More on Educational Fair Use - From an Unexpected Source

When last I was heard from in this space, I was bemoaning the lack of any solid case law supporting what, at some level, we all know the be true:  that the educational enterprise has a special place in the scheme of copyright law, and that - in particular - educational uses (both commercial and non-commercial) deserve special deference in fair use analysis.  See  "Educational fair use: a provocation". Since then, I've become aware of a development that seems worth commenting on, even though to do so puts me in a strangely divided position. 

The development in question is the decision (back in April) of the Fourth Circuit Court of Appeals in A.V., a minor, et al. v. iParadigms, LLC, otherwise known as the "Turnitin" case. See Case here. The backstory is quickly told.  The defendant company's commercial software application is perhaps the most popular automated "plagiarism detection" systems that are being aggressively marketed to (and widely adopted by) schools and universities.  According to the court (which in turn quotes the defendant company's self-description of the product, when a school subscribes to iParadigms' service, a subscriber typically "requires its students to submit their written assignments 'via a web-based system available at www.turnitin.com or via integration between Turnitin and a school's course management system.  In order to submit papers online, students 'must be enrolled in an active class' and must 'enter the class ID number and class enrollment password' supplied by the assigning professor. After a student submits a writing assignment, Turnitin performs a digital comparison of the student's work with content available on the Internet, including 'student papers previously submitted to Turnitin, and commercial database' of academic journals" and the like.  You know the rest:  after the program "flags" possible instances of plagiarism, and the teacher or school responds, as deemed appropriate, with further investigation, reinforcement of lessons on academic honest, disciplinary action, or all of the above.

The Fourth Circuit opinion arose from a challenge to the "archiving" feature of Turnitin brought (with the assistance of an experienced Northern Virginia patent lawyer) by several high school students in different parts of the country.  As far as it concerns us, their claim was simple - the inclusion of their papers on the Turnitin database of previous submitted student work (about which they were given no option if they wanted credit for the assignments) amounted to involuntary reproduction - and, therefore, copyright infringement.   Of the several issues raised in defense of the student plaintiffs' claims, the appellate court's opinion deals with only one:  the assertion that the copying of their papers into the archive constituted "fair use" under Sec. 107. 

Before going further, I should expand a bit on my ambivalence.  I'm going to claim that what the court had to say is good news for the position of educational fair use, as a general matter.  But I'm no fan of Turnitin in particular or automated plagiarism detection systems in general.  In fact, I'm persuaded by the critiques of the trend toward use of these tools that has been so eloquently voiced by Professor Lisa Maruca (and others), who seem the fetishization of "originality" as a growing problem in writing pedagogy.  The "plagiarism panic" that has swept through secondary and higher education in recent years may or may not reflect a change in students' real behavior. Alternatively, this dramatic uptick in concern could be, instead, the result of a "reporting phenomenon" (i.e., as teachers develop better tools to sniff out imitation by student writers, we become more and more aware of what has been going on, all along, under our noses.   But whatever the stimulus, many instructional responses to this "plague" are clearly problematic, since they tend to occlude the fact that, at base and in general, writing is a collaborative and imitative activity more than a solitary and originary one.   For more on this, you could look at the wonderful resource page of the CCCC-IP (the Intellectual Property Caucus of the Conference on College Composition and Communication) at http://ccccip.org/pds, or (for the specific flavor of her work, which connects the twin crises in plagiarism and copyright enforcement) at Professor Maruca's "Plagiarism and Copyright :  Links in the Turnitin Culture," which appears at p. 6 of the Winter 2006 Sweetland Writing Center Newsletter, archived at http://141.211.177.75/UofM/Content/swc/document/SWC_W06.pdf.  Enough said!  At this point, I need to hold my nose and say a bit more about why, despite its outcome, there may be value for educators in the Turnitin decision.

The first and most obvious way in which the decision may be helpful is that it provides - for the first time - what amounts to a ringing endorsement of the general trend toward "transformativeness" analysis in fair use in an educational (or, at least, quasi-educational) context.   Undeterred by the plaintiff's assertion that the commercial nature of iParadigms service somehow disqualifies it from claiming fair use, the Fourth Circuit makes it clear that if a use is transformative, its commercial character is of little analytic significance.  Likewise, the court turns back the argument that "iParadigms' use of [plaintiffs'] works cannot be transformative because the archiving process does not add anything to the work -- Turnitin merely stores the work unaltered and in its entirety. This argument is clearly misguided. 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 without altering or actually adding to the original work."  In this case the change in function in this case because the student papers were being used for plagiarism checking rather than for their informational content.  But, of course, a similar argument can be made for the teacher or learner who uses a copyright work not for its content, as such, but as objects of critique, as illustrations of social/cultural phenomena, or as inputs in the creation of new content.

All this is useful, but hardly remarkable, given the present state of fair use law generally.  The very special value of the Turnitin decision for educators may actually lie elsewhere.  Not only does the Court of Appeals endorse the transformativeness analysis performed by the district judge who first heard the case, but it also quotes (with apparent approval) the lower court's statement that iParadigms service "provides a substantial public benefit through the network of educational institutions using Turnitin" (emphasis added).  The fact that an unlicensed use of copyright material provides an educational payoff (even an indirect one) is persuasive on the issue of fair use; in other words, iParadigms is getting a bit of a free ride on the general legitimacy of the teaching enterprise.  We may dispute (as I certainly do) about whether Turnitin itself actually provides such a public benefit, but the courts are assuming it is so!  Obviously, teachers (and learners) in other potential fair use situations will be able to make other, perhaps even more compelling, arguments about why unlicensed educational uses of copyrighted material to promote the larger public interest and the purposes of copyright.

So, is this a slim reed?  Certainly, but it's better than no reed at all.  For the first time in the history of U.S. fair use jurisprudence, we have a decision finding fair use in (or around) a typical instructional setting.  We should try to make the most of it!

On August 3, the Chronicle of Higher Education announced a settlement in the case, so there will be no further proceedings between these parties.  But the issue lives on, as do the courts' rulings.


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