In a recent decision by the Court of Appeals for the Fourth Circuit, the court decided that the anti-plagiarism service provided by iParadigms at turnitin.com, did not constitute copyright infringement of high school students' papers submitted via the service. Instead, the court held the service was a fair use of the copyrighted works and therefore not infringement under § 107. However, the court reversed and remanded to a district court on the issue against a student for liability under the Computer Fraud & Abuse Act for allegedly unauthorized access to its servers based on one student's use of a password meant for students from another school obtained via the internet.
More on A.V. v. iParadigms, LLC after the jump.
iParadigms provides a program called Turnitin to subscribing schools to allow teachers, mainly high school and college, to check whether papers submitted by students contain plagiarized content. Students' papers are submitted online and then screened against a database of previously-submitted papers to determine whether there is evidence of plagiarism. Plaintiffs are students asserting copyright protection to submitted papers for which they specifically requested that iParadigms not archive in its database for future use to compare for potentially plagiarized papers. Each of the Plaintiffs' high schools use the Turnitin system, and one of the Plaintiffs acquired a sign-on to Turnitin posted on the internet for students at University of California at San Diego and submitted papers using that password rather than the one assigned by the high school.
The district court granted summary judgment to iParadigms on the copyright infringement claims, holding the Turnitin system was a fair use of the submitted papers. The court also granted summary judgment to the Plaintiffs on iParadigms' counterclaims under the Computer Fraud and Abuse Act (and a related Virginia statute), holding there was no evidence of economic damage suffered by iParadigms by the use of an improper login by one plaintiff. Both sides appealed.
On appeal, the Fourth Circuit first considered the Plantiffs' copyright infringement claim. The court applied the four "fair use" factors to determine whether iParadigms archiving of students' papers for screening against future submissions of other students constituted permitted fair use of a copyright or constituted copyright infringement. The first factor considers the purpose and character of the use (i.e., commercial versus nonprofit educational). The court recognized there is commercial purpose behind iParadigms' archival and use of students' papers; however, it recognized that this factor is not alone determinative and placed importance on the transformative nature of iParadigms' use of the papers for a different function or purpose of preventing plagiarism. Accordingly, the Fourth Circuit agreed with the district court that this factor favored a finding of fair use.
The second factor considered by the Fourth Circuit was the nature of the copyrighted work. The court emphasized that the fact that the students' work was unpublished did not weigh against fair use by iParadigms as iParadigms did not disrupt the students' right to its first publication of the works. Additionally, the court emphasized that iParadigms' archival of the works was not related to the creative expression of the works. The court agreed with the district court that this factor was neutral in the analysis.
The third factor considered by the court was the amount and substantiality of the work used by iParadigms. Although the general rule for this factor is that as the amount of work used increases the likelihood of fair use decreases, this was not dispositive in this case. Despite the fact that iParadigms used the entire paper submitted by students, the court emphasized the purpose of keeping digital records of the papers for future comparison and determined that this factor also did not favor either party.
The fourth and most important factor in the fair use test is the effect of the use on a market or value of the copyrighted work. The court rephrased the question as whether iParadigms' use of the works "would materially impair the marketability of the works and whether it would act as a market substitute for them." The court ultimately determined that because the only market for the works would be to resell them to other students (to which the students admitted they would not engage in as it was dishonest), the court found no damage to potential markets by iParadigms' archival of the student papers. Therefore, this factor weighed in favor of a finding of fair use.
After applying the four fair use factors, the court determined that iParadigms' use of the students' papers was a fair use under the Copyright Act, entitling iParadigms to summary judgment on the issue of copyright infringement.
Then the court addressed iParadigms' cross appeals against the Plaintiff A.V. (a minor student who improperly accessed the Turnitin program) for violation of the Computer Fraud & Abuse Act and the Virginia Computer Crimes Act for willfully accessing computer services by false pretenses. The claims were dismissed by the district court due to a lack of actual economic damages shown by iParadigms. However, on appeal, the court remanded on these two claims, stating that the damages suffered by iParadigms could include more than economic damages alone, such as consequential damages. After iParadigms was made aware of the improper access, it initially thought a software bug was the issue, and spent resources attempting to identify a problem in its programming. The Fourth Circuit held this could provide the necessary damages necessary to support a CFAA claim, and remanded to the district court to determine whether the claim otherwise had merit.
To read the full decision in A.V. v. iParadigms, LLC, click here.