Sunday, June 28, 2009

A 4th Circuit Copyright Decision that Stretches Fair Use Too Far?

A.V. v. iParadigms, LLC, No. 08-1424 (4th Cir. Apr. 16, 2009) involved a company that offers an on-line anti-plagiarism service to high schools and colleges who want to make sure their students aren’t cheating.

iParadigms signs up schools for a fee. The schools then require their students to submit all their term papers through iParadigms’ “Turnitin” program. The program stores the papers and compares them to content on the Internet and with all previously-submitted papers and other materials in the database it keeps. The service then creates an “Originality Report” for the school, suggesting how much of the work, if any, is not original.

Some students challenged whether this service violated their copyrights in their papers. The decision addressed many issues, but one of the key disputes was whether iParadigms’ service fell within the fair use provisions of 17 U.S.C. § 107.

Perhaps the most controversial part of the ruling was on the first fair use factor: “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” Keep in mind that iParadigms is a for-profit company that enjoys millions of dollars of revenues from “Turnitin” and that it does not alter the papers in its database in any way. So one would think that with a for-profit motive and no physical transformative use, this factor disfavors fair use, right? Wrong. The 4th Circuit held that the purpose of unauthorized copying was transformative (iParadigms’ purpose was plagiarism detection, not the creative purpose of the students) notwithstanding that it didn’t alter the documents. And this transformative “purpose” trumped the fact that iParadigms raked in beaucoup $$ from its program.

The rest of the opinion is worth reading too. See if you don’t get the impression, like I did, that this was a result-driven decision (teaching students that plagiarism is wrong is a good thing, right?).

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