Plagiarism litigation trends in the USA and Australia

Abstract

In this article we explore the increasing complexity of plagiarism litigation in the USA and Australia. Plagiarism has always been a serious academic issue and academic staff and students have wrestled with its definition and appropriate penalties for some time. However, the advent of the Internet and more freely accessible information resources, along with busy lives and pressures to succeed, may be leading to more frequent incidents of plagiarism. Alternatively, the same information resources and software packages may mean that we are now more able to identify when plagiarism occurs. The following discussion explores not just the traditional issues that have arisen with respect to plagiarism, but also the extended contexts in which plagiarism discussion is taking place in courtrooms, not university staffrooms. We consider issues in common in the two nations, as well as the wider academic community, and distinctive areas of litigation that have arisen in the USA and Australia.

Keywords:

• plagiarism
• copyright
• internet

Notes

1. See Weidenborner, Stephen, and Domenick Caruso. 1982. Writing research papers: A guide to the process, 97. New York: St Martin's Press. This defines plagiarism as ‘a kind of theft [whereby] one writer steals the ideas or even the exact words of another writer without giving credit where it is due’. For examples of academic institutions’ varied definitions of plagiarism see Mawdsley, Ralph. 1994. Academic misconduct: Cheating and plagiarism, 14. Dayton, OH: ELA.

2. For a powerful account of a US faculty member's confrontation with a plagiarising faculty member at a South African university that resulted in the South African faculty member having his US university granted Ph.D. revoked and his being fired from his faculty position see Lanegran, Kim. 2004. Fending off a plagiarist. The Chronicle of Higher Education, July 2. http://chronicle.com/free/v50/i43/43c00101.htm.

3. See, for example, the computer programs advertised at http://www.plagiarismscanner.com/ and http://www.turnitin.com.

4. A.V. v iParadigms, Ltd. Liability Co., 544 F.Supp.2d 473, 478 [232 Education Law Report 176] (E.D.Va. 2008).

5. See Bartlett, Thomas. 2008. Columbia U. fires Teachers College professor accused of rampant plagiarism. The Chronicle of Higher Education, June 23. http://chronicle.com/news/article/4724/columbia-u-fires-teachers-college-professor-accused-of-rampant-plagiarism.

6. See, for example, McCawley v Universidad Carlos Albizu, Inc., 461 F.Supp.2d 1251 [215 Education Law Report 376] (S.D. Fla. 2006), upholding revocation of a Ph.D. for plagiarism against the student's challenge; Agarwal v Regents of University of Minnesota, 788 F.2d 504 [31 Education Law Report 764] (8th Ciruit 1986), upholding the termination of the contract of a tenured faculty member in part because of plagiarism of laboratory manuals; Boateng vs Inter American University, 190 F.R.D. 29 (D. Puerto Rico, 1999), upholding a decision by the university not to grant tenure to a faculty member found to have plagiarised.

7. See Slack v Stream, 2008 WL 162618 (Ala. 2008), upholding a $200,000 judgement for mental anguish and a $450,000 punitive damages award to a former state university professor who brought an action against a university and department chairman stemming from the chairman's dissemination of a letter of reprimand accusing the professor of plagiarism.

8. See Dodd v Ft. Smith Special Sch. Dist. No. 100, 666 F.Supp., 1278 [41 Education Law Report 624] (W.D. Ark. 1987), granting injunctive relief under the Lanham Trademark Act to prohibit a school district from publishing and distributing a book that had been researched and written by a prior teacher and her students but without acknowledgement as authors in the school district's version.

9. See, for example, Magner, Denise. 1993. Historian charged with plagiarism despite critics’ definition of term. The Chronicle of Higher Education, May 12: A16 (a report on a plagiarism charge against an eminent scholar for using hundreds of short, descriptive phrases from other sources without attribution); Anon. 1993. OSU professor faces discipline in wake of plagiarism finding. The Plain Dealer, August 9: E6 (a report on a finding of plagiarism by faculty committee of a senior professor's use of material without attribution); Anon. 2002. Plagiarism investigation ends at Virginia. New York Times, November 26: A24 (a report on a plagiarism scandal at the University of Virginia brought to light by one faculty member's creation of his own database that led to the dismissal of 45 students and the revocation of three graduate degrees); Simmons, Kelly. 2002. Student cheating taking new tack; some may be honest mistakes. Atlanta Journal and Constitution, January 20: C1 (describing a plagiarism investigation at Georgia Tech involving 187 students); Tomsho, Robert. 2006. Familiar words: Student plagiarism stirs controversy at Ohio University. Wall Street Journal, August 15: A1 (a report on a plagiarism scandal at Ohio University).

10. See Trahams v Trustees of Columbia Univ., 666 N.Y.S.2d, 150 [122 Edcation Law Report 1263] (N.Y. App. Div v 1997), upholding a student's expulsion for plagiarism.

11. See, for example, Freedom of information act 1992 (Qld).

12. Papadakis, Mary. 2007. Clampdown on cheaters. Sunday Herald Sun, May 27, http://www.news.com.au/heraldsun/story/0,21985,21798647-2862,00.html.

13. However, ‘fishing’ for information for a dramatic story is not allowed. The courts are sometimes sympathetic to the arguments of the institutions, sometimes not. See, for example, Alexander v University of Sydney and anor [2008] NSWADT 214, an application to the NSW Administrative Decisions Tribunal seeking review of the University of Sydney decision not to release a report investigating allegations of plagiarism against a Dean. The university claimed that the documents were exempt as ‘Release of the documents would be an unreasonable disclosure of information concerning the personal affairs of a person other than the FOI applicant’. [4] The exemption was upheld. Similarly, Tony Stanley Redfern and University of Canberra [1995] AATA 200, a university claim of exemption upheld against the request under FOI for release of a marking template, not because of the university's argument that it could lead to plagiarism, but in part because the template did not exist. cf. Darwish v Deakin University [2002] VCAT 87, relating to a decision by the university not to release name of thesis examiner under FOI application by student not upheld and exemption claim overturned. The student withdrew from candidature, but alleged plagiarism by a supervisor or examiner. The court noted that: ‘Plagiarism is a serious matter bearing on the reputation of any individual or institution the subject of an allegation. For that reason, there is a public interest in the unmasking of plagiarists’. [20].

14. See Agarwal, 788 F.2d 506, reporting a faculty panel recommendation of termination of the contract of a faculty member who had plagiarised with the observation ‘that the demonstrated plagiarism with the intent to deceive has ended Professor Agarwal's usefulness to the University and, in and of itself, is grounds for termination’.

15. Bast, Carol M., and Linda B. Samuels. 2008. Plagiarism and legal scholarship in the age of information sharing: The need for intellectual honesty. Catholic Univerity Law Review 57: 777–84, citing the following sources: Posner, Richard A. 2007. The little book of plagiarism, 11 (plagiarism is ‘literary theft’); Green, Stuart P. 2002. Plagiarism, norms, and the limits of theft law: Some observations on the use of criminal sanctions in enforcing intellectual property rights. Hastings Law Journal 54: 173 (plagiarism is ‘stealing’); Thomas, David A. 2004. How educators can more effectively understand and combat the plagiarism epidemic. Brigham Young University Education and Law Journal 2004: 422 (plagiarism is ‘wrongful appropriation or theft of another's ideas as one's own’).

16. See Johnson, Vincent R. 2008. Corruption in education: A global legal challenge. Santa Clara Law Review 48, no. 1: 73–4, indicating no clear consensus as to whether plagiarism requires some level of mental culpability, such as intent or negligence.

17. Bast, Carol M., and Linda B. Samuels. 2008. Plagiarism and legal scholarship in the age of information sharing: The need for intellectual honesty. Catholic Univerity Law Review 57: 777–84. Self-plagiarism as a form of plagiarism has its strongest supporters in funded research fields such as the sciences and generally where copyright issues are involved. cf. Posner, Richard A. 2007. The little book of plagiarism, 108 (self-plagiarism is ‘a distinct practice and rarely an objectionable one’) with Collberg, Christian, and Stephen Kobourov. 2005. Self-plagiarism in computer science. Communications of the ACM 48: 88–90 (‘It can give the public the idea that research dollars are spent on rehashing old results rather than on original research, simply to further the careers of researchers’); Scanlon, Patrick M. 2007. Song from myself: An anatomy of self-plagiarism. Plagiary 2, no. 1: 4 (self-plagiarism can involve copyright infringement, since when an article is published in a professional journal the author customarily assigns the copyright in the article to the journal).

18. Winkler, Anthony C., and Jo Ray McCuen. 1985. Writing the research paper, 2nd ed., 40. San Diego, CA: Harcourt Brace Jovanovich.

19. Winkler, Anthony C., and Jo Ray McCuen. 1985. Writing the research paper.

20. 930 F.2d 955 [67 Education Law Report 113] (1st Cir. 1991).

21. 930 F.2d 958 [67 Education Law Report 113] (1st Cir. 1991).

22. For another comparison between the article and the book see930 F.2d 958 [67 Education Law Report 113] (1st Cir. 1991).

23. Newman was barred from participating on certain academic committees or holding administrative office for five years. 930 F.2d 959 [67 Education Law Report 113] (1st Cir. 1991)

24. McCullough, David. 2001. John Adams, 564. New York: Simon & Schuster.

25. See, for example, the following example from Indiana University at http://www.indiana.edu/~wts/pamphlets/plagiarism.shtml.

How to Recognize Unacceptable and Acceptable Paraphrases

Here's the ORIGINAL text, from page 1 of Lizzie Borden: A Case Book of Family and Crime in the 1890s by Joyce Williams et al.:

The rise of industry, the growth of cities, and the expansion of the population were the three great developments of late nineteenth century American history. As new, larger, steam-powered factories became a feature of the American landscape in the East, they transformed farm hands into industrial laborers, and provided jobs for a rising tide of immigrants. With industry came urbanization the growth of large cities (like Fall River, Massachusetts, where the Bordens lived) which became the centers of production as well as of commerce and trade.

Here's an UNACCEPTABLE paraphrase that is plagiarism:

The increase of industry, the growth of cities, and the explosion of the population were three large factors of nineteenth century America. As steam-driven companies became more visible in the eastern part of the country, they changed farm hands into factory workers and provided jobs for the large wave of immigrants. With industry came the growth of large cities like Fall River where the Bordens lived which turned into centers of commerce and trade as well as production.

What makes this passage plagiarism?

The preceding passage is considered plagiarism for two reasons:

• the writer has only changed around a few words and phrases, or changed the order of the original's sentences.

• the writer has failed to cite a source for any of the ideas or facts.

If you do either or both of these things, you are plagiarizing.

Here's an ACCEPTABLE paraphrase:

Fall River, where the Borden family lived, was typical of northeastern industrial cities of the nineteenth century. Steam-powered production had shifted labor from agriculture to manufacturing, and as immigrants arrived in the US, they found work in these new factories. As a result, populations grew, and large urban areas arose. Fall River was one of these manufacturing and commercial centers (Williams 1).

Why is this passage acceptable?

This is acceptable paraphrasing because the writer:

• accurately relays the information in the original and uses her own words.

• lets her reader know the source of her information.

26. See Mawdsley, R. 1994. Academic misconduct, Appendix, 100–21. Dayron, OH: Education Law Association, for the extraordinarily well-designed examples containing no reference to subjective analysis developed by Dartmouth College for the 1962 and 1992 editions of Sources: Their use and acknowledgement, reproduced by the author with written permission of the College's Dean of Students.

27. Newman, 930 F.3d 962.

28. Newman, 930 F.3d 962. In an Australian case, Petrina Maria Quinn v Charles Sturt University, PR968580 [2006] AIRC 96, the commissioner similarly endorsed an objective test to determine whether plagiarism by the staff member Quinn had occurred, rejecting the complainant's ‘contention that plagiarism is not an objective standard but … needs to be “operationalised”’.31 Counsel for the university had argued that an objective standard should be used, referring to previous industrial relations’ decisions. ‘What the Commission has to do is look objectively and not subjectively as to whether in fact a person has used work of others as one's own. It is not merely exploring what a person says was their mental intent at the time but is an objective intent to be determined by the Commission … ’ ([54], [55]).

29. See, for example, University of Maryland, The graduate catalogue, code of academic integrity (2008–2009), ‘PLAGIARISM: intentionally or knowingly representing the words or ideas of another as one's own in any academic exercise’; Bulletin of Duke University, 2008–2009, The Duke community in practice: A guide for undergraduates, 16, ‘Plagiarism occurs when a student, with intent to deceive or with reckless disregard for proper scholarly procedures, presents any information, ideas or phrasing of another as if they were his/her own and/or does not give appropriate credit to the original source. Proper scholarly procedures require that all quoted material be identified by quotation marks or indentation on the page, and the source of information and ideas, if from another, must be identified and be attributed to that source. Students are responsible for learning proper scholarly procedures’.

30. Australian courts called upon to determine the facts as to whether plagiarism has occurred have given consideration as to whether mitigating circumstances might apply, thus blurring the boundary between an objective and subjective analysis of the act of plagiarism and intent. A common defence to plagiarism allegations, other than contestations as to the definition of plagiarism or of innocence, is that pressures of time, work stress or finance led to the problematic activity. While university academic staff would not consider these legitimate reasons for representing the work of others as one's own, courts have accepted these reasons as ameliorating actions on the part of students, in part as a defence against intentionality where it is included in the definition of the act of plagiarism. For example, in Humzy-Hancock, Re [2007] QSC 34, it was held that several acts of limited attribution were the result of carelessness, not knowing intentionality [42]. However, despite claims of workload and personal pressures, a federal magistrate who plagiarised parts of judgements was eventually pressured to resign (see Cumming, J. 2007. Where courts and academe converge: Findings of fact or academic judgment. Australia & New Zealand Journal of Law & Education 12 no. 1: 97).

31. 453 A.2d 263 [8 Education Law Report 74] (N.J. Super. Ct. App. Div v 1982), affirming 453 A.2d 279 [8 Education Law Report 90] (N.J. Super. Ct. Ch. Div v 1982).

32. Napolitano, 453 A.2d 279, 281.

33. Napolitano, 453 A.2d 279, 281, Napolitano, 453 A.2d 263, 270.

34. Failure to adequately cite borrowed sources can have unanticipated results. See http://nutsandbolts.washcoll.edu/plagiarism.html. Senator Biden was forced to withdraw from possible consideration as 1988 presidential candidate in 1987 when it was disclosed that ‘twenty years earlier Biden had received a failing grade in a law school course for plagiarising a legal article (he'd given a single footnote while lifting five full pages from the article).

35. Napolitano, 453 A.2d 263, 270, 276.

36. PR968580 [2006] AIRC 96.

37. PR968580 [2006] AIRC 96. One of the papers cited in the decision Are examinations necessary as part of assessment practice for education integrity—A plagiarism focus.

38. PR968580 [2006] AIRC 96. The university argued that ‘Plagiarism is of a serious nature within a university and constitutes serious misconduct and a form of academic fraud’ [51]. She argued ‘I did so only on the basis that I regarded myself as representing the University as a non-academic member of its general staff. … I did not wilfully or deliberately try to hide the work of others, or attribute to myself the authorship of the work of others’ ([13]).

39. PR968580 [2006] AIRC 96 [19].

40. PR968580 [2006] AIRC 96 [51].

41. PR968580 [2006] AIRC 96 [67].

42. See, for example, Cleveland State University, University regulations for student conduct, plagiarism policy (2008), ‘Plagiarism is the act of presenting, as one's own the ideas, opinions, writings, or work of another person without appropriate scholarly attribution. This act is a form of academic dishonesty and is a serious incident of academic misconduct’.

43. 544 F.Supp.2d 473, 478 (E.D.Va. 2008).

44. The focus of this article is not to examine the merits of using Turnitin technology. For a comprehensive discussion of Turnitin see Horovitz, Samuel J. 2008. Two wrongs don't negate a copyright: Don't make students Turnitin if you won't give it back. Florida Law Review 60: 229.

45. For a comprehensive discussion of the role of intent in plagiarism see Bast, Carol M., and Linda B. Samuels. 2008. Plagiarism and legal scholarship in the age of information sharing: The need for intellectual honesty. Catholic University Law Review 57: 777, 780–4, comparing the definitions of plagiarism of the Legal Writing Institute that encompasses both intentional and non-intentional copying as plagiarism with the definition of Judge Posner of the Seventh Circuit that applies only to ‘nonconsensual fraudulent copying’. See also Wyburn, Mary, and John MacPhail. 2006. The intersection of copyright and plagiarism and the monitoring of student work by educational institutions. Australia and New Zealand Journal of Law and Education 11, no. 2: 74–5, noting that definitions of plagiarism may vary from ‘discipline to discipline’, citing authors who consider intentionality is necessary for plagiarism to be found and that ‘“genuinely accidental” taking does not constitute the wrong’.

46. Mawdsley, Academic misconduct, 11.

47. Smith, Steven M. 2008. Invisible assumptions and the unintentional use of knowledge and experiences in creative cognition. Lewis & Clark Law Review 12: 509, 514. An interesting plagiarism issue in Australia was raised in a multi-award-winning book by Helen Demidenko a pseudonym for Helen Darville/Helen Dale (Demidenko, H. 1994. The hand that signed the paper. Sydney: Allen & Unwin). The author created an identity for herself as a descendant of a Ukrainian war criminal. Her book won two prestigious national awards, but she was later ‘exposed’ as having created the fictional persona. However, while this issue was being discussed, allegations of plagiarism, that sections of the book reflected a number of other published texts, led to the publishers withdrawing the book for a period to investigate the claims. They concluded that there was insufficient material to sustain the plagiarism claims, although it has been noted that the contested passages were word for word. (See Brooks, David. n.d.. The contemporary Australian hoax http://www.arts.usyd.edu.au/departs/english/undergrad/uos/pdfs/aslt_2609/Lectures12_13.pdf). At one stage, the possibility of unconscious plagiarism was raised.

48. Smith. Lewis & Clark Law Review 12: 525. It is worth noting that in copyright law subconscious copying is not a defence against an action for damages under the Copyright Act. See Alden, Carissa L. 2008. A proposal to replace the subconscious copying doctrine. Cardozo Law Review 29: 172952, 1731.

49. Sainsbury, Michael. 2008. Uni chief lifted text from Wikipedia, The Australian, April 26, http://www.theaustralian.news.com.au/story/0,25197,23600451-12332,00.html. He was reported to have said ‘It was not as a piece of academic scholarship, therefore did not follow normal citation methods used in academic publications’.

50. Lyons, John. 2008. Julie Bishop in new plagiarism episode. The Australian. October 27, http://www.news.com.au/perthnow/story/0,21598,24556988-5017005,00.html.

51. For a comprehensive discussion of constitutional due process and contractual fairness, see Mawdsley, Ralph. 2006. Legal problems of religious and private schools, 5th ed., 6–8, 15–33. Dayron, OH: Education Law Association.

52. See, for example, Kerr v Bd. of Regents of Univ. of Neb., 739 N.SW.2d 224 [224 Education Law Report 892] (Neb. Ct. App. 2007), holding dismissal of a student from law school for four instances of plagiarism.

53. See, for example, Goodreau v Rector and Visitors of Univ. of Va., 116 F.Supp.2d 694 [148 Education Law Report 191] (W.D.Va. 2000), holding that the university had the implied authority to revoke the degree of a graduate who had embezzled funds of a student organization while a student at the university.

54. Samper v Univ. of Rochester, 528 N.Y.S.2d 958, 962 [47 Education Law Report 284] (N.Y. Sup. Ct. 1987), aff'd as modified, 535 N.Y.S.2d 281 [50 Education Law Report 877] (N.Y. App. Div v 1988), rejecting a medical resident's due process claim that she was entitled to meet with the clinical competency committee after receiving unsatisfactory reviews.

55. 435 U.S. 78 (1978), denying due process claims of a student dismissed in her last year of medical school for academic deficiencies.

56. For a discussion of case law related to academic and disciplinary penalties see Surette, Eric C. 1991. Expulsion, dismissal, suspension, or other discipline—review and reinstatement, 14A Corpus Juris Secundum. Colleges and universities, section 41 Eagan Prairie, MN: West Publishing Co; Philbin, Jeanne. 2000. Promotions; graduation; conferring of degrees and diplomas, Colleges and universities, section 29, 15. American Jurisprudence 2nd edn. Eagan, MN: Thomson West.

57. Horowitz, 435 U.S. 83, 84.

58. Horowitz, 435 U.S. 97. U.S. Const., amend. XIV, ‘nor shall any State deprive any person of life, liberty, or property, without due process of law’.

59. Goss v Lopez, 419 U.S., 565, 572–3 (1975). See Board of Regents v Roth, 408 U.S., 564, 568–71 (1972), a faculty member with a one year contract had no entitlement to contract renewal; Zellman v Indep. Sch. Dist. No. 2758, 594 N.W.2d 216, 220 [134 Education Law Report 1017] (Minn. Ct. App. 1999), student's attendance in public schools pursuant to the state compulsory attendance statute is an entitlement.

60. See Rogers v Tennessee Bd. of Regents, 273 Fed. App'x 458 [233 Education Law Report 567] (6th Cir. 2008), upholding the dismissal of a nursing student after receiving a failing grade in a clinical nursing course where the student had received the minimal level of constitutional due process.

61. However, the Supreme Court has asserted that a claimant has no liberty or property interest in their reputation alone. See Paul v Davis, 424 U.S. 693, 701 (1976), reputation alone ‘apart from some more tangible interest such as employment,’ is neither a ‘liberty’ nor ‘property’ interest by itself sufficient to invoke the procedural protection of the Due Process Clause. See also Dodd v Ft. Smith Special Sch. Dist. No. 100, 666 F.Supp. 1278 [41 Education Law Report 624] (W.D. Ark. 1987), finding no liberty or property claims as to a teacher whose book had been copied by the school district without attribution.

62. Horowitz, 435 U.S. 97.

63. See Zellman, a student who received zero for a plagiarised history assignment had no protected liberty or property right.

64. See Gunasekera v Irwin, 517 F.Supp.2d 999 [226 Education Law Report 854] (S.D. Ohio 2007), holding that the name-clearing hearing offered by the state university would have satisfied due process, in which a professor, who had been suspended from graduate faculty status for failing to monitor graduate theses for plagiarism, would be permitted to produce witnesses, to submit documentary evidence, to testify on his own behalf and to be represented by counsel.

65. See Crook v Baker, 584 F.Supp. 1531 [17 Education Law Report 1055] (E.D. Mich. 1984), vacated on other grounds, 813 F.2d 88 [38 Education Law Report 81] (6th Cir. 1987), court of appeals holding that a student whose masters degree was revoked for fabrication of research was granted notice and a hearing that satisfied procedural due process; Jaksa v Regents of Univ of Mich., 597 F.Supp. 1245 [21 Education Law Report 845] (E.D. Mich. 1984), upholding as providing adequate procedural rights under the liberty clause where a student suspended for a semester for cheating on a final exam had six weeks notice and a hearing where he presented his case; Hall v Medical College of Ohio at Toledo, 742 F.2d 299 [19 Education Law Report 917] (6th Cir. 1984), holding that the dismissal of a student for academic dishonesty on exams satisfied due process where he had notice of the charges and a hearing where he presented his case; the student was not entitled to all due process rights, such as right to counsel.

66. See Trahms v Trustees of Columbi Univ., 666 N.Y.S.2d 150 [122 Education Law Report 1263] (N.Y. App. Div v 1997), upholding expulsion of a student for plagiarism where the student received four days notice of a hearing and the hearing substantially complied with the student handbook where the student was able to present evidence; reversing a trial court order for a new hearing where no verbatim transcript of the original had been made because such a record was not necessary; Lawrence v St. Augustine High Sch., 955 So.2d 183 [220 Education Law Report 429] (La. Ct. App. 2007), upholding a school's suspension of a student from extracurricular activities for plagiarism, where the school in its investigation substantially complied with its student handbook, even though it did not secure written reports from students and administrators, as specified in the handbook.

67. 2008 WL 162618 (Ala. 2008).

68. 2008 WL 162618 (Ala. 2008), 13. See also Rexha v Curtin University of Technology [2002] WASC 152, a similar Australian case in which a university staff member became concerned about possible plagiarism in a student's thesis, requesting that the thesis be annulled. The decision was deferred at a meeting until key staff were available and the student had been consulted. However, the minutes of that meeting, widely distributed, noted that the Committee put on record ‘unanimous disapproval and condemnation of the conduct of the supervisor, Nexhmi Rexha, in regard to supervision’ (5). The plaintiff was not given a report of the subsequent investigation, which exonerated him. As the comments had been circulated to all staff, the plaintiff applied through the courts for prediscovery of documentation regarding the matter to determine whether to pursue a claim for defamation, which the university unsuccessfully argued as exposing their case. The outcome of any defamation challenge is not known at the time of writing.

69. 957 F.2d 791 [73 Education Law Report 369] (10th Cir. 1992).

70. See N.M.S.A. section 21-8-7.

  The immediate government of the several departments shall be intrusted to their respective faculties, but the regents shall have the power to regulate the course of instruction and prescribe, under the advice of the faculty, the books and authorities to be used in the several departments, and also to confer such degrees and grant such diplomas as are usually conferred and granted by other agricultural colleges.

71. See Hand, 957 F.2d at 795. The statute at issue gives the Board of Regents exclusive power to confer degrees. Conversely, it is appropriate to assume that to the extent a power to revoke degrees is recognised, it too is vested exclusively in the Regents. None of the statutes governing the university expressly allow the Regents to delegate this, or any other, power.

72. See Waliga v Bd. of Trustees of Kent State Univ., 488 N.E.2d 850 [30 Education Law Report 503] (Ohio 1986), upholding revocation of undergraduate degrees for grade discrepancies where state statutes conferred on the university the authority to ‘confer such … academic degrees as are customarily conferred by colleges and universities in the United States [and to] do all things necessary for the proper maintenance and successful and continuous operation of such universities’ (Ohio Rev v Code sections 3341.04 and 3301.05).

73. 711 N.W.2d 194 [207 Education Law Report 367] (N.D. 2006).

74. While US cases indicate that students need to have pursued full administrative processes in an institution before heading to court, this has not been the expectation of Australian courts. Australian courts or tribunals will note whether the full appeal processes have been followed by the plaintiff or applicant but still make judgement. This is most evident in legal admission cases, where at least two of the applicants had not exhausted available university appeals.79. See Law Society of Tasmania v Richardson [2003] TASSC 9; Humzy-Hancock, re [2007] QSC 34; re Legal Profession Act 2004; re OG, a lawyer [2007] VSC 520. It is not clear whether the parties did not exhaust university appeal processes because they were ignorant of such processes, they did not consider the matter of great significance (until seeking admission to practise law) or they believed that by acting in this way they were denying the allegations.

75. See N.D. Const. Art. 8, section 6, where the state constitution grants broad authority to the State Board of Higher Education to ‘to prescribe, limit, or modify the courses offered at the several institutions’ and ‘to organize or reorganize within constitutional and statutory limitations, the work of each institution under its control, and do each and everything necessary and proper for the efficient and economic administration of said state educational institutions’.

76. 739 N.W.2d 224 [224 Education Law Report 892] (Neb. Ct. App. 2007).

77. Neb. Rev. St. sections 84-901(1), 84-917(1). While the state statute assures that ‘Any person aggrieved by a final decision in a contested case … shall be entitled to judicial review under the Administrative Procedure Act’, that assurance applies only to a ‘board, commission, department, officer, division, or other administrative office or unit of the state government authorised by law to make rules and regulations’.

78. However, as discussed previously, Australian universities which receive federal government funding may be held to be agencies for legislative purposes such as the Freedom of Information Act 1992 (Qld).

79. 499 F.3d 290 [224 Education Law Report 639] (3d Cir. 2007).

80. See 499 F.3d 294. One instance involved copying directly from a website without attribution and the second copying word for word passages from a reference book.

81. See 499 F.3d 295, n. 2. Although the Third Circuit upheld the district court's summary judgement for the university, it struggled as to whether the district court should have only dismissed the plaintiff's complaint under Rule 12(b)(2) of the Federal Rules of Civil Procedure for failure to state general or personal jurisdiction, as opposed to reaching the merits of the case and granting summary judgement under Rule 56.

82. General jurisdiction exists when a defendant has maintained systematic and continuous contacts with the forum state. See Helicopteros Nacionales de Colombia, S.A. v Hall, 466 U.S. 408 (1984), rejecting a personal jurisdiction claim by a claimant in Texas against a Columbia corporation where the only contact with Texas had been sending its chief executive officer to Houston to negotiate the contract with the consortium, accepting into its New York bank account checks drawn by the consortium on a Texas bank, purchasing helicopters, equipment and training services from a Texas manufacturer and sending personnel to that manufacturer's facilities for training, none of which was sufficient under the Due Process Clause of the Fourteenth Amendment to assert personal jurisdiction.

83. See Martin 499 F.3d at 296. Specific jurisdiction exists when the claim arises from or relates to conduct purposely directed at the forum state and requires a three part inquiry: (1) whether the defendant has ‘“purposefully directed” his activities’ at the forum [Burger King Corp. v Rudzewicz, 471 U.S. 462, 472 (1985), quoting Keeton v Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984)]; (2) whether the plaintiff's claims ‘arise out of or relate to’ at least one of those specific activities [Helicopteros, 466 U.S. at 414]; (3) whether other factors are present to ensure that the assertion of jurisdiction otherwise comports with ‘fair play and substantial justice’ [Burger King, 471 U.S. 476, quoting Int'l Shoe Co. v Washington, 326 U.S. 310, 320 (1945)].

84. Martin, 499 F.3d 293–4. The plaintiff learned of the school's programme through the university's website, but none of the individual defendant instructors in the programme had ever recruited the plaintiff or visited Pennsylvania. All communications were by phone or email.

85. Martin, 499 F.3d 293.

86. See Martin, 499 F.3d 294. An interesting aspect of Martin is that the Third Circuit decision suggests that the school's investigation of the charges of plagiarism and the decision to expel the plaintiff were made without any direct involvement by the plaintiff in the process. In any case, the plaintiff in Martin could still bring his claim, but would have to do so in Kansas and that, presumably, would be considerably less convenient.

87. For a fascinating case discussing whether Daphne Du Maurier's Rebecca represented a copyright infringement of the plaintiff's article I planned to murder my husband and novel Blind windows under an archaic tortious plagiarism theory. See McDonald v DuMaurier, 144 F.2d 696 (2d Cr. 1944), reversing a district court's summary judgement for the defendant, DuMaurier, and finding that a triable issue existed as to whether the defendant's book represented an infringement of the plaintiff's copyright.

88. See Horovitz, Samuel. 2008. Two wrongs don't negate a copyright: Don't make students Turnitin if you won't give it back, Florida Law Review 60: 229, 260, n. 184. ‘Student B, by plagiarizing only the non-copyrightable quote already in the public domain, is again guilty of plagiarism but not copyright infringement’.

89. Interestingly, such matters between academic staff in Australia have not been challenged under copyright law. Indeed, academics don't necessarily seem to challenge in law a colleague who has taken their work. The matters come to light through industrial relations’ appeals in the Industrial Relations Commission against imposed penalties, when the university or employer takes a role. See, for example, Quinn v Charles Sturt University PR968580 [2006] AIRC 96.

90. 17 U.S.C. section 101ff. The authors do not discuss Australian copyright issues as legislation on copyright differs from the USA. In particular, specifications for ‘fair use’, as we discuss here, are quite different. See, for example, Dellit, Elouise, and Christopher Kendall. 2003. Technological protection measures and fair dealing: Maintaining the balance between copyright protection and the right to access information. Digital Technology Law Journal 1; and for a specific discussion of copyright and plagiarism in Australian universities, Wyburn, Mary, and John MacPhail. 2006. The intersection of copyright and plagiarism and the monitoring of student work by educational institutions. Australia and New Zealand Journal of Law and Education 11, no. 2: 74.

91. Stearns, Laurie. 1992. Copy wrong: Plagiarism, process, property, and the law. California Law Review 80: 513–4.

92. 17 U.S.C. section 102(a). The test for originality is not substantial. See West Publishing Co. v Mead Data Cent., 799 F.2d 1219, 1223 (8th Cir. 1986), granting injunctive relief to West Publishing Company as to its arrangement and pagination of legal reports:

  To be the original work of an author, a work must be the product of some ‘creative intellectual or aesthetic labor.’ However, ‘a very slight degree of such labor … almost any ingenuity in selection, combination or expression, no matter how crude, humble or obvious, will be sufficient’ to make the work copyrightable. (Citations omitted)

93. 17 U.S.C. section 107.

94. 17 U.S.C. section 107.

95. See Educational Testing Service v Katzman, 793 F.2d 533 [33 Education Law Report 89] (2d Cir. 1986). The defendant's use of the plaintiff's testing materials in a business to assist students to score higher on the SAT violated the Copyright Act because the defendant operated a business and the exemption favours non-commercial use.

96. See Wright v Warner Books, 953 F.2d 731 [72 Education Law Report 71] (2d Cir. 1991), unpublished letters and journals are entitled to greater copyright protection over a claim that they were subjects of fair use.

97. cf. New Era Pubications v Carol Publishing, 904 F.2d 152, 158 (2d Cir. 1990) (finding no copyright violation as to copying of 5–6% of 12 works and 8% of 11 works with ‘each of the 11 being only a few pages in length’) with Harper & Row, Publishers v Nation Enterprises, 471 U.S. 539 (1985) (finding that copying of 300 works is a copyright violation because ‘the heart’ of the copied book had been used).

98. See Association of Am. Medical Colleges v Cuomo, 928 F.2d 519 [66 Education Law Report 581] (2d Cir. 1991), holding that disclosure and distribution of MCAT questions and answers pursuant to state law would prevent them from being reused and thus temporary injunctive relief was appropriate.

99. See Nazer v Stein, 347 U.S. 201, 218 (1954). ‘Absent copying there can be no infringement of copyright’.

100. The distinction between original and non-original author contributions is recognised in the Copyright Act and in court decisions. See 17 U.S.C. section 103(b) and Musto v Meyer, 434 F.Supp. 32, aff'd mem., 598 F.2d 609 (2d Cir. 1979), holding that copying of an ‘idea’ as opposed to ‘the expression of an idea’ as to Sherlock Holmes’ cocaine addiction was not protected.

101. The Copyright Act protects only the medium of expression and the protection does not extend to ‘any idea, procedure, process, method of operation, concept, principle, or discovery’ [17 U.S.C. section 102(b)].

102. See Twentieth-Century Fox v MCA, Inc., 715 F.2d 1327 (9th Cir. 1983), finding a triable issue precluding summary judgement regarding whether the alleged 13 points of similarity between the plaintiff's Star wars and the defendant's Battlestar Galactica represented a copying of the idea of the plaintiffs’ motion picture or expression of that idea.

103. 260 Fed.Appx. 292 [231 Education Law Report 63] (Fed. Cir. 2008).

104. 17 U.S.C. section 102(b). ‘In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work’.

105. 695 F.2d 1171 [8 Eduction Law Report 258] (9th Cir. 1983).

106. 695 F.2d 1175.

107. 695 F.2d 1176.

108. 17 U.S.C. section 201(b).

109. 17 U.S.C. section 201(b). Australian universities similarly tend to expect assignment of copyright and intellectual property for work completed by staff, particularly work of an educational nature as opposed to scholarly creation. However, the standing of this may not be as clear cut as originally thought. See University of Western Australia v Gray (No. 20) [2008] FCA 498 (under appeal), relating to the intellectual property owned by a university, the University of Western Australia (UWA), versus a former employee Dr Gray, and claims that the research, with major commercial potential, was undertaken and discoveries made at the university during employment. The Federal Court held that the terms of employment were not sufficiently clear and that the ‘UWA failed to establish that it had any rights or interests in any of the inventions even if they were made by Dr Gray or others in the course of their employment as researchers with UWA’ ([1567]). The finding that ‘a duty to research does not carry with it a duty to invent’ ([12]) has had repercussions around Australian institutions.

110. 397 F.Supp.2d 519 [204 Education Law Report 560] (S.D.N.Y. 2005).

111. Pavlica v Behr, 2006 WL 1596763 (S.D.N.Y. Jun 12, 2006).

112. See Shaul v Cherry Valley-Springfield Central School District, 363 F.3d 177, 186 [186 Education Law Report 604] (2d Cir.2004), holding that tests, quizzes and homework problems prepared by a teacher for classroom use were works for hire and, thus, once the teacher had been discharged by the school could not be recovered via a subpoena. However, for a different assumption in higher education see Weinstein v Univ of Ill., 811 F.2d 1091 [37 Education Law Report 1089] (7th Cir. 1987), recognising that work for hire does not apply to faculty publications in higher education, even though faculty are required to publish.

113. 544 F.Supp.2d 473 [232 Education Law Report 176] (E.D. Va. 2008).

114. Because plagiarism had become a problem at the high school that the plaintiffs attended, school officials had contracted with iParadigms to ‘utilize iParadigms’ Turnitin technology system and … authorize Turnitin to archive student-submitted work … ’. The school ‘required their students to use Turnitin to submit their written works. If a student chose not to submit his or her work via Turnitin, that student would receive a zero on the assignment’ (544 F.Supp.2d 478).

115. 544 F.Supp.2d 480.

116. 544 F.Supp.2d (emphasis added).

117. 544 F.Supp.2d.

118. 544 F.Supp.2d.

119. 544 F.Supp.2d 481. See Lord, Richard A. 2007. 5. Williston on contracts, 4th edn, section 9:14. Eagan Prairie, MN: West Publishing Co. ‘If an infant enters into any contract subject to conditions or stipulations, he cannot take the benefit of the contract without the burden of the conditions or stipulations’.

120. For the four fair use factors see 17 U.S.C. section 107.

121. A.V. v iParadigms, 544 F.Supp.2d, p. 482.

122. A.V. v iParadigms, 544 F.Supp.2d, p. 483.

123. A.V. v iParadigms, 544 F.Supp.2d.

124. A.V. v iParadigms, 544 F.Supp.2d.

125. While persons do not have to register their works with the Copyright Office to have copyright protection [17 U.S.C. section 408(a)], they must register their work before they can sue under the Act to protect that work (17 U.S.C. section 411).

126. 666 F.Supp. 1278 (W.D. Ark. 1987).

127. 15 U.S.C. section 1125 permits civil actions for damages and injunctive relief against any person who uses

   any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which … is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person… .

128. Dodd, 666 F.Supp. at 1285.

129. For a fuller discussion of plagiarism cases and legal admission in Australia see Cumming, J. 2007. Where courts and academe converge: Findings of fFact or academic judgment. Australia & New Zealand Journal of Law & Education 12, no. 1: 97. The issue of intentionality as a critical aspect of the act of plagiarism is also discussed as is the need to recognise as an issue plagiarism without intent in university policy.

130. [2003] TASSC 9.

131. [2007] VSC 520.

132. [2007] VSC 520 [50].

133. [2007] VSC 520 [123].

134. Griffith University v Tang [2005] HCA 7.

135. See, for example, Racial Discrimination Act 1975 (Cth), Discrimination Act 1991 (Act), Anti-Discrimination Act 1977 (NSW), Anti-Discrimination Act 1991 (Qld).

136. Australian courts are conscientiously generous to self-representing plaintiffs. The attitude of the courts is perhaps represented by the judgement in Huang v University of New South Wales & Ors [2008] FMCA 11, where the mental health problems of the plaintiff had led to problems in proceedings, but with the court commenting on the harm that these must have on the plaintiff herself:

  The proceedings became exceptionally protracted, with far more material filed than was necessary or useful. Further, Ms Huang's mental state appears to have deteriorated over time, and the number and wildness of her allegations has also increased over time. … I … have sympathy for her plight. [63]

As with many such cases, this case involved multiple reports for claims and hearings in the Federal Court circuit.

137. See, for example, Elmaraazey v University of NSW, Professor Dennis, Professor Heseltine and Professor Richards [1996] HREOCA 17. A student was terminated in part because of a plagiarism matter investigated within the university. The student had submitted a paper for publication that was coincidentally returned to his supervisor as reviewer. The supervisor considered it included his own work unacknowledged. The student's allegations of racial discrimination were unsuccessful. The evidence provided quite lively allegations by the student regarding interactions with his supervisor, including ‘attempted murder’. It also provided considerable discussion on the credibility of the student, as discussed later; Huang v University of New South Wales & Ors [2008] FMCA 11. A student whose enrolment was at risk for failure to make progress alleged sexual harassment and discrimination on sex, race and disability grounds, as well as allegations of plagiarism against her supervisor. The claims were dismissed); Z v University of A Ors (No. 9) [2005] NSWADT 25 (17 February 2005). A student alleged discrimination on the basis of perceived homosexuality and victimisation, making allegations of plagiarism by staff among the discrimination allegations. His original application was not heard on the basis of being ‘vexatious and without merit’ (Z v University of A, Dr D and Professor E [2003] NSWADT 258, [5], again unsuccessful).

138. Mathews v University of Queensland [2002] FCA 414.

139. Mathews v University of Queensland [2002] FCA 414 [15].

140. Mathews v University of Queensland [2002] FCA 414 [20].

141. The issue of establishing plagiarism, appropriate action and ensuring natural justice are discussed in Varnham, Sally. 2001. Decisions of academic judgement and discipline in New Zealand tertiary institutes: Do cheats prosper? Education and the Law 13, no. 4: 389.

142. Petrina Maria Quinn v Charles Sturt University, PR968580 [2006] AIRC 96 [56].

143. Elmaraazey v University of NSW, Professor Dennis, Professor Heseltine and Professor Richards [1996] HREOCA 17. See, similarly, Z v University of A Ors (No 7) [2004] NSWADT 81 25: ‘We find the Applicant was not a credible witness. In cross-examination, he gave evidence that was inconsistent with his affidavit evidence. He did not readily admit errors and he frequently gave evasive answers to questions or answers that were not responsive’.

144. Z v University of A Ors (No 7) [2004] NSWADT 81 (unpaginated).

145. Liveri, Re [2006] QCA 152, [2].

146. Re Legal Profession Act 2004; re OG, a lawyer [2007] VSC 520.

147. Re Legal Profession Act 2004; re OG, a lawyer [2007] VSC 520 [125].

148. Higher Education Funding Act 1988.

149. For example, in Queensland the Griffith University Act 1998 was established under Queensland legislation, the University of New South Wales Act 1989 under New South Wales legislation, and so on.

150. Tang v Griffith University [2003] QSC 22.

151. Griffith University v Tang [2005] HCA 7, [1].

152. Tang v Griffith University [2003] QSC 22, [25].

153. Griffith University v Tang [2005] HCA 7, the decision was four to one with Justice Kirby dissenting.

154. Hand v Matchett 957 F.2d 791 [73 Education Law Report 369] (10th Cir. 1992).

155. However, this High Court decision may not apply to all Australian universities if their originating statute specifies otherwise and matters addressing student discipline are made under the Act, not in internal policy.

156. Hall v The University of New South Wales [2003] NSWSC 669.

157. Hall v The University of New South Wales [2003] NSWSC 669 [17].

158. Hall v The University of New South Wales [2003] NSWSC 669 [69].

159. Hall v The University of New South Wales [2003] NSWSC 669 [149].

160. See also, for discussion of judicial decisions on university matters, Kamvounias, Patty, and Sally Varnham. 2006. In-house or in court? Legal challenges to university decisions. Education and the Law 18, no. 1: 1.

161. Petrina Maria Quinn v Charles Sturt University, PR968580 [2006] AIRC 96.

162. Petrina Maria Quinn v Charles Sturt University, PR968580 [2006] AIRC 96 [66]

163. Huang v University of New South Wales & Ors [2008] FMCA 11 [43].