As noted previously, Turnitin.com blindsided my sons' school by attempting to get kids--the vast majority of whom are minors, and many of whom are as young as 14--to click through a new user agreement. Apparently Turnitin didn't think it was important to tell school officials in advance that this was going down and that it was going around both the school and the district's parents in this manner.
This is par for the course for iParadigms, the company that runs Turnitin, which makes its living by extorting children's property away from them.
Few parents have even both to read the new user agreement that Turnitin has secretly tried to impose on their children. As a public service, I am reproducing it here in its entirety, along with my interpretative and critical comments. Note that the truly unconscionable parts of the agreement appear towards the end, presumably because Turnitin figures people will be intellectually numb to them after reading all the boilerplate.
Turnitin.com (the "Site") and its services are maintained by
iParadigms, LLC ("iParadigms"), and offered to you, the user ("You" or
"User"), conditioned upon Your acceptance of the terms, conditions, and
notices contained herein without modification (the "User Agreement").
By clicking the "I agree -- create profile" button below You: (1)
represent that You have read and understand, and have the capacity and
authority to enter into, this User Agreement; and (2) agree to be bound
by all of its terms and conditions. You should review this User
Agreement carefully. If You breach the User Agreement, Your
authorization to use the Site may automatically terminate.
In its very first paragraph, this agreement encourages kids to lie. First, it says that the people clicking their agreement represent that they have read and understood the agreement. It's questionable to my mind that all that many educated adults would understand this agreement; I think it's beyond debate that your average 15 year old isn't going to get it. But of course, Turnitin isn't about education: it's about theft and deception. Second, it says that the people clicking through the agreement represent that they have the "capacity and authority" to do so. A minor does not have the legal capacity to enter into a contract that may be enforced against him, and the authority to do so cannot be conferred by a school. So unless parents are hovering over their children as they log in and clicking for them, Turnitin wants kids to lie.
Scope of Services
The Site offers certain software ("Licensed Programs"),
documentation and services, together with other content, data, images,
information and other materials (together, the "Services") which allow
authorized educational institutions ("Educational Institutions"), and
teachers, instructors, professors or other faculty members who are
currently teaching a registered class (together, "Instructors") to
check enrolled students' work for possible textual matches against
Internet-available resources and iParadigms' own proprietary database.
Here is the first reference to Turnitin's "proprietary database," which consists in significant part of papers that have been submitted through Turnitin. The use of the word "proprietary" is quite deliberate: its first definition is "belonging to a proprietor." Turnitin is claiming here that it owns the papers submitted to it. It's not saying that students own their papers and Turnitin is simply using or borrowing them; it is directly asserting ownership of student work product.
Ownership
The Site is owned and operated by iParadigms. iParadigms, its
subsidiaries, affiliates, licensors and/or vendors own all rights in
and to the Services on or directly accessible from the Site, all
materials created by the Services, including the format of reports
evaluating textual sources ("Originality Reports"), and all
intellectual property rights related thereto. The Site is protected by
United States and international copyright and trademark laws. With the
exception of the limited license granted below, nothing contained
herein shall be construed as granting You any right, title, or interest
in the Services or any of iParadigms' intellectual property or
proprietary information. Any rights not expressly granted to You by
this User Agreement or any other agreement with iParadigms are reserved
by iParadigms and/or its affiliates, vendors and licensors.
Given that Turnitin is a large and profitable concern that can
presumably afford good lawyers, it's hard to believe that the
sloppiness and ambiguity of the language here is anything but
deliberate. It expressly says that Turnitin owns "'all
materials created by the Services, including the format of reports
evaluating textual sources ("Originality Reports"), and all
intellectual property rights related thereto" (emphasis added). Are the "intellectual property rights" that Turnitin says it owns "all" of the rights in the reports themselves, the format of the reports, or the "textual sources"? It can be fairly read to encompass any or all of those possibilities. Of course, the "textual sources" are student papers. Once a student submits a paper to Turnitin, Turnitin owns it.
Trademarks
iParadigms, LLC and other names of iParadigms products and/or
services included on the Site are the trademarks and service marks of
iParadigms. iParadigms' trademarks and service marks may not be used in
connection with any product or service that is not iParadigms', in any
manner that is likely to cause confusion among customers without
express written permission. All other trademarks, service marks and
logos used in the Site are the trademarks, service marks or logos of
their respective owners. iParadigms does not make any claims to the
marks of others which might appear on the Site. You gain no right to
use any marks of iParadigms or any other entity by virtue of Your use
of the Site.
How ironic that a company that makes its profit by expropriating the intellectual property of others is so zealous about protecting its own trademarks. Of course, irony is the chief byproduct of a service that in the name of protecting authors from plagiarism routinely extorts and steals from other authors.
Eligibility
Use of the Site and Services is limited to Authorized Users (as
defined below) who are eighteen (18) years of age or older or, as set
forth below, who are between 14 and 17 years of age with consent of a
parent or guardian.
Authorized Users are: (i) school administrators of Educational
Institutions ("School Administrators"), (ii) Instructors, and (iii)
students who are properly enrolled in a registered class at an
Educational Institution ("Students").
By entering this User Agreement and in consideration for Your use of
the Site, You represent that You are an Authorized User who is over
eighteen (18) years of age and can form a binding contract. You further
represent that You are not barred from receiving the Services or using
the Site under the laws of the United States or other applicable
jurisdiction. You further agree that You have not and will not obtain
access to the Site by means of a password not specifically issued to
You by iParadigms, an Instructor, or School Administrator for a class
in which you are properly enrolled.
If You are between fourteen (14) and seventeen (17) years of age or
have not reached the age of majority in your jurisdiction of residence
(together, "Not of Majority Age"), You may not enter the Site except
with the supervision and permission of a parent or legal guardian. If
You are Not of Majority Age, You must have a parent or legal guardian
review and agree to this User Agreement by clicking the "I agree --
Create Profile" button below.
You may not use the Site if You are thirteen (13) years of age or
younger. If You are enrolled in a class that requires You to submit
papers to the Site, please talk to Your parents and teachers to have
them arrange for submission of the paper for review.
Cute. Turnitin, of course, takes absolutely no steps to ensure that minors are not clicking agreement to their contract. It could easily have appended a form to the user agreement that would have to be filled out wherein the parents of minors would enter their names and contact information so Turnitin could verify that kids aren't signing away their property rights without their parents consent. But that wouldn't be in Turnitin's interests at all. Again, in my sons' school district, Turnitin attempted to bypass parents and school administrators completely.
License
iParadigms hereby grants You a non-transferable, non-exclusive
license to use the Services and Site, solely for non-commercial use.
You agree to use the Site and Services only as follows: (i) if You are
a School Administrator, only in connection with registered classes
offered through Your Educational Institution, (ii) if You are an
Instructor, only in connection with registered classes You are
currently teaching, or (iii) if You are a Student, only in connection
with a registered class in which You are enrolled. No other license is
granted by implication, estoppel or otherwise.
There is another ambiguity here--or perhaps an inconsistency. Is the "you" in this paragraph the minor user of the site, or the parent who has clicked agreement on his or her behalf? Again, by being deliberately conflating the identity of the user with the identity of the person clicking through the agreement, Turnitin is blurring the lines of authority. I suspect this is because the very last thing Turnitin wants is for parents to actually be aware that everything their children write and submit through Turnitin will remain Turnitin's to use forever and ever, without limitation, in any way they see fit.
You may not modify, copy, distribute, transmit, display, perform,
reproduce, publish, license, create derivative works from, transfer, or
sell any information, Licensed Programs or Services from the Site
without the prior written consent of iParadigms, except that You may
download content from the Site to any single computer solely for
purposes authorized by this User Agreement, provided You keep intact
all copyright, trademark, and other proprietary notices. You may not
market, rent, lease, or re-license the Licensed Programs or Services,
or use the Licensed Programs or Services for third party commercial
use, commercial timesharing, or service bureau use.
You further agree not to cause or permit the disassembly,
decompilation, recompilation, or reverse engineering of any Licensed
Program or technology underlying the Site. In jurisdictions where a
right to reverse engineer is provided by law unless information is
available about products in order to achieve interoperability,
functional compatibility, or similar objectives, You agree to submit a
detailed written proposal to iParadigms concerning any information You
need for such purposes before engaging in reverse engineering.
Except as provided in this User Agreement, any use of any Licensed
Program or the Services on any other Web site or networked computer
environment for any purpose is prohibited.
The Site is controlled and operated by iParadigms from its offices
within the State of California, United States of America. iParadigms
makes no representation that materials in the Site are appropriate or
available for use in other locations. Those who choose to access the
Site from other locations do so on their own initiative and at their
own risk and are responsible for compliance with applicable laws. Any
Licensed Program or Services are further subject to United States
export controls and, potentially, the import laws of Your jurisdiction.
No Licensed Program or Services may be downloaded or otherwise exported
or re-exported to any person or entity on the U.S. Treasury
Department's list of Specially Designated Nationals or the U.S.
Commerce Department's Table of Denial Orders or otherwise prohibited by
United States export control laws. By downloading or otherwise using
any Licensed Programs or Services in any manner whatsoever, You
represent and warrant that You are not on any such list or located in,
under the control of, or a national or resident of any such country.
Any use of the Licensed Programs or the Services by the U.S.
Government, including but not limited to any Educational Institutions
under its jurisdiction or under the corresponding States' jurisdiction,
is subject to 'restricted rights' as that term is defined in FAR
52.227-19(c)(2) or DFAR 252.227.7013(c)(1) (if used in a defense
related agency).
Remember, by clicking agreement, people represent that they understood all that. I was struck by this bit about warranting that you are not on the "U.S. Treasury
Department's list of Specially Designated Nationals or the U.S.
Commerce Department's Table of Denial Orders." How do you know if you're on that list? And if you don't know whether you're on that list and don't know how to find out, how can you honestly click "I Agree"? Once again, Turnitin doesn't really want people to tell it the truth; it simply wants people to click without knowing or understanding--a truly abysmal example of corporate citizenship.
As a condition of Your use of the Site and the Services, You warrant
to iParadigms that You will not use the Site for any purpose that is
unlawful or prohibited by this User Agreement.
Since being required by a public school to turn one's intellectual property over to a private, for-profit company as a condition of receiving a grade or credit is illegal, how could the site be used for anything other than an unlawful purpose by public high school students?
Registration, Password and Class Identification Security
In consideration of Your use of the Site, You agree to provide
accurate, current and complete information about You as may be prompted
by any registration forms on the Site ("Registration Data") and update
the Registration Data as required to keep it accurate, current and
complete.
Here we have the specter of 14 year old high school students being required to submit whatever personal information Turnitin decides it might need, once again without notifying parents or the school. Turnitin expressly reserves the right to condition provision of its services upon students turning over personal information to iParadigms. Not only is this a violation of FERPA, but once again it demonstrates Turnitin's general lack of business ethics.
If You are a School Administrator, You agree (i) to provide account
or class identification numbers and passwords only to Instructors, (ii)
not to rent, lease or provide access to or benefits from the Services
to any other institution, entity or individual, and (iii) not to make
statements that Your Educational Institution is using the Services in
connection with a particular class when the relevant class is not
registered.
If You are an Instructor, You agree (i) to provide class
identification numbers and passwords only to Students properly enrolled
in the relevant registered class, and (ii) not to make statements that
Your class is using the Services when such class is not registered.
If You are a student, You warrant and represent that (i) You are
enrolled in the class for which You have been provided an
identification number and password, and (ii) the password with which
You are entering the Site is Your own which has been specifically
issued to you by iParadigms, or an Instructor or School Administrator.
You are entirely responsible for maintaining the confidentiality of
Your password and you agree not to share Your password with any other
person, whether directly or indirectly. You agree to use reasonable
efforts to retain the confidentiality of class identification numbers
and passwords. In no circumstance shall You transmit or make Your
password or class identification number or any other passwords for the
Site or class identification numbers available in any public forum,
including, but not limited to any web page, blog, advertisement or
other posting on the Internet, any public bulletin board, and any file
that is accessible in a peer-to-peer network. You agree not to use the
class identification number or password of a class for which You are
not presently enrolled or teaching to access the Site. You agree to
notify iParadigms immediately if You suspect any unauthorized use of
Your account or access to Your password or class identification number.
You are solely responsible for any and all use of Your account.
Termination
iParadigms may, in its sole discretion, suspend or terminate Your
access to the Site to (i) prevent damages to, or degradation of, the
Services; (ii) comply with any law, regulation, court order, or other
governmental request; (iii) otherwise protect iParadigms from potential
legal liability; or (iv) address a breach of this User Agreement.
iParadigms shall use reasonable efforts to provide You with notice
prior to or promptly following any suspension of access to the Site. In
its sole discretion, iParadigms shall restore access to the Site within
a reasonable time period after the event giving rise to suspension has
been resolved to iParadigms' satisfaction.
Originality Reports
If You are a School Administrator or Instructor, You agree to
maintain any of iParadigms' notices (including legal notices relating
to iParadigms' proprietary rights (e.g., copyright and trademark
notices) and disclaimers on Originality Reports. You further agree to
exercise Your independent professional judgment in, and to assume sole
and exclusive responsibility for, determining the actual existence of
plagiarism in a submitted paper with the acknowledgement and
understanding that the Originality Reports are only tools for detecting
textual similarities between compared works and do not determine
conclusively the existence of plagiarism, which determination is a
matter of professional judgment of the Instructor and Institution. Any
disclosure of an Originality Report to any third party is at Your own
risk.
This gets at the heart of what Turnitin is supposed to help teachers do, i.e., detect plagiarism. It's interesting that Turnitin won't stand behind its reports, and instead seeks to place the risk of falsely accusing students of plagiarism on the teachers themselves. If Turnitin has so little confidence in the utility of its report that it won't stand behind their accuracy, why should teachers and students have such confidence?
Communications
Unless otherwise indicated in the Site, including our Privacy Policy
(http://www.turnitin.com/static/legal/privacy_pledge.html), any
communications or material of any kind that You e-mail, post, or
transmit through the Site (excluding personally identifiable
Registration Data of Students, any papers submitted to the Site, and
grades and assessment related information), including, questions,
comments, suggestions, and other data and information (Your
"Communications") will be treated as non-confidential and
non-proprietary.
I will deconstruct Turnitin's amusingly-named "Privacy Policy" in a later post. Actually, Turnitin's site doesn't have something called a "Privacy Policy"; it has something called a "Privacy Pledge." And the URL listed here doesn't bring up either a "Privacy Policy" or a "Privacy Pledge," which is not surprising since Turnitin really doesn't want people reading it anyway. Turnitin's lack of concern about what its own privacy statements are called and where they are located is emblematic of its general disregard for student privacy. Suffice it for now to say you don't have any privacy if you use Turnitin. Turnitin owns your data and can use it as it sees fit.
iParadigms may, but is not obligated to, monitor or review any areas
of the Site where user Communications may be made available, including,
but not limited to, chat rooms, bulletin boards, and other user forums.
Communications submitted by users do not necessarily represent the view
or opinions of iParadigms. iParadigms does not preview user
Communications before they appear on the Site. iParadigms will have no
liability related to the content of any such Communications, whether or
not arising under the laws of copyright, defamation, privacy,
obscenity, or otherwise. iParadigms retains the right to remove, in its
sole discretion, Communications that include any material deemed
abusive, defamatory, obscene, or otherwise inappropriate.
See what I mean about no privacy? They reserve the right to monitor children's communications with each other and with their teachers.
Acceptable Use Policy
You may not transmit any Communications on or through the Site that
(a) restricts any other user's enjoyment of the Site, (b) is unlawful,
threatening, abusive, libelous, defamatory, pornographic, profane or
otherwise offensive, (c) constitutes or encourages criminal conduct,
gives rise to civil liability, or otherwise violates any law, (d)
violates or infringes the rights of any third party including, without
limitation, patent, copyright, trademark, privacy or any other
proprietary right, (e) contains a virus or other harmful component, or
(f) contains false or misleading indications of origin or statements of
fact. iParadigms reserves the right, but shall have no obligation to
edit or remove any Communication, in whole or in part, that in
iParadigms' sole discretion is objectionable, disruptive to the Site or
in violation of this User Agreement. iParadigms reserves the right to
immediately suspend Your access to the Site in the event of any
violation of this provision.
I suppose a communication to the effect that Turnitin extorts children would probably be considered disruptive to the site and removed. So much for academic freedom.
You may not frame or utilize framing techniques to use, surround or
enclose any portion of the Site without iParadigms' express written
consent.
License to Use Communications and Papers Submitted
You grant iParadigms a non-exclusive, royalty-free, perpetual,
world-wide, irrevocable license to reproduce, transmit, display,
disclose, archive and otherwise use Your Communications on the Site or
elsewhere for our business purposes. iParadigms is free to use any
ideas, concepts, techniques, know-how or information in Your
Communications for any purpose, including, but not limited to, the
development and use of products and services based on the
Communications. This license does not include any right to use ideas
set forth in papers submitted to the site. Please note that papers
submitted to the Site are not read or reviewed by any individuals, but
rather are only analyzed using the Licensed Programs. However, nothing
herein shall preclude iParadigms from using information independently
created by iParadigms.
With regard to papers submitted to the Site, You hereby grant
iParadigms a non-exclusive, royalty-free, perpetual, world-wide,
irrevocable license to reproduce, transmit, display, disclose, archive
and otherwise use in connection with its Services any paper You submit
to the Site whether or not originally submitted in connection with a
specific class. This license shall survive the termination of the User
Agreement. Any cessation of use of the Site shall not result in the
termination of any license You grant herein to iParadigms.
At last we get down to brass tacks--or maybe brass knuckles would be an more appropriate metaphor. Let me repeat here the essence of Turnitin's position: "With regard to papers submitted to the Site, You hereby grant
iParadigms a non-exclusive, royalty-free, perpetual, world-wide,
irrevocable license to reproduce, transmit, display, disclose, archive
and otherwise use in connection with its Services any paper You submit
to the Site . . . ." Here, baldly stated, is Turnitin's business model. Students create; Turnitin steals and uses in any manner it sees fit. It could publish a best-selling book of student papers--and the students who wrote the papers wouldn't see a dime. Remember that embarrassingly personal paper you wrote for sophomore English? Turnitin could publish it in the newspaper. Has your son or daughter written about private and intimate details of his or her life and family? Turnitin will hold onto that forever and may disclose it whenever, wherever and however it sees fit.
Procedure for Making Claims of Copyright Infringement
In accordance with the Digital Millennium Copyright Act (17 U.S.C.
§ 512) ("DMCA"), iParadigms is registered with the United States
Copyright Office as a Service Provider. Any notifications of claimed
copyright infringement must be sent to our Copyright Agent:
John Barrie, CEO
c/o IParadigms
1624 Franklin Street, 7th Floor
Oakland, CA 94612
Telephone 510-287-9720
Email: [email protected]
Of course, later in the agreement Turnitin says they won't bother responding to any such notifications. Read on.
iParadigms respects the intellectual property of others, and we ask
our users to do the same. If you believe that your work has been copied
by a third party and posted to the Site in a way that constitutes
copyright infringement, please provide iParadigms' Copyright Agent the
following information:
1. An electronic or physical signature of the person authorized to act on beÂhalf of the owner of the copyright interest;
2. A description of the copyrighted work that You claim has been infringed;
3. A description of where the material that You claim is infringing is located on the Site;
4. Your address, telephone number, and email address;
5. A statement by You that You have a good faith belief that the
disputed use is not authorized by the copyright owner, its agent, or
the law;
6. A statement by You, made under penalty of perjury, that the above
information in Your Notice is accurate and that You are the copyright
owner or authorized to act on the copyright owner's behalf.
If You materially misrepresent material on the Site as infringing,
when it is not, or when You are not the lawful copyright holder, You
may be liable for damages, including court costs and attorneys fees.
That first sentence--about how much iParadigms respects the intellectual property of others--is a real howler. And that bit at the end, about how you assume liability for falsely accusing someone of infringing on your copyright, is pretty ironic, especially when as noted above, Turnitin refuses to accept such liability itself.
You hereby acknowledge that the DMCA notice does not cover a
circumstance in which a paper or other Communication You submitted has
been archived on the Site. You agree not to submit a DMCA notice
claiming direct infringement by iParadigms. iParadigms will not respond
to such notices.
Here's an arrogant bit of legal sophistry. Of course the DMCA covers "circumstance[s] in which a paper or other Communication You submitted has
been archived on the Site." But if you click "I Agree," you're agreeing with the preposterous notion that you have no recourse whatsoever against Turnitin for their expropriation of your or your child's work product. In other words, you have to agree to be ripped off.
Privacy
By entering this User Agreement, You further represent that You have
read and understand the Privacy Policy (set forth at:
http://www.turnitin.com/static/legal/privacy_pledge.html) and agree to
its terms.
As noted above, Turnitin doesn't even seem to know what its own privacy document is called or where it's located. The correct URL for their "Privacy Pledge" is http://www.turnitin.com/static/privacy.html.
Warranty Disclaimer
THE SITE AND ALL INFORMATION AND SERVICES AVAILABLE THROUGH THE SITE
ARE PROVIDED "AS IS," WITH ALL FAULTS, AND "AS AVAILABLE". IPARADIGMS
DOES NOT WARRANT THAT THE SITE WILL MEET YOUR REQUIREMENTS, OR THAT ANY
RESULTS OR COMPARISONS GENERATED BY THE SITE WILL BE COMPLETE OR
ACCURATE. IPARADIGMS DOES NOT WARRANT THAT ACCESS TO THE SITE OR THE
OPERATION OF THE SERVICES OR LICENSED PROGRAMS WILL BE UNINTERRUPTED OR
ERROR-FREE, OR THAT DEFECTS IN THE SITE WILL BE CORRECTED. TO THE
FULLEST EXTENT PERMISSIBLE BY LAW, IPARADIGMS DISCLAIMS ALL
REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING, BUT NOT LIMITED TO, CONFORMITY TO ANY REPRESENTATION OR
DESCRIPTION, MERCHANTABILITY, QUALITY OF INFORMATION, QUIET ENJOYMENT,
TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
Whoa--there's a lot to read there and it's ALL IN CAPITAL LETTERS so
it must be really, really important, right? Or perhaps it's in all
caps because they're harder to read and Turnitin doesn't want people
reading about how they don't stand behind their product. Here,
rendered in typography that is actually conducive to reading, is the key passage: "iParadigms doest not warrant that the site will meet your requirements, or that any results or comparisons generated by the site will be complete or accurate. " In other words, even though schools are paying Turnitin good money for an accurate comparison of papers to it against other papers stored in its database, Turnitin doesn't stand behind its product. They can just make stuff up, you know, and they haven't breached their warranty. I pity the kid who is falsely accused of plagiarism based on a report by a company that won't even agree that its report is accurate. The other part I love is that Turnitin "disclaims all representations and warranties, express, implied or statutory." Such disclaimers are illegal in some states, but since Turnitin imagines that it is above the law, that doesn't seem to trouble it very much.
THE SERVICES ARE ACCESSED AND USED OVER THE INTERNET. YOU
ACKNOWLEDGE AND AGREE THAT IPARADIGMS DOES NOT OPERATE OR CONTROL THE
INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER
UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (e.g.,
HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE USER'S DATA,
COMPUTERS, OR NETWORKS. IPARADIGMS SHALL NOT BE RESPONSIBLE FOR SUCH
ACTIVITIES.
Due to routine maintenance, updates or other technical reasons, the
Site and the Services may be temporarily unavailable from time to time.
iParadigms assumes no responsibility for any error, omission,
interruption, deletion, defect, delay in operation or transmission,
communications line failure, theft or destruction or unauthorized
access to, or alteration of any paper submitted by You or any User
Communications. iParadigms is not responsible for any technical
malfunction or other problems of any telephone network or service,
computer systems, servers or providers, computer or mobile phone
equipment, software, failure of email or players on account of
technical problems or traffic congestion on the Internet or at any Site
or combination thereof, including injury or damage to any Authorized
User's or to any other person's computer, mobile phone, or other
hardware or software, related to or resulting from using or downloading
materials in connection with the Site and/or in connection with the
Services. Under no circumstances will iParadigms be responsible for any
loss or damage, including any loss or damage to any of Your content or
personal injury or death, resulting from anyone's use of the Site or
the Services, or any Communications whether online or offline.
In other words, if you've got a paper due in two hours and you try to submit it but the site's down and you can't send it in and get a zero, that's not Turnitin's fault. Whose fault that is remains to be explained.
Limitation of Liability
NEITHER IPARADIGMS, NOR ITS LICENSORS OR SUPPLIERS, WILL BE LIABLE
UNDER ANY THEORY FOR DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION
DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY DAMAGES OR
DAMAGES RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS
INTERRUPTION) ARISING FROM THE YOUR USE OF THE SITE, THE SERVICES OR
THE INFORMATION CONTAINED THEREIN, HOWEVER ARISING, EVEN IF IPARADIGMS,
ITS AFFILIATES OR ANY OF THEIR REPRESENTATIVES HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION DOES NOT APPLY TO THE
EXTENT IT IS PROHIBITED BY LAW.
IF YOU ARE AN EDUCATIONAL INSTITUTION OR INSTRUCTOR, YOU AGREE THAT
REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION,
IN NO EVENT WILL IPARADIGMS OR ITS AFFILIATES, OFFICERS, EMPLOYEES,
AGENTS OR LICENSORS, BE LIABLE FOR: (I) ANY DECISION MADE OR ACTION
TAKEN OR NOT TAKEN IN RELIANCE UPON ANY ORIGINALITY REPORT OR ANY OTHER
INFORMATION PROVIDED THROUGH THE SERVICES; (II) FOR ANY LIABILITY
ARISING FROM YOUR DISCLOSURE OF AN ORIGINALITY REPORT TO ANY THIRD
PARTY.
This is not even so much a release of liability as it is a hopeful statement of the outcome of potential litigation. Turnitin is and should be liable for its complicity in academic extortion, its violation of copyright law and FERPA, and its own negligence and criminal behavior.
Sole Remedies
IF YOU ARE A STUDENT OR INSTRUCTOR, YOUR SOLE REMEDY FOR
DISSATISFACTION WITH THE SITE, THE SERVICES, AND/OR HYPERLINKED WEB
SITES IS TO STOP USING THE SITE AND/OR THOSE SERVICES.
Right. 'Cause you wouldn't really want to, you know, sue us, right?
WITHOUT LIMITING ANY OTHER PROVISION OF THIS USER AGREEMENT, IF YOU
ARE AN EDUCATIONAL INSTITUTION, IPARADIGMS AND ITS AFFILIATES,
OFFICERS, EMPLOYEES, AGENTS OR LICENSORS' TOTAL CUMULATIVE LIABILITY
ARISING UNDER OR RELATED TO THIS USER AGREEMENT AND THE SERVICES,
WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNTS, IF
ANY, PAID TO IPARADIGMS BY YOU FOR THE SERVICES DURING THE TWELVE (12)
MONTHS IMMEDIATELY PRECEDING THE EVENT GIVEN RISE TO LIABILITY. SOME
JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES; IN THOSE JURISDICTIONS IPARADIGMS'
LIABILITY UNDER THIS USER AGREEMENT SHALL BE LIMITED TO THE GREATEST
EXTENT PERMITTED BY LAW.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES.
IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS,
EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE
ADDITIONAL RIGHTS.
Again the the CAPITAL LETTERS.
YOU AGREE THAT UNDER NO CIRCUMSTANCES SHALL YOU BE ENTITLED TO
INJUNCTIVE RELIEF WITH REGARD TO THE USE OR ARCHIVING OF ANY PAPER
SUBMITTED TO THE SITE.
Who would want to agree to that? In other words, if Turnitin publishes your daughter's embarrassing ninth grade essay, you can't get an injunction to stop them. After all, you and your daughter no longer own her paper; Turnitin does.
Indemnification
You agree to indemnify, defend and hold harmless, iParadigms, its
affiliates, officers, directors, employees, agents and licensors, from
any claims, losses, damages, deficiencies, liabilities, costs and
expenses (including attorneys' fees and costs) arising from Your (a)
use of the Site or the Services, (b) violation of any third party's
rights, or (c) breach of this User Agreement. For clarity, this
indemnification applies both to direct claims between You and
iParadigms and third-party claims. You agree to cooperate as reasonably
required in the defense of any claim. iParadigms reserves the right, at
its own expense, to assume the exclusive defense and control of any
matter otherwise subject to indemnification under this section and, in
any event, You agree not to settle any such matter without the prior
written consent of iParadigms. Your obligation to defend and indemnify
iParadigms survives the termination of this User Agreement and Your use
of the Site.
Since commencing litigation against Turnitin is a violation of the terms of the agreement, what this clause says if that if you sue Turnitin, you have to pay not only your legal fees but theirs too, regardless of whether you win the case or not.
External Hyperlinks from the Site
The Site contains hyperlinks to third party Web sites. External
hyperlinks to or from the Site do not constitute iParadigms'
endorsement of, affiliation with, or recommendation of any third party
or its Web site, products, resources or other information. iParadigms
is not responsible for any software, data or other information
available from any third party Web site. You are solely responsible for
complying with all terms and conditions of use for the third party
sites. You acknowledge that iParadigms shall have no liability for any
damage or loss arising from Your access to, use of or reliance on any
third party Web site, software, data, or other information.
Once again, not only will Turnitin not stand behind its own product, it also won't stand behind any of the other sites it links to. Click at your own risk and don't come crying to us just because the link appeared on our site. That's Turnitin's position in a nutshell: no matter what happens, we're not responsible. Period.
Modification of these terms and conditions
iParadigms, LLC reserves the right to change the terms, conditions, and notices under which the Site is offered.
How wonderful. So tomorrow they can require all Turnitin users to pay $50 to iParadigms. And they won't have to notify the school districts that employ Turnitin; they certainly didn't provide such notification to my kids' district when they tried to sneak the new user agreement by the school and the parents. As a philosophical question, one might well ask what good is any written agreement if one party can unilaterally modify it at will without even giving notice to the people who have entered into the agreement?
General
This User Agreement is governed by the laws of the State of
California, U.S.A. You hereby consent to the exclusive jurisdiction and
venue of state and federal courts in Alameda County, California,
U.S.A., in all disputes arising out of or relating to the use of the
Site or the Services. You agree not to use the Site in any jurisdiction
that does not give effect to all provisions of these terms and
conditions, including without limitation this paragraph.
So if you are in a jurisdiction that imposes statutory or implied warranties, for example, you're not allowed to use the site? Gee, that's gonna cut into Turnitin's customer pool considerably.
You agree that no joint venture, partnership, employment or agency
relationship exists between You and iParadigms, LLC as a result of this
User Agreement or use of the Site or the Services.
iParadigms' performance of this User Agreement is subject to
existing laws and legal process, and nothing contained in this User
Agreement is in derogation of iParadigms' right to comply with law
enforcement requests or requirements relating to Your use of the Site
or the Services or information provided to or gathered by iParadigms'
with respect to such use.
So much for privacy. If a police department wants to get a hold of the poem little Johnny wrote in 9th grade (because he might be a Bad Kid with Violent Tendencies), Turnitin will just give it to them. Warrants? Subpoenas? We don't need no stinkin' warrants or subpoenas. All that's necessary is a "request" from law enforcement. After all, contesting warrants and subpoenas costs money, and Turnitin certainly wouldn't want to spend a dime protecting its users' privacy.
You agree that any claim or cause of action arising out of or
related to the Site or the Services must be commenced within one (1)
year after the cause of action arose. Otherwise, such claim or cause of
action is barred forever.
Because the Sovereign Republic of Turnitin can impose its own statutes of limitations, state law be damned.
If any part of this User Agreement is determined to be invalid or
unenforceable pursuant to applicable law including, but not limited to,
the warranty disclaimers and liability limitations set forth above,
then the invalid or unenforceable provision will be deemed superseded
by a valid, enforceable provision that most closely matches the intent
of the original provision; the remainder of the User Agreement shall
continue in effect.
If You are an institution, the terms of the User Agreement are in
addition to those contained in any written registration agreement You
may have with iParadigms, LLC (each, a "Registration Agreement"). In
the event of a conflict between this User Agreement and any such
separate Registration Agreement, the terms of the Registration
Agreement shall govern. Except in the event that You have entered into
a Registration Agreement with iParadigms, this User Agreement
constitutes the entire agreement between the user and iParadigms' with
respect to usage of the Site and the Services and it supersedes all
prior communications and proposals, whether electronic, oral, or
written, between the user and iParadigms' with respect to usage of the
Site or the Services. A printed version of this User Agreement and of
any notice given in electronic form shall be admissible in judicial or
administrative proceedings based upon or relating to the User agreement
to the same extent and subject to the same conditions as other business
documents and records originally generated and maintained in printed
form.
Whew. Let's review. If you or your kid uses Turnitin:
1. They own everything you submit through them.
2. They can use it in any way they see fit.
3. You can't bring suit against them.
4. And if you do, you'll have to pay their attorney's fees.
5. Turnitin may give the school inaccurate reports about you without consequence.
6. Turnitin will turn over any information it has about you to law enforcement if they ask nicely.
Any questions?
[Other posts about Turnitin are available here and here and here.]
My antipathy toward Turnitin (and its parent company, iParadigms) isn't political. It's personal. I don't like seeing my kids being extorted. I don't like seeing the papers they take so long to write used to profit a private company. I don't like the idea that stuff my kids write at 16 will be stored forever by an ethically-challenged corporation that may one day decide to release it to prospective colleges, employers, governments and other corporations. I don't like the message that is sent to kids by Turnitin, which is that what they create has no value, doesn't matter and isn't worth protecting.