iParadigms, the company that offers the Turnitin service, which is popular among teachers and professors to help check student’s work for plagiarism, won a critical copyright infringement lawsuit filed by four students.

The students, who had had their works archived in the Turnitin database after being submitted for a check by their instructor, claimed that the service violated their copyright by storing their work without permission and using it as part of a for-profit business.

The ruling, embedded below, found that iParadigms had not violated the student’s rights. However, the logic behind the ruling is very interesting and may have implications that go far beyond iParadigms and plagiarism checking software in general.

Reasons For The Ruling

The students, for their part, had two different elements to their complaint.

1. That the contract they signed with iParadigms, which was required as part of taking the course, was invalid.
2. That the use of their work in the database was a violation of their copyright.

The judge, Claude M. Hilton, ruled in favor of iParadigms on both elements and dismissed the case.

In regards to the first element of the claim, the judge ruled that the agreement was valid and that it protected iParadigms from the lawsuit. The license, delivered in the form of a click-wrap, said in part the following:

“In no event shall iParadigms, LLC and/or its suppliers be liable for any direct, indirect, punitive, incidental, special, or consequential damages arising out of or in any way connected with the use of this web site….”

According to the ruling, the students could not escape the license simply because they were minors since they benefited from the agreement. The agreement was not coerced since options were available and, according to the judge, the schools have the right to how to address plagiarism issues. Finally, student attempts to modify the contract by writing disclaimers on their paper did not alter the agreement.

But while Judge Hilton could have easily left the matter there and tossed the suit on those grounds alone, she also decided to offer insight on the fair use argument presented by iParadigms as a defense should the contract argument have failed.

On that matter, the judge said the following:

1. While “iParadigms makes a profit in providing this service to education institutions its use of student works… iParadigms provides a substantial public benefit through the network of educational institutions using Turnitin.â€?
2. That iParadigm’s use of the work was “Highly transformative” and similar to the Perfect 10 v. Google case. Thus, there is even less emphasis on the commercial aspect of Turnitin’s service.
3. “It is clear that iParadigms’ use of the Plaintiff’s works has caused no harm to the market value of these works.”
4. “Considering all four factors, the Court finds that the iParadigm’s use of the Plaintiff’s written works constitute fair use.

In short, the court ruled that the use of the essays in the Turnitin database was, very overwhelmingly, fair use and not infringing upon the students’ rights.

Implications for the Rest of Us

Though the ruling is an obvious defeat for the students, what it means for the rest of us is much less clear.

The most important elements of the ruling, namely the contract elements, have a very narrow application in that they are targeted toward students in colleges or universities. However, it does strongly reinforce the validity of click-wrap licenses and remind all of us of the importance of reading the terms of service for a site before we click “I Agree”.

Since the fair use decision relied heavily on well-known and closely-followed rulings, especially Perfect 10 v. Google, there is little new to the decision, especially as it impacts how Web sites interact with search engines and other databases.

However, the one “change” it might bring about is bolstering the legal protection of “private” plagiarism-checkign services. Companies such as Attributor and Blogwerx index the Web but not simply to aid in public searching of the Web, but to help their clients, from whom they profit, detect plagiarism of their work.

While the process is similar to Google, some had worried that the differences between these private search engines and the better-known ones could create issues. However, the fair use analysis in this case strongly favors such services.

Obviously each and every case will be weighed on its own merits, but in the area of fair use and search engines, there is a surprising amount of case law and it is fairly clear where the courts are likely rule, much more so than with more traditional fair use issues.

The good news is that this ruling makes it even more likely we’ll see great plagiarism-fighting services in the coming months and years. On the down side, it does mean that we can expect broader “private” database copying of our work.

But if the ruling is to be taken at face value, that isn’t much to worry about. Even the plaintiffs in the case were unable to show any harm to the market of their work.

It seems unlikely that, if called upon, we could show significant harm either, at least so long as the use of the work exclusive to the purpose of finding matches.

Conclusions

Legally, I think the ruling is very sound. All of the elements of the decision were based on previous legal opinion and were applied fairly. I think the judge in this case showed a great deal of understanding of the complexities of the issue and, though I was hard on iParadigms in my earliest writings on the topic, I feel that this was the appropriate ruling for the law.

However, that being said, there is an emotional response to this. It makes me uneasy that students participating in a public school can be forced to sign contracts, despite being minors, requiring them to surrender their work to be archived in a database for another party’s profit.

Though the ruling talks about choices that the student has, namely home schooling or private schools, and the benefit they obtain from the contract, namely passing the class, it is hard to see how, in practical terms, the students had much of either. They did not choose the school, they not choose to take the class and, for most, private school or home schooling is not a practical option.

As correct as the ruling was, it may be time to re-evaluate the rights a student has in their work within a classroom setting. Though I agree that schools should have the right to decide how to check their students’ work for plagiarism and that the fair use analysis was appropriate by itself, it seems to me that elements of this ruling might have implications that go far beyond just plagiarism checking software.

When courts can rule students have “choice” in required classes in a public school and gain “benefit” by simply allowing them to pass, they can push students to do many other things than agree to a clickwrap license. I find that worrisome.

It was the right ruling for the case, I just hope it does not have unintended consequences.

However, I would be very interested in hearing other’s thoughts about this.

Further Reading

iParadigms Earlier Press Release
©ollectenea’s Article