Classroom use of the Internet by both instructors and students has increased markedly in the last few years, especially as a tool for research. Unfortunately, too often the information obtained from the Internet is being misused or abused by students and faculty, with related legal and ethical implications. Perhaps the biggest problem related to this misuse involves plagiarism. A number of studies report that the incidence of plagiarism has reached epidemic proportions. Less recognized is the fact that plagiarism may also involve a copyright infringement or a trademark infringement. For those of us in academia there are two areas in particular where misuse of the Internet presents special problems. One of these problem areas, plagiarism, has received considerable coverage and discussion. The second of these problem areas, infringement of copyrights and trademarks, has more recently become a concern. Each of these topics will be discussed below, with special emphasis on potential copyright infringement problems and the availability of “fair use” as a defense to any allegations of copyright infringement.

The problems associated with plagiarism and the Internet are well documented, and it seems that these problems are becoming worse. According to a 2003 study by Donald McCabe, a management professor at Rutgers University, thirty-eight percent of the undergraduate students surveyed admitted to committing “cut-and-paste” plagiarism in the past year. [1] Professor McCabe had conducted a similar study three years earlier in which only ten percent of the students admitted to such conduct. Of even more concern, nearly half of the students in the newer study viewed such conduct as being trivial or, even worse, felt that it did not constitute cheating or plagiarism. Studies similar to the one conducted by Professor McCabe indicate the breadth of the problem, and also the attitude of the students.

Virtually every college or university in the country requires at least one class in English composition, a class in which the students are expected to hone their writing skills and also to improve their research abilities. In addition, many instructors assign term papers or research papers for their students in a number of other classes. It is common for these students to use the Internet for the research portion of these assignments, and such usage is perfectly appropriate. Many, if not most, of these students will then use the research materials and information they obtained in drafting their papers. However, as indicated by Professor McCabe, a distressingly large number of these students misuse the materials and information they find on the Internet. These students will use the Internet to find a paper for submission rather than using it to find the information needed to begin generating a paper of their own. There are a multitude of web sites that provide papers to anyone who wishes to purchase one on any of numerous topics. [2] In addition, an enterprising student who does not wish to purchase a paper can download one or more papers or articles on a topic, and then “cut and paste” the material into an “original” paper the student can then submit. As Professor McCabe has pointed out, many students commit such “cut-and-paste” plagiarism, and nearly half of the students surveyed either consider such conduct to be trivial, or they do not recognize that this is a form of plagiarism.

The problem has become so pervasive that a number of universities have web sites devoted to the topic, [3] and several organizations have been formed with the intent of addressing the topic.[4] The University of Alberta publishes an online Faculty Guide to CyberPlagiarism. [5] This site offers ideas about why students plagiarize, and suggestions for how to detect plagiarism. It also provides a number of ideas for how to prevent such conduct. Included at the site is data from a 1999 survey conducted by the Center of Academic Integrity at Duke University. This survey of 2100 U.S. college students reported that 68% of the students responding admitted that they had committed at least one academic offense, including plagiarizing.[Owings, A31] Further, the results of the 2003 National Survey of Student Engagement (NSSE) reported as one of its “Disappointing Findings” that “87% of all students report that their peers at least ‘sometimes’ copy and paste information from the Web or Internet for reports/papers without citing the source." [6]

There is software available that is dedicated to detecting plagiarism, or certain terms can be typed into a search engine such as Google, which will then do a quick (and free) web search for other places in which the term in question appears.  There are also a number of web sites that provide plagiarism searches, including Internet Essay Exposer (http://www.essay.freehomepage.com/) and Turnitin.com, developed by Plagiarism.org (http://www.turitin.com/). These sites are often fee-based, but provide a fairly rapid turn-around time, often 24 hours. These options provide readily available and easily used tools for helping to detect and to, hopefully, prevent this type of plagiarism in the academic community. Not only can the software be used to detect such plagiarism if or when it occurs, it is also being improved on a regular basis. However, not enough is being done. Catching students who commit acts of plagiarism is only part of the approach that needs to be taken. Students need to be taught the meaning of plagiarism, and the consequences for committing such actions must be emphasized, and then applied as appropriate. In addition, faculty need to make the effort to check for plagiarism on the papers submitted for their classes. With the available tools, the work is not too onerous, and the results are worth the effort.

Even if these efforts are successful, they will not eradicate plagiarism, nor will they catch all of the plagiarists. This is because too often plagiarism is defined too narrowly. Purchasing a paper and passing it off as one's own effort is obviously plagiarism. Similarly, finding one or more articles on a given topic and then cutting and pasting portions of the articles is plagiarism, as is paraphrasing an article without proper citations or credit given to the author of the paraphrased article. But plagiarism is not limited to such conduct. Plagiarism can be defined as:

 "to steal or pass off (the ideas or words of another) as one's own: use (a created production) without crediting the source: to commit literary theft; present as new and original an idea or product derived from an existing source." [7]

This applies to texts or manuscripts, whether in traditional print or on line, as well as the work of other students.

Suppose that a student is given as assignment to write a ten-page research paper on a particular topic. The student finds numerous articles addressing the topic, downloads the articles, and cuts and pastes significant portions of several of these articles for inclusion in his or her research paper. If these "cut and pasted" portions are not properly referenced by the student, his or  her conduct constitutes plagiarism, and if the plagiarism is discovered, the student should face some sort of sanctions for his or her inappropriate behavior in preparing the paper. Recall that Professor McCabe's survey says that thirty-eight percent of the students surveyed admitted to performing just this sort of cut-and-paste plagiarism. [8]

Now, suppose instead that the student is given an assignment to make a ten-minute PowerPoint presentation in class on a particular topic. The student again finds numerous articles addressing the topic, downloads these articles, and cuts and pastes portions of several of the articles into his or her slide presentation. If these "cut and pasted" portions are not properly referenced by the student, his or her conduct once again constitutes plagiarism, and if the plagiarism is discovered, the student should again face some sort of sanctions for his or her conduct. However, the likelihood of discovery is significantly less, and the likelihood of sanctions being imposed even if the conduct is discovered is also significantly less. One reason for this difference in treatment is that the final products are viewed differently. The research paper is expected to be the student's own work, in his or her own words, with appropriate citations. But the PowerPoint presentation is more likely to be viewed as oral communication, and the emphasis is normally placed on the presentation; not the citation of authorities. In addition, the research paper is tangible and permanent, while the PowerPoint presentation is considered  intangible and temporary. Nonetheless, the student should  cite his or her sources, the same as would be expected if the student was preparing a research paper. Obviously, including the citations in the PowerPoint slide itself would be distracting, but a citation in the notes accompanying the presentation should be sufficient. This is especially appropriate if the student is expected or required to submit a "hard copy" of the presentation to the faculty member who gave the assignment.

A frequent assignment for students, especially in colleges of business, calls for the student to develop a web page for a hypothetical product as part of his or her class project. The student prepares the page as per the assignment and even includes a disclaimer that this web page is for a hypothetical company that is part of a class assignment/educational exercise, and that it should not be considered a web site for any actual product. Unfortunately, in too many instances the student has cut and pasted one or more pictures from other web sites, sites that are promoting actual products. If these pictures the student cut and pasted are specific pictures relating to an actual product or business, and if the student did not procure permission from the copyright holder of that picture, problems can arise. If the source of the pictures is  not properly referenced, the student has committed plagiarism! In addition, the student is likely to also be guilty of copyright infringement, and the potential civil liability that attaches to such infringement. To avoid such problems the student will need to establish (1) that the use is protected under the fair use doctrine, or (2) that he or she acquired permission to use the picture, or, (3) the student must properly cite the source of the picture. (The "fair use" doctrine, a limitation on the copyright owner's exclusive right "to reproduce the copyrighted work in copies" [9] for such reasons as criticism, comment, news reporting, teaching, or research, is discussed is more detail in a later section of the paper. Any such "fair use" is not an infringement of copyright.)

This conduct may also involve the unauthorized use of a trademark, meaning that the student may have infringed the trademark. "Use of another's trademarketed image, design, logo, title or phrase without permission of the owner is a trademark infringement, whether the trademark is registered or unregistered. Trademark infringement is most likely to occur in a Web site design class." [Johnson and Groneman, 147] And if a Web design class produces Web sites for local businesses, and a student copies a trademarked design in developing such a Web site, major problems can arise. The student, the faculty member, the educational institution, and the local business may all be liable for trademark infringement. [Johnson and Groneman]

The "exclusive" rights that belong to the holder of a copyright are not quite as exclusive as they could be. The copyright act provides an exception for "fair use" of the copyrighted material. Unfortunately, there are no "hard and fast" rules for determining whether any given use is a "fair" use. Rather, there are four factors set out in the fair-use section of the copyright act [11] that may serve to exempt a given use that seemingly infringes on a copyright by classifying the use as a "fair" use, and thus a permissible use, despite the presence of the copyright. These four factors are:

1. the purpose and character of the use;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used;
4. the effect of the use on the potential market for the copyrighted work. [12]

Each of these four factors, in turn, provides a number of sub-factors that the courts examine to determine whether the factor tends to more heavily favor the copyright holder or the person using the material, or is neutral. Once these sub-factors have been examined, and the four factors have been "assigned" to one side of the other, the court determines whether the facts of the particular situation favor upholding the copyright holder or favor permitting the use.

The first factor, the purpose and character of the use, is measured by looking at how the material is being used by the person copying the material. If the use is a mere copy of the original it is unlikely to be deemed a fair use. However, if the use goes beyond the original work, offering some new use or interpretation or appealing to a new and different audience, it is likely to be viewed as a fair use. Also, if the use is for a nonprofit, educational purpose, it is more likely to be considered a fair use. [13]

The second factor, the nature of the copyrighted work, considers how the copyright is being used.  If the work is an unpublished work, any use of it without the permission of the copyright holder is not likely to be viewed as a fair use.  If the work was published, but is now out of print, use of the material is more likely to be deemed a fair use.  Finally, the courts will examine whether the work is factual or artistic.  The more artistic the work, the less likely that a fair use will be found. [14]

The third factor, the amount and substantiality of the portion used, is the most “quantifiable” of the factors.  In considering this factor the courts look at the use in relation to the entire work protected by the copyright.  The more of the entire work used, the less likely that a fair use will be found.  The courts will try to determine whether the amount used exceeded the “reasonable expectations” of the copyright holder, and also whether the use took the “heart” or “essence” of the work.  If so, the use will not qualify as a fair use.  The courts will also decide whether the use is likely to have an adverse affect on the economic value of the work to the copyright holder.  If the use is likely to have such an affect, it will not be viewed as a fair use.

The final factor considers the potential market for the copyrighted work.  Here the courts will consider whether the use differs from the use of the original copyrighted material, whether the use appeals to a new audience, and whether the use contains anything original.  The more the use differs from the use of the original work or appeals to a different audience or contains original material, the more likely the courts will determine that the use is a fair use, and not restricted by the rights of the copyright holder. [15]

To date there has been one federal appellate court opinion applying these factors to an Internet case involving an allegation of copyright infringement and a defense of “fair use,” Kelly v. Arriba Soft Corp.[16] Leslie A. Kelly is a photographer specializing in photographs of California gold rush country and of photographs related to the works of Laura Ingalls Wilder. His photos are not sold individually, but they have appeared in a number of books. Kelly maintains two web sites, one of which provides a “virtual tour” of California’s gold rush country and promotes his books on the subject, and the other of which markets corporate retreats held in California’s gold rush country.

Ditto, formerly known as Arriba Soft Corp., operates a “visual search engine” on the Internet. This “visual search engine” retrieves images rather than text, producing a series of “thumbnail” pictures in response to a user’s queries. If a user clicked on one of these “thumbnail” images, the user would receive information concerning the image, including the full-size version of the image, a description of its dimensions, and the web site address from which the image originated. If the user then clicked on the address, he or she would link to the original web site for the image.

In January 1999, approximately thirty-five of Kelly’s photographs were indexed by Ditto’s “visual search engine” and included in Ditto’s image database. Kelly learned of this and contacted Ditto, insisting that the images be removed from this database. Ditto complied with this request, only to be sued by Kelly in April 1999 for copyright infringement and for violation of the Digital Millennium Copyright Act.

The district court determined at trial [17] that the use by an Internet visual search engine of the copyrighted images of others is a prima facie copyright violation, but that this violation may be justified under the “fair use” doctrine.  The court also decided that the Digital Millennium Copyright Act was not violated in this case.  In reaching its decision regarding the alleged fair use of the images by Ditto, the court noted the following:

·                 Fair use is an affirmative defense, requiring the defendants to carry the burden of proof. [18]

·                 The first factor, purpose and character of use, weighted in favor of Ditto (Arriba) due to the fact that the use was more incidental and less exploitative in nature than traditional forms of commercial use; the use was also "transformative," a very different use from the use for which the images were originally created. The visual search engine improves access to images, the thumbnail images are functional rather than esthetic, and the purpose of the search is to be comprehensive rather than artistic. [19] (It seems that the factor making Ditto's case different from the indexing that takes place in a text-based search engine is that Ditto used actual photos in its database, whereas a text-based search engine only uses the URL, the title, and a brief description of the cited work.)

·                 The second factor, nature of the copyrighted work, weighs against fair use. The court noted "that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied." Artistic works like Kelly's are part of that core. [20]

·                 The third factor, amount and substantially of the portion used, weighed slightly against fair use. The production of thumbnail images was an appropriate fair use, serving the purpose of the search engine and providing no more than was necessary. However, the availability of the full-sized image separated from its surrounding context was not necessary for the purposes of the search engine and did not constitute a fair use of the images. [21]

·                 The fourth factor, the effect on the potential market value of the work, weighed in favor of fair use. The court decided that Ditto did not compete with Kelly, and in fact made Kelly's web sites, and thus his potential market, more widely available than would have been true without the "hits" provided by the visual search engine. [22] (It appears that Kelly did not have a problem with his sites being indexed, but he did have a problem with the method of indexing used by Ditto. There is no evidence that Kelly objected to being indexed by a text-based search engine, but did not want to be indexed by a visual search engine unless he granted explicit permission.)

Note that two of the four factors weighed in favor of fair use, while the other two weighted against fair use, although factor three was deemed to only weigh “slightly” against fair use.  The court upheld the fair use doctrine, and found a fair use, when a copyright-protected image was used without permission of the copyright holder on the Internet.  But note how close the decision was, and how easily the court could have ruled the other way.  The factors divided roughly evenly, and the defendant has the burden of proof.  If the factors are equally divided the defendant should lose.

Plagiarism has long been a concern in the academic community, and the technology available for students today should sharply increase this concern.  Plagiarism as it is commonly thought of, a student taking the work of another and submitting it as his or her own work, still exists.  Students can readily procure papers on a plethora of subjects, especially from various sources on the Internet.  Students can also find several articles, and then cut and paste portions of those articles into a final paper with minimal effort.  A truly enterprising plagiarist may even elect to paraphrase some – or even all – of the excerpted material, making it that much more difficult to discover the plagiarism.  However, tools are available for discovering such conduct, and sanctions are in place, ready to be applied when such conduct is discovered.

A more subtle form of plagiarism also exists, and it does not appear to be as recognized as the more traditional type of plagiarism.  This form is more likely to occur when a student appropriates an image or an idea from the Internet and uses that image or idea in a presentation without properly citing the source.  This conduct is the same as taking a paper, or parts of several papers, inserting those papers or parts of papers into the student’s written submission, and claiming them as one’s own work.  However, since the appropriation of the image or the idea is often being included in a PowerPoint presentation or used in the creation of a web page as part of a class assignment, it does not tend to be as readily noticed, nor is it as likely to be discovered. As a result, this sort of plagiarism does not get the attention it deserves, nor is it as apt to be subjected to sanctions.

What can be done?  Students must be made aware of the meaning of plagiarism.  Students must be made aware of the sanctions they will face if they are found guilty of plagiarism.  Further, faculty must make every effort to ensure that plagiarism is neither tolerated nor excused.  And these lessons must be repeated throughout the curriculum.  It is not enough for these points to be emphasized in the required writing classes that all freshmen take, nor in the introductory computer classes that all freshmen take. It needs to be addressed and readdressed in every course where the student must submit papers or prepare a web page or a PowerPoint presentation. Also, the faculty and the school must be willing to back up this emphasis with enforcement of the school’s student code of conduct when violations occur.

Even if the concern for plagiarism is adequately addressed, there is still a problem presented by the ready availability of material through the Internet.  The same copyright protections that exist for items in print are likely to exist for materials on the Internet.  Audio, video, text, and pictures on the Internet are probably protected by copyright, even if no copyright notice is included with those items.  Improper use of any of these items may subject the user to liability for copyright infringement, unless the user can establish that he or she is protected by the fair use doctrine.

Some people have expressed a concern that the fair use doctrine does not apply to the Internet.  However, judicial opinions show that the doctrine is still in effect, even on the World Wide Web.  But fair use may not be as easy to establish on the Internet as it is in more traditional settings.  Thus, whenever possible the user should seek permission from the holder of the copyright.  If the proposed use is, indeed, a “fair” use there should be little problem in acquiring such permission.  Further, students should be made aware that the fair use exception may well shield their otherwise unauthorized use in an academic setting, but that same protection is not likely to be available in the commercial world. A use that qualifies as a “fair” use in the classroom is quite likely to be deemed a copyright infringement once the student has graduated and taken a job in the so-called “real world.”

Even faculty can encounter problems with making copies and relying on the fair use doctrine for protection. Copying by faculty must meet the tests of brevity and spontaneity. [23]

Items copied for use in a class should not be used for more than one semester without obtaining permission from the copyright holder, and even in the one semester that it is used, the copy should include a notice that the item is copyrighted, and the copyright holder should be listed.

The ease of acquiring information from the Internet, the ease of manipulating such data with computers, and the changing rules regarding intellectual property have all combined to make plagiarism easy to accomplish and difficult to detect.

The emphasis in many schools on using technology, with an increase in the use of PowerPoint and similar presentations, has also contributed. Lax practices and lack of forethought are excuses, but they are not protections.

1.      Kimberly Owings, “Cheaters don’t win, but they keep college professors on their toes,” The Denver Business Journal, Vol. 53, No. 40 (May 3, 2002) p. A31

2.      Kevin Johnson and Nancy Groneman, ‘Legal and illegal uses of the internet: Implications for educators,” Journal of Education for Business, Vol. 78, NO. 3 (Washington, Jan/Feb 2003) p. 147

1. “Internet plagiarism on the rise among U.S. college students,” The Roanoke Times (September 4, 2003) p. A6

2.      See, e.g., www.LazyStudents.com, www.Cheater.com, www.Cheathouse.com, or www.SchoolSucks.com, among others. Term Paper Masters even sells theses and dissertations on-line.

3.      See, e.g., “Cheating 101: Paper Mills and You” from Coastal Carolina University at www.coastal.edu/library/papermill.htm and “Plagiarism and the Web” from Western Illinois University at www.wiu.edu/users/mfbhl/wiu/plagiarism.htm.

4.      See, e.g., “Stop Internet Plagiarism – Phenomenal Women of the World” at www.phenomenalwomen.com/plagiarism.

5.      http://www.library.ualberta.ca/guides/plagiarism/index.cfm.

6.      "Viewpoint, Converting Data Into action, National Survey of Student Engagement," November 2002, Indiana University Center for Postsecondary Research, Bloomington, IN.

7.      Merriam Wester’s Collegiate Dictionary, 10^th edition (Merriam-Webster, Inc., Springfield, MS, 1993).

8.      “internet plagiarism,” note 1, op. cit.

9.      17 U.S.C. § 106(1).

10. “Copyright and Fair Use in the Classroom, on the Internet, and the World Wide Web,” University of Maryland University College, http://www.umum.edu/library/copy.htm.

11. 17 U.S.C. § 107.

12. “copyright and Fair Use,” note 10, op. cit.

13. Ibid.

14. Ibid.

15. Ibid.

16. 280 F.3d 934 (9^th Cir. 2002).

17. Kelly v. Arriba Soft Corp., 77 F.Supp.2d 1116 (1999).

18. Ibid. at 1118.

19. Ibid. at 1119.

20. Ibid. at 1120

21. Ibid.

22. Ibid.

23. “Copyright and Fair Use,” note 10, op. cit.

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