Posted by: bridget | 29 March 2007

Students Sue for Copyright Infringement

High school students are suing electronic anti-cheating services for copyright infringement.  Anti-cheating services work by archiving every student paper turned into it; when a professor submits his students’ papers, the service will determine whether any of them are plagarised.

The students complain not because they were caught, but because their work was archived and controlled by the website without their permission.  They received copyright registrations for their papers before turning them into their teachers, expressly requested that they not be archived, and brought suit when their wishes were not regarded.

There are “fair use” exceptions to copyright law.   The factors used in determining whether an infringing use is fair or not are:

  • commercial or non-profit nature of the use;
  • percent of  the work that is used;
  • the nature of the copyrighted work; and
  • the effect of the use on the marketability of the copyrighted work.

The McLean students win, very clearly, on the first two factors: these services make excellent money by commandeering the works of their students and, by their nature, archive and use all of the work.  This is not akin to a person who quotes part of an article or one line of a song.  Generally, permission must be given before using part of a copyrighted work; as the students explicitly forbid using their work, the anti-cheating services will have a tough battle.

Fair use generally allows someone to critique a work, mention it, or satarise it; they are not allowed to use it for commercial gain.  It is odd to think that a company could become wealthy by violating the intellectual property of high school students, but it has happened.  High schoolers are usually not sympathetic plaintiffs, but those who write outstanding, original papers should retain the rights to them.  Copyright law contains no escape clause for those who claim to be performing a public service; the social utility of anti-plagarism websites is irrelevant to the massive amount of copyright infringement.

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Responses

  1. If the students win, I suppose it will mean that university classes in the future will require in advance (as a requirement for enrollment) that students give permission to have whatever papers they write for the class archived.

    Universities have an interest in controlling plagiarism. Students, if they know what’s good, should have an interest in controlling plagiarism too. You’d think there must be a way to go about this so that everybody is happy.

    Looking at it again, I’m not sure the students will or even should win the suit. They win on the first two factors but certainly not on the fourth.

  2. Interesting case. That is a clever way to cut down on plagiarism. Maybe they can find a win-win somehow.

  3. Hydralisk,

    I strongly disagree. There is NO requirement that someone prove all factors. They are merely guidelines, not mandates.

    I don’t care HOW much public good comes from copyright infringement – you’re still infringing and making money off of innocent people.

    Furthermore, I know several people who have turned college papers into longer research projects or publications.

    Neil,
    The win-win is pretty easy – teachers can keep their own copies and use it for themselves on a school-wide basis. A commercial site that archives and makes money off of this is not the answer.

    Yeah, I’m all for intellectual property rights.

  4. “I don’t care HOW much public good comes from copyright infringement – you’re still infringing and making money off of innocent people.”

    You make it sound as if innocent people are getting harmed when if anything it’s the opposite!

    The thing with having teachers do it all on their own is that you defeat the point of outsourcing to a private company, thereby forfeiting efficiency and all the other advantages of market competition. (Also, if the scope of checking for plagiarism is only school-wide, doesn’t that dampen its effectiveness?)

    I would definitely want the students to retain copyrights to their work. I would definitely want them to be able to turn their research into longer projects. How exactly does having their paper checked against plagiarism prevent them from doing this?

  5. Um, yes. When a person creates an original work of authorship and cannot control its dissemination and reproduction, he is harmed. Sorry, not all students are cheaters and our laws should not remove intellectual property rights from people simply because they happen to be of a disfavoured class. Imagine if we replaced “blacks” with “students;” somehow, I doubt that anyone would really stand for the wholesale disqualification of their IP rights simply on account of invidious discrimination.

    If you want students to retain their copyrights, why allow the system? The websites archive students work without their permission, which is an erosion of rights under copyright law.

    Oh, market efficiency. Who the f- cares? If you outsource science fair projects to a private company who exploits them for research, is that okay because it’s the market at work? Sorry, but if you want to allege a “market efficiency” exception to copyright law, please cite some relevant provision of the US Code. (Hint: it’s not in there. No one cares if it’s more efficient to trample people’s rights.)

    Remove “copyright” and insert “security in home.” It’s more efficient to not have to get a warrant before searching homes, and, really, most people who get searched are criminals anyway. So let’s do away with the warrant requirement! It would help innocent people stay safe AND saves money by not having judges.

    Not acceptable there and not acceptable here. A company violated student’s copyrights and should be held accountable. If they can’t work their system to get around it, then the market finds a solution: they go out of business.

  6. “Um, yes. When a person creates an original work of authorship and cannot control its dissemination and reproduction, he is harmed.”

    But that all depends on what results from the dissemination and reproduction, right? Conceivably, dissemination and reproduction of a work beyond its author’s control could even be beneficial. While I’m not arguing that is the case here, I am not convinced that any significant harm is being done. The “replace ‘students’ with ‘blacks'” exercise is a red herring btw.

    Of course you may be right about the legal outcome. How the law stands now is not critical to my position. However the ruling comes down we need to honor it. Then, if we decide that the law is not optimal for maximizing utility, the law can be changed. There’s nothing inherent about copyright law or any kind of law that prevents us from tweaking it if we can obtain better results by so doing. We didn’t even have Fair Use exceptions hard-coded in our legal system until just thirty years ago.

    Of course I would not do away with search warrants. Nor would I do away with copyright protections. They are helpful legal constructs…to the extent that they decrease harm and increase utility.

  7. Whether or not a distributing is beneficial or not is irrelevant. Again, no provisions in the copyright act say that a court gets to decide if this really helps you; so long as you are upset with the result, you can sue and win.

    The “replace ’students’ with ‘blacks’” exercise is a red herring btw.

    That’s what peope say when they find an argument they can’t answer. Your basic theory is that students are little cheaters, or there are enough of them so that they shouldn’t have the same copyright protection as other people. Ageism and discrimination against Southerners are really the only acceptable forms of discrimination left. It’s actually a lot like racial profiling. No red herring; if you can’t distinguish them, then maybe you ought to rethink your position.

    You are correct that copyright law can be tweaked, but how do you propose to do that? Students don’t get copyright protection?

    How do you propose to measure “decreased harm?” We don’t sacrifice the innocent so we can punish the guilty. We also don’t let judges arbitrarily decide what is socially useful: that makes them both legislatures and judges, with no acountability on either.

  8. I’ve seen some of my papers used as a source, and was not contacted in any way or manner. Although it does protect my words – I feel I should have been contacted to agree to participate in this program.

    Since this is a pay service, and others are benefitting materially from my efforts, at the very least, I should be given the right to deny access to my property. You want my work, I deserve a cut, or at the least grant permission to use my property.

    While there is a policy benefit to this type of system, it is just another example of a business getting richer on other’s efforts, and that just sounds like robbery.

  9. Also, students can get their work protected, but must place it somewhere that these are intellectual properties of the owner and may not be reproduced, blah blah blah. However, when I submit my work in my doctoral program, as I am required to, I can’t put that disclaimer into the program.

    The filtering device to check papers, is used also to collect.

  10. You can have small parts of your papers used as a source with attribution but without consent; that’s fair use. It ceases to be fair use when a person makes money off of it and does so against your wishes (i.e. an explicit request to not do so in that manner).

    I don’t think that state schools can require you to sign over your copyright work as a condition of taking a course; that would be state appropriation of a property right without just compensation. So my suggestion is to get a PhD at a state school and sue if necessary. ;)

    I’ve heard that students are required to submit papers to TurnItIn.com, which is fine in theory, except for the fact that they archive them and, as you point out, make quite a bit of money by appropriating your work.

    It’s a lazy way out for teachers. They can certainly find other ways of decreasing cheating, such as creating a school-wide database of papers; asking students to turn in notes with the papers and rough drafts; having students submit outlines and rough drafts at intermediate points; and assigning original topics.

  11. Your basic theory is that students are little cheaters, or there are enough of them so that they shouldn’t have the same copyright protection as other people.

    Wow, I must have done a terrible job of explaining my position because that doesn’t describe it at all.

    Let me make myself perfectly clear. I DO want students to retain copyrights. I DON’T want anyone else getting that copyright. BUT I would not have a problem if it were fair use for others to use their work in way that does not harm them–archiving purposes. It may well NOT be so under current law, as you have noted. And DON’T want judges arbitrarily deciding this case based on a manifestation of copyright law that I happen to favor. BUT, if it is not so now, I would not honestly mind it becoming legit in the future.

    I hope we have at least some common ground there.

    Of course we fundamentally disagree on the question of harm. I just don’t see any. So private companies are making $ using the students’ work. Big deal. Is that a bad thing in itself? I say no. It is only a bad thing if harm is done. For instance, if students are unable to profit from their work down the line because of how the private companies have used their papers. And I’m just not seeing that.

    Guess what, major search engines like Google make $ archiving copyrighted work all the live long day. Your writings on this blog are being archived by commercial companies even as I post this. Oh the harm! Oh the exploitation!

  12. I know that google archives my work, but I’m permitting it. I have the option of making my blog unavailable to search engines. So long as it is my choice, I am exercising my right to control the reproduction and distribution of my work.

    If I did not want google to archive my writings, I would simply either choose to have a private blog or would create some sort of listserve to distribute them as I wish. Google benefits me by bringing traffic to my blog, so I do not mind that it archives my work. My choice, my evaluation of cost/benefit analysis.

    There is a reason why economic harm is not necessary to prove in order to win a copyright infringement suit: damages are extremely difficult to calculate and often only manifest themselves years later, long after the statute of limitations has run. There is also the idea that we want to encourage people to be creative and add to the marketplace of ideas, so we punish those who provide a disincentive for doing so.

    Finally, it’s very difficult to prove copyright infringement: first you have to know that it’s happening, and then you have to prove that the person knowingly infringed (contrast patent law, which penalises independent inventors). Given that, why make it even more difficult? A security breach, a hacker, or a rogue employee of such an online website would have ample opportunity to scour millions of people’s work, pass it off as his own, and benefit economically.

    How do you propose to change the law? How do you propose to allow students to control the distribution, reproduction, use, and public use of their works while allowing sites to make money off of them? Ultimately, commercial companies are making a profit off of the works of others. Would you explicitly limit this to students, or would you allow anyone to archive the works of others? I imagine that libraries would quickly cut down their costs as they would not need to pay for periodicals.

  13. I DON’T want anyone else getting that copyright. BUT I would not have a problem if it were fair use for others to use their work in way that does not harm them–archiving purposes.

    That’s either nonsensical or contradictory. All property rights are negative rights – i.e. the right to exclude. Now, you can violate a copyright (or other IP right) by using the work, even though you should be excluded from it. You can (as many people do) buy the copyright from the author, who would no longer retain it.

    You can’t retain a copyright and not be able to prevent other people from using your work. In this situation, the online service is not purchasing the copyright (as, say, a major motion picture company may do for a screen play), so students theoretically retain their rights to it.

    What I find really astonishing about this whole thing is that the website lacked the common sense to NOT archive those students’ works

  14. That’s either nonsensical or contradictory.

    No more nonsensical or contradictory than the fair use exceptions we already have, or any other exceptions we might choose to build into our law. Law is chock-full of exceptions.

    How do you propose to change the law? How do you propose to allow students to control the distribution, reproduction, use, and public use of their works while allowing sites to make money off of them?

    There would be tight restrictions on what a site is allowed to do with the work. Reproduction beyond the scope of the function the service provides would be prohibited without explicit permission from the copyright holders.

    Ultimately, commercial companies are making a profit off of the works of others. Would you explicitly limit this to students, or would you allow anyone to archive the works of others? I imagine that libraries would quickly cut down their costs as they would not need to pay for periodicals.

    Well with libraries there is the additional material costs to produce the work (the actual paper it’s printed on) involved so I’m not sure. Also, libraries serve a different function than anti-cheating services.

    The irony of the Mclean lawsuit is that what what intended by the teachers as nothing more than a simple check to root out cheating has been turned into a potentially lucrative lawsuit for the students. Funny how it works out that way. *IF* you were a plagiarizer and didn’t want your teacher to find out, refusing to give consent to have your paper checked by a service like Turnitin would seem to be a pretty obvious course of action.

    A security breach, a hacker, or a rogue employee of such an online website would have ample opportunity to scour millions of people’s work, pass it off as his own, and benefit economically.

    IMO this is the strongest argument in support of the students’ position–the potential for harm. Then again, there is potential for harm with everything that happens online. There is potential for a hacker to profit illegally off of what we write in our blogs, no matter what measures we take to prevent this. If the closest thing we have to accounting for harm is the potential for abuse resulting from the practical limits of enforcement of the law, I am not quite ready to come around to the students’ side of the argument.

    But I understand it. There wasn’t much in your last comments that I disagreed with, really.

    I think I may write about this issue in my own blog…

  15. […] No Comments I’ve been having a bit of a disagreement with theobromophile at her blog Helvidius, a Pachyderm over the lawsuit filed by students of Mclean High School against an anti-plagiarism […]

  16. So you would erode copyright protections because students are little cheaters?

    Funny how it works out that way. *IF* you were a plagiarizer and didn’t want your teacher to find out, refusing to give consent to have your paper checked by a service like Turnitin would seem to be a pretty obvious course of action.

    As I said, your position is that students are little cheaters who shouldn’t have any rights, because really, anything they produce isn’t important anyway.

    The law explicitly does NOT judge “importance” of copyrighted work when granting that protection. The most frivolous of songs and the worst of comedy is copyrightable and protectable under our laws.

    Well with libraries there is the additional material costs to produce the work (the actual paper it’s printed on) involved so I’m not sure. Also, libraries serve a different function than anti-cheating services.

    EXACTLY! Libraries could radically decrease their costs by “archiving” the works of others online and making it accessible to all patrons. Libraries also promote a public good, so why should people complain if their books are disseminated online by a library?

    Here is the law re: infringement:
    http://www.copyright.gov/title17/chapter05.pdf

    “Subject to sections 107 through 122, the owner of copyright under this title has
    the exclusive rights to do and to authorize any of the following:
    (1) to reproduce the copyrighted work in copies or phonorecords;
    (2) to prepare derivative works based upon the copyrighted work;
    (3) to distribute copies or phonorecords of the copyrighted work to the public
    by sale or other transfer of ownership, or by rental, lease, or lending;
    (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes,
    and motion pictures and other audiovisual works, to perform the
    copyrighted work publicly;
    (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes,
    and pictorial, graphic, or sculptural works, including the individual
    images of a motion picture or other audiovisual work, to display the copyrighted
    work publicly; and
    (6) in the case of sound recordings, to perform the copyrighted work publicly
    by means of a digital audio transmission.”

    Let’s not forget that the company had every chance in the world to avoid this. It could have very simply not archived those student’s works.

    Clear violation of the law. As someone who was a student for many years, worked incredibly hard on her papers, and is not an evil little cheater who doesn’t deserve the protection of the law, I find your position to be anarchy. You do not want the rule of law – the basis of which is that it protects and punishes, regardless of status – but you would remove the robe from the eyes of Justice. Students = bad and unworthy of protection.

    That’s either nonsensical or contradictory.

    No more nonsensical or contradictory than the fair use exceptions we already have, or any other exceptions we might choose to build into our law. Law is chock-full of exceptions.

    You are illogical. Fair use exceptions are LOGICAL. If there were no fair use, a person would be sued simply for, say, reviewing a movie. Or, a person would be sued simply for playing a radio out that can be heard outside of his home.

    This is NOT a fair use exception, since the copyright infringement is not incidental to the operation. The entire company is predicated on violating copyright law, which is, by defintion, NOT fair use.

    It seems as if you have very little grasp of copyright law or fair use exceptions; you know that they exist, but don’t understand how they function with each other. You also don’t seem to see that your exception will swallow the rule. As I stated on your blog, you also missed the point that you don’t need to prove economic damages in order to win a lawsuit: you can prevent the person from continuing his unlawful practices.

    Fair use requires libraries to make only one copy and not receive commercial gain from it. Fair use applies to teaching, criticism, or satire, not to commercial gain. This action is the very heart of protection for copyrighted work… yet you would undermine it because students are just lousy cheats who deserve no better.

    Some of us believe in the rule of law; some of us believe in trampling on people’s rights because they have not quite attained old age.

  17. I believe that when a student turns in a paper for credit, that paper immediately becomes the property of the school.

    If the school opts to send this to an archival service, that is the school’s prerogative.

    The service is not copying or using the “ideas” in the paper, it is simply searching for papers bearing content similar to the search parameter. I can’t see how the students win this one.

  18. Why does it become the property of the school?

    If that’s the case, I’m going to severely curtail my academic efforts: I don’t want a professor walking off with months of my research and be able to claim it as his own.

    Not to be entirely snitty, but can you point to the part of copyright law where students need not apply?

    Archiving is reproduction; comparing archived versions with new papers is still a “use” of the work. Plagerism (what you are describing) is but one part of copyright infringement. Read the copyright law… my position will make a lot more sense.

  19. Since you stated the students had copyrighted the information before handing it over to a teacher/professor, it may be protected, depending on the School District policy? In some cases the school can require that no copyrighted material be turned in for grade.
    School Districts have broad power in this regard.

  20. Yes and no. Public schools have almost no power in this regard; they are considered to be agents of the state. Private schools have some limitations on their power; basically, unless parents were told at enrollment that their children would have to surrender copyright, it would not be legal to strip them of it.

    I disagree that schools have broad rights; as a legal matter, it’s simply incorrect. I also (quite strongly) disagree with the idea that students may not turn in copyrighted work. I don’t mean to sound snitty, but it’s obvious that you aren’t familiar with copyright law. Once you write something (as I am doing now, at my keyboard), there are copyright protections. The act of creation is sufficient. You can register with the government for additional protections, but that is by no means a requirement. If students were not allowed to turn in copyrighted work, they would not be able to turn in anything they created on their own (which has a vested copyright at the moment of creation), so they would be forbidden from turning in their own work!

    Furthermore, public schools (high schools or college) CANNOT require that students surrender copyrights by taking a course. Ever heard of the Fifth Amendment? It applies to intellectual property as well as real property.

    “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

    I meant to blog about this in another post, so you’ll have to wait for the latest installment, but basically, a public institution cannot require that students surrender or limit their copyrights without compensating them for it! If it is for the “public good,” as asserted by Hydralisk, then it’s at least allowed, but the students must be compensated.

    Constitutional law nerds, please chime in!


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