Turnitin and Intellectual Property

As noted in Turnitin and Rhetoric, although the arguments against Turnitin are mostly logical fallacies, the issue of intellectual property does need to be addressed. Charlie Lowe, Ellen Schendel, and Julie White wrote,

Students have intellectual property rights to their writing that make problematic Turnitin’s compilation of student texts.

  • Claims of fair use by Turnitin put aside, teachers may want to consider their own opinions about requiring students to give away their work to be used by a third party, for-profit vendor.

What sorts of intellectual property rights do students have? It isn't trademark, trade secret, or patent rights, so it must be copyright (see Info/Law for this breakdown). Most student papers do not have an "original" idea or way of framing a particular idea. Rather, they are collections of common knowledge that display the students' developing proficiency in presenting that common knowledge. Copyright in these cases is at best a technicality. However, infrequently as it may be, some students do write a paper that is worthy of being published, in fact, that gets published. And as students progress in their knowledge and writing ability, this possibility increases.

Assuming students have copyright protection, still, what have they given away? Their written work remains their property. If they wish to publish it, make money off it, or anything else, they still have that right. Thus, they are not giving it away, at least no more than academics who sign off their copyright to journals without receiving any compensation. Of course, some might argue that academics have "choice." Not really, that is, if they want to receive tenure and promotion. And in contrast to academics giving away their copyright, students still have theirs. Unlike the journal-academic relationship, Turnitin's use of student work and the students' use of their work do not overlap or conflict.

Interestingly, the authors

recommend that the university consider having Turnitin globally configured at GVSU so that students’ papers are not stored in the database.

Apparently, they see a difference between a "for-profit vendor" not respecting students' intellectual property rights and the university doing the same. Such a distinction is difficult for me to see. Perhaps, as a colleague of mine commented, it's a qualified recommendation. That is, if GVSU insists on using Turnitin, then it would be better to have student papers on GVSU servers. Still, if I felt that if I believed, as they wrote, "Turnitin discourages good pedagogical practices" and "can be ineffective for detecting plagiarism," I would find it difficult to make such a recommendation because storing student papers at GVSU, as opposed to storing them on Turnitin servers, would not change these assumed negative by-products of Turnitin.

Even so, the commercial distinction is not an important one for me. Although universities are technically non-profit organizatons, it is an illusion that they are non-commercial. In New Jersey, the state provides about 20% of public university budgets ("New Jersey Colleges Brace for More Financial Blows", subscription needed). A major portion of the other 80% comes from students' tuition (e.g., 48.5% at Montclair State U.). In addition, universities invest their endowment funds in the stock market. Harvard's $28 billion endowment leads the pack. And there are the money making athletic programs and university-corporation "mergers" in which students provide cheap labor. Others have written in detail about the commercialization of academia.

On the notion of "fair use," I'm not sure that Turnitin's use is fair use. Arguments exist pro and con (see here and here for discussions on law blogs). One prominent lawyer and judge who seems to support Turnitin's use is Richard Posner. In his The Little Book of Plagiarism (see a brief review here, he states,

Some especially tony colleges, such as Harvard, do not subscribe to Turnitin or other plagiarism-detection software services but prefer to preach to their students about the evils of plagiarism. These schools are naïve. (p. 82).

According to Lawrence Lessig,

[Posner] is the most prolific person I know. He is the most influential lawyer of his time. His work in law and economics revolutionized the legal academy. His opinions as a judge are easily among the most influential in the federal judiciary.

Although Posner doesn't mention "fair use", he doesn't seem to see any legal objections to Turnitin (although for a position against "fair use," see comment #12 of "Plagiarism and Copyright" at Info/Law).

If that's a correct read, then the discussion turns on the ethical, that students are not freely giving their consent for Turnitin to archive their papers. If that is unethical, then so are most university policies and procedures, as a lack of consent is a commonplace in the university: Students don't give their consent to instructors to keep copies of their papers and final exams, to GVSU if it decides to store their papers on their own servers, to the course syllabus or grading system, or to much of anything else that the university requires from them. Similarly, as someone commented,

How different is Turnitin's process from grad students being required to submit their theses to the school's library and Diss Abstracts Online? ...

Is it that Turnitin doesn't compensate students? Libraries don't compensate grad students for the thesis they submit. In fact, you usually have to pay to have your own thesis bound for the library.

Counterexamples don't necessarily show that requiring students to give their papers to Turnitin is ethical, but they do show (1) the routineness of not requiring consent for many university policies and procedures and (2) a selective application of requiring consent, indicating that we should consider more carefully the criteria that make it unethical for requiring consent in one context and unseen in another.

What seems to be going on is an emotional response to a perceived violation of student ownership of their writing. Lowe and Schendel (at AFT) wrote:

Allowing a third-party vendor to police the presentation of honest students’ ideas, preserve a copy for policing others, and make money off of their writing diminishes student authority over their work and interferes with student intellectual and civic development.

This sentence seems to be the driving force of their position. It is more than possible that an instructor with a "got'cha" attitude will use Turnitin as a "policing" tool. However, as noted in Turnitin and Rhetoric and as will be seen in my next post, policing is not a necessary consequency of Turnitin. And from my own experience teaching international and ESL students for the last 15 years, many of whom have come from educational environments that many would consider more repressive than ours, I can say with some oversimplification that I have not seen any arrestment in their intellectual or civic development. Apparently, there is an ideologial adherence to promoting "student authority" to such an extent that emotion overrules reason, resulting in unsubstantiated and exaggerated claims.

One concern that receives insufficient attention is the right and responsibility of educational institutions to ensure academic integrity and learning. If cheating and plagiarism were insignificant, then little justification would exist to use Turnitin. However, as noted in Turnitin and Rhetoric, solid research shows that cheating and plagiarism are not only prevalent but also continuing to increase, which more and more circumvents the learning expected to occur in schools and the integrity of academic degrees--not to mention putting those students who do not plagiarize at a disadvantage as regards their GPA, an important factor in obtaining scholarships, internships, admission to graduate school, and so on. To not acknowledge these trends is naïve. And to assume that "effective teaching practices," although a crucial tool in attribution instruction, is sufficient to slow down or reverse this societal phenomenon is also naïve.

For me, it's not important whether Turnitin is a commercial entity. What is important is, Do institutions have a compelling legitimate interest in protecting academic integrity and learning that permits archiving student papers? What do you think?

Of course, if we use Turnitin, we should do so in appropriate ways, which I'll discuss in my next post.

Related articles:
Turnitin and Rhetoric
Using Turnitin
Turnitin Bibliography

Update:
A federal judge has decided that Turnitin's use of student papers does not violate copyright laws. For more on this decision, see: