult student before releasing information from a student record (which may include student essays).  PIPEDA states that private Canadian companies must maintain basic safe practices with personal data and obtain consent when collecting and disclosing it. 

COPPA, FERPA, and PIPEDA are considerably more complex than I make them out to be, but their intentions are clear.  The following hypothetical scenario should show you how Turnitin blatantly violates all three laws on a regular basis.

A teacher asks her class of 12 year olds on the first day of school to write a brief essay on what each student did over the summer.  One child writes about how hot it was because their family could not afford air conditioning and another writes about how they were abused by a parent.  The students then dutifully submit their essays to Turnitin where they are stored for eternity.  One day a second teacher discovers that one of their students' papers matches one of the hypothetical essays that was submitted to Turnitin.  The second teacher emails the first teacher through Turnitin explaining the potential plagiarism and Turnitin then facilitates the transfer of the student essay from the first teacher to the second teacher.  The students are never asked for consent and COPPA, FERPA, and PIPEDA are all violated in the process. 

Let me conclude by saying, I sincerely hope no one thinks I support plagiarism because I disapprove of Turnitin's methods.  What I do support is upholding the laws that I just spent the last three years studying.