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Fair Use Affirmed In Turnitin Case
Hugh Pickens writes "The Fourth Circuit Court of Appeals has issued an opinion affirming a ruling that will be cheered by digital fair use proponents for allowing a fair use of students' work when their teachers electronically file students' written work with the turnitin.com Web site so that newly submitted work can be compared against Turnitin's database of existing student work to assess whether the new work is the result of plagiarism. The court stepped through the fair use analysis, dropping positive notes that affirm commercial uses can be fair uses, that a use can be transformative 'in function or purpose without altering or actually adding to the original work,' and that the entirety of a work can be used without precluding a finding of fair use. Techdirt suggests that all of these points could have been helpful to Google in defending its book scanning efforts, 'since it could make pretty much the identical arguments on all points.' Unfortunately Google caved in that lawsuit and settled, 'denying a strong fair use precedent and making Google look like an easy place for struggling industries to demand cash.'"
It's not so much laziness that I'm concerned about. Students who plagarize deserve to be punished. The real issue is that if Turnitin can make a profit of of other people's work under fair use, then that basically means that students have no IP right and that students are guilty until proven innocent. Back when I was a student, I saw the use of turnitin as a major lack of respect towards me, and I refused to submit my work to it on principle. Since I had never done anything wrong in regards to plagarism, most of my instructors understood and didn't hold it against me.
"It is a denial of justice not to stretch out a helping hand to the fallen; that is the common right of humanity."
If the instructor is reading my paper with the intent of 'diff'-ing it against previous works, no matter what the mechanism, then the trust has already been destroyed. The paper should be read for content, clarity, etc., and if, during that process, something jumps out as familiar or unusual for a certain student's typical work, then there's grounds for further investigation.
By analogy: Let's say girls have cheated on me in the past, and I decided that I would really prefer that didn't occur again, so I'm now regularly searching my new girlfriend's e-mail/phone for incriminating messages. I'd say our relationship is already in a sad state, and it barely even matters if she's actually cheating or not. The trust was broken long before I logged on---and not because of anything she did. That's TurnItIn.
On the other hand, if I just grab her phone to make a call and find a risque incoming text, then I might have a reason for further exploration now, but prior to this incident, I believed her to be faithful/innocent and our relationship was better. Could I have lessened this heartache if I had taken the hypervigilant/assumed-cheater route? To some extent, but you can see how this approach destroys any hope of a trust-based relationship, even in the case where my girlfriend is trustworthy.
I've chosen an emotionally-charged scenario (love) to illustrate the point; the trust between student and teachers serves a more subtle purpose. And yes, I'm arguing that it's okay to let a few crooks slip through if grabbing them all means implicitly accusing everyone. I just don't buy that you gain a whole lot by going to all this effort to catch plagiarists (they tend to catch themselves eventually). But you do lose something . . . something that's about as hard to put into words as it is important.