Privacy via IP Claims?

Schools are starting to use databases to catch plagiarizers. These services have an ingenious contractual twist–they require customers to let the “checked” papers permanently stay in the database as papers to be “checked against.” Things have been going swimmingly for the companies…but the tide may be turning:

[T]hree professors at Grand Valley State University in Michigan this month posted a letter online arguing that Turnitin “makes questionable use of student intellectual property.” The University of Kansas last week decided to let its contract with Turnitin expire because of cost and intellectual property concerns. And the intellectual property caucus of the Conference on College Composition and Communication, an organization of 6,000 college-level educators, is debating whether such services “undermine students’ authority over the uses of their own writing” and make them feel “guilty until proven innocent,” according to a draft position statement.

Very interesting dilemmas here:

1) Could a school or college just require students, via contract, to hand over their IP rights?
2) If the school’s public, does it have sovereign immunity in a case like this?
3) If students have IP rights in papers, do they have similar rights in exams?

Most scholarship on the privacy/copyright divide has focused on copyright’s threats to privacy (via intrusive DRM techniques). However, as mentioned here, copyright has also been used as a club against unauthorized “peaks” at, say, a novelist’s letters (personal life committed to words). Perhaps a conception of student writing as juvenilia might lead to similar resistance of these databases.

A final thought: given the weakness of due process protections in Goss v. Lopez (and their total absence in private settings), I am a bit wary of any new technology of identifying cheaters. Certainly it is likely *now* catching some very bad apples. But if the database grows exponentially, one has to worry about independent creation . . . no problem under copyright, but likely a big problem for those accused of plagiarism if they have to *prove* they haven’t been exposed to the allegedly copied work. (For more unconventional views of plagiarism, see this Picker post.)

PS: Info/Law beat me to the punch on this one!