[tt] CHE: Judge Rules Plagiarism-Detection Tool Falls Under 'Fair Use'

[Premise Checker]

Judge Rules Plagiarism-Detection Tool Falls Under 'Fair Use'
The Chronicle of Higher Education, 8.4.4
http://chronicle.com/weekly/v54/i30/30a01301.htm

By JEFFREY R. YOUNG

A federal judge has ruled that a commercial plagiarism-detection tool 
popular among professors does not violate the copyrights of students, even 
though it stores digital copies of their essays in the database that the 
company uses to check works for academic dishonesty. The decision has 
implications for other digital services, such as Google's effort to scan 
books in major libraries and add them to its index for search purposes.

The lawyer for the students who sued the company said he plans to appeal.

Judge Claude M. Hilton, of the U.S. District Court in Alexandria, Va., in 
March found that scanning the student papers for the purpose of detecting 
plagiarism is a "highly transformative" use that falls under the fair-use 
provision of copyright law. He ruled that the company "makes no use of any 
work's particular expressive or creative content beyond the limited use of 
comparison with other works," and that the new use "provides a substantial 
public benefit."

The case has been closely watched by the thousands of colleges who use the 
plagiarism-detection tool, called Turnitin, as well as by opponents of the 
service, who hope to prevent professors from becoming anticheating police.

In March 2007, four high-school students — two in Virginia and two in 
Arizona — sued iParadigms, the company that runs Turnitin, arguing that 
the company took their papers against their will and profited from using 
them. The students' high schools required papers to be checked for 
plagiarism using Turnitin, and the service automatically adds scanned 
papers to its database. The company boasts about the size of its database 
as a selling point, and colleges pay thousands of dollars a year to use 
it. The students sought $900,000 as compensation for six papers they had 
submitted.

Judge Hilton seemed unmoved by nearly all the students' arguments. 
"Schools have a right to decide how to monitor and address plagiarism in 
their schools and may employ companies like iParadigms to help do so," he 
said in his 24-page ruling.

More Issues to Explore

"I'm definitely appealing," said Robert A. Vanderhye, a retired lawyer in 
Virginia who took on the students' case pro bono. "I am positive that the 
appellate court will reverse" on the fair-use issue, he added.

The judge, he continued, "copied" the company's brief. "He didn't even 
consider any of our arguments," said Mr. Vanderhye.

Specifically, Mr. Vanderhye said, the judge did not address whether or not 
Turnitin violated federal student-privacy laws by allowing users of the 
service to see papers that show students' names along with the names of 
their instructors and other personal information. If the tool finds that a 
newly submitted paper contains material that matches papers already in the 
database, it gives the instructor the option of retrieving the old paper 
for a detailed comparison.

Katie Povejsil, vice president for marketing at Turnitin, said the company 
was "delighted" by the ruling.

"This was a very important case for us," she said. "This clears up some 
questions" in customers' minds about the legality of the product.

Peter A. Jaszi, a law professor at American University, said the judge's 
argument that the plagiarism tool is covered by fair use because it is 
transformative may well stand up to an appeal.

"However, I would expect that, on appeal, the lawyers for the plaintiffs 
might explore a wrinkle that the judge doesn't really address in the 
opinion," he said. "That is whether or not a new use, a use of copyrighted 
material for a new purpose, is an effective or promising use." Mr. Jaszi 
said previous courts have argued that how beneficial a use of copyrighted 
material is helps determine whether it is covered by fair use.

"The big debate about Turnitin, as far as I can tell," said Mr. Jaszi, "is 
about whether it's a good tool."

The decision could bode well for Google. The company has been sued by 
groups representing publishers and authors who argue that the company is 
violating their copyrights by digitizing their books without express 
permission. Google contends that, because its digital copies are for the 
purpose of providing an index, it is essentially transforming the 
material.

"If this opinion, as it stands, were to be endorsed on appeal, it can only 
help the cause of Google Library," said Mr. Jaszi.