Turnitin.com and Copyright Law

The faculty and administration at St. Thomas High School decided to purchase a subscription to Turnitin.com a couple of years ago to deter plagiarism. In most of their classes, students are now required to upload a copy of every major composition and essay to the site in order to ensure its originality by comparison with other works in the Turnitin.com database. Turnitin.com utilizes software that scans the Internet for matches between student essays and those found elsewhere on the web; furthermore, it also stores a copy of all student essays submitted to the site in its digital record for future cross reference with other student essays.

The software is not full proof. It does not account for proper citation, so sloppy teachers might see a high score (25% or more) and assume the student has plagiarized when a closer examination will reveal that the similarity is explained by ample use of direct quotes from primary and secondary sources that are correctly cited. In other words, the software does not draw distinctions between cited and uncited material. It simply reads the text for superficial convergences.

Teachers can easily solve this problem by investigating any potential instance of plagiarism with more meticulous attention to detail, which is what most teachers will do anyways. I personally find the software quite helpful and a good deterrent for students contemplating cheating their way to academic success.

I do not think Turnitin.com presumes guilt, nor does it necessarily impugn the reputation of students, nor does it seek to perpetuate the shame of students caught in the act of plagiarism, nor does it sell student essays for profit without permission. It is a security system, plain and simple. Some students, however, felt differently and brought a lawsuit against iParadigms (the company behind Turnitin.com) a few years ago for copyright infringement. Their case eventually made it to court in the United States Circuit Court (Eastern District of Virginia, Alexandria Division) and was defeated, and then it was defeated again on appeal in the United States Court of Appeals for the Fourth Circuit. The Court of Appeals affirmed the Circuit Court’s determination in A.V., et al., v. iParadigms LLC (2008) that Turnitin.com does not violate students’ copyright and is a legitimate commercial enterprise under the Fair Use guidelines of the Copyright Act.

I found this ruling fascinating because the court basically ruled that, even though Turnitin.com keeps a permanent digital record of a student’s work in its entirety and profits from this record, it is still within the parameters of the Fair Use specification because its software is “highly transformative” and provides a “substantial public benefit.” That seems to be quite an expansion of Fair Use as I understand it since the Appeals court stated that:

Congress provided four nonexclusive factors for courts to consider in making a "fair use" determination:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The plaintiffs argued that the proprietors of Turnitin.com were in direct violation of the first and third criteria of Fair Use protocol. The court rejected that argument by treating the criteria in an interrelated fashion (“nonexclusive factors”) rather than on an individual basis; therefore, the “transformative” quality of the Turnitin.com trumped the transgression of two of the criteria in isolation. All this legalese adds up to a victory for Turnitin.com and for teachers everywhere who breathed a sigh of relief that this great search engine can keep on chugging along.

I sympathize with students who don’t like the idea of their high school or college prose existing in a corporate digital record for what amounts to be a technological limbo that has the potential to exist forever, assuming technology holds up over time. It smacks of Big Brother and the potential for abuse is obvious. Just look how everything that is out there on the web can be dredged up and used against individuals for personal and professional gain. Moreover, it IS their work and someone else IS profiting from it, even if it is indirectly and for a “transformative” purpose—whatever THAT means! As much as I can relate to such sentiments, however, I still like Turnitin.com even if some students gripe about it. Nanana booboo! ;)