Fourth Circuit's Turnitin.com Ruling Brings More Trouble for Plaintiffs

The case of A.V. v. iParadigms LLC (lower court ruling here) had a lot of cyberlaw juice when a federal district court decided it last spring. Rulings on digital fair use, electronic contracting, and computer fraud were all in there -- arising from the defendant's turnitin.com plagiarism detection service. Turnitin.com, operated by defendant iParadigms LLC, works like this: students are forced by their teachers to electronically file their written work with the turnitin.com Web site (but not before assenting to an onerous e-contract). Turnitin.com then compares the newly submitted work against its database of existing student work, delivering to its educational institution customers an assessment whether the new work is the result of plagiarism.

So there you have it. Was turnitin.com making a fair use of the student's work? Was the e-contract that the students assented to a valid one? The lower court answered "yes" to both of these questions.

Today the Fourth Circuit issued its opinion, affirming the lower court in a ruling that I am sure will be cheered by digital fair use proponents. The court stepped through the fair use analysis, dropping positive notes here (commercial uses can be fair uses), here (a use can be transformative "in function or purpose without altering or actually adding to the original work," citing Perfect 10 Inc. v. Amazon.com Inc.), and here (fact that turnitin.com used the entirety of the plaintiff's work did not preclude finding of fair use). And it turned back a lot of other, small-bore challenges to the district court's fair use finding. The court said it didn't need to address the plaintiff's challenge to the click contract in view of its ruling on the fair use question.

The part of the opinion that caught my attention was the court's treatment of iParadigm's counterclaim under the Computer Fraud and Abuse Act, 18 U.S.C. 1030. The district court threw the counterclaim out, ruling that iParadigms had not alleged a cognizable loss. The Fourth Circuit reversed that ruling here, in a manner that 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.

iParadigm alleged that the plaintiff made an unauthorized access to the turnitin.com Web site by using a password issued to someone else. The Fourth Circuit described iParadigm's evidence like this:

iParadigms offered evidence that when it learned that A.V. was able to register and submit papers as a student of a university in which he was not enrolled and had never attended, it feared the possibility of a technical glitch in the Turnitin system and concluded an investigation was necessary. Unaware that A.V. had simply obtained a password posted on the Internet, iParadigms assigned several employees to determine what happened. According to iParadigms, over the course of about one week, numerous man-hours were spent responding to A.V.’s use of the UCSD password.

This looks like a pretty thin CFAA claim. No damage, no loss. "Fears" regarding a "technical glitch." Imagine Chicken Little submitting a Gartner invoice for time spent tracking down the source of that acorn.

Anyhow ... the Fourth Circuit ruled that these allegations of "loss" were good enough to survive summary dismissal and it remanded the case to the trial court for another look at iParadigm's loss claims. Other courts have ruled similarly. Costs incurred investigating and taking remedial steps following a computer intrusion are recoverable under the CFAA. The court here cited Modis Inc. v. Bardelli, 531 F. Supp. 2d 314 (D. Conn. 2008), and SuccessFactors Inc. v. Softscape Inc., 544 F. Supp. 2d 975 (N.D. Cal. 2008). It could have cited Nexans Wires v. Sark-USA Inc., a leading ruling from the Second Circuit in this area.

I hope the trial court on remand will take the opportunity to discuss what is reasonable as far as investigative and remedial costs for a post-intrusion investigation. I just looked around a bit, and couldn't find any decisions on this point. If mere fear about the possibility of a technical glitch can put a defendant on hook for a week's worth of technical assistance, CFAA claims will become even more attractive. But I'm not saying the sky is falling. I wouldn't do that.

Comments

[Glen Merrick]

Quote (cuz we don't like to plagerize)
"he court said it didn't need to address the plaintiff's challenge to the click contract in view of its ruling on the fair use question."

"Turnitin.com, operated by defendant iParadigms LLC, works like this: students are forced by their teachers to electronically file their written work with the turnitin.com Web site (but not before assenting to an onerous e-contract"

Now it seems to me that if I am forced to submit something, then should the "contract" between myself and turnitin be considered non-binding and null? And can the teacher force me to upload it under duress of not getting marked?

Also, even tho the use of the entire work may be considered fair use, should not the author of the work be renumerated for each time the work is accessed (akin to the Mechanical roylaties act)?

[Thomas O'Toole]

The trial court addressed your point about duress, Glen.

It said: "Schools have a right to decide how to monitor and address plagiarism in their schools and may employ companies like iParadigms to help do so. As the Supreme Court has recognized in the constitutional context, "the rights of students in public school are not automatically coextensive with the rights of adults in other settings" and the "rights of students must be applied in light of the special characteristics of the school environment." Morse v. Frederick, 127 S.Ct. 2618, 2622 (2007)."

There's a link to the trial court's opinion in the post above.

[Doug Cullen]

Teachers don't "force" the use of turnitin any more than they "force" students to turn in papers and assignments. (Forced is the term used by teh plaintiffs) The "duress" is the same, no paper = failing grade. I suppose by this logic your boss is applying duress if he requires you to work. Some have also posited that school assignments may be akin to "work for hire" i.e. since they are a requirement for gaining a diploma (and often completed using school facilities) they are the property of the school or perhaps a licensed use. I really hate the thought of IP lawyers involved education.

In a large part turnitin has automated what many teachers have found necessary in response to the ease with which material can be plagerized from the internet albeit with a larger database than availble from google. In the past teachers might notice a passage that is out of character for the student and use a search engine to locate the source. In using turnitiin every student receives the same scrutiny (less selective).

Results from turnitin consist of a similarty score and excerpts of the potentially offending passages with citations. Used as a teaching tool as part of the editing process, teachers and students can then look at the paper and discuss how to properly cite or paraphrase the material. The worst way to use turnitin is as a hammer after the fact to punish students.

In one fashion turnitin protects authors from unattributed use of their IP. Once the paper has been submitted, further use will be flagged to inspection.

As to the idea that every author should receive remuneration for every access or use is exactly what "fair use" is about -- the specific exceptions under which no remuneration is due. I see growing pressure by some organizations to weaken these provisions.

[J.B. Nicholson-Owens]

What's the alternative for students who refuse to use turnitin.com to hand in their papers? If the alternative is not being graded and being treated as if they didn't hand in a paper at all, then yes "force" is the right term to use.

Where I live students are compelled by law to be in school through high school, so they have to obey the class rules. If the class rule is turn it in to turnitin.com or fail, that's no choice at all. There's no legal requirement to have a job; independently wealthy people fare quite well without employment.

"In using turnitiin every student receives the same scrutiny (less selective)."

We have no idea how much scrutiny any paper receives through turnitin.com because we don't know precisely how that site operates. We also don't know what quality the scrutiny is. Any assessment is black box testing chasing a moving target because the site software can change at any time rendering any tests obsolete.

Also, "IP" (intellectual property) is a sham term used by people who are either trying to simultaneously describe multiple legal regimes or don't understand how overbroad the term is. What we're talking about here is copyright, not patent, trademark, or any of the other areas of law lumped together in the term "intellectual property". Read http://www.gnu.org/philosophy/not-ipr.html for more on the term "intellectual property".

[Riley Musbach]

I would be curious to know exactly how useful TurnItIn.com is. I do not use it nor would I want to add the complexity to my submission process. I have heard that the reliability factor is questionable.

I work for a term paper company and they don't even require us to submit to TurnItIn.com because to them, the service is a joke at finding plagiarism.

[Moe]

The fair use stuff is great. And I'm glad that they went that route instead of upholding some onerous click-wrap contract.

But I have to agree that it's unreasonable to charge people for time spent investigating false computer intrusions. People act in such a way to cover their asses and generally are more fearful than is warranted.

I really wish they'd have upheld that dismissal given that there was no actual loss. Otherwise, we'll end up with more crap like the Boston PD where they get millions because they were "terrorized" by a 9V battery and a few wires. The authorities in Boston have to be some of the biggest wusses in the world.

[Jack Waldron]

Disturbing in places. But not unexpected. The country really has taken a shift towards fascism.

I do not know what Turnitin does with these papers, but it would seem to me, that some of the students might be creating some valuable original works and ought to be able to control those works. So, if a student creates a great paper and then sells it to other later students, that is that authors right as the rightful copyright owner. While the cheaters who buy those papers ought to be punished, and not the author. I was a published author at the age of 13. What impact would that have had on my works, some of which I used in school work?

Furthermore, I find it disturbing that a court can say that the use is fair use, given that some of the students will not be of legal age to enter into a valid contract, and I as a parent will nullify any such contract my child enters into. There are a number of onerous terms in the contract that most sane judges would/should/have in the past rule(d) as unenforceable and invalid.

But hey, I can see a chance to make some money here. I can make a shared directory on my PC, post some files with a bunch of my own thoughts in them that are the right size for some music and video files and post them on some p2p site, and when the RIAA comes and sues me, I can slam them hard with my costs in determining how they broke into my computer and stole my copyrighted works. A great big triple whammy (CFAA, piracy/copyright infringement, and slander of title).

[Will Lepofsky]

My feeling is if a school wants to use the service of companies like Turnitin.com, they should be the ones submitting the work to them, not the students. The schools are automatically treating the students as plagiarizers by forcing them to submit their work in this fashion. I seem to remember in this country that you are supposed to be innocent until proven guilty, whether child or adult.

[Joeseph]

Yes the schools should turn in the papers not the student. My college professor said if we dont use turnitin then we get 1 grade lowered automatically on our papers... thats insane!!!!

Plus how would students turn in a research paper lets say with a bunch of graphs, pictures, charts, and tables?? how about custom fonts??

Does turnitin even support such kind of papers?

What about the file type of the paper; .doc, .wps. etc. ???

I think turtitin has potential to become a tool for both students and teachers but not in the manner they are currently advertising and claiming giving teachers basically the idea that it is okay to pre judge all students as possible cheaters and then penalize them if they dont submit papers via turnitin.