The complaint in Vanderhye v. IParadigms, LLC represented an interesting attempt to attack an on-line, computerized plagiarism detection service by accusing the service of copyright infringement. See Vanderhye v. IParadigms, LLC, 562 F.3d 630 (4th Cir. 2009).
IParadigm operates an on-line plagiarism detection service called Turnitin. Schools require students to submit writing assignments to Turnitin, which are compared to other writings in Turnitin’s database. The database contains other student papers, as well as commercial and academic journal articles. Turnitin supposedly creates a “fingerprint” of the student’s papers by applying various mathematical algorithms. Turnitin then compares this digital fingerprint to the fingerprints of the other works in its database and generates an “Originality Report” which indicates the percentage of the student’s work that appears not to be original.
With permission from participating schools, Turnitin will place the submitted writing assignments into its database, so that they become part of the database used to evaluate the originality of subsequent student papers. The plaintiffs included three students who had submitted their papers to Turnitin for testing and whose papers were then archived in the database. The plaintiffs alleged that Turnitin’s inclusion of their papers in the database constituted copyright infringement.
The Fourth Circuit’s analysis focused on the “fair use” doctrine, which it characterized as “a privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner without the [copyright holder’s] consent.” 17 U.S.C. § 107 provides that fair use includes “criticism, comment, news reporting, teaching . . . scholarship or research.” The statute provides a four factor test to determine whether the use is fair.
The Court rejected the argument that because IParadigm’s use of the student papers was commercial that this required a finding that its use was unfair. Looking at the four factor test in the statute, the Court instead found that Turnitin’s use of the student papers was transformative, since the papers were being used for a different purpose in the Turnitin database than that for which they were originally prepared. It further found that Turnitin’s use of the papers did not discourage, but rather encouraged creative expression. While Turnitin used the whole of the plaintiff’s works, its use was so transformative that this factor was not decisive. Finally, it found no substantial evidence that Turnitin’s use of the papers in its database would affect the market for the papers.
It is not surprising that the 4th Circuit took the side of the schoolmasters in this case. Of course, any time a Court rules that it is OK for a third party to copy and then use an entire copyrighted work, it will raise eyebrows in some quarters.