TurnItIn's archiving of student papers is fair use, court says

TurnItIn's archiving of student papers is fair use, court says

Summary: Check out my Fair Use Blog at fairuselaw.wordpress.

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Check out my Fair Use Blog at fairuselaw.wordpress.com

iParadigms' TurnItIn.com is a service marketed to high schools and colleges in which student papers are entered into a database and then pattern-checked for signs of plagiarism. Several students in Northern Virginia came up with a clever attack on the service: a lawsuit claiming copyright infringement.

But iParadigms argued their use of the student papers was fair use and not a copyright infringement. The District Court agreed and granted summary judgment in iParadigms' favor.

Last week, the Fourth Circuit Court of Appeals (decision - PDF) upheld the district court's decision. The case adds some interesting perspective on fair use doctrine.

By statute, courts must consider four factors in determining if there was fair use. Here's a look at how the court addressed each of the factors.

1. Tranformation

Despite the Supreme Court's warning that the fourth factor, the impact on the market for the original work, is the most important factor, I would argue that it is this idea of a transformative alteration of the work that is most important as it pervades all four of the factors.

As decent a definition is Pierre Leval's in his Harvard Law Review article, Toward a Fair Use Standard (103 Harv. L. Rev. 1105): A transformative use is one that "employ[s] the quoted matter in a different manner or for a different purpose from the original."

In the TurnItIn case, this is pretty much a no-brainer: iParadigms takes student works (in this case, fictional works and poetry) and transforms them into data in a database. They don't seek to publish them as works of art; in fact, they keep them secret in their archives. Thus the District Court found TurnItIn's use to be "highly transformational."

The plaintiffs argued that as a commercial use, TurnItIn is "presumptively an unfair exploitation" (citing the famous Sony decision. Importantly, the Fourth District said that it's important not to put too much weight on commercial usage, since many otherwise fair uses happen to have a commercial aspect. (Indeed, today, every website has ads and is thus commercial.) Bottom line: Commercial use is not a presumption but a factor to be weighed in the overall context.

Another objection: TurnItIn isn't transformative because it doesn't add anything to the work: it just takes it, archives it, compares it. Nonsense, the court said: Transfomativeness can be in function or purpose as well as content.

Yet another: TurnItIn fails to effect its goal because in a few cases, it makes errors. Not good enough, the court said: a few isolated failures doesn't make the system ineffective but if there were a showing of substantial failure to do what it claims to do, that would tend to weigh against this factor.

2. Nature of the Work

This factor goes to whether the work is fictional or factual (with more copyright protection given to fictional works.) The works here were fictional but this is offset by the fact that TurnItIn had no intent and in fact did not compete with the students' abilities to sell their works (big market for high school fiction, I'm sure!) Another issue is the fact that the work was unpublished. If TurnItIn had published before the students could, that would be a strong sign of copyright infringement. But here, there was no publishing.

Score the factor as neutral

3. Amount used of the whole

At first glance this seems to go in the students' favor, since the works were used wholesale (indeed that is the point of the service) but again, since the use is entry in a comparison database, the factor comes up neutral.

4. Effect on the Market

The test here is not "whether the secondary use suppresses or even destroys the market for the original work or its potential derivatives, but [upon] whether the secondary use usurps the market of the original work." (NXIVM Corp. v. The Ross Institute, 364 F.3d 471, 482 (2nd Cir. 2004))

This comes back to transformation. If it transformed, it hasn't supplanted the market. Again, TurnItIn's work doesn't impact a student's ability to sell her work. That is, customers might buy the original works but they won't be dissuaded by their existence in the databse. Not the case here.

Bottom Line: Data-izing student creations is covered under Fair Use; the students' copyright offense is over. Score one for an innovative (if Big Brotherish) use of the Fair Use Doctrine.

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7 comments
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  • Bad principles in action = subverted copyrights

    Fair use is a bit of a red herring, especially the so-called 'transformative' test.

    Basically, iParadigm is using complete works for its own use with the intent of improving their reputation and thus increase their future revenue stream. For this, they are paying nothing to those who upon who works they are relying for this revenue.

    It is not relevent that it is not been published by the students, otherwise that opens the door to saying unpublished works are free to be used for commercial purposes without recompense. Copyright exists in the work once given a form, regardless of whether it is 'published' for public consumption.

    It is also not relevent that iParadigms did not publish it either because we all have to buy books we use for private purposes, but that does not grant us the right to scan them and use them as source material for commercial (or ANY) purpose. Why doesn't iParadigms contract a whole lot of students to write answers to questions? That would be the fair way. Then they would know the true cost of their services.

    It is unfair to expect a person to lose the right to control how their works are used just because they are students. I think this sets up a new era of student exploitation that subverts the principles of copyright (and possibly privacy) laws.

    Priciples must be clear and upheld by all. Allowing educational institutions in conjunction with commercial interests to bypass copyright laws is a bad principle, shows lack of respect and sends the wrong message to students - you are not allowed to copy others' work for your selfish purposes, but we can copy yours for ours!


    Sometimes I wonder how students can ever learn principles with such bad examples.
    Patanjali
  • Supporting copyright

    Actually, doesn't it support the students' copyright by preventing other students from copying their works?
    rkoman@...
  • Still Using "my" work in a Commercial Enterprise

    I wouldn't expect anything less from "A Law Against Everything" Virginia...

    ? Do the students have any choice in whether their works are entered in the database.

    ? The use of the database is *sold* to schools...

    ? What about privacy issues...

    Obviously whoever said Great Minds Think Alike would never graduate in Virginia because they'd all be expelled for plagarizing each others works, whether in part or in whole!

    The work is turned in for a grade not to be published without consent in a database even if used for the sole purpose of ratting out my co-students.

    The student authors lose control of their works, and their constitutional rights, by being students in Virgina.

    Mike Sr.
    • In regards to the 2nd question; 'Do the students have..

      The answer is YES!
      Simply state on 'any' paperwork or art, "The information on this
      document is NON TRANSFERABLE in ANY MANNER. Then sign and date
      it. Make a copy for yourself and mail it to yourself if need be.
      I do something similar with request to have my name put on any list. I
      also state that they cannot share the information as well. Sometimes
      putting little tags in your personal info will let you know who didn't
      follow your request. Then you follow up with a steel rod across the back
      of the hand as a 'polite' but effective Warning!

      appletoys@...
    • Questions

      1. Yes - they agree to a clickwrap license. The
      question is, is this an unconscionable
      contract, since if they don't agree they get a
      zero in the class. I tend to think it is
      unconcscionable but the courts have found that
      this is a contract between the school and the
      student, not the company. I find this a little
      specious since iParadigms is providing the
      contract, but it is a contract issue, not a
      copyright issue.

      As far as copyright is concerned, permission is
      not required for fair use, by definition.

      The essays are reduced to digital signatures
      and not read by iParadigms employees. The data
      is not transferred beyond the school or
      iParadigms.

      The fact that is a commerical use is certainly
      one factor but not dispositive in and of
      itself.
      rkoman@...
  • RE: TurnItIn's archiving of student papers is fair use, court says

    Victory, glorious victory for http://www.papermasters.com The more TurnItIn.com drives out plagiarizing term paper mills, the happier we are!
    kjsonnenberg
  • RIAA beware!

    So how does this compare to millions of downloaders "transforming" MP3s into databases freely searchable by other "users" for their "comparison" purposes?

    Looks like they may have set a precedent for use against RIAA...?
    z33511@...