Fourth Circuit: Turnitin's Anti-Plagiarism Service a Fair Use
- A.V. (Minors) v. iParadigms, LLC, No. 08-1424 and 08-1480 (4th Cir. Apr. 16, 2009)
Plaintiffs, four minors (who at the time of their complaint attended high schools in McLean, VA, and Tucson, AZ), brought a copyright infringement suit against iParadigms, LLC, based on the company's use of essays and other papers written by plaintiffs for submission to their high school teachers through an online service operated by iParadigms called "Turnitin Plagiarism Detection Service."
According to iParadigms, Turnitin offers high school and college educators an automated means of verifying whether works submitted by students are originals and not the products of plagiarism. When a school subscribes to iParadigms’ service, it typically requires its students to submit their written assignments "via a web-based system available at www.turnitin.com or via an integration between Turnitin and a school’s course management system." The website uses a "click-wrap" agreement (outlining terms and conditions) for site use. Turnitin then compares the submitted paper and produces a report for teachers suggesting a percentage of the work, if any, that appears not to be original.
Three of the students submitted papers with a disclaimer objecting to the archiving of their works. Plaintiffs alleged that iParadigms infringed their copyright interests in their works by archiving them in the Turnitin database without their permission.
The issue for the Fourth Circuit was whether the archiving of the students' works was a "fair use," one of the statutory exceptions to a copyright owner’s bundle of rights (17 U.S.C. § 107). In reaching its decision, the Fourth Circuit considered the four nonexclusive factors in making a "fair use" determination:
Analyzing each factor, the Fourth Circuit found iParadigms' use of the students works a "fair use" and, therefore, Paradigms was entitled to summary judgment on the copyright claim.
(1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. In this case, the Fourth Circuit found that the archiving of Plaintiffs' papers was transformative and favored a finding of "fair use."
(2) The nature of the copyrighted work. Here, the Fourth Circuit found that the second factor did not favor either party. In doing so, the Court concluded that iParadigms' use of the papers did not undermine the Plaintiffs' right to first publication, and iParadigms' use was unrelated to any creative component.
(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole. Here, the Fourth circuit found that the third factor also did not favor either party.
(4) The effect of the use upon the potential market for or value of the copyrighted work. In this case, the Fourth Circuit, noting that the transformative nature of a use is relevant to the market effect factor, also found that the market for selling the papers to other students was disavowed by Plaintiffs.
