To Students’ Dismay, Plagiarism Detection Website Protected by “Fair Use”
By Sharona Hakimi – Edited by Stephanie Weiner
A.V. v. iParadigms, L.L.C., April 16, 2009, No. 08-1424
On April 16, the US Court of Appeals for the Fourth Circuit affirmed a summary judgment ruling by the US District Court for the Eastern District of Virginia, holding that archiving of student works by commercial plagiarism detection website TurnItIn.com is a “fair use” under the Copyright Act, and therefore does not violate the students’ copyrights in their work. Additionally, Circuit Judge Traxler remanded the case to lower court to reconsider the defendant’s counterclaim for monetary damages under the Computer Fraud and Abuse Act, 18 U.S.C. 1030, based on one plaintiff’s unauthorized access to the site.
The case arose when the plaintiffs were forced by their high school teachers to electronically submit their written work and assent to an online agreement with TurnItIn.com. The website compares student papers to a database of other essays to find instances of plagiarism. At issue was whether the website, operated by defendant iParadigms L.L.C., violated the students’ copyright rights to their work when it archived them for future comparison with other student works.
David Kravets of Wired summarizes the opinion. Nate Anderson, writer for Ars Technica (and a former teacher), analyzes the case and its potential revolutionary effects on education. A recent magazine interview with John M. Barrie, CEO of iParadigms, expresses Barrie’s goals for plagiarism detection services. A 2007 news article discusses the original filing of the case.
The Fourth Circuit held that TurnItIn’s use of the papers was “fair” under the exception provided in 17 U.S.C. § 504. The court considered each of § 504’s four factors, finding: 1) Commercial use can be fair use, and, citing Perfect 10 Inc. v. Amazon.com Inc., use can be transformative “in function or purpose without altering or actually adding to the original work.” TurnItIn transformed the work by using the papers to prevent plagiarism and not for factual knowledge; 2) The website’s use does not diminish or discourage the author’s creativity or supplant the students’ rights to first publication; 3) Using the entirety of the papers did not preclude fair use; and 4) TurnItIn’s use does not affect marketability.
Though the lower court also held that the use was legal because students entered into a binding agreement with TurnItIn.com by assenting to a “clickwrap” contract, the Court of Appeals declined to address that issue because the website was protected under fair use.
A more contentious holding in the case concerned the defendant’s counterclaim. iParadigm alleged that one student made an unauthorized access to TurnItIn.com in violation of the Computer Fraud and Abuse Act, 18 U.S.C. 1030, offering evidence that plaintiff A.V. submitted a work to the website as a student of a university he did not attend. Unaware that the plaintiff had found the username and password posted on the internet, iParadigms underwent an investigation, fearing a technical glitch in the TurnItIn system. iParadigms sued for loss of man-hours spent responding to this concern. While the District Court dismissed this counterclaim on the ground that any damages were merely “consequential,” the Fourth Circuit remanded the case for further investigation, finding consequential damages to be recoverable under CFAA.
Thomas O’Toole of E-Commerce and Tech-law critiques the decision on the counterclaim: “If mere fear about the possibility of a technical glitch can put a defendant on hook for a week’s worth of technical assistance, CFAA claims will become even more attractive.”
Thousands of educational institutions in about 90 countries use the California-based plagiarism detection service, and perhaps now that the service is protected under fair use, iParadigm’s Jim Barrie may be right that an educational “revolution” against cheating students is underway.