Students Claim Turnitin Violates Intellectual Property Rights

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Joan Oleck -- School Library Journal, 10/4/2006

Plagiarism by students is, by anyone's measure, a huge problem—a 2005 study by Duke University's Center for Academic Integrity found that more than 60 percent of 18,000 high school students admitted to copying someone else's work.

But one frequent "solution" to the problem, Turnitin.com—a subscription service in which students submit their papers online to be vetted for originality by a database containing 22 million student papers, plus millions more Internet documents—may be no solution at all.

The reason: Students and some faculty members of high schools and universities are fighting back, calling Turnitin an infringement of students' intellectual property (IP) rights.

At McLean High School in Virginia, seven seniors have mounted a petition drive, collecting more than 1,200 signatures against Turnitin. The protest prompted the administration to scale back its earlier plan to subject all students to the database check. Now only McLean freshmen and sophomores will be subject to the checks.

At the University of Kansas at Lawrence, meanwhile, administrators have said that they'll halt their institutional Turnitin subscription (generally priced at $80 per student, according to the company) due partly to a faculty reaction against the database retaining student papers—and in the process generating concerns about IP violations.

Are such concerns warranted? Leo Brett, a member of McLean High School's self-styled Committee for Students' Rights, says yes. "The objection is that Turnitin.com is making a lot of money off the database," Brett said in a telephone interview. "The database is their selling point. Without the database it's just a search engine. So they need our papers to make the database. And they're profiting off it."

John Barrie, CEO of iParadigm, LLC, the company behind Turnitin, defended those profits. "There are no copyright issues regarding the use of Turnitin," Barrie said firmly. "As a practical matter, we wouldn't have more than 6,000 educational institutions [including 4,500 high schools, most U.S.-based] as our clients if there was a legal issue regarding the use of Turnitin. Two, we renew more than 95 percent of our business. And, number three, our client base is doubling every year." The company, Barrie said, has never been sued.

One reason, Barrie said, is that upon Turnitin's founding, the intellectual property question was put to the prestigious Foley Gardner law firm, which specializes in IP law. The firm's resulting legal opinion in favor of Turnitin is posted here.

However, two IP attorneys, both partners at the New York office of Brown Raysman Millstein Felder & Steiner, who were consulted by SLJ, expressed a bit more doubt about the issue of fair use. One of those attorneys, Jeffrey Neuberger, for example, pointed out that no black-and-white test of what "fair use" constitutes exists. So a potential case against Turnitin/iParadigm would have arguments on both sides, Neuberger said.

A plaintiff, Neuberger said, could establish all the elements for copyright infringement, most notably the fact that the defendant, iParadigm, copied the papers. But then the company could argue that no infringement occurred because the papers were not actually made available to other students. Their argument, Neuberger said, would be, "We're just using [the student paper database] as an index to compare against."

And, Neuberger continued, "That's not a traditional infringement, which I think is a good argument. But the counter argument to that would be, 'Well, you're making money off it. It's not traditional fair use. It's not newspaper reporting, it's not education, or public use.'"

The student papers in the database "are unpublished," Neuberger pointed out, "and the scope for unpublished papers for fair use is much narrower than fair use for published work." As an example, Neuberger cited a case some years back in which a magazine serialized, without permission and ahead of official publication, the memoirs of former U.S. President Gerald Ford.

The courts, the attorney said, ruled against the magazine.