
Storing students' papers for plagiarism detection is 'Fair Use' - furyg3
http://arstechnica.com/tech-policy/news/2009/04/headline-here.ars
======
jellicle
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.

~~~
cduan
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
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
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.

------
tsally
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
... 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.

------
briansmith
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
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.

~~~
silencio
I vividly remember hating dealing with Turnitin way back when I was a freshman
in high school, which was like 5-6 years ago. I'm not sure what the point was,
since there was _way_ more cheating going on during exams than there was
plagiarism in English essays.

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.

~~~
tokenadult
No one else in the group recognized that the writing wasn't hers?

~~~
silencio
Admittedly it was our fault for not realizing where the writing came from, but
she was the straggler in the group that never participated in our email
conversations and sent us her portion of the project the hour before it was
due. I know there's always a slacker in a group project, but none of us
imagined she would have done what she did...we just thought she was just
procrastinating and so someone else quickly proofread for egregious grammar
mistakes and then sent it off. Then in the individual work related to the
group project (i.e. our thoughts, the work we did, etc.) she claimed just like
we did that it was all her original writing.

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).

~~~
JimmyL
+1 for using svn for schoolwork. No matter what schoolwork I did, if it was on
a computer it was in a repo. Nothing beats a plagiarism accusation like being
able to provide 40 revisions of your previous work spread over a few months.

------
palehose
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.

------
viggity
It always seemed like fair use to me

