Copyright and Student Papers

The Volokh Conspiracy has a discussion of how copyright applies to mandatory student papers and commercial services -- in particular, TurnItIn, which checks submitted papers for plagiarism and adds each submitted paper to an internal database.  Schools are charged for the service, and students are required to submit their papers for inclusion in the database.

Some students sued turnitin for copyright violations, and lost.  Many of the arguments (at least in the comments on the Volokh post) turn on the lack of any commercial market for the work.  This was obviously incorrect, so I posted a comment of my own with a hypothetical situation that would change the outcome of the case:
I think turnitin is in the wrong.  Part of the reason people are so willing to assume otherwise is that they consider the value of a student-written high-school paper

Here's a hypothetical:
Student takes a creative writing class, where he or she is assigned the task of writing a short story. The instructor requires him to submit the work to turnitin for inclusion in its plagiarism database.  The student later sends the story, in substantially similar form, to a publisher under a pen name.  The publisher initially accepts the story for publication, but their legal department checks the story against turnitin's database and blocks the transaction.  (Assume for the sake of argument no other publisher wants the story). 

Doesn't that establish a substantial, non-zero value of the student's copyrighted work, which has been denied by turnitin's database, and which would not have been denied had the student been allowed to refused to submit his story?

Regardless of the value of the story itself, which may be limited, what of damages to the student's reputation with that publisher and other publishers?  What if the story is the first chapter of a (would have been, but-for) bestselling novel?  What if the student is placed on a publisher's blacklist?

I guess the downside is that this is a fairly elaborate fact pattern that isn't present in this case.  But not necessarily an uncommon one!

As an aside: I second the comments of others that turnitin ends up with a monopoly through compulsion, and that is also bad.  Government should not be picking market winners and losers.
Why post the comment here?  Mainly because I had some trouble posting it there and didn't want to lose the work.

This entry was published Tue Apr 21 11:09:42 CDT 2009 by TriggerFinger and last updated 2009-04-21 11:09:42.0. [Tweet]

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