Judge Dismisses Student Lawsuit Against Plagiarism Detection Service
A group of Virginia high school students who sued a plagiarism detection service on the grounds of copyright infringement has had its case dismissed. Ironically, the judge concluded that the company’s storage of student researcher papers constituted fair use.
You may recall a blog post I wrote way back in September 2006 on a service called Turnitin, owned by a company known as iParadigm. Turnitin contracts with schools to examine student writing assignments and search for potential instance of plagiarism using digital content analysis algorithms. Students in McLean, VA, however, objected to Turnitin on copyright grounds. They were angry that their writing assignments would be held in perpetuity within Turnitin’s databases, and that the company reserved the right to use their work in other contexts.
Eventually, the students sued the company, joining up with students in Arizona. This month, district court judge Claude M. Hilton threw out the case. The ruling contains several arguments against the students’ position that are well worth examining.
For one thing, the court sided with Turnitin because students participating in the service had all set up accounts on the Turnitin website and agreed to its terms of service, known in legal parlance as a “clickwrap agreement.”
The Court finds that the parties entered into a valid contractual agreement when Plaintiffs clicked “I agree” to acknowledge their acceptance of the terms of the Clickwrap Agreement…. The Clickwrap Agreement provides that iParadigms will not be liable for any damages “arising out of the use of this web site.” By clicking “I Agree” to create a Turnitin profile and enter the Turnitin web site, Plaintiffs accepted iParadigm’s offer and a contract was formed based on the terms of the Clickwrap Agreement. Because a limitation of liability clause was among the terms of the Agreement, the Court finds that iParadigms cannot be held liable for any damages arising out of Plaintiff’s use of the Turnitin web site, which includes the submission and archiving of their written works.
The students, meanwhile, acknowledged that they had indeed accepted the site’s terms of service, but claimed they had no choice. If they didn’t agree to the terms, they couldn’t submit their writing assignments and would receive a failing grade. Thus, they argued that they agreed to the terms of service under duress. But the judge would have none of it.
Though Plaintiffs plead duress, there is no evidence that anyone was coerced in any fashion by Turnitin or iParadigms…. Schools have a right to decide how to monitor and address plagiarism in their schools and may employ companies like iParadigms to help do so. As the Supreme Court has recognized in the constitutional context, “the rights of students in public schools are not automatically coextensive with the rights of adults in other settings” and the “rights of students must be applied in light of the special characteristics of the school environment….” If Plaintiffs’ objection is that their schools’ policies requiring students to use Turnitin are wrongful, Plaintiffs’ proper redress is with the school systems.
Meanwhile, there was the issue of copyright. The students’ lawyers argued that Turnitin’s policy of storing full copies of their writing assignments was a copyright violation, while iParadigms took the position that they were engaging in fair use. I’ve discussed fair use on a variety of occasions on this blog, but as a quick refresher course, the idea behind it is that people can potentially reuse other people’s creative works if it is done so in a transformative way, such as conducting a critique or creating a parody of it, and that it doesn’t harm the original creator’s ability to make money from it.
In what might be seen as a somewhat unexpected move, the judge ruled that iParadigms’ storage of student writing assignments was indeed a form of fair use. He based part of his decision on a previous court case in which Google was sued for using thumbnail images from another website as part of its search results. In that case, the judge sided with Google, arguing that displaying thumbnail images within search results was fair use of the original content, even though technically the thumbnails were complete versions of the original images (albeit in miniature) and that Google was doing it as a commercial entity.
Judge Hilton wrote in his decision:
iParadigms, through Turnitin, uses the papers…to prevent plagiarism and to protect the students’ written works from plagiarism. iParadigms achieves this by archiving the students work as digital code and makes no use of any work’s particular expressive or creative content beyond the limited use of comparing with other works. Though iParadigms makes a profit in providing this service to educational institutions, its use of the student work adds “a further purpose or different character to the works…and provides a substantial public benefit through the network of educational institutions using Turnitin. Thus, in this case, the first factor favors a finding of fair use…. In this case, it is clear that iParadigms uses the entirety of the original works. In order to be successful in its plagiarism detection services, it must. However, the use of the original works is limited in purpose and scope.
I wouldn’t be surprised at all if the students try to appeal the dismissal. I also find it fascinating, and somewhat ironic, that the judge considered the preservation of the students’ body of work as a fair use, as educators around the country are prevented by their school districts’ attorneys from utilizing even the smallest slices of copyrighted works because of fears of violating fair use. It would be interesting to have some of those attorneys read this particular ruling and see if it impacted their conservative stance on fair use. My guess is probably not. -andy