NYU Prof Vows Never to Probe Cheating Again—and Faces a Backlash
July 21, 2011, 6:13 pm
By Marc Parry
A New York University professor’s blog post is opening a rare public window on the painful classroom consequences of using plagiarism-detection software to aggressively police cheating students.
I have written extensively on this subject over the past five years. See below:
Would Your University Fire Dan Brown?
by Jim Castagnera
Dan Brown’s The Da Vinci Code is the biggest bestseller of all time, boasting more than 60 million copies in 44 languages. Brown’s net worth is reported to be about a quarter billion and climbing. But if another author, Lewis Purdue, is to be believed, most universities, if they played by their own rules, would fire Brown from their faculties.
Perdue, author of 1983’s The Da Vinci Legacy and 2000’s Daughter of God, possesses an expert opinion from Director John Olsson of Britain’s Forensic Linguistics Institute, who has publicly called Brown’s book, “the most blatant example of in-your-face plagiarism I’ve ever seen.” Unfortunately for Perdue, when Brown and Random House hauled him into the federal court in Manhattan, seeking a declaration that Code did not violate Perdue’s copyrights, the judge disallowed the expert report.
Although Perdue is pursuing the case into the U.S. Supreme Court on a motion for certiorari, the two lower courts ruling against him may be dead right. Current U.S. copyright law protects only the actual expression of an author’s ideas, not the underlying ideas themselves. Copyright infringement is not synonymous with plagiarism.
Perhaps it should be. So suggests an article by Harvard Law Professor Arthur Miller in the January issue of his law school’s journal. In the article, entitled “Common Law Protection for Products of the Mind,” Miller, citing Perdue’s case among many others, contends that the law should look at how the plaintiff’s idea enriched the defendant… not at whether the defendant ripped off an exact copy of the plaintiff’s work. This approach matches what most universities tell their students about plagiarism. At my own institution, Rider University in central New Jersey, the sweeping definition of plagiarism in the student handbook includes:
“1.1 Ghostwriting-Written work submitted by an individual student (or group of students working together as approved in advance by the instructor) is expected to be the work of that student (or approved group).…
“1.2 Word for Word Plagiarism-Copying, word for word, from any source (book, magazine, newspaper, Internet source, unpublished paper or thesis) without proper acknowledgment by quotation and citation within the text of the paper….
“1.3 Patchwork Plagiarism-The submission of work which has been constructed by piecing together phrases and/or sentences quoted verbatim (word for word) or paraphrased from a variety of unacknowledged sources is an act of academic dishonesty….
“1.4 Unacknowledged Paraphrases-Submission of another author’s facts or ideas in one’s own words without acknowledgment by proper citation is an act of academic dishonesty.”
The academic penalties for plagiarism can be as severe as this definition is expansive. The career-busting equivalent of capital punishment is often invoked. For example, in mid-September the University of Cincinnati announced initiation of steps to terminate its director of German-American studies on the grounds of numerous plagiarized passages in a 2000 tome, The German-American Experience. Charges were first made on the website H-Net (www.h-net.org/reviews/showrev.cgi?path=104811076280447 ), which claimed in 2003 that roughly half of the first 180 pages were lifted from a 1962 book, The Germans in America. A more ancient volume, 1909’s The German Element in the United States, also allegedly was looted by the Cincinnati faculty-member/librarian for his own book.
If the University of Cincinnati imposes workplace capital punishment, the author of The German-American Experience will join a long line of academic plagiarizers who were marched up the steps to that same guillotine. Some casualties, however, have refused to lie down and play dead. Chris Dussold, a former Southern Illinois at Edwardsville faculty member, for instance, is fighting a multi-front campaign against his former employers. Fired in 2004 for allegedly lifting a two-page teaching statement, Dussold has since sued. Dussold apparently doesn’t deny that he borrowed the statement, which he considered mere boilerplate, from a colleague. He says, simply, that plagiarism never crossed his mind. He adds that a false rumor, that he was sleeping with a student, is the real reason he was fired.
Not satisfied with suing, Dussold launched a “glass houses” campaign, pointing out for example that the school’s chancellor copied several passages of a speech from a web site. The chancellor owned up and apologized. Earlier this year the chancellor of Southern Illinois’s Carbondale campus admitted that portions of his 2005 state-of-the university address came verbatim from a 1986 book he hadn’t written. Both chancellors blamed staffers, but Dussold contends that since he was fired, so too should they be.
Dussold’s counterattack calls into question how hypocritical plagiarism rules really are. Earlier this year, President Scott D. Miller of Delaware’s Wesley College survived a plagiarism investigation and a faculty no-confidence referendum that came out even. A panel chaired by former Penn President Judith Rodin blamed public relations staffers under tremendous pressure to provide their boss with an outstanding speech. Miller promised to put safeguards in place. Professor Dussold presumably would say that this is another case of too little, too late.
Superstar profs, such as the late best-selling historian Stephen Ambrose, often likewise successfully weather accusations of plagiarism, shrugging them off as fair-use or inadvertence. Author Dan Brown and his publisher have thus far weathered two trials, one the Perdue hearing, the other a courtroom drama played out last year in London, where British authors unsuccessfully challenged Brown’s right to borrow from their non-fiction Holy Blood, Holy Grail. In a classic example of the superstar shrug, Brown told Today’s Matt Lauer, “When DaVinci Code debuted at No. 1, I actually got a lot of calls from best-selling authors… saying, ‘Well, get ready, because there are going to be people that you never heard of come out of the woodwork sort of wanting to ride your coattails’.”
In recent correspondence and conversation, Perdue conceded to me “mistakes and misjudgments” which landed him in a federal court across the country from his California home, grappling with a mass-media Goliath, like some David who’d forgotten to pack his sling. Even today, as he awaits rulings on whether he might actually owe Random House its attorney fees and whether the Supremes might stoop to review his case, Perdue admits, “I also realize I am too close to this issue to be as cool and rational as needed.” Still he persists, as does Illinois’s Professor Dussold. As Dussold uses the Internet to further his “glass houses” attack against Illinois’s chancellors ( see, for example, http://economy-chat.com/aggy/tag/chris-dussold/ ), Perdue employs extensive web sites and blogs to sustain his counteroffensive against nemesis Dan Brown (see, for example, http://davincicrock.blogspot.com/ and http://www.davincilegacy.com/Infringement/ ).
The Perdue and Dussold cases --- implicating as they do high-stakes litigation and high-profile guerrilla warfare on the web --- require industry-wide recognition that hoary academic-plagiarism policies, intended mainly to squelch student cheating, need reexamination. Is your university’s policy overly broad? Is it uniformly applied to students, junior faculty, tenured superstars, and high-ranking administrators alike? Does it comport with federal copyright law and your institution’s IP policies?
No one size fits all. Harvard’s Miller may make a telling point about protecting ideas as well as their expression. But unless your trustees would drop the blade on Dan Brown (if guilty), you’d best not be too quick to terminate the Chris Dussolds on your faculty or to expel the Polly Plagiarizers among your student body.
AV v. iParadigms: Corporate Higher Education Meets Students’ Don Quixote
By Jim Castagnera
Special to the Greentree Gazette (May 2008 article)
I have a new hero: Attorney Robert A. Vanderhye of McLean, Virginia. He’s not my idol because he’s taking on corporate higher education on a pro bono (for free) basis. He’s my new role model because at 61 he’s made enough money to leave his law firm and devote his time to causes about which he really cares. This may be every practicing attorney’s dream; I know it’s mine.
When I reached Vanderhye by phone on a Saturday morning in March, he explained, “I got tired of doing things other people wanted me to do. I wanted to do what I want to do.” So far, that includes inventing a vertical-axis wind turbine and “a mechanism for removing greenhouse gases from the atmosphere.” (Did I mention that this patent attorney holds a B.S. in mechanical engineering?)
During the past year or so, another thing Vanderhye has wanted to do is represent a group of high school students in a copyright infringement case aimed at iParadigms, LLC, the California company that markets the “plagiarism detection instrument” (PDI) called Tutnitin.com. The corporation’s web site claims, “In the academic market, iParadigms represents more than 10,000,000 user-students (in over 100 countries) and adds another new user once every ten seconds.” Current clients claimed by the company include Georgetown, Miami Dade Community College, West Point, Dartmouth, Lehigh, Rutgers, UCLA and the Cal State System.
Trouble is, not all of those ten million student-users desire to participate in iParadigms’ program. Turnitin works this way: a college professor or K-12 teacher sets up an account. Students in her class then are required to turn in their term papers and essays electronically via Turnitin, which in turn compares each student’s submission to countless documents available out on the Internet, as well as to the millions more student works which iParadigms archives. The instructor is provided the paper with possible plagiarism highlighted in bright red. It’s a slick system by which many English composition teachers swear.
Ah, but here’s the rub. By archiving all those student papers, says Attorney Vanderhye, iParadigms violates federal copyright law. Continues this courthouse crusader, “I litigated intellectual property cases for 35 years. I live near McLean High School. Several students asked me whether the high school had the right to require them to participate in Turnitin. The problem presented some interesting twists. I analyzed it and concluded the students were in the right.”
In a December 21, 2006, letter to the school’s parent-teacher association executive board, Principal Paul Wardinski explained that the Fairfax County Public Schools signed a contract with iParadigms in 2003. He continued, “A few students and parents… are concerned about MHS’s participation in the contract. The students… formed a group called the McLean Committee on Student Rights and retained an attorney, Robert Vanderhye (who) sent several letters threatening to bring a lawsuit… if it did not withdraw the students’ papers from the Turnitin database.”
Wardinski’s letter adds that the committee and the corporation engaged in settlement discussions. According to iParadigms’ CEO John Barrie. “We put our new technology on hold and came back to them with a number of proposed technical adjustments. The plaintiffs then turned back to their original position of insisting that the student papers be removed.” On April 9, 2007, Vanderhye filed an action on behalf of two McClean High School and two more who attended Tempe Union High School in Arizona. (Vanderhye declined to explain how the two Arizona plaintiffs came into the case, claiming attorney work-product privilege.) Muses Barrie, “We tried everything. God would have to have appeared on earth to get them to settle.”
The gist of Vanderhye’s complaint is contained in paragraph 9 of his amended complaint: “In addition to archiving student unpublished manuscripts without their permission, iParadigms may send a full and complete copy of a student’s unpublished manuscript to an iParadigm client anywhere in the world at the request of the client, and without the student’s permission.” To give his clients’ claims some legal teeth, Vanderhye had them register copyrights on their compositions before turning them in. This simple $30 act raised the ante, as it enabled the students to demand statutory damages to the tune of $900,000 and their ostensibly pro bono attorney to request a handsome fee, should he ultimately prevail.
iParadigms for its part threw up a plethora of counterclaims and affirmative defenses, contending, “This action arises from a deliberate abuse and orchestrated manipulation of Turnitin to manufacture this lawsuit….” Among other allegations, the defendant claimed that Vanderhye not only assisted his plaintiffs with filing for copyright protection, but also copyrighted and submitted a number of papers under the bogus names “Quigley Vanderhye,” “Rube Goldberg” and “Perpetual Motion.”
More on point, iParadigms contended that by clicking the “I Agree” button on the Turnitin web site, the students waived any right to sue the company later. Or, more interestingly, the plaintiffs agreed by pressing the button to “indemnify and defend iParadigms from any claim,” presumably including their own lawsuit.
In December 2007 both sides filed motions for summary judgment, meaning that they believed the federal district judge could decide the dispute on its undisputed facts without resort to a trial. In mid-January, the judge issued an order indicating his intent to dismiss all of iParadigm’s counterclaims against the plaintiffs as well as all their claims against the corporation. His Honor promised an opinion would be issued at some unspecified time in the future.
According to Vanderhye, “I’ve litigated dozens of cases in the Eastern District of Virginia federal court. It used to be the fastest federal court. The judge was always very diligent. But since he retired and became a senior judge he’s had a different attitude.” Added the crusading lawyer, “The case was set for trial on January 23rd. Then on January 10th or so, he issued this one-paragraph order. He granted our motion on the counterclaims. That much is clear. His decision on their motion is totally confusing. We have a breach of contract claim; if he ruled against us on that, I’m not sure what I’ll do next.”
But, he vows, “If he granted their motion on the copyright infringement count, I will appeal, I will win and there will be a trial.”
On March 11th, Vanderhye’s threat was finally put to the test. Judge Claude M. Hilton released his 24-page opinion in which he explains his decision to dismiss all of the plaintiffs’ claims. Regarding the copyright case so near and dear to Vanderhye’s heart, His Honor writes, “This Court finds the ‘purpose and character’ of iParadigms’ use of Plaintiffs’ written works to be highly transformative. Plaintiffs originally created and produced their works for the purpose of education and creative expression. iPradigms, through Turnitin, used the papers for an extremely different purpose, namely, to prevent plagiarism.”
Thus, Judge Hilton concludes, “a finding of fair use” militates against Vanderhye’s copyright-infringement claim. Furthermore, continues the District Judge, if the essays have any market value (a doubtful assertion at best), iParadigms’ use doesn’t diminish their value at all. Case dismissed.
So what of Vanderhye’s threat. Says John Barrie ruefully, “I see a 100% probability that he will appeal. He seems to have as many reasons to sue as there are grains in the Sahara Desert. He’s an unreasonable and wholly unpleasant person.”
Barrie goes on to gripe, “This is the first lawsuit ever in my life and it is an unpleasant experience. We are a company of 70 people with families. We all believe we are improving society. You can trace a lot of our society’s problems back to our educational system. We are working to improve the system by teaching students to be honest.”
He adds, “Then to have Vanderhye come along and drag us through the mud… it’s hard to have all you worked for called into question.”
What, if anything, has John Barrie learned so far from this litigation? “Our on-line click-through agreement has been made even stronger. We realized that locating our usage policy off to the side, where no one had to agree to it, was a mistake. We’ve now incorporated it into the click-through.”
He continues, “We’re also making a better effort to educate people about how we are making a transformative fair use of students’ work.” Then, proving the lawsuit hasn’t robbed him of his sense of humor, he concludes tongue firmly in cheek, “We’re making sure we pay our liability insurance premiums on time.”
On the bright side, the CEO tells me, “We have a full R&D roadmap this year.” The company, too, is moving into more countries with its new products. With 8400 institutional clients in the corporate stable, asserts Barrie, “We were right before we started the company, and I don’t know how we could have won this suit in a much stronger way. We knew the day would come when somebody was going to sue us no matter how good our technology and how legally right we were.”
Retorts Robert Vanderhye, the crusader on the fringe of intellectual-property-law reform, “Corporations are taking advantage of people more in the first eight years of the new century than they did before. In this particular case, there is a real interest by the students in not conforming.”
As Vanderhye and Barrie gird their loins for round two of their courtroom clash, societal interest in student cheating increases. On April 29th ABC’s “Primetime Thursday” featured iParadigms in an examination of cheating trends that some say threaten the American educational system.
Clearly, Robert Vanderhye sees a very different threat, one leveled at students’ privacy rights and individual citizens’ intellectual-property interests.
Such titanic competing claims cannot be reconciled in our college classrooms or in the marketplace. Only the courts are equipped to do that job. Robert Vanderhye, who also tilts at wind turbines, is the knight-errant determined to joist with big business in that arena. Whether he wins or loses, I envy his freedom to be a legal freebooter. Clearly, iParadigm’s Mr. Barrie feels a rather different suite of emotions where Attorney Vanderhye is concerned.
>Identity Verification Article
November 2010 “Today’s Campus” Magazine
In his classic 1999 book Code and Other Cyberspace Laws, Professor Lawrence Lessig explained, “Real-space life… carries with it this mix of authenticating and authenticated credentials. Social life is a constant negotiation between these different credentials. In a small town, in a quieter time, documents as credentials were not terribly necessary. You were known by your face, and your face carried with it a reference… about your character. As life becomes more anonymous, social institutions must construct credentials to authenticate facts about you that in an earlier time, or in a smaller social world, would have been authenticated by the knowledge of the community about who you are.”
Since Lessig, founder of Creative Commons and the Stanford Center for Internet and Society, wrote those words, online education has come of age. According to a 2008 report called "Staying the Course: Online Education in the United States," published by the Sloan-C, a consortium that promotes online education, from 2002 to 2007, enrollment in online courses grew 19.7 percent. This can be compared with the 1.5-percent growth in the total college-student population. The study also discovered that more than 20 percent of American college students had taken at least one online course during their fall 2007 semester. This growth has brought the issue of student ID verification out onto higher education’s front burner.
Perhaps not anticipating this, Lessig’s book focused on the needs of the financial and retail industries, where the vendor and the customer share a strong interest in authenticated identity. That the seller correctly identifies the buyer is crucial to Internet commerce. Online learning, says Michael Jortberg, Higher Education Industry Leader at Acxiom, “poses the exact same problem… only different.” He explains that ours is the only industry in which the customer may be motivated to mislead the seller about his actual identity. Since our customers may be more interested in buying a credential than in purchasing our principal product --- knowledge --- a significant percentage of them are likely to cheat.
How serious is the problem of cheating in higher education assessment of learning? A 2008 U.S. News & World Report study found that 56 percent of graduate business students admitted to cheating at least once. Fifty-four percent of engineering students and 45 percent of law students made the same admission. By contrast, a study authored in September of this year by three faculty at Friends University, “Point, Click, Cheat: Frequency and Type of Academic Dishonesty in the Virtual Classroom,” [http://www.westga.edu/~distance/ojdla/fall123/stuber123.html] concludes, “Results suggest that the amount of academic misconduct among online students may not be as prevalent as believed.”
If this is so, it may be because most online providers appear to take cheating very, very seriously. For instance, Don Kassner, president of Andrew Jackson University, founded in 1995 as a correspondence school and now 100 percent online, says, “We used to proctor every exam.” The problems with this approach, he adds, include high cost and student inconvenience. “Students,” he explains, “would complain that ‘I can do all the course work at my kitchen table, but then I have to go somewhere else to take the tests.”
The drawbacks of proctoring are exacerbated when curricula are delivered globally. Recalls Larry Dugan, Director of Online Learning at Finger Lakes Community College, “We give tests all over the world. Let’s say I needed a proctor for an exam in Tokyo. I’d have to identify and hire that person. If I put it on the faculty, they wouldn’t do right. And it was very expensive.”
Clearly, if online learning was to grow and prosper, face-to-face proctoring had to be replaced. Axciom offers one very intriguing solution. When a client’s students sit down at the keyboard to take a test, they are hit with a series of “challenge questions” in quick succession. If they know the answers, they are permitted o proceed with the assessment exercise. The questions come from a database developed and maintained by Mike Jortberg’s unit, which gathers public information from the Worldwide Web. “Typically we pose three random challenges and give them two minutes to answer.”
Does it ever happen that your system produces incorrect information, I ask him. This happens occasionally, he allows. For example, “A student in Dallas a few weeks ago answered all the challenge questions correctly, then told us that all the information was wrong. He explained, ‘My identity was stolen. I recognize the thieves’ data.’ He passed the challenge 100 percent.”
This cautionary tale begs the question of legal liability. One client of Jortberg’s product, Dr. Jeff Bailey, formerly with National American University, says, “We told students what was going on up front. We told them this is a reasonable alternative to proctoring and you can opt out. No one opted out and we had no complaints.” A click-to-accept agreement, that includes acquiescence the “challenge question” component, is a common safeguard incorporated by Jortberg’s customers.
Although none of the Acxiom clients I talked to reported any legal hassles with the “challenge question” approach, some are not satisfied with exclusive reliance on this methodology. Don Kassner says, “We combined the Axciom product with webcam.” In fact, he tells me, Andrew Jackson combines three techniques to monitor the midterms and final exams, which are the only assessment tools for most of the university’s courses.
• First, the faculty member administering the exam is able to see and hear the student. A photo is on record for comparison’s sake.
• Second, the student is hit with the “challenge questions.’
• And, third, the teacher is able to see what the student is seeing on the computer screen. “The student can’t bounce to Google and look up an answer.”
Andrew Jackson’s one-two-three punch may be the state-of-the-art in online verification at this writing, but the next generation of identification technologies is already in use in the financial and retail sectors. Observes Dr. Tim McGee, a faculty-development specialist based on the East Coast, “We’re still in a medieval structure. We’re not using 21st century technologies.” He cites a simple example. “At my local grocery store, employees punch in and out by palm identification.” He predicts, “The next generation of built-in computer cameras will be able to do iris IDs.”
Even if the online education industry were not leading the charge toward better and better student-verification methods, Uncle Sam would insist upon them. According to Mike Jortberg, “The issue of identity goes to Title IV dollars. How do we know the taxpayers’ money goes to the guys it’s supposed to?” The Higher Education Opportunity Act addresses this federal concern. By next summer, says the Department of Education, accreditors need to have figured out how their client institutions will address the issue.
But, complains Jortberg, in the negotiated rulemaking process, “the industry convinced DOE that a user ID and password were sufficient.” He specifically points his finger at the Instructional Technology Council. ITC’s “Best Practice Strategies to Promote Academic Integrity in Online Education” [http://www.itcnetwork.org/file.php?file=%2F1%2FAcademicIntegrityBestPracticesColor.pdf] seems to support this claim. The seventh of its seven guidelines on "Institutional Context and Commitment" is " Secure student logins and password to access online courses and related resources, discussions, assignments and assessments." However, under the "Assessment and Evaluation" portion of the document, a nod is given to "Use [of] proctored test sites where appropriate."
Whether or not the trade association exercised the influence Jortberg ascribes to it, DOE’s March 2009 “Proposed Regulatory Language” does state, “Accrediting agencies must require institutions that offer distance education or correspondence education to have processes in place to establish that the student who registers for a distance education or correspondence course or program is the same student who participates in and completes the program and receives the academic credit. The conference report language on this provision makes clear that institutions should not use or rely on technologies that interfere with student privacy. However, the expectation is that institutions have security mechanisms in place, such as identification numbers, or other pass code information, that are used each time student participates in class time or coursework online.”
However, in the same breath, the DOE document adds that the Congressional conference committee also “notes that as new identification technologies are developed, and become more sophisticated and less expensive, the conferees anticipate that
agencies and institutions will consider their use in the future,” while once again insuring that students’ privacy interests are protected.
When all is said and done, it seems ---at least to this writer --- that iris recognition presents the most promising prospect for a simple, foolproof method of online student identification. According to the website www.iris-recognition.org, “There is a growing number of iris recognition systems available in the market.” One vendor, LG Electronics, touts, “Of all the biometric technologies used for human authentication today, it is generally conceded that iris recognition is the most accurate. Coupling this high confidence authentication with factors like outlier group size, speed, usage/human factors, platform versatility and flexibility for use in identification or verification modes - as well as addressing issues like database size/management and privacy concerns - iris recognition has also shown itself to be exceedingly versatile and suited for large population applications.”
Only one reported federal case deals with a challenge to iris recognition as an identification technique. In Brotherhood of Maintenance of Way Employees v. Union Pacific Railroad, decided by the federal court for northern Iowa in 2007, the union sought to get an injunction against the use of this technique by the employer. In this case, the company tested the technology as a time-keeping technique. It reported to the court that not one member of System Rail Gang 9101, the guinea pigs, complained. All the same, their union launched its legal challenge. Holding that the practice was properly dealt with in collective bargaining the federal judge denied the union its requested injunction.
Both European banks and the U.S. military in the Middle East are using iris recognition as this is written. Iris-recognition.org lists eight iris-recognition vendors, while LG Electronics boasts dozens of clients, including the Harvard Medical School. But despite these inroads, iris-recognition.org cautions that before Tim McGee’s prediction --- that this technology will soon be PC standard equipment --- much remains to be done.
“On the one hand, existing approaches must be assessed with the help of public datasets… in terms of error rates, running times and the like. On the other hand, new approaches have to be found that enable iris recognition to be ubiquitous. The general acceptance of iris recognition and its ease of deployment in real-world scenarios has to be raised. Furthermore, iris recognition has to be related to other biometrics like face recognition, e.g. in the context of impostor detection or replay attack denial.”
Meanwhile, Jeff Bailey, flexing to the DOE’s modest ID standard, shrugs, “People who cheat will always cheat.” Consequently, the best method, he suggests --- going contrary to Don Kassner’s belt, suspenders, and another belt --- is to have “multiple assessment points.” An online course should avoid a “big final that encourages cheating by its high stakes.”
Thus, while which approach (if any) ultimately will dominate the online industry, a spectrum of choices --- from Bailey’s low-stakes multiple-assessment approach to McGee’s advocacy of iris recognition--- is dealing with “the difference” between online learning and all other Internet commerce.