by Jeff Pietsch
In April 2009, the Fourth Circuit upheld a summary judgment granted in favor of an online technology system designed to prevent plagiarism in a copyright infringement action. (A.V. v. iParadigms, L.L.C., (4th Cir. Apr. 16, 2009)). The plaintiffs, four high school students who were required to use the system by their schools, sued iParadigms’ for using their written works through the company’s “Turnitin Plagiarism Detection Service.” The plaintiffs argued that Turnitin’s archiving of the students’ works in its system constituted a violation of their copyrights under the Copyright Act, 17 U.S.C. §101 et seq. The court, however, disagreed with this assessment and ruled that the archiving of students’ works falls under the fair use doctrine, which allows the use of copyrighted works for the purposes of criticism, comment, news reporting, teaching, scholarship, or research.
iParadigms owns and operates Turnitin.com, which offers high school and college educators a means to determine the originality of student submitted works. According to iParadigms, when a school subscribes to the service, it usually requires its students to submit their written assignments to Turnitin.com. In order to submit a paper to the service, a student must click on “I agree” under the “Clickwrap Agreement.” After registration is complete, the submitted work is digitally compared to “student papers previously submitted to Turnitin, and commercial databases of journal articles and periodicals.” Furthermore, the participating school may choose the option of “archiving” the submitted works so that Turnitin may store them in its database for future evaluations for originality. The plaintiffs in this case used the passwords provided by their schools to submit their papers as required by school policy. However, each plaintiff included a “disclaimer” objecting to the archiving of his or her written work. Nevertheless, each of these submissions was archived in the Turnitin system despite the expressed objection. Learning of Turnitin’s archiving of their works without permission, the plaintiffs filed suit against iParadigms for copyright infringement. The district court ruled in favor of the defendant, and granted summary judgment. The plaintiffs appealed. The issue that the court examined on appeal was whether digitally storing written works submitted by students was a “fair use” enumerated under the Copyright Act.
The Fourth Circuit analyzed the four nonexclusive “fair use” factors under the Copyright Act: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. Furthermore, whether a given use of a copyrighted material is “fair” is based on a balancing test of these four factors, which are “weighed together, in light of the purposes of copyright.”
First, the court determined that iParadigms’ use of plaintiffs’ works was “highly transformative” and thus a “fair use” because it had a completely different function and purpose than the original works, and served a public interest by discouraging plagiarism. Second, although an unpublished highly creative work is entitled to stricter protection due to the author’s right to first publication, the court reasoned in this case that the website’s use of plaintiffs’ works did not have the “intended purpose” or “incidental effect” of diminishing creativity, or rights to first publication. Third, the court found that iParadigms’ use is limited in scope to electronic comparison purposes, and that its use of the entirety of the plaintiffs’ works did not preclude a finding of “fair use.” Fourth, the court noted that the Turnitin system did not depreciate the market value of plaintiffs’ works, since each plaintiff indicated that selling of such written works was dishonest and that he or she would not sell his or her original work for the objective of plagiarism. Thus, the court concluded that iParadigms’ use of the student works was “fair use” under the Copyright Act and affirmed the summary judgment on the plaintiffs’ copyright infringement claim.
This case is similar to search engine fair use claims, in which third-party works are electronically stored in a very profitable database. Many courts are also finding search engine copyright infringement cases as “highly transformative” and thus a “fair use” because they benefit the public by presenting new information on the Internet. (Perfect 10 Inc. v. Amazon.com Inc. (9th Cir. 2007)). The issue of whether archived copyrighted works in a database to which others can gain access is a “fair use” continues to be prevalent in realm of intellectual property.