Google: If Viacom Can't Figure Out Which Videos Are Infringing, How Can They Expect Us To Do So For Them?

Plagiarism Checker Sued For Copyright Infringement

from the irony-or-accuracy dept

Fri, Mar 30th 2007 4:45pm — Mike Masnick

Back in 2002 there was some discussion over whether or not, Turnitin, a popular plagiarism checker that many schools and universities use, was violating students' copyrights. The program worked by comparing any uploaded works to a large database of previous works. However, it would then add those new works to the larger database. Many students began to question not just why they were being treated as criminals first, but also why Turnitin was allowed to use their content in its database without first licensing the works from the students. While there had been occasional stories wondering something similar over the past few years, now it appears that two high school students have decided to step up and sue the company for copyright infringement. This could get interesting for a variety of reasons. The students clearly thought this out ahead of time -- registering the copyright on the papers, which gives them the ability to sue for statutory damages, rather than just be made whole. At least one also had explicit instructions in the paper that it not be included in the Turnitin database -- and those instructions were ignored. If Turnitin has registered under the DMCA, they could potentially claim safe harbor provisions (a la YouTube), pushing off the liability to the teachers and professors who actually uploaded the works, rather than Turnitin itself. However, it's not clear if the company will go that route or just claim that it's use isn't infringing at all. Either way, this should be an interesting case to follow.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

49 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

The Swiss Cheese Monster, 30 Mar 2007 @ 5:09pm

With the suggestion that the students purposefully put themselves in a position to sue Turnitin, I'm left wondering how the courts treat this sort of thing (if that is really what they did).
[ link to this | view in thread ]
joshua may, 30 Mar 2007 @ 5:52pm

Re:
Well, they obviously had to submit their works to get the grade to pass their course. That's fine. Having their work submitted to Turnitin against their wishes is where the fun starts..
[ link to this | view in thread ]
hark, 30 Mar 2007 @ 5:57pm

Turnitin
I had torubles with this website too. They charged to scan works for plagiarism, but would scan my website even after I asked them to prevent their robot from doing so. In the end I setup a robots.txt, but was still very unhappy that they disregarded my request.
[ link to this | view in thread ]
Just graduated, 30 Mar 2007 @ 6:01pm

School property
I know where I went to college, all assignments/papers/tests that were submitted became property of the school. Once graded you could set up a meeting with the teacher to go over it, but you could not get it back or even make a photocopy of it. If that university had a similar policy, then the students lawsuit probably won't last long.

As for the website turnitin, I do see privacy issues concerning your work being stored on a database that could be potentially hacked and compromised. But other then that I think it is a good tool to catch cheaters that don't want to put in the work, which I believe is probably the ones that are whining and complaining about the site in the first place.
[ link to this | view in thread ]
Eric the Grey, 30 Mar 2007 @ 6:16pm

Re: Re:
Trouble is, most students in this situation have no choice but to submit their papers. The schools or teachers require it.

The fact that one of them specifically forbade Turnitin from adding his paper to the database seems to put Turnitin in a bad position.

I'm no lawyer, but I find it difficult to believe that they can claim safe harbor like utube has because they specifically collect these papers to make money. They actively seek them out for that purpose.

I could be wrong, but at the very least, Turnitin MUST honor the student's wishes with regard to making money off of their papers. If I were a student at a school that used such a service, I would be adding exactly that kind of copyright on my own, in order to prevent it. Not that my papers are any great work, but they are mine.

EtG
[ link to this | view in thread ]
JB, 30 Mar 2007 @ 7:08pm

Cool
[ link to this | view in thread ]
Neal, 30 Mar 2007 @ 7:23pm

Copyright?
I'm not sure I see how copyright law comes in to play here. They aren't making copies of the students' works and they aren't distributing the students' works.

Yes, I know they have the one electronic copy stored in their database, but it was provided to them by someone either acting with the authority to do so (or liable for the act) and they're merely comparing other works to it.

It seems it would be easy to argue that they're doing far more, by orders of magnitude, to protect copyright than they are violating it and I suspect any moderately intelligent judge will see it that way.
[ link to this | view in thread ]
Jack, 30 Mar 2007 @ 7:25pm

School Property
I had the same thought as "just graduated" (although his case seems a bit extreme). I think if you look at the fine print, most colleges & universities claim ownership of most student works. Even at the high school level, if it was a class assignment it's probably hard to claim full ownership rights. Besides (I'm not a lawyer but) doesn't fair use come into play here? After all the service is essentially doing some form of copy checking, not primarily propagating content.
[ link to this | view in thread ]
Vincent Clement (profile), 30 Mar 2007 @ 7:27pm

Mike:

I checked their legal documents and there is no mention of the DMCA Safe Harbor provisions. The various legal opinions center around fair use provisions. Turnitin argues that the work is archived to create a digital fingerprint of a fragment of the original work. The archived work is not distributed, is not publicly accessible and so forth, so according to the lawyers they hired, everything is hunky dory.

Yes, it should be an interesting case.
[ link to this | view in thread ]
Anonymous Coward, 30 Mar 2007 @ 7:34pm

Turnitin is taking a document which was copyrighted before being handed over to the school, and making money by using it. It's Not Fair Use if you're using it in a commercial product.
[ link to this | view in thread ]
Neal, 30 Mar 2007 @ 9:00pm

I think that's incorrect
If I recall correctly, there have been rulings that commercial use doesn't absolutely invalidate fair use. In any case this is a very unique use and not one that copyright law likely covers.

To give an example: I write a book on an obscure topic, I hold the copright. You purchase a copy of the book (I still own the copyright and control reproduction). You use your copy of the book to manually check against student papers on the subject and you charge for the service. You are using my work, under my copyright, in your commercial service - yet there is obviously no copyright violation, because there was no copying or distribution of my work.

Ditto in this case, other than that by the submitter of the work.

I suggest one possible outcome. The submitters will be the only one found to have *potential* liability, since they are the only ones to have made and distributed copies of the works.

I also suggest that, across the board, no submitter will be found to have liability because 1) most schools and universities explicitly state that any papers submitted become property of the school 2) even if they don't it's well understood that works created under contracts for hire become property of the contractor and that assignment and the grade given in exchange is a contract for hire 3) most students are informed beforehand that their papers will be submitted, so by turning in a paper the give the chool/professor permission to submit said paper to the service to be used as it is. 4) That paper turned in to the professor is the electronic equivalent of that book. When the professor submits it he, in effect, loans out his one legal copy and provided he doesn't make or use the original again then no illegal copying takes effect.

Of course the last argument is the most disputable and has the only precedent against it that I'm aware of, but I bet you could make this argument to most judges and juries and they'd buy it.
[ link to this | view in thread ]
Hoeppner, 30 Mar 2007 @ 9:55pm

the teachers could just refuse to accept copyrighted works.
[ link to this | view in thread ]
Sherwin, 30 Mar 2007 @ 11:13pm

My Opinion
I think that any assignment or essay that a student writes should remain the property of the student. The students do the research and spend their own time to write these things, why should they become property of the school? I think that the same rules should apply to these types of materials as would apply to any other published material. When an assignment is handed in for grading it should only be used for that purpose, unless the author agrees to other uses. In the case mentioned, the student specifically stated that the material NOT be submitted to the website in question. Why should the teacher/professor be allowed to then submit it anyways? How is this any different then me taking some copyrighted works and publishing them online without permission?
[ link to this | view in thread ]
Anonymous Coward, 30 Mar 2007 @ 11:19pm

Re: Turnitin
The robots.txt IS THE ONLY CORRECT WAY to keep anyone from crawling your site, Calling someone, Writing a letter, having a laywer write a letter, ALL USELESS.

It IS the way it works. Period. get over it.

Even thinking anything else can prevent your site being crawled just shows that you didn't bother to read the documentation and makes you look like the one with the problem.
[ link to this | view in thread ]
Crimsondestroyer, 30 Mar 2007 @ 11:35pm

Consider High School
Some High Schools use this service. The problem is that students are required to go there. Even if they where forced to sign a contract at the beginning of the school year it would likely be found that those contracts where invalid because they where made under duress.
--Credit to someone on Slashdot who brought this up--
Neal. Here is a thought to your book example. The service works more like this. I write a book and pay a company to check and see if I missed any of my references. While they are checking my book they also COPY the WHOLE THING, and use the copy to check other books. They continue to do this even after returning my book.
In other words, if this service where not digital and actually made hardcopies of every work there would be no question about infringement.
[ link to this | view in thread ]
jon, 31 Mar 2007 @ 5:45am

Last I checked a minor (most high school students are minors) can't enter into a legal contract. But that is beside the point. I know I never had any such contract (I'd love to see one). I think you are all getting copyright and intellectual property confused.

And the major problem with Neal's idea is that implied or "understood" contracts don't work as he suggests. Contracts can be written or verbal, but I'd like to see anyone try to argue to a judge that there was an unwritten/unspoken contract in this case. They only work in extreme circumstances. That is the reason that the contracts he writes about exist (and they only say they own the intellectual property, not the copyright, which is the issue here). If there isn't one the employer doesn't have squat.

I don't think that school owns the works submitted for a grade. The schools do own the intellectual property —the stuff you discover by using there teachers and equipment— but not the copyright. That is why every teacher I've ever met needs permission before republishing a student's work.
[ link to this | view in thread ]
Eunos94, 31 Mar 2007 @ 7:06am

Re: I think that's incorrect
The fatal flaw with your arguement comes directly from your example.

"You purchase a copy of the book..."

Purchase. Key word. You were remunerated for the copy. Along with that payment, certain rights are transmitted. In this case, no payment was made. No rights are transmitted. The commercial use of others un-paid for property is the *KEY* to this company. Without the infringement, there is no product or service.

Unless the schools wave the rights of the students work that they probably will already claim is theirs, I would guess that Turnitin, while justifying their behavior with "think of the children" rationality, is most likely in for tough road.
[ link to this | view in thread ]
rushonbye, 31 Mar 2007 @ 7:23am

Re: Re: Turnitin
Absolutely correct...although you don’t have to sound like such an ass.
[ link to this | view in thread ]
Sean Bell, 31 Mar 2007 @ 8:11am

Re: I think that's incorrect
I have a problem with your example about the book. Although it proves your point very well, you gave permission to sell your book. In addition, you got money for it. These students have given neither permission nor have they received money for their work. If you did not want to sell your book, you could have kept it to yourself because you had a choice. Students do not have that choice.
[ link to this | view in thread ]
Professor, 31 Mar 2007 @ 11:10am

I think Vincent is incorrect (see https://www.turnitin.com/static/usage.html does mention the DMCA).

"In accordance with the Digital Millennium Copyright Act (17 U.S.C. ¤ 512), iParadigms is registered with the United States Copyright Office as a Service Provider."

I think Turnitin can claim that the student shouldn't have submitted copyrighted work.
[ link to this | view in thread ]
Jubin, 31 Mar 2007 @ 11:11am

We use turnitin at our high school and part of me really supports what these students did.

While I don't know if it was required for them or not, at our school we have a choice whether or not to upload our papers. We didn't sign any sort of agreement saying we had to and if you don't it's only a very minor point deduction. All we had to do was talk the copyright issue over with our teacher.
[ link to this | view in thread ]
|333173|3|_||3, 31 Mar 2007 @ 12:44pm

Uni vs. School
At uni, you definitely do have the choice, and the Academic Program Rules or the general rules will almost certainly include a proviosion which allows someone in a position of responsibility to use a turnitin equivalent, even if it does not allow or require such a program to be used all the time. At school, the exam board could require the use of TurnItIn, but it would possibly require legislation to require all students to allow the program t be used on thier work. Perhaps there should be an option whereby you can opt-out of having the work added to the database.
[ link to this | view in thread ]
Anonymous Coward, 31 Mar 2007 @ 1:31pm

I wonder how many of these students screaming about copyright download free music off the internet.
[ link to this | view in thread ]
CRTisMe, 31 Mar 2007 @ 2:34pm

Fair Use Cuts Both Ways
I have an easier solution that could be argued.

We already grant a reasonable amount of "fair use" to the teachers to get at teaching that uses original copyrighted source documents. Isn't the integrity of a paper covered under the same "fair use" even if it has the copyright registered? If a teacher kept a file copy of students papers from preceding years and then sees the same paper again and then judges it plagiarism based on looking at the file copy, that is a totally correct behavior from the teacher. In this case the work is outsourced by the teacher (or school system) to an outside contractor. There is no difference- "fair use" covers both. Neither the teacher or the outside service is "publishing" them in any way. Publishing has the word "public" in it. Nothing ever leaks out to the general public.
[ link to this | view in thread ]
Paul, 31 Mar 2007 @ 5:23pm

Indentured Servitude
Hmm, let me see, students can either agree to be violated, or they can CHOOSE to get an "F" on every paper or "find another school." Great options, eh! This is a classic case of undue influence to coerce students into involuntarily ceding their intellectual property rights--under duress--to a profiteering, corporate giant. The corporate giant (Turnitin) propers to the tune of $20,000,000-$100,000,000 (John Barrie, founder of Turnitin, recently admitted that Turnitin's business DOUBLES every 12 months) in revenue per year off the backs of MINORS, while the students do not get a PENNY in compensation for their time, resources, or documents that Turnitin monetizes without students' willing permission. What Turnitin and the school are doing to the kids is nothing short of indentured servitude!
[ link to this | view in thread ]
Paul, 31 Mar 2007 @ 5:34pm

Turnitin Emails Students' Papers to Third Parties!
Proof, you ask? Go to the following URL to read about a professor's first-hand experiment with the Turnitin system. The results of the experiment provide undeniable proof that Turnitin emails complete, word-for-word copies of students' papers to third parties around the world (without students' permission):

http://www.mikesmit.com/page.php?id=23
[ link to this | view in thread ]
SomeGuy, 31 Mar 2007 @ 6:01pm

cf Google book scan
While my gut reaction towards this story is to dislike turnitin, I see a real equivalence here to Google's book scaning. If it's not copyright violation for Google to scane in books and use them to generate search results, how is it copyright violation for turnitin to scan papers and use the to detect plagarism?

Like I said, my gut wants the courts to side with the students here, but we need to think carefully about the precedent that this would set.
[ link to this | view in thread ]
Anonymous Coward, 31 Mar 2007 @ 11:14pm

Re:
considering turnitin is violating their copyrights, I hope they all are
[ link to this | view in thread ]
Kent, 1 Apr 2007 @ 2:08am

Forced to submit papers
I was required as part of the "revision" process to Turnitin my senior research paper. I spent around 80 hours working on that and its fairly flawed anyway. My teacher asked me why it said it found 15 percent of my paper was matched to others... I had large, cited sections in quotations and it considered them plaigiarism. It only compares against other students works... not content in books and other places on the internet. it will only find a duplicate paper if two people turn the same paper in to the service... it seems pretty stupid to me.
[ link to this | view in thread ]
Kent, 1 Apr 2007 @ 2:08am

^
*turn it in seems fairly flawed, not my paper... I got an 85%*
[ link to this | view in thread ]
Smart Students, 1 Apr 2007 @ 2:40am

Out smarting the Teachers
Being that the students copyrighted the papers before they submitted them, the papers are clearly the property of the students and the law take precedence over school policy and the fact that one of the students even went as far to put in the copyrighted paper itself to not be added to the database. it looks like an open shut case however, this would mostlikely go all the way to the supreme court
[ link to this | view in thread ]
Anonymous Coward, 1 Apr 2007 @ 2:47am

Re: Fair Use Cuts Both Ways
the problem with is arguement is that Turnitin is making a profit from how its using that material. Even though they are not selling the material directly they are selling the ability to compare a supplied text against others work. and the people that worked hard to make that work should have a say in how its used and if they want to allow others to use it.
[ link to this | view in thread ]
Matthew, 1 Apr 2007 @ 10:03am

What if...
a student turns in the exact same paper at a later time. Perhaps he or she transferred to another school during the year and happens to catch the same part of the cirriculum. Or, maybe just turns it in, very slightly updated, the next year.

Will turnitin recognize that an author cannot plagiarize oneself?
[ link to this | view in thread ]
Xiera, 1 Apr 2007 @ 11:28am

Very fun, indeed
I won't get into the potential problems of having your university own rights to your work for classes. This seems to be explicitly stated by most universities. BUT, my high school, for example, did NOT explicitly state this. They, therefore, have no legal right to my work for classes there.

In this case, I think it would be safe to assume that if the students were keen enough to copyright their materials before submitting them for grades, they would have ensured that their school does NOT have the aforementioned ownership policy.

The facts:
- The students own the copyright.
- They create one copy of their work.
- They distributed this copy to their teacher for the purpose of grading.
- They did NOT distribute their work to Turnitin and specifically noted that this particular work was NOT to be added to the Turnitin database.
- The same work appears in the Turnitin database.

Now, one of two things would be logical:
- Turnitin created the copy of the material illegally and should be held responsible for doing so.
- The teacher distributed the material illegally and should be held responsible for doing so.

In all honesty, BOTH should be held responsible, as they both partook in the illegal activity.

Regardless of who is held responsible, if these two students are successful, we'll see an increasing number of intelligent students copyrighting their works and an increasing number of high schools adding a policy of ownership over student works.

Again, we won't mention the possible creativity issues with schools and universities obtaining ownership over student works.
[ link to this | view in thread ]
Ayal Rosenthal, 1 Apr 2007 @ 5:57pm

Who holds the copyright?
My curiousity is why are some schools from which material is coming from not seeking not seeking monies for the copyrighted material (in the instances where a school notifies the students that the school itself will be the copyright holder for submitted material)? A school should be easily able to police itself or, in association with other nearby schools, create a community of previously submitted work for which it does not need to pay anything. Save the students' some money and use an open system for identifying plagarism!
[ link to this | view in thread ]
|333173|3|_||3, 2 Apr 2007 @ 3:39am

Re: What if...
Some schools and most exam boards have rules which state that the work must be new (either explicitly stated or just an entry on teh submission form which states that he work has never been submitted to that body before).

If it came back with a match, you could admit to your teacher that it was not new work, and ask them to find out how many papers matched yours.
[ link to this | view in thread ]
eric, 2 Apr 2007 @ 9:17am

Re: Turnitin
That's what robots.txt is for... that's why it exists... what's the problem?
[ link to this | view in thread ]
Anonymous Coward, 2 Apr 2007 @ 10:23am

Re: Re: Re: Turnitin
Ya,
You're right about that, Sorry.

I just get so annoyed at people that think they get to make up the rules (to favor themselves) as they go along.
[ link to this | view in thread ]
nick, 2 Apr 2007 @ 10:53am

If Turnitin looses, so does Book Search
I'm a law student and I've been very interested in this story b/c I find it fundamentally unfair to students for a company to take their papers, put them into a database, and then start charging fees for plagiarism scanning. But this sense of injustice is fueled more by my impression of students being screwed than any legal objections.

In fact, if Turnitin is violating the students' copyrights, then for sure Google is violating the copyrights of authors when they scan books for Book Search. I fully support Book Search and buy into Google's fair use/opt out position. The two programs are very similar in how they are run if you check the Turnitin webpage, in that both scan the works to be put into a database and both return limited clips based on search terms (not whole papers).

Plus, Turnitin has a DMCA policy that allows students to have their papers removed from the database. If these students have an issue with the service, then they should send in DMCA notices and get them removed. If the DMCA exists, shouldn't we follow it? Isn't the refusal to follow the DMCA one of the weak points in Viacom's lawsuit against YouTube? On this point, the students' argument sounds much like what the Author's Guild argues against Google.

There are plenty of differences with Turnitin that raise red flags (ie. they charge people for the service and arguably induce teachers to send in papers), but I haven't read the complaint fully (can anyone else find a copy of it and post it??) so perhaps Turnitin is not making a fair use or falls outside the DMCA safeharbors. However, it's always nice when people are consistent with their positions. So if you support the legal positions of Book Search and YouTube you might also need to support Turnitin.

As one last note, I see the teachers and schools in being in a bit more precarious position than Turnitin. If the comparison between it and Book Search is valid, which I think it is, then the question is whether the teachers have the right to submit these papers. I do not think they do, nor should they. The free speech rights of students don't end at the school door and neither should their copyrights. After all, how are we to train a generation to respect copyright law if the schools charged with the task of turning them into good citizens plays fast and loose with these important rights. I'm not so sure Turnitin is in the wrong here, but a more compelling case can be made against the schools and teachers signing up for this service, but the day that students sue their teachers for copyright infringement might be the day when we know copyright law is going too far.
[ link to this | view in thread ]
AnyMouse, 2 Apr 2007 @ 12:05pm

Only Comparing?
Someone made the statement that they are only comparing the work to other submitted works and therefor not violating the copyright.

So, I'll just download copies of all the music I can get my hands on, and setup a service to screen 'new' music for copyright violations, and this should be just fine, since I'm just using the existing copies for comparison purposes.

Right???

/Sarcasm
[ link to this | view in thread ]
RandomThoughts, 2 Apr 2007 @ 1:37pm

There is no doubt in my mind that Google would be held to the same standard should the students prevail. Google actually exposes (and profits) from much more disclosure.
[ link to this | view in thread ]
Anonymous Coward, 2 Apr 2007 @ 6:33pm

re: Only Comparing?
Actually, downloading music is not illegal. Distributing it is. The person you got the music from is liable but you are not, unless the music goes from you to someone else.

It appears that the instructors are the people responsible for ensuring compliance with copyrights, at least that's the only way that makes sense. If I post someone else's copyrighted picture or video or essay on the web, I am responsible, not the host, even if the host profits from people clicking on ads while visiting my site. I fail to see how this case is any different.
[ link to this | view in thread ]
Anonymous Coward, 10 Apr 2007 @ 8:33am

8yiuyoyiyiuoyoiuyoiuyoiuyiy
[ link to this | view in thread ]
Ron, 12 Apr 2007 @ 4:38pm

Re: I think that's incorrect
I think the difference from your example is that you were not forced to give your copyrighted work to someone else for them to use in a commercial way.
[ link to this | view in thread ]
Beyondtool, 18 Jun 2008 @ 3:50am

Can't see this one holding any water. At least I remember that as a student I actually signed a declaration that all work completed while studing the course belonged to the uiversity copryight and all. We were specifically told that we did not own the rights to sell or produce our designs even after we left the university. The university also held onto the right to do whatever it wished with our work. This was a decade ago, I can't see schools being stupid with this kind of thing today. Any work submitted to an institution does not retain any rights AFAIK.
[ link to this | view in thread ]
dirty harry, 21 Oct 2008 @ 2:32pm

baadgf
asdfasdgfdgadasfdasfdasgdxcv
[ link to this | view in thread ]
Nameless, 12 Mar 2009 @ 3:07pm

Re:
If that were the case teachers could not accept any work. All literary work is copyrighted to the author. The fact that these students registered their copyright just means that they submitted a copy to the Library of Congress and that they can sue for infringement. Even if they didn't I still think that they have the right to request that infringing content be pulled from websites.
[ link to this | view in thread ]
Nameless, 12 Mar 2009 @ 3:16pm

Re: cf Google book scan
Here is the difference. Google in every case I know of, has permission from the publisher to make portions of the book available in a search. Some publishers allow the entire books to be shown, others only allow certain pages.
[ link to this | view in thread ]
Sean, 15 Mar 2009 @ 8:12pm

Re: Copyright?
Violating the right's of one person to protect the rights of another is a dangerous path. Regardless of the intent, if a student wishes not to have his or her work represented in a database then their wish should be honored.
[ link to this | view in thread ]