Emily D. alerted me to this Washington Post story on high school students suing anti-cheating service Turnitin. Turnitin compares submitted student papers with a repository of other submitted papers to check for plagiarism.
I’m inclined to agree with the legal expert quoted in the article, that while using student work for scholarly purposes is probably fair use, “it seems like Turnitin is a commercial use. They turn around and sell this service, and it’s expensive. And the service only works because they get these papers.”
Preventing other people from running a business based on your work is one of the main benefits of copyright, and one of the rights most often asserted even when other copyright privileges are waived, as in a Creative Commons Non-Commercial license.
Turnitin may qualify for the DMCA’s safe harbor provision for service providers, since users submit the work. What that means is that the burden of proof of infringing use is on the author (i.e. the student). So even if the two students in this suit win, Turnitin may not have to shut down, at least in the short run.
It strikes me that the real place to push is the teachers, who are requiring their students to prove they’re not cheating. That runs against the grain of academic ethics ideology, which balances strict standards with academic freedom. This arrangement would also likely have a chilling effect on student work. There are only so many ways to write an essay on “The Catcher in the Rye.” Depending on the accuracy of the Turnitin algorithm, it may be impossible for a high school student to write a sufficiently distinct paper without purposefully trying to avoid a false positive.
That means that in addition to understanding the topic and the assignment, students would need to try and reverse-engineer the plagiarism detector. Failing that, they would then have to prove they didn’t cheat, which is nearly impossible. Forcing students to submit their papers to such a service imposes an unknown and possibly undue burden on academic work.