Students sue Turnitin

I saw on a listserv that two high school students have sued Turnitin, a service that identifies plagiarism, for copyright infringement. The apparent basis for the suit is that Turnitin archives papers it reviews for purposes of comparison against future papers. The Washington Post story about this suit contains opinions suggesting that the plaintiffs (who seek $150,000 in damages) have a good case.

While Turnitin does appear to violate the copyright holders’ right of reproduction, I think fair use clearly applies. Even if one considers the use commercial (couldn’t one also characterize the use as for purposes of criticism?), there is, in my opinion, no way that the use affects the marketplace for the copyrighted work. Turnitin’s archiving results in no distribution of the works. There is simply no way that this use injures any of the financial incentives associatd with copyright. What person writes a paper thinking “Hmmmm. Maybe one day I’ll get royalties when my paper gets submitted to Turnitin.”? This case reminds me of the one against Google Print, but I think it’s a lot weaker.

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4 Responses

  1. Frank says:

    Thanks for highlighting this development. I have a few ruminations posted here:

    http://madisonian.net/archives/2006/09/26/privacy-via-ip-claims/

  2. mrshl says:

    Well, what if a student wants to sell his paper for use in the open market for “turnkey” papers? The whole purpose of this site is to disrupt that market. So for no compensation at all, the high school students are unwittingly contributing to the destruction of one of the markets for their work. Probably the only market which offers valuable remuneration.

    I’m not a fan of plagiarizing, but I don’t see how one can argue the marketplace isn’t affected by Turnitin.

  3. jrny says:

    I think an even better commercial opportunity is the one TurnItIn stole for free: selling the paper to a plagarism identification service. Clearly TurnItIn sees a value in having the paper, so I expect its competitors feel the same way.

  4. mmmbeer says:

    I think that that’s a fairly incomplete fair use analysis. Even if you assume that your analysis is correct, which as msshl points out may be only one of the possible markets, I think that it is substantially outweighed the others.

    First, it’s not fair to say that Turnitin’s use is for research/commentary/etc. This might help the professor using the service avoid his/her own infringement (arguably, there may also be an implied license to do this), but not the company offering the service. In addition, a commercial database like this involves lots of exclusive rights: reproduction, public display, etc. Whether you could fairly say that all of the infringed rights fall into one of these categories. In addition, this service is very clearly a relatively expensive commercial enterprise.

    Second, they are slavishly copying the entire work.

    Third, written works are at the heart of the copyright act.

    I see no good fair use argument. I would imagine neither would a court.

    That said, TIN may have some other good defenses in contract.