Students Lose, Fair Use Wins in Suit Targeting Anti-Plagiarism Tool

Students have suffered another defeat in their legal fight against the company that runs a plagiarism-detection tool popular among professors.

A federal appeals court last week affirmed a lower court’s decision that the Turnitin service does not violate the copyright of students, even though it stores digital copies of their essays in the database that the company uses to check works for academic dishonesty.

The opinion from the U.S. Court of Appeals for the Fourth Circuit “will be cheered by digital fair-use proponents,” says the E-Commerce and Tech Law blog.

Last year’s decision in the plagiarism case — and I’m plagiarizing here from The Chronicle’s account of it — was seen as carrying wider implications for other digital services, such as Google’s effort to scan books in major libraries and add them to its index for search purposes.

The legal battle began in 2007, when four high-school students sued iParadigms, the company that runs Turnitin, arguing that the company took their papers against their will and profited from using them. The students’ high schools required papers to be checked for plagiarism using Turnitin. The service adds scanned papers to its database.

U.S. District Court Judge Claude M. Hilton had found that scanning the student papers to detect plagiarism is a “highly transformative” use that falls under the fair-use provision of copyright law. Mr. Hilton ruled that the company “makes no use of any work’s particular expressive or creative content beyond the limited use of comparison with other works,” and that the new use “provides a substantial public benefit.”

Steven J. McDonald, general counsel at the Rhode Island School of Design, reacted to the latest development in the case by calling the fair-use analysis unsurprising “but welcome.”

“In particular,” Mr. McDonald wrote in an e-mail message to The Chronicle on Monday, “it underscores that the copyright owner’s rights are simply not absolute and that ‘transformative’ uses deserve protection themselves.”

More than 450,000 educators and millions of high school and college students use Turnitin, according to a company fact sheet.

Last week’s opinion also reversed and sent back for further consideration the lower court’s decision on counterclaims made by iParadigms. The company had put forward a claim against one of the plaintiffs under the Computer Fraud and Abuse Act, or CFAA. iParadigms said it was forced to launch an investigation — spending numerous man-hours in the process — after the student allegedly gained unauthorized access to Turnitin.

The E-Commerce and Tech Law blog called attention to the reversal, saying it “could leave Web users open to getting smacked with a large CFAA award whenever a company suspects someone has gained improper access to its Web site.”

Robert A. Vanderhye, the plaintiffs’ pro bono lawyer, acknowledged that the bulk of the opinion was a “stinging defeat.” But the lawyer has not surrendered yet. He plans to petition for a rehearing.

He argued that the court did not decide the issue of Turnitin sharing papers with third parties. If a student’s paper is flagged as unoriginal based on an earlier paper, he said, the company will turn over that earlier paper to an instructor upon request.

“This is not a complete, total defeat on the copyright issue,” he argued. “That issue is still outstanding,” he said, referring to the question of whether Turnitin infringes a copyright if it sends a complete paper to a third party. “They didn’t decide that issue.” —Marc Parry

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