Afroditi Theodoridou is a PhD student at Osgoode Hall Law School.
On April 16, 2009, the United States Court of Appeals for the Fourth Circuit affirmed the district court’s decision in favour of iParadigms who operates the “Turnitin Plagiarism Detection Service”. This online system evaluates the originality of submitted written assignments by comparing them with content available on the Internet, previously submitted student papers, and journal databases. Turnitin also offers an “archiving” option so that the submitted assignments become a part of its database, if so requested by the educational institution. In order to submit a paper, a student has to agree to iParadigms’ “terms of agreement”. Four high school students had sued iParadigms for copyright infringement for archiving their submitted works. Although their respective submitted papers included an objection to the archiving of their works, the courts found that these disclaimers did not “modify the Agreement”.
More importantly, the courts found “fair use” in favour of iParadigms. The opinion of the US Court of Appeals for the Fourth Circuit is a good example of how important it is to thoroughly test any use in question against the four factors that guide the fair use analysis (17 U.S.C. § 107). Both courts emphasized the first factor, “the purpose and character of the use”. They found Turnitin’s comparative use of the submitted student papers to be “highly transformative” as its purpose is the prevention of plagiarism and it “provides a substantial public benefit through the network of educational institutions using Turnitin”. As to the second factor, “the nature of the copyrighted work”, the courts held that iParadigms used the student papers for comparison purposes only and “iParadigms’ use was unconnected to any creative element in plaintiffs’ works”. For the third fair use factor, “the amount and substantiality of the portion used in relation to the copyrighted work as a whole”, the courts held that although iParadigms used the entire student works, the uses are limited by the comparative purpose. Referring to the fourth factor, “the effect of the use upon the potential market for or value of the copyrighted work”, the courts found that iParadigms’ online detection system “did not serve as a market substitute”.
The textbook-like application of fair use by the courts in this case shows how central the interplay of all factors is. The courts reached their decisions by skillfully weighing the factors together.
This is certainly a case that also shows that technology works both ways. In recent years, it has become easier for students to plagiarize. The Internet in general, and Google, Wikipedia, educational CD-ROMs, electronic journals, in particular, lure students to plagiarize. Twenty years ago plagiarism would have been more cumbersome. With the increase in plagiarism, detecting devices, such as Turnitin, came along. The present case demonstrates that the fair use doctrine is flexible enough to accommodate new technologies.
A final but noteworthy remark! Should the court have not found fair use in this case, then it would have meant a victory for plagiarism. This decision illustrates how the affirmation of fair use in the present case, fulfills copyright’s very purpose, namely “to promote the Progress of Science and useful Arts” and to foster creativity. By making it inconvenient and risky for students to plagiarize, the court aids in preventing the unauthorized use of others’ intellectual labour and efforts. If students do not want to risk sanctions for plagiarism, they will have to write the papers themselves, resulting in original and creative papers. I would say that fair use did a great job here.
2 Responses
Great news for fair use! We agree!
Just as you said the courts did a great job of, “skillfully weighing all the factors together.”
So often we see confused media makers claiming that if you use a work in its entirety you can’t claim fair use with. This is just such a great example that that is not always the case.
And for those teachers out there who want a bit more clear set of guidelines visit our website: centerforsocialmedia.org/medialiteracy for our Code of Best Practices in Fair Use for Media Literacy.
Thanks for the article!
I’m going to disagree with the recent decision in this case. Aside from the fact that I think the fair use factors should have been decided differently there are major contracts issues as well as privacy issues that the court and iparadigm failed to properly address. I’ll summarize my argument based on an essay I wrote covering the lower court’s decision because it is basically the same as the more recent decision.
Let’s start with the first factor, the purpose and character of the use which typically leads to a discussion as to whether the use was “transformative.” Turnitin’s use of student papers is hardly transformative. The papers are the same before and after Turnitin’s use. Compare this to two cases that also analyzed fair use. Campbell created a parody of a song which is inherently transformative and Google created thumbnails of Perfect 10 images. Turnitin on the other hand has created nothing.
This same logic applies to the analysis explaining that fighting plagiarism provides a public benefit. Similar language was used in Campbell, but the court was clear to point out that the social benefit was in a new work being created. Again, Turnitin doesn’t create a new work. As for purpose and character of the use – Turnitin is a for profit commercial venture. This fact can be compared to Google which is also for profit, but one distinction sets these cases far apart. Google provides its search services for free whereas Turnitin charges schools thousands of dollars.
Moving on to the nature of the copyrighted work we learn from Campbell that “some works are closer to the core of intended copyright protection that others.” Campbell actually found this factor to be of little use, but iParadigms found this factor to either favor neither party or to favor Turnitin. Perfect 10 on the other hand found that it favored the content creator. The reason for this is because iParadigms followed the Blum decision and looked to see whether “the incentive for creativity ha[d] been diminished.” In my opinion this makes sense and all evidence suggests that the incentive of the students has not been diminished because of Turnitin. This is the only factor that should have been decided in favor of Turnitin (keeping in mind of course that all four factors must be taken into consideration together).
The third factor calls into question the amount and substantiality of the portions used. The court in iParadigm again finds that this factor either favors neither party or favors Turnitin. This is despite the fact the Turnitin relied on Perfect 10 where the judge clearly said the factor favored neither party. With such similar facts this discrepancy is worth noting.
The fourth factor is where I disagree the most with iParadigm. Here we look at “the effect of the use upon the potential market for or value of the copyrighted work.” The court only discusses the potential market of black market essay sales and ignores the much more obvious potential market. Turnitin makes millions of dollars a year by marketing its vast collection of student papers. The “potential” market is staring us right in the face it is called a competitor to Turnitin. With Turnitin taking the student papers for free it completely obliterates the value of the papers to a competing anti-plagiarism service. On top of this Perfect 10 also mentions the right of first publication. Given that Turnitin can send student papers to professors across the country – without the student’s knowledge – this severely limits the ability of a student to honestly say that their paper has never been released to the public.
Needless to say I am disappointed with the decision of the appeals court. I don’t deny the existence of plagiarism or the need to detect it, but Turnitin is not the way to do it.
If you want to discuss the privacy issues that Turnitin violates (such as COPPA and FERPA) I would be happy to. I would also be happy to discuss the contracts issues that pertain to this case in other forum.
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