Fair Use Affirmed In Turnitin Case 315
Hugh Pickens writes "The Fourth Circuit Court of Appeals has issued an opinion affirming a ruling that will be cheered by digital fair use proponents for allowing a fair use of students' work when their teachers electronically file students' written work with the turnitin.com Web site so that newly submitted work can be compared against Turnitin's database of existing student work to assess whether the new work is the result of plagiarism. The court stepped through the fair use analysis, dropping positive notes that affirm commercial uses can be fair uses, that a use can be transformative 'in function or purpose without altering or actually adding to the original work,' and that the entirety of a work can be used without precluding a finding of fair use. Techdirt suggests that all of these points could have been helpful to Google in defending its book scanning efforts, 'since it could make pretty much the identical arguments on all points.' Unfortunately Google caved in that lawsuit and settled, 'denying a strong fair use precedent and making Google look like an easy place for struggling industries to demand cash.'"
Google != Turnitin (Score:5, Insightful)
There is a significant difference in what Google was doing with books, where its stated purpose was to provide excerpts (chapters usually) of the book itself.
Turnitin allows automated computerized determination of direct plagiarism, without providing the content to other people.
In the final confrontation with the alleged plagiarist the teacher would probably have to have the original work in hand, but for the analysis portion no human need see either the new or the old work.
Re:Plagiarism takes yet another hit (Score:5, Insightful)
Re:Google != Turnitin (Score:4, Insightful)
In the final confrontation with the alleged plagiarist the teacher would probably have to have the original work in hand
Then what is the purpose of Turnitin? If the teacher cannot obtain a copy of the original without the original author's permission, then how can they make an accusation? Will Turnitin charge for a copy of the original? Will they only distribute the original with the author's consent?
Fair use for the Big guys... (Score:5, Insightful)
So the big guys with the big lawyers get fair use, but for the little guy, it's DMCA takedown notices all the way down
Re:Economic impact (Score:3, Insightful)
Google directly has an effect on my royalty checks.
How did you determine that?
Re:Plagiarism takes yet another hit (Score:5, Insightful)
It also seems quite ironic that they have a fair use right to the full work for the goal in enforcing that no one else can reuse even the smallest snippet.
Re:Plagiarism takes yet another hit (Score:4, Insightful)
Re:Fair use for the Big guys... (Score:4, Insightful)
OTOH, this case can be cited by other people in the same position to argue that such uses are not infringing. At least in the 4th Circuit, this case will be controlling.
Re:Plagiarism takes yet another hit (Score:2, Insightful)
"Back when I was a student, I saw the use of turnitin as a major lack of respect towards me, and I refused to submit my work to it on principle."
Of course it indicates a major lack of respect to do that without permission. That's why I'd make my intention clear on the course syllabus, and ask the student to sign for permission. It doesn't really matter if it is something fancy like turnitin or simply a file cabinet full of photocopies of old papers or a disk full of text files and grep. If the student doesn't like that I'm going to compare their paper against prior papers rather than relying on my memory alone, they can withdraw from the course at the start.
There's nothing disrespectful in principle about *considering* the possibility of plagiarism, is there? If so, then the technical means to do it shouldn't matter either.
If a student were instead saying that I can't consider the question of plagiarism at all, by any means, that's ridiculous, especially when most university rules specifically say that I must consider it, and that fact is clearly communicated to students.
If you don't like turnitin, then what acceptable technique would you suggest professors use to detect plagiarism?
Mixed feelings (Score:4, Insightful)
Yes, as a fair use proponent I agree with the decision. Though, even if it didn't apply as an "unpublished work", I still don't see this as a problematic use, in that I don't see any reasonable expectation of confidentiality. If there was one, certainly not one that would extend to expecting the professor would not store, or otherwise use his paper in accordance with the needs of the professor and institution to fairly dole out credit (including keeping, or causing others to keep, a copy for purposes of checking for plagerism now and in the future).
This "use" is quite "fair". Now, if the professor was posting the papers online himself for others to read.... or selling compendiums of papers etc.... thats another story. However, this sort of use seems quite reasonable, and unreasonable to put restrictions around beyond basic protection of the privacy of the student involved (oooh... now how does this relate to FERPA? ... which often does, in some part, apply to students (I used to work in University IT) )
What I find worriesome is the technology itself. Essays are often about similar topics. Papers are seldom about really original topics or even originals slants. Overall, amongst the growing number of similar papers out there, I do wonder how long it will be before their false positive rate starts to climb? Will we begin to see students accused of plagerism for nothing more than not thinking of much new to say, and having a writting style similar to some other unoriginal sod with the same paper topic?
Sure, the chances that someone else will write the same paper you did is pretty small, even with lots and lots of papers. However, what about the chances that any two people in a wide database of student papers will write almost the same paper, given the same topic, and same sources. That question worries me far more as I fear that as time goes on, the chances of this happening approaches 1.
-Steve
Re:Plagiarism takes yet another hit (Score:3, Insightful)
> The real issue is that if Turnitin can make a profit of of other people's work under fair use, then that basically means that students have no IP right [...]
I disagree. TurnItIns work derived of the students is not identifiable as the students work itself. Not even remotely, as the work TurnItIn provides is a totally different one than the student did.
And no, it doesn't mean that they don't have IP rights, the students have the same IP rights everyone else has on a published work. Which means not all encompassing rights.
> and that students are guilty until proven innocent.
That is a totally different matter, which wasn't ruled about and is a matter between you and your university.
> Back when I was a student, I saw the use of turnitin as a major lack of respect towards me, and I refused to submit my work to it on principle.
I agree with you on that, and consider it a laudable effort on your side to stand up against it. But it doesn't negate the right on fair use of TurnItIn.
Re:Copyright? Or privacy? (Score:4, Insightful)
That may be true in some countries, but I haven't found that to be true here (USA), UNLESS you are being paid by the university. It is common for graduate work to be university property, because it is also common for graduates to be paid by the university to do the research.
Undergrads usually don't get paid by the university to do research or to write up other papers, so their classwork still belongs to them.
Apparently the courts have decided that they don't get to control what is done with their own work. Why should they? Its not like the courts like the little people anyway. They don't have big enough checkbooks to matter.
Re:Google != Turnitin (Score:3, Insightful)
So Turnitin could say the paper matched verbatim another given paper or perhaps 75% of another paper, then the instructor could make a decision on that alone and confront the student.
The problem here is that the teacher has no proof, only circumstantial evidence, since Turnitin cannot legally provide a copy of the supposed original. Because of this, a teacher making an accusation would be opening themselves up, and the educational institution they work for, for big time litigation. In the time I spent working for a University, they did not take plagiarism or accusations of it lightly. Accusations of plagiarism were kept confidential while they were thoroughly investigated by the University before any action was taken. This is because just an accusation of plagiarism can destroy someone's career. A false accusation by a professor or teaching assistant is credible enough to be libel, and the damages can be huge.
Re:Plagiarism takes yet another hit (Score:2, Insightful)
Certainly no disciplinary action should be taken unless plagarism can be proven.
Turnitin is not disciplinary action. If the turnitin report comes back indicating plagarism, then the instructor investigates using the turnitin report and then takes disciplinary action. Many papers come back flagged by turnitin, but they are often false positives (quotations, commonly used phrases, etc.) Any university that doesn't require some additional effort on the part of the instructor is a joke.
My point is, if a student feels that the instructor doesn't trust him/her to be honest on an assignment, how can he/she in turn trust that instructor to be fair in other things?
That's a bit of leap in logic. For the sake of argument, suppose that requiring turnitin.com submission signals a lack of trust. Why does a lack of trust on the part of an instructor signal a willingness to be unfair? It seems to be like being overly diligent to maintain honesty signals exactly the opposite, that the instructor cares about the legitimacy of her grade.
Re:Plagiarism takes yet another hit (Score:5, Insightful)
"guilty until proven innocent" is a bit of a stretch. The instructor is (at first) only checking. Does any act of investigation presume guilt?
There are a great many forms of investigation that we don't allow in criminal cases, for example, unless there is some justification for the suspicion of guilt. For example, you can't just stop random people on the street and search their belongings for illegal items.
I we apply the same logic, here (mind you, teachers aren't law enforcement, so they're not bound by the same rules), then you would ask teachers to refrain from using such tools without a reasonable suspicion of guilt (e.g. a paper doesn't match the voice of its author or a paper is very familiar to the teacher).
I never liked the idea of punishing students for plagiarism, though. I'd much rather that teachers/professors combine approaches to teaching so that plagiarism gains you nothing without the same hard work that everyone else puts in. IMHO, if turning in a paper that someone else wrote can get me a good grade, that's just a sign that the course wasn't actually teaching anything in the first place, but merely hoping that exposure to the material would magically lead to education of the students.
Good teachers rely on a suite of metrics to gauge student progress and adjust the curriculum to suit. Bad teachers "plagiarize" in the sense that they just deliver the material they were given and grade papers/tests on the basis of their comparison to a hypothetical ideal.
Re:Plagiarism takes yet another hit (Score:1, Insightful)
Agreeing with grandparent on "guilty until proven innocent." There's a significant community/trust issue here between student and teacher that many people seem to neglect. I went to a relatively small private institution where the whole spirit of the place was grounded in mutual trust and respect among all parties: faculty, students, and staff. Honor system, all that jazz. If one of my professors had started using TurnItIn, I would've taken that personally. You don't count the change when dealing with close friends because it signals distrust. This is the same in my book.
Now, I'm a graduate student at a gigantic state school where it really seems that professors and courses are seen more as obstacles to be conquered than as resources to be cherished. Use of TurnItIn is widespread here, and people look at me funny when I try to explain how we did it at my previous institution. I do the best I can and take pwizard2's approach, declining to submit my work on principle (I had one professor who wouldn't go for it, so I dropped his class).
Does the idealist approach make it easier for plagiarists to slip through? Of course. But it's important to keep in mind that when you decide to aggressively seek out these bad apples, there's an associated cost to the community (and I'm not talking about TurnItIn's hefty license fees). Having had it both ways, I'd suggest that the benefit isn't worth the cost, but obviously, there are those who disagree.
Re:Google != Turnitin (Score:4, Insightful)
If the student has plagiarized, the student has found the paper somewhere. There's a good chance it's off the Web, so the teacher can Google for some of the phrases. It may be from earlier classes, in which case the teacher may have back papers to search.
The teacher can use the information from TurnItIn to start an investigation. As you point out, accusing without proof is a real bad idea.
Re:Plagiarism takes yet another hit (Score:5, Insightful)
What I meant was "do all acts of investigation assume guilt?" The answer is no. When you get pulled over and the officer runs your license, she isn't implicitly saying "I KNOW you have outstanding warrants!" She is just checking and that isn't a breach of trust. When the instructor runs papers through turnitin, they aren't saying "I KNOW you cheated on this!". He is just checking and that isn't a breach of trust. At least that's how I feel about it.
Re:Plagiarism takes yet another hit (Score:5, Insightful)
If the instructor is reading my paper with the intent of 'diff'-ing it against previous works, no matter what the mechanism, then the trust has already been destroyed. The paper should be read for content, clarity, etc., and if, during that process, something jumps out as familiar or unusual for a certain student's typical work, then there's grounds for further investigation.
By analogy: Let's say girls have cheated on me in the past, and I decided that I would really prefer that didn't occur again, so I'm now regularly searching my new girlfriend's e-mail/phone for incriminating messages. I'd say our relationship is already in a sad state, and it barely even matters if she's actually cheating or not. The trust was broken long before I logged on---and not because of anything she did. That's TurnItIn.
On the other hand, if I just grab her phone to make a call and find a risque incoming text, then I might have a reason for further exploration now, but prior to this incident, I believed her to be faithful/innocent and our relationship was better. Could I have lessened this heartache if I had taken the hypervigilant/assumed-cheater route? To some extent, but you can see how this approach destroys any hope of a trust-based relationship, even in the case where my girlfriend is trustworthy.
I've chosen an emotionally-charged scenario (love) to illustrate the point; the trust between student and teachers serves a more subtle purpose. And yes, I'm arguing that it's okay to let a few crooks slip through if grabbing them all means implicitly accusing everyone. I just don't buy that you gain a whole lot by going to all this effort to catch plagiarists (they tend to catch themselves eventually). But you do lose something . . . something that's about as hard to put into words as it is important.
Re:Plagiarism takes yet another hit (Score:4, Insightful)
Re:Plagiarism takes yet another hit (Score:5, Insightful)
That isn't realistic. Teachers teach the same thing for multiple semesters. There's no way to make it so that a paper from one class in one semester is not equally valid in another class in another semester.
Okay, with SOME classes that is possible, but not very many.
Re:Plagiarism takes yet another hit (Score:5, Insightful)
You didn't get screwed by Turnitin. Turnitin simply flagged a similarity. You got screwed by your prof, whose job it is to make an actual decision.
Re:Plagiarism takes yet another hit (Score:4, Insightful)
IMHO, if turning in a paper that someone else wrote can get me a good grade, that's just a sign that the course wasn't actually teaching anything in the first place, but merely hoping that exposure to the material would magically lead to education of the students.
Good teachers rely on a suite of metrics to gauge student progress and adjust the curriculum to suit. Bad teachers "plagiarize" in the sense that they just deliver the material they were given and grade papers/tests on the basis of their comparison to a hypothetical ideal.
That is some of the purest, most complete bullshit that I've read in a good long time.
what is plagiarism? (Score:3, Insightful)
The "close imitation of the language and thoughts". If you have possibly hundreds or thousands of sample works on a particular topic it is very likely that duplication will start occur. It may start out at 1% match but as the database grows the matching to existing parts of other items will grow till the point where it will be virtually impossible to actually write something that is considered actually original by a logical computer.
How many ways can you interpret Shakespeare? I know my English had no frig'n clue about Shakespeare but if your interpretation did not closely imitate his language and thoughts you where 100% wrong! Every passing paper was remarkably similar in its verbiage.
I teach university. (Score:3, Insightful)
Let me just chime in here as a university lecturer who has papers turned in to him. I am posting anon, just in case my employer finds out and doesn't agree with me.
I agree that there is a very uncomfortable lack-of-trust issue here, and I would resist ever using such a system to check for plagiarism. When someone hands me something, I don't assume it's plagiarized; I assume that, provided the paper doesn't represent some sudden jump in writing ability or knowledge of the subject, that person wrote it. When I do get a paper that just doesn't sit right, I start Googling. If I find something, I print it out and highlight the lines that match exactly, staple it to the back, and hand it back with a zero. There's no need to argue at that point, and I assume the situation is now resolved.
In cases when Google doesn't help, I have to call them in and have an awkward conversation. If they say they got help at the writing center, I just call the people down there (several of whom I know socially) to find out. If they say he or she was in there, end of story.
If all that doesn't help, I just walk around the department and ask if anyone else has had this student and if they've ever gotten a paper that didn't sit right. If so, I keep digging; if not, I let it rest.
Here's my thing: I am not some grand gatekeeper trying to make sure that no one leaving my university does not have a firm grounding in comparative religions. It matters for the majors, but most of my students are just fulfilling some requirement. Also, my majors are studying what I teach on purpose; they aren't that likely to cheat. This is what they chose.
Basically, if you cheat in university, you are only hurting yourself. It will come back to bite you later in the semester or in other classes. I believe that as long as teachers exercise due diligence, the system works fine. Furthermore, as a student, although I never plagiarized, I did sometimes cheat. But you know what that taught me? It taught me that cheating is often harder than just doing the assignment right, plus it runs the risk of getting expelled, plus you don't learn anything and you have to catch up later. Those are extremely valuable lessons, both in school and in life. Following the rules is always the easiest, best policy.
Before Google, did people plagiarize? Hell yes. Did they get away with it? Sometimes/often, yes. Did the world grind to a halt because some slackers got Bs instead of Ds in a couple classes? ...Not last I checked.
The truth is that the massive hump in the middle of the bell curve is always bigger and more important, in the grand scheme of things, than the outliers, but humans are crap at dealing with probabilistic thinking, and waste a lot of time dealing with outliers, when outliers have a way of dealing with themselves. Spending a lot of time, insulting my students, and posting their homework (even anonymously) to a public website, all to deal with the few jackasses trying to trick their way through a degree program is, IMHO, a massive waste of time.