I wrote almost exactly a year ago about the lawsuit against Turnitin.com filed by several Virginia high school students, alleging that the anti-plagiarism service violated the students’ intellectual property rights. Then, I said, “Does Turnitin have a valid defense? There are two likely possibilities: fair use, and license.” My predictions (unlike, say, my stock picks) have turned out to be eerily prescient.
Andy Carvin reports today that the students have lost their suit, when U.S. District Court Judge Claude Hilton (Eastern District of Virginia) granted summary judgment to the defendants [PDF document] on the copyright claims of the students.
Technically, I was wrong about the license issue: to be precise, the court found that the “users” (i.e., the students) had agreed to a “click-wrap” contract which waived all liability of any kind by the defendants. (Note that the school required the students to do so.) So, not an express license to use the work, but a prohibitive contractual provision nonetheless. The court relied on one argument, though, which I think could be subject to attack on appeal: in order to enforce the contract, the court had to find that the students got some “benefit” out of the contract — in this case, the fact that they would otherwise have gotten a failing grade from the school. I’m not sure that the school’s requirement that the students sign up for the “service” is the same as receiving a “benefit” of the service. This court also seemed unconcerned that this school – a public school – required the students to sign up for the “service,” except to say that the students’ redress would be against the school, not Turnitin.com.
I did say that fair use would be a problem for the students to overcome, and i was spot-on about that. The judge took a pretty thorough look at the fair use analysis (using the four factors I mentioned last time) and found that the copying in this case was fair use. Predictably, the court focused – as most do – on the fourth factor, impact on the marketability of the work. Finding that Turnitin.com’s use of the works had effectively no impact on the prospective market for the students’ papers (aided in part by the students’ own concessions that there was no real market for them) was tantamount to finding for the defendants on the question of fair use.
So, while it’s a disappointing result, the court’s decision would probably be difficult to overturn on appeal. Maybe it’s time to take up the court’s suggestion that the students seek redress against the school district for compelling them to surrender their intellectual property rights in their work. I’m just glad I’m not the lawyer who would have to argue that case.