How often does the ultimate source of an expression elude us? Take, for example, the aphorism, “God is in the details.” While widely attributed to Mies van der Rohe, all the same, Gustave Flaubert, who died six years before van der Rohe was born, is purported to have said “Le bon Dieu est dans le détail,” which sounds almost indistinguishably similar.
iParadigms LLC provides high school and college teachers with an online database of term papers and other written assignments. Subscribing schools require students to upload their papers to the iParadigms Turnitin Plagiarism Detection Service, where the papers are archived. Each incoming student paper is compared against the archive of existing papers and other Internet content to derive an “Originality Report” that is made available to the assigning professor.
This plagiarism-detection technology makes iParadigm an arbiter of original expression, and its very existence is calculated to foster creative effort among high school and college students.
Four high school students, two in McLean, VA and two in Tucson, AZ, cried foul, and brought suit against iParadigms in federal court in the Eastern District of Virginia on grounds of copyright infringement for archiving their work in the Turnitin database without their permission. They had each registered a copyright in their homework before ‘turning it in,’ and had explicitly objected to any archiving.
Exclusive rights under copyright law are not absolute, however, and sometimes copying without permission is allowed. Famously, the Copyright Act authorizes fair use of a copyrighted work for purposes of criticism, comment, news reporting, teaching, scholarship, or research. The doctrine of fair use has, in the words of the Supreme Court, “. . . been thought necessary to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts’” (quoting Article I, Section 8, of the U.S. Constitution).
The district court in Alexandria, Virginia, in A. V. et al. v. iParadigms LLC, weighed each of the four factors specified in the Copyright Act as indicators of fair use: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the copied portion; and (4) the effect of the use on any potential market or value of the copyrighted work.
The court’s conclusion was that iParadigms’ use of the submitted work was “highly transformative” in nature (despite the fact that it did not add anything to the work), that the copying provided a substantial public benefit, and that, even though iParadigms makes a profit providing the service, it does not usurp any market for the original work.
Last month, the U.S. Court of Appeals for the Fourth Circuit, after careful review of the four factors, affirmed the lower court’s summary judgment of non-infringement.
Notably, the appeals court agreed that iParadigms’ use of virtually the whole of the plaintiffs’ work did not preclude a finding of fair use, since the purpose of such use was strictly limited in its purpose to the enabling of electronic comparison. “The use of a copyrighted work need not alter or augment the work to be transformative in nature. Rather, it can be transformative in function or purpose. . .”
Sweetening the victory for IParadigms, the Fourth Circuit remanded the case to the lower court to consider whether, by falsely signing on as a college student, one of the high schooler plaintiffs gave iParadigms a right of redress under the federal Computer Fraud and Abuse Act and under corresponding Virginia state law.
So, the services of Turnitin and its ilk are here to stay. And while further inquiry reveals that it was actually Caspar Barleaus, 17th century Flemish professor of rhetoric, who wrote “Believe me that in the smallest particle God is enshrined,” we have to wonder whether Turnitin would trap a subtle paraphrase.