Storing students' papers for plagiarism detection is 'Fair Use'
arstechnica.com
arstechnica.com
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.
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?
> 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.
The higher court is essentially being lazy here.
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.
But a couple of bad quarters have a way of making business models change.
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.
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.
On a small sidenote, my last college English class involved a group project that also included some individual writing as well. Unbeknownst to the rest of us, one member decided to copy and paste her submission straight from Wikipedia. Pproving that everyone else had no part in her stupidity took an unhealthy amount of time, especially when the person in question kept insisting she didn't plagiarize anything. Sophisticated indeed.
So it ended up being a mess and the rest of us four being accused of academic dishonesty too because she wouldn't stop insisting that we were lying about her, until we came up with our separate and complete email conversations consisting of a couple hundred emails with research and drafts and my versioned work (thank goodness for svn?) which included what the others did with no trace of her writing and nothing but excuses and delays in her emails. I think I've learned from my mistakes (but too bad something like turnitin isn't available to students, heh).
Failing that, not turning it in made the teacher question your "academic honesty". Very frustrating, especially as I remember there were some students that found it very difficult to get access to a computer to even type up their essays, let alone internet connections to submit online.
As far as I know, Turn-it-in doesn't really provide the instructor with a good way of verifying the original source of a paper. So, it is difficult for instructors to use turn-it-in as evidence of plagerism when students are gaming the system like that. It is also why anybody that challenges an accusation of plagerism based on evidence from these services will always win (at least in court).
However, I do remember that most of my HS english teachers were aware of the possibility of false positives. Their first reaction wasn't to accuse anyone of plagiarism, they just asked to see drafts and research related to the paper in question - or any sort of evidence to show that you were legitimately working on something. Turnitin for them was just automated checking to see if anyone was stupid enough to buy an essay or copy something near verbatim.
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.