An opinion released a few days ago in the Turnitin.com lawsuit, A.V. v. iParadigms, No. 07-293 (E.D. Va., March 11, 2008), took up several issues of interest to cyberlaw attorneys. The court (1) enforced a clickwrap agreement, (2) declined to enforce terms of use that were viewable by clicking on a hyperlink at the bottom of a Web page, and (3) held that Turnitin.com's service (which consisted of maintaining a database of student papers used to discover and deter plagiarism) was a fair use of the student papers submitted to Turnitin.com.
Turnitin.com's operator, iParadigms, contracts with schools to provide a plagiarism-detection service. Student papers submitted to Turnitin.com are electronically evaluated against a database of papers written by others in order to determine if the submitted paper is original. This case involved a copyright infringement claim brought by four high school students who submitted papers to Turnitin.com. They registered with Turnitin.com and in the process clicked on an "I agree" button to indicate their assent to the Turnitin.com User Agreement. The User Agreement disclaimed any liability in connection with a registrant's use of the Web site.
Clickwrap Agreement Enforced, Against Minors
The court's discussion of the enforceability of the clickwrap contract looked a lot like the dozens of cases already decided in this area. Suffice it to say that the court found that the students had entered into a valid contract when they clicked on the "I Agree" button to indicate assent to the terms of the User Agreement. What was interesting, however, was the court's rejection of the students' claim that, because they were minors at the time they made the contract, the contract was voidable. In Virginia, contracts by minors are voidable when the minor reaches the age of majority. The court parried this doctrine with one of its own: Even an infant cannot take the benefits of a contract without taking the conditions or limitations as well. The court identified several benefits the students took from the Turnitin.com User Agreement:
They received a grade from their teachers, allowing them the opportunity to maintain good standing in the classes in which they were enrolled. Additionally, Plaintiffs gained the benefit of standing to bring the present suit. Plaintiffs cannot use the infancy defense to void their contractual obligations while retaining the benefits of the contract.
Some benefits. The benefit of bringing a lawsuit that the court is tossing, and the benefit of participating in a high school anti-plagiarism exercise. This seems to be an awfully low standard. Any Web site catering to children should be able to cite equally valuable "benefits" from using their online services, so you have to wonder how much use the infancy defense will be to future online plaintiffs.
Browsewrap Language Not Enforceable
Although Turnitin.com won on the clickwrap contract point, it was not able to get an indemnification clause in its Web site terms of use enforced against the students. Turnitin.com's argument, based on Register.com Inc. v. Verio Inc., 356 F.3d 393 (2d Cir. 2004), was that the students assented to the terms by continually using the Turnitin.com Web site. The court disagreed, finding that there was no evidence of assent to the terms. First of all, the agreement that the court did enforce -- the clickwrap agreement -- contained language indicating that that agreement constituted the entire contract between the parties.
Leaving that point aside, the court observed that there was no evidence that the students viewed or read the Web site terms, and no evidence that the students ever clicked on the terms of use hyperlink or were ever directed to do so by Turnitin.com. The court acknowledged prior decisions -- such as Register.com -- where knowledge of Web site terms was imputed to users by repeated visits to the Web site and repeated exposure to the terms. However, the court said here, "in this case ... such imputation is improper because there is no evidence indicating that Plaintiffs were exposed to the terms of the Usage Policy."
The court distinguished Register.com based on the fact that, each time the Register.com Web site was used the site caused a notice of its terms of use to be transmitted to the user. In this case, the court said, "There is no evidence that the terms of the Usage Policy were presented to Plaintiffs beyond the existence of the Usage Policy link the appeared on each page."
Even though Turnitin.com lost on the browsewrap point, it's easy to see how a little more effort on Turnitin.com's part could have produced a favorable outcome.
Student Papers' Inclusion in Database Held Fair Use
Finally, the court took up Turnitin.com's argument that its use of the student's papers was a non-infringing fair use. The court, borrowing heavily from the Ninth Circuit's ruling in Perfect 10 Inc. v. Google Inc., 487 F.3d 701 (9th Cir. 2007), held that it was. Turnitin.com's use of the student papers was "highly transformative," the court found, noting that Turnitin.com took a creative work and transformed it into an anti-plagiarism technology. Further, Turnitin.com made no use of the creative aspects of the students' work, and in fact it used their works to protect the originality of their expression by using it to deter plagiarism. The court also noted that, although Turnitin.com copied the entirety of the students' papers, this copying in no way caused harm to the market value of the papers. All in all, the court concluded, Turnitin.com's use of the students' papers was a fair and lawful one.
I have trouble with the notion that Turnitin's use did not harm the market value of the students' papers. As near as I can tell, a high school student's paper has very little market value apart from: (1) resale to students who want to use it as the basis of their own non-origninal paper, and (2) as part of a database to assess whether other student submissions are original. If these uses represent the principal value of the students' papers, then Turnitin has appripriated substantially the entire value. That hardly seems to be fair use.
Posted by: M. Matzka | April 09, 2008 at 10:06 AM