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

Check out my Fair Use Blog at fairuselaw.wordpress.
Written by Richard Koman, Contributor
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.

Editorial standards