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Stupid, Stupid Judge Screws Over Students
AngelHedgie
Registered User regular
Registered User regular
Judge passes summary judgment that TurnItIn can use papers provided by students, even if they don't want them to.
I really, really hope this one gets appealed, because there's a lot of boneheadedness in the decision.
The big point for me was the judge's dismissal of the issue of duress. Basically, the judge has said that because the duress wasn't applied by TurnItIn, it's not a factor on the legitimacy of the contract between TurnItIn and the student. This is insanity. TurnItIn should not get to benefit from the misconduct of another entity - duress is duress. There's even more insanity, though, as the judge states that TurnItIn's license automatically overrides any consideration of licensing terms that students may add to their papers. There's also the argument that the student's papers are worthless as well.
This really bothers me. TurnItIn benefits from being able to use the authority of the schools and their ability to use student grades as a cudgel to force students to hand over their work. This is wrong, no matter how you slice it, and the judge should be ashamed of his ruling.
I really, really hope this one gets appealed, because there's a lot of boneheadedness in the decision.
The big point for me was the judge's dismissal of the issue of duress. Basically, the judge has said that because the duress wasn't applied by TurnItIn, it's not a factor on the legitimacy of the contract between TurnItIn and the student. This is insanity. TurnItIn should not get to benefit from the misconduct of another entity - duress is duress. There's even more insanity, though, as the judge states that TurnItIn's license automatically overrides any consideration of licensing terms that students may add to their papers. There's also the argument that the student's papers are worthless as well.
This really bothers me. TurnItIn benefits from being able to use the authority of the schools and their ability to use student grades as a cudgel to force students to hand over their work. This is wrong, no matter how you slice it, and the judge should be ashamed of his ruling.
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Not when you're basically having someone bully the student into giving you the essay. Or when you're maintaining a database of such works without compensation.
I think in this case the judge has the ruling right.
It's not bullying to allow the professor, and by extension the school, to determine guidelines for how they will accept material and how they will enforce their academic standards (in this case anti-plagiarism standards).
And the "by proxy" argument covers compensation as well. The company is allowed fair use of the material submitted to them as part of the pricing scheme the university agrees to in the contract, which in turn at least nominally effects how much the student pays to attend the school. So the university gets the service, the company gets a payment and the right to fair use of the papers they examine, and the student allows their paper to be used in exchange for a theoretically lower tuition.
The only slightly dubious part of the ruling is that the papers have no financial value, and until I saw something in the actual ruling explicitly saying different, I'd consider that to be strictly limited to this case and usage.
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Fair use pretty much implies no compensation, or else you'd basically be purchasing the content and fair use wouldn't come into play at all. I'm trying to work up some outrage over these poor students' precious, precious essays being incorporated into a database under duress, but it's just not happening.
Google Books indirectly profits from copyrighted material in basically the same way, doesn't it?
Edit: Yeah.. Google also does I guess. Hadn't thought of that. I guess it flies, legally... but I just don't like the idea of some company profiting from work students do for their grades.
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Um, and when did the student transfer copyright to the school? This is the crux of the argument, and why TurnItIn's position is morally indefensible - the student, not the school, has copyright. And just because I submit my material to the school to be graded willingly does NOT constitute the transfer of copyright to the school. So the school can cry all they want - it's MY paper, and I get to decide who uses it.
This is the problem that Google is facing with their library project - they can argue the transformative aspect all they want, the real problem is that they acquired their database in a very dodgy manner.
But (I think) I get what you're saying... normally using content to generate revenue doesn't fall under fair use.
The issue is "TurnItIn is using the schools as a cudgel to force me to give them my paper to use in their database, regardless of whether or not I want to."
I guess I feel like that would fall under the school doing what it needs to do to provide their students with the best possible education on a level playing field.
Does it make any difference to you that the students are having to put the paper online themselves, rather than having the school itself do it? In other words, if the student only interacted with the school itself, and then the school turned the paper in to TII, would that bother you any less than the student having to turn the paper in to both the school and TII?
Which is why they're currently in a major lawsuit involving the authors and publishers. Again, the issue isn't that the works are being used, but how they were acquired in the first place. Fair use is predicated on you having a legal right to have the copy of the work you're using - sans that, the claim is meaningless.
Surely the issue the is with the schools for refusing grades to students who dont submit work to TurnItIn, rather than TurnItIn themselves?
It's a piece of sophistry, and it's meant to cover up the issue I've been pointing out. TurnItIn knows full well that the school doesn't have copyright, so no, they can't just work with the school alone. That's why they came up with this scheme - because the student is submitting their work to TurnItIn themselves, they can claim that the student willingly surrendered a copy of their paper to TurnItIn. We're just supposed to ignore the influence of the school.
Nope, it's on TurnItIn. The contract is only agreed to under duress, so that makes it invalid. As such, that would mean that TurnItIn has no legal right to possess the copies of the papers in their database. And without that legal right, they can't claim fair use.
Higher Ed is all volunteer. If a middle school was requiring TurnItIn submission campus wide, then you can claim oppression.
But the duress is carried out entirely by the schools - TurnItIn benefits, but is not the cause of the damage the students are suffering. If a bully threatens to beat you up unless you buy him a coke, and you go buy it, the shop doesn't owe you your money back afterwards.
I'm pretty sure that there's almost always been some sort of an agreement between the school and the student that any work turned in by the student is going to be subject to scrutiny to make sure the paper is their own work. As such the school should be able to, within reason, compare the student's work against that of others. In the process, a copy of the student's paper is kept because it allows the school to more thoroughly check papers in the future. If they had nothing to compare against, and every student required their papers be given back to them with no duplicates having been made, how could the school be able to legitimately say "ok, this student's work is their own and certainly not a dupe of John D's paper 2 semesters ago"? The school is now just using a 3rd party to maintain a much larger database.
Sorry if I'm being dense here, but I appreciate the debate.
I think we are talking about high school, although I get the feeling it's more on a teacher-by-teacher basis. Still not generating much sympathy from me, though. The actual problems of plagiarism and the overwhelming number of graduates who couldn't compose a coherent essay if their lives depended on it seem more dire to me than evil corporations profiting off of the sweat of child labor.
Good point - there is an argument to be made that by submitting an assignment to the public school system you have made a limited public release of it - allowing it to be shown to other teachers, copied, compared to other students work etc. - in which case, TurnItIn can use it under Fair Use. If they were a private company that marked exams, and the school paid them to do so, then they would have had access to the papers, and would have every right to fair use. Think of it as just marking one area - originality.
Wasn't the higher ed being entirely volunteer thing turned on it's head in rulings due to a degree being a large boost to your earning ability?
Thus making it voluntary in name only for many professions.
That said, I can't muster up much of a complaint about this system. I'd like it more if it was a federal thing and didn't charge the schools however.
Right, I was unclear. I meant the Prof explicitly announcing that he would would pool papers with his colleagues to look for plagiarism/multiple submission. The Prof is free to operate his class that way and you are free not to take it.
No, it doesn't even fall under that. Fair use gives you the right to use some portion of a work under certain conditions without compensating the person who holds the copyright to the work. The larger a portion of the total work you use, the harder it is to meet the legal burden of fair use, and if you use 100% of the work, as TurnItIn is doing, it is essentially impossible to carry off a fair use defense.
But don't believe me, believe trusted University of Minnesota Law School intellectual property specialist Dan L Burk:
Add to that the fact that they're not only using 100% of the copyrighted work, but they're also doing so for profit, and their actions are legally shit creek sans paddle. THis ruling probably couldn't survive an appeal.
Also, Encore, that still would not be a commercial use of the papers, since the professors are not profiting from pooling their pile of assignments together. The fact that TurnItIn is profiting from this makes it a completely different ball game.
You are obviously talking about college, but in high school I had to use TurnItIn for every single essay I wrote from freshman year to senior and no class gave me a choice whether or not I wanted to upload my work to a website which would then keep it. I was told I had to do it or else I would fail. My junior and senior essays, which were 85% of my grade for their respective classes, HAD to be uploaded to TurnItIn by a specific time or else I would fail. I am not outraged by this because I really doubt they are going to sell anyones' work for money without permission, but it is still slightly unnerving.
Heh, the judge references Perfect 10 v. Google (you know, the porn site).
Doesn't matter, because they first conclude that they had entered into a valid contract by accepting the terms and conditions (page 8). I haven't taken an IP course yet, but the judge's application of the test for fair use seems pretty solid . . . even though it seems to be obiter to me.
I think you have it backwards here - TurnItIn isn't forcing anyone to do anything, they don't give out grades; schools do. It's the school that is using the potential for an F as a cudgel. Unfortunately for the students, I guess, courts tend not to interfere with academic policies and defer to schools (especially universities) since they obviously know more about it than they do.
If it makes you feel any better, he completely dismissed TurnItIn's couterclaims (which were pretty ridiculous).
Am I missing something, or can you suddenly use the entire work and still claim fair use?
Thankfully at my university, it's the professor's option to use the service. At the beginning of each semester, I ask if my papers will be sent to TurnItIn or a similar paper comparison service. I've only had to drop one class because the professor said yes, and it was clearly a course the professor didn't care for (general education class).
You can try. But it's going to be VERY hard.
You can, but it makes it harder - you need to sail through on the other three points
That's my point. I think there are serious questions regarding TurnInIt in compulsory education. I would go so far as to call it exercising eminent domain which should require compensation. Unfortunately the vast majority of the opposition to the system I have encountered has been by college students (Disclaimer: I don't use TurnItIn, but am considering it). Not only do I have no sympathy there, I think it detracts from the very real issues in K-12.
Are you saying turning a profit is bad? I don't get your point here.
And everyone rides into the sunset happy. This is how it should be. You have my respect for following through on your personal convictions.
But sometimes you don't have much of a choice. If you need to take a specific class to get your degree and every prof. that teaches it uses Turn It In (we have a few at my university, like experimental psych.) then you're basically screwed if you don't agree with it.
I mean, unless you change your major, or don't complete your degree, or something ridiculous but that's usually not very practical.
If the TurnItIn issue is that important to you, you can check whether a college, department, program, or course requires it beforehand. Bottom line: If college students don't put up with TurnItIn, it will disappear quickly.
K-12 students don't always have the same choice. In fact, considering compulsory schooling and school zoning laws, it could easily amount to a government-enforced mandate of submitting your papers to TurnItIn.
But let me suggest the following to you. Have you considered that for many students, TurnItIn provides a highly valuable service? Hint: It's for the same reason that a course having a tougher grading system is valuable to some students.
Easy. Students are denied the revenue of selling their paper to plagiarists.