plagiarism-detection software system
The McLean, Va. High School students whose copyright infringement lawsuit
against iParadigms, LLC and its
on summary judgment on March 11 have filed a notice of appeal [PDF]
to the Fourth Circuit
Court of Appeals.
That was likely a surprise to iParadigms, whose CEO John Barrie confidently
that hell would freeze over before the students would
appeal. Yet, appeal they have. So this story isn't over yet.
District Court Judge Claude Hilton's Opinion [PDF] ruled
that Turnitin's use was highly transformative
and hence fair use; that
is one of the issues that will be appealed, as Robert Vanderhye, the
attorney representing the students pro bono, explained to me in an email
judge held, and what we are appealing, are (1) if a minor clicks on to
the Turnitin.com website he/she is bound by the conditions of the
"Agreement" even if it denies the student the ability to enforce his/her
copyright, and (2) as a matter of law the Turnitin use is transformative
so that it is fair use instead of copyright infringement.
With respect to the first, we submit that the Court misinterpreted
Virginia law, and did not apply the controlling Virginia cases that we
With respect to the second there clearly are facts in dispute. Among
the facts in dispute are a) does the Turnitin system work to deter
plagiarism, or does it actually encourage plagiarism since it is so
easily avoided by anyone who really wants to plagiarize; b) is the
Turnitin system so insecure that students papers can easily be recovered
by a hacker so as to easily allow theft of the students' works, or for a
criminal to use information contained in student works against them; and
c) how can the Turnitin use be transformative when they will send a
student's work verbatim to someone outside the student's school system
without the student's permission, or even knowledge. Also, with
respect to the second point, Turnitin violates the FERPA since student
names, schools, and personal information are usually on the student
works; since it violates FERPA as a matter of law the Turnitin system is
against the public interest, and therefore there can be no fair use.
He mentions that there are facts in dispute because a court is only
supposed to grant summary judgment if the pleadings and supporting
documents, when viewed in the light most favorable to the non-moving party,
show that there is no genuine issue as to any material
fact. Fed. R. Civ. P. 56(c).
The major issues being appealed then are: Was it error to dismiss this
lawsuit on summary judgment? Can minors lose copyright rights, because of
clicking "I agree" to an agreement that their schools compelled them to
agree to? What about the privacy issues under the Family
Educational Rights and Privacy Act (FERPA)? But the key question is,
Is this fair use?
iParadigms' point of view, one that the lower court agreed with, is that a
lot of high schools
and universities use this software and rely on it. They find plagiarism
goes down significantly. Turnitin isn't using the creative parts of the
papers for commercial gain, the judge said; it's a system of integrity
checking. And that's a transformative use.
Similarities between Google Books and Turnitin:
- The computer does the copying, not humans.
- Both archive complete copies of the works.
- Neither gets the works directly from the copyright holder.
- Both claim the use is transformative.
- The students are minors.
- There are arguably privacy issues with Turnitin.
- The student papers are unpublished works.
- The conceivable market harm is distinguishable.
- There is no way students can opt out. Any author can opt out of Google
- Turnitin represents itself as a system for protecting copyrights.
For that matter, so is Google
Books, in that it's a kind of digital card catalogue, letting us know where
to find books with information we want. In Perfect 10,
Inc. v. Google, Inc.
(the thumbnail photo case, hence another
works-in-a-computer-database fact pattern) the court found that, too, was
transformative and hence fair use. Judge Hilton notes this finding in his
order on page 13. The photos had one purpose originally, the court
found, but putting
them into a database was something not originally intended, and the search
engine "provides a social benefit by incorporating an original work into a
new work, namely, an electronic reference tool." The purpose is limited
and the works are used only for comparative purposes that provide a social
benefit. He does mention the exception to that, however, in that if there
is a request to see the work a student's paper allegedly seems to have
plagiarized, a teacher can obtain that work to evaluate. Hence the appeal
over archiving by students who don't want their works used that way.
the students have issues about having to use the system, they should take
it up with the schools, the judge ruled, because that is who is giving
Turnitin authority to do what they are doing with these student papers, and
the schools had the right. As for fair use, Judge Hilton found that this
was a transformative use, and he
quoted a definition of transformative from a case, Harper &
Row Publishers, Inc. v. Nation Enterprises, to mean that it "adds
something new, with
a further purpose or different character". If use is transformative, he
it's "strong evidence" that the use is fair use.
iParadigms has on its website a
opinion [PDF] it commissioned from Foley & Lardner.
Fair use is a bit hard to pin down. Even the legal opinion notes that fair
use is very much dependent on the facts of each
Determining whether a copyright exists in a particular work or is infringed
by a particular use of the work is difficult. The analysis is so
fact-specific that relatively minor variations between the facts of
superficially similar cases often lead to diametrically different
To grasp the students' point of view, imagine if a company decided to
offer a service to check for infringed code, so it collected all the
world's proprietary software it could get its hands on, without permission
from the original authors. Say it got copies from the world's libraries.
And there was no way to opt out.
Now, imagine that if the software thought it found a match, you could
request to see the proprietary code that it was thought to infringe. Do
you think the proprietary software companies or the authors of that code
would view that as a transformative fair use?
The crux of the students' issue, then, is the archiving. They don't want
their papers to remain in the system, even if they must submit them for
originality review. It bothers them that iParadigms archives the students'
manuscripts and then uses them for profit, while they, the students, lose
control over their own work without getting any compensation. The students
have their own website, Don'tTurnItIn.com, and they have some
additional court filings available there.
A lot of commentary so far has cited
Judge Hilton's ruling, because of its fair use arguments, viewing the
opinion as perhaps being helpful to Google in the litigation brought against it by the Author's
Guild and others regarding Google
Books, and I'm sure you can see why. But there are significant
Some have argued that copyright law is out of date in a digital world,
the Internet being nothing but one huge copying machine. Computers copy,
and so some suggest it would be more logical and less damaging to penalize
wrongful distribution, not copying. In that sense, the judge's ruling was
quite progressive. Indeed, it's hard to read his opinion without
concluding that to Judge Hilton, copying by a computer isn't a problem, so
long as human eyes are not involved, the use is transformative, and there
is no distribution for profit or any market harm.
In iParadigm's Counterclaims
[PDF], there were several other causes of action, trying to mold the facts
into a claim of "trespass to chattels" and even claims of violations of
the Computer Fraud and Abuse Act, as well as Virginia's Computer Crimes
Act. Those are serious allegations. On the first, the assertion was that
the plaintiffs allegedly used nyms like 'Rube Goldberg' and
'Perpetual Motion' to improperly file papers in the Turnitin system without
The court dismissed those counterclaims, pointing out that you have to
prove actual damages and, in the case of trespass to chattels, some
impairment of quality or condition or use. It's a bit hard to come up
with a dollar figure for how harmed one is by someone's use of a nym. As
for filing the papers without authority, where's the financial harm, the
Trespass to chattels in
meat space is like someone taking your car for a joy ride, getting into a
fender bender, and then bringing the car back without fixing the fender or
even filling the gas tank back up. Not only is the car damaged, but you
didn't have use of it while it was out being driven around, and so you
couldn't drive it to the airport yourself as you intended and missed your
job interview. And it's your car, your personal property, which is what chattel
Like many other legal concepts, it has been applied to digital world, as if
physical property and intellectual property are identical, and in some
ways, it fits. AOL was an early trailblazer in using trespass to chattels
successfully against spammers, arguing that the
sheer volume of emails interfered with their being able to use their own
system as intended to service their real customers properly (here's one
iParadigms also claimed that the terms of their Usage Policy provided
for indemnification to iParadigm arising out of any use of the Turnitin
website. It also has a user agreement that you are confronted with and must
click "I Agree" to in order to submit papers to Turnitin. The judge made a
distinction between the user agreement and the Usage Policy, however,
noting that there was no "I Agree" to the Usage Policy or any evidence that
the students saw it, and it was not referenced or incorporated into the
user agreement. So he decided that while the students were bound by what
they said "I Agree" to, they never agreed to the Usage Policy. But the
appeal asks whether these minors ever gave a legally binding assent, since
their "I Agree" was really "My School Says I Have to Agree". In some
respects, this EULA issue may be as interesting to track as the fair use
to post comments)