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Turn-It-In and Kiss-It-GoodbyeThe Patry Copyright Blog

On March 26, 2007, I did a posting about high school students who filed suit against a company hired by their school to catch papers were that were copied and not original. On March 11, Judge Claude Hilton of the Eastern District of Virginia issued his decision in the case, A.V. et al v. iParadigms, Limited, 2008 WL 728389 (Docket No. 07-0293)(I am happy to send a copy to those who want one). The defendant owned Turnitin, described by the court as ?a proprietary technology system that evaluates the originality of written works in order to prevent plagiarism.? Presumably among the proprietary elements of the system are the definitions of ?originality? and ?plagiarism.? On iParadigms website, we are offered this illuminating language:

iParadigms, LLC is the leader in the field of textual intellectual property protection. By introducing plagiarism prevention technology to the academic world with Turnitin®, the first online service of its kind, iParadigms set out to create a paradigm shift in how the protection of written work on the Internet was viewed. We succeeded - Turnitin is now synonymous with integrity in academic writing and an essential part of the 21st century educational process.

And we are given this illuminating example:

Judge Hilton?s opinion is, fortunately, quite lucid. Much of the dispute revolves around contract matters, and plaintiffs? understandable objections to the school district?s requirement that they submit their papers to Turnitin, thereby placing them at the mercy of the click-wrap licenses imposed by Turnitin. One section in the court?s opinion does bear noting on the contractual issue. Plaintiffs, all minors, had argued that they could not enter into an enforceable contract. The court cited to Williston on Contracts for the proposition that minors can?t take the benefit of a contract and then disavow it. What, dear readers you might be wondering, were the contractual benefits plaintiffs received from defendants (as opposed to those from the school) ? the terms of which basically said, ?you?re f?ked, there is nothing you can complain about or do.? The court replied, ?Plaintiffs gained the benefit of standing to bring the present suit,? a suit which the court of course dismissed. If that doesn?t imbue one with cynicism about the legal system, I don?t know what will.

The copyright claim was limited to defendant?s motion for summary judgment of fair use, which the court granted, and rightly so. Regardless of my extremely negative views on the school district?s policy and its farming out of its responsibilities to a private company that imposed terrible, and non-negotiable clickwrap licenses on high school students forced to agree to them on pain of failure of flunking out of school, defendant?s use was clearly fair use. The purpose for the use was solely to check for plagiarism (however defined), and could not conceivably interfere with any market for plaintiffs? work, nor defendant in any way meaningfully copy the works. There was a comparison of the works, and in some cases archiving of them for future comparisons, but this was all done as a part of the plagiarism checking. I have no problems seeing this as fair use.

I will close though by returning to the contract issue, with a comment submitted to my initial blog, from ?Supportive Dad?:

My daughter has a class that requires her to submit her work to turnitin.com or she will not receive credit. She is in High School and an A student. Every teacher, including the one requiring her to submit her work to turnitin.com, recognize her as an honest student. Yet, when she turns in her paper next Friday, it is likely her teacher will give her an "F" because she refuses to have it submitted to turnitin.com. She is willing to fight for the right of control over her written work.

And here is an update to that comment submitted a bit later:

I wanted to post an update. My daughter was asked by her teacher to reconsider her position, but she declined to do so. She turned in her paper and included a cover letter stating her position again. She also included portions of turnitin.com's user agreement that she did not agree with.

Today was the first day back in school after the holiday break. She received her graded paper: 92 out of 100, with no comments about her refusal to participate in turnitin.com.

This was a great relief to her and us.

Brava to the student, her teacher, and her supportive father. I have complained numerous times about efforts to ?educate? students about copyright. Teaching students that they have to agree to whatever terms a private company imposes on them because their own school district will refuse to award a grade unless they do, teaches, in my opinion, the wrong message: first, it assumes all students are cheats; second, it teaches them that their own teachers are willing to abdicate their responsibility to private companies; and third, it teaches them their own teachers do not care what the terms imposed by those private companies are. I don't think those are the value we want our students to learn.

Full post as published by IP Law Daily on March 25, 2008 (boomark / email).