Afroditi Theodoridou is a PhD student at Osgoode Hall Law School.
On April 16, 2009, the United States Court of Appeals for the Fourth Circuit affirmed the district court’s decision in favour of iParadigms who operates the “Turnitin Plagiarism Detection Service”. This online system evaluates the originality of submitted written assignments by comparing them with content available on the Internet, previously submitted student papers, and journal databases. Turnitin also offers an “archiving” option so that the submitted assignments become a part of its database, if so requested by the educational institution. In order to submit a paper, a student has to agree to iParadigms’ “terms of agreement”. Four high school students had sued iParadigms for copyright infringement for archiving their submitted works. Although their respective submitted papers included an objection to the archiving of their works, the courts found that these disclaimers did not “modify the Agreement”.
More importantly, the courts found “fair use” in favour of iParadigms. The opinion of the US Court of Appeals for the Fourth Circuit is a good example of how important it is to thoroughly test any use in question against the four factors that guide the fair use analysis (17 U.S.C. § 107). Both courts emphasized the first factor, “the purpose and character of the use”. They found Turnitin’s comparative use of the submitted student papers to be “highly transformative” as its purpose is the prevention of plagiarism and it “provides a substantial public benefit through the network of educational institutions using Turnitin”. As to the second factor, “the nature of the copyrighted work”, the courts held that iParadigms used the student papers for comparison purposes only and “iParadigms’ use was unconnected to any creative element in plaintiffs’ works”. For the third fair use factor, “the amount and substantiality of the portion used in relation to the copyrighted work as a whole”, the courts held that although iParadigms used the entire student works, the uses are limited by the comparative purpose. Referring to the fourth factor, “the effect of the use upon the potential market for or value of the copyrighted work”, the courts found that iParadigms’ online detection system “did not serve as a market substitute”.
The textbook-like application of fair use by the courts in this case shows how central the interplay of all factors is. The courts reached their decisions by skillfully weighing the factors together.
This is certainly a case that also shows that technology works both ways. In recent years, it has become easier for students to plagiarize. The Internet in general, and Google, Wikipedia, educational CD-ROMs, electronic journals, in particular, lure students to plagiarize. Twenty years ago plagiarism would have been more cumbersome. With the increase in plagiarism, detecting devices, such as Turnitin, came along. The present case demonstrates that the fair use doctrine is flexible enough to accommodate new technologies.
A final but noteworthy remark! Should the court have not found fair use in this case, then it would have meant a victory for plagiarism. This decision illustrates how the affirmation of fair use in the present case, fulfills copyright’s very purpose, namely “to promote the Progress of Science and useful Arts” and to foster creativity. By making it inconvenient and risky for students to plagiarize, the court aids in preventing the unauthorized use of others’ intellectual labour and efforts. If students do not want to risk sanctions for plagiarism, they will have to write the papers themselves, resulting in original and creative papers. I would say that fair use did a great job here.