On Point - A New Take On Legal News

Students Accuse Anti-Cheating Site of "Hypocrisy"

A lawsuit filed by four Virginia high school students claims an Internet service designed to catch plagiarists is itself a form of cheating that infringes their copyrights in their term papers.

The Turnitin service detects plagiarism in a student's work by comparing it to a digital archive of more than 22 million previously submitted student papers. Some 6,000 institutions in 90 countries use the service and in most cases, students have to submit their papers to receive a grade.

McLean High School in Fairfax County, Va., signed up for Turnitin last fall. But in a $900,000 copyright suit, four of its students allege the owner of the service, iParadigms of Oakland, Calif., is liable for archiving their unpublished work without their consent.

Turnitin's anti-plagiarism activities “are the quintessence of hypocrisy, essentially stealing students' unpublished manuscripts while [allegedly] protecting against intellectual theft,” the complaint says.

Fair use protects the use of a work for non-profit educational purposes from copyright liability. But Turnitin is for-profit –- iParadigms had revenues of $10 million in 2003, according to the suit -- and a law firm hired by Turnitin has issued a legal opinion in which it conceded that the archival of term papers

raises the issue of whether the conversion of a work to electronic form, and maintenance of it in a database, constitutes a "fair use" of the work.

Foley & Lardner went on to suggest Turnitin's archive is nevertheless legal because only the passages in a student paper that have been identified as plagiarized –- rather than the work as a whole -- are displayed or distributed to clients.

“[T]he minimal use of a student’s work to ferret out plagiarism in others' works, without making the work itself available to the public, is a fair use that does not infringe any copyright which may be present in the archived work,” the opinion concluded.

That argument, however, may be disingenuous since Turnitin has to use the entire manuscript to search for copies and thus make its money. Without the entire manuscript, in other words, it would have nothing to offer and profit from.

Earlier this month, U.S. District Judge Claude M. Hilton denied a motion to dismiss that did not raise the fair use defense. iParadigms argued instead that “this claim is barred by the plaintiffs' own admitted agreement to contractual terms that exempt iParadigms from any liability,” referring to the “I agree” box which students click when they submit papers to Turnitin.

“Plaintiffs state a claim upon which relief may be granted and Defendant's arguments address factual disputes not properly adjudicated on a motion to dismiss,” Hilton ruled.

By Peyton Burgess
5/24/07