Questions & Answers (In Plain English)®

Question: Some school districts require students to submit their papers through the turnitin.com website, which is used to determine whether such papers have been plagiarized. The website compares submitted works against its database of Internet content, commercial databases of articles and periodicals, and previously submitted works. After the site reviews the submitted papers, it may, if permitted by the school district, add those papers to the site's database. Isn't reproducing a student's paper without permission an infringement?

Answer: This is precisely the question that was raised by students in the case of A.V., et al., v. iParadigms, LLC. Each of the complaining students attended schools in districts that required students to submit their papers through turnitin.com. Students not doing so would receive a "zero" grade. Papers cannot be submitted to the site unless the user agrees to a "limitation of liability" arrangement. Although each of the students included a disclaimer on the face of his/her work indicating s/he did not consent to such archiving, the site archived the students' works, and they filed suit, alleging that the reproduction of their papers without their consent is an infringement.

The court in which this case was brought (the U.S. District Court for the District of Virginia) disagreed. After upholding the validity of the Clickwrap Agreement, including the limitation of liability clause, the court addressed the infringement claim and held that such reproduction is defensible as a "fair use."

In order to determine whether an unauthorized use is defensible as a fair use, said the court, it is necessary to evaluate at least four factors, namely:

• the purpose and character of the use;
• the nature of the copyrighted work;
• the extent of copying; and
• the effect this copying has on the copyright owner's potential market for or value of the copyrighted work.

Focusing on the purpose and character of the use of the work, the first fair use factor, the court held that the work is "transformative" since the reproduction is for the purpose of preventing plagiarism, a purpose completely different than that for which the papers were originally drafted.

Referencing the second fair use factor, it could be argued that a student paper is never intended to be copied without first obtaining the student's permission. The court, however, held that this factor favored neither party, since iParadigm uses the work only for comparative purposes and does not make any use of the creative aspects of the student's work.

With regard to the extent of copying, since the entire paper is copied, it is clear that the result of this factor would ordinarily favor the complaining student, but the court held that since the paper can be viewed by the teacher only when a plagiarism alert occurs and only for the purpose of comparing the works, this factor also favored neither party.

When the effect the reproduction would have on the copyright owner's market is considered, it becomes apparent that the site's reproduction of the student papers is for comparative purposes only. Further, the papers are not publicly accessible or disseminated. The court actually felt that the defendant's use helped the plaintiffs, since it helped prevent their papers from being plagiarized.

The plaintiffs argued that it does prevent them from selling their works to websites that purchase original high school papers to sell to other high school students, but the court held that the plaintiff's argument runs counter to the Copyright Act's purpose of encouraging creative original work.

After considering all of the factors, the court held that the copyright owner would have no viable claim and that iParadigms should enjoy a fair use defense.

At least one commentator has suggested that the copyright in and to a student paper may actually belong to the school attended by the student, but it is well settled that the arrangement between the student and the school attended by that student is based on contract. Thus, the school would own the copyright if the application the student signed in order to attend the school made it clear that, as part of the contractual arrangement between the school and the student, the student will assign the copyright in and to any work created by the student during the time s/he is attending the school. Absent any arrangement indicating that the student's copyrights are automatically conveyed to the school, the student would retain the copyright in and to any works created by him/her.

Unfortunately, this conclusion does not end the story since use of a student's copyrighted work for purposes of determining whether the work was actually created by the student and not plagiarized from another is, said the federal court, a fair use of that work and, thus, not actionable. Since this court's decision may not be followed in other jurisdictions, teachers or school districts desiring to take appropriate precautions should obtain an assignment from the student of the copyright in and to works submitted while attending the academic institution. With this form of express agreement, students would be prevented from raising any questions of infringement. Without such an assignment, the teacher or institution would be forced to rely on the fair use doctrine as set forth in the statute and interpreted by the courts.