Turnitin finally sued by a student

I missed this week’s Copynight but I know this tidbit will be talked about at the next one. Turnitin.com has been sued and I have a guess at how things are going to go.Turnitin’s purpose is to detect plagiarism. It does this by amassing a giant collection of papers and looking for similarities. Every paper submitted to the database gets tossed into the hoard along with papers sucked off the web by TurnitinBot. This hoard now includes six papers written by two clever students who’ve registered their copyrights before the papers were submitted. They included a note that the papers are not to be archived. Well, the papers were added to the database, so now they’re suing to the tune of $900,000.

Since these papers were registered the students are able to ask for statutory damages, the maximum being $150,000 per infringement. This is great because proving damages on a high school paper would be pretty difficult. I’m no lawyer but here’s how I think the lawsuit will unfold:

If the students submitted the papers to Turnitin themselves, they’ve lost. It’ll be decided that they gave Turnitin a license to use and keep their works when they uploaded their papers.

If the students did not submit the papers, Turnitin will argue fair use but also that they only store uncopyrightable fingerprints of papers. The fingerprinting argument will be killed first, the fair use argument will be harder but eventually fall due to how narrow the fair use provisions are. The news article doesn’t explain how these students stated they didn’t want their work put into the database. In any case I’m going out on a limb to say the judge won’t find it reasonable since the submission process is automated. Turnitin will argue statutory damages down to the minimum of $200 for unwittingly infringing, for a total of $1,200.

I really hope that this actually gets to court.

Turnitin.com has been making money on the backs of students for so long I’m amazed that it’s taken this long for a student to sue. I’m still out to lunch on their web crawling policy but I’d love to see Turnitin include a “don’t save my paper or its fingerprint” checkbox on their upload page.

Update: Ars Technica has more news.

Students are generally required to submit their work to the site before receiving a grade on it, and the service returns an “Originality Report” on each paper. At Virginia’s McLean High School, which two of the plaintiffs attend, students have no choice: failure to submit a paper through Turnitin results in a 0.

…

Turnitin filed for a “declaratory judgment” from a federal judge in California, looking for a ruling that its service was legal. In that case, filed in early December, the company claimed once again that it was protected by the fair use exemption, and that it was actually protectng student copyrights. “Rather than infringing intellectual property rights, iParadigms is trying to protect copyright interests by students and other authors by preventing plagiarism of the very student papers that Turnitin receives,” the company wrote.

iParadigms abruptly pulled the case without explanation two weeks later; according to the new filing from the students, this only occurred after the company was contacted by a Washington Post reporter.

It sounds more and more like the students themselves submitted the papers. I wonder if they’ll be bound to the license as minors.

Update #2 (March 26th 2008): The US District Court of Virginia has spoken. Turnitin’s use of the papers is fair use. No appeal as of yet. Details at Ars Technica. Turns out the minors were unable to renege on a contract that was already fulfilled.