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Policing Plagiarism = Fair Use

Four high school students from Virginia and Arizona got a lesson in copyright law when a federal court in Alexandria dismissed their case against a company that archives their school papers in order to police for plagiarism. The students sued iParadigms, the company that operates Turnitin, a system used by secondary schools and colleges to evaluate the originality of students' papers. In this case, both the Virginia and Arizona school systems required the students to submit papers via Turnitin, which would evaluate them for originality and also archive them as a basis for evaluating subsequent submissions.

The archiving, the students claimed, violated their copyrights in their school papers. But U.S. District Judge Claude M. Hilton, in dismissing their claims, said the company's archiving is fair use of the papers, one that provides "a substantial public benefit" through the prevention of plagiarism and one that actually protects the students' work, "preventing others from using Plaintiffs' works as their own."

Much of the decision dealt not with fair use, but with the enforceability of the clickwrap agreement the students signed when they registered with Turnitin. At 43(B)log, Rebecca Tushnet explains how the court handled that issue:

The court enforced Turnitin’s clickwrap agreement, which stated that users agreed not to hold it responsible for any damages they suffered from using the site, even though (1) plaintiffs included statements on their submitted work that they didn’t agree to Turnitin’s terms (too late; the clickwrap said it was the sole agreement); (2) plaintiffs were infants when they submitted their papers, and thus able to disaffirm contracts (but they can’t both benefit from the contract and disavow it, and they benefited by submitting their papers -- this seems fishy to me, though I’m not an expert in this area, since most if not all contracts signed by minors will have benefited them in the past); and (3) plaintiffs claimed duress (the duress came from third parties, their schools, and Turnitin’s not responsible; anyway, plaintiffs could have gone to private school, or moved, if they objected so strongly to their schools’ plagiarism policies).

On the copyright issue, the court got it right, says William Patry at The Patry Copyright Blog:

Regardless of my extremely negative views on the school district’s policy and its farming out of its responsibilities to a private company that imposed terrible, and non-negotiable clickwrap licenses on high school students forced to agree to them on pain of failure of flunking out of school, defendant’s use was clearly fair use. The purpose for the use was solely to check for plagiarism (however defined), and could not conceivably interfere with any market for plaintiffs’ work, nor defendant in any way meaningfully copy the works.

Read the decision and decide for yourself whether the court got it right (iParadigms has posted the opinion) or read more about it at Ars Technica.

Posted by Robert J. Ambrogi on March 26, 2008 at 09:04 AM | Permalink | Comments (1)

Comments

While all "click wrap" agreements (and technology licenses in general) are contracts if adhesion this one takes the cake. Was this "Fair Use? Probably-- IF the company never uses the papers except to crosscheck submissions. So maybe the students had the wrong cause of action. They were surely not competent to agree, they were surely under duress, so the "contact" cannot truly be binding.

But what are their damages? Being accused of cheating by implication? (or maybe actually being accused, ssuming there WILL eventually be a wrong call at some point!) would seem to be the only damages they could state.

Unless and until some insider decides to make some money "gaming" the whole process... (sort of like the "bad apple" mortgage brokers did...)whereupon there would, indeed, be a copyright violation.

But I suppose the amount of money at stake isn’t enough for this to be a huge temptation. I wonder how they vet their employees???

Posted by: Carroll Straus | Mar 26, 2008 3:34:23 PM

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