The 4th U.S. Circuit Court of Appeals will hear a copyright infringement case next week that may turn on whether Turnitin, an Internet service designed to catch plagiarists, really provides a “substantial public benefit.”

A Virginia judge summarily dismissed the case in March, finding in part that Turnitin's digital archiving of student papers is a “highly transformative” fair use even though the owner of the service, iParadigms, profits from it commercially. Fair use protects the use of a work for non-profit educational purposes from copyright liability.

iParadigms' “use of the student works adds 'a further purpose or different character' to the works and provides a substantial public benefit through the network of educational institutions using Turnitin,” U.S. District Judge Claude M. Hilton said in his decision.

Turnitin, he specified, “protects the creativity and originality of student works by detecting any efforts at plagiarism by other students.”

But four Virginia high school students who sued the company for archiving their unpublished work without their consent say they have presented a triable case that “the Turnitin system functions not for the betterment of society, but only for the economic betterment of iParadigms' stockholders.”

Far from preventing plagiarism, the plaintiffs argue in an appellate brief, Turnitin “is itself a plagiarist's best friend.” Citing an expert who testified it “can only detect the most blatantly copied text,” they conclude that

an infant or college freshman could quickly and easily plagiarize something from as common a source as Wikipedia yet get an originality report from Turnitin erroneously indicating the plagiarism as 100% original.

Hilton also found the students were bound by the limitation of liability clause in Turnitin's terms of service agreement. The disclaimers that they wrote on their papers “indicating that Plaintiffs did not consent to the archiving of their works does not modify the Agreement or render it unenforceable,” he said.

The students contend the agreement “has no bearing on the tort (copyright infringement) action that is the subject of this suit .. iParadigms' position is that it can commit any tort it wants yet is protected by contract. This is clearly wrong as a matter of law, but even if it were correct, the unconscionable character of iParadigms' limitation on liability is dispositive.”

The 4th Circuit is scheduled to hear oral arguments in the case Dec. 4. It should at least find a genuine issue of material fact as to whether Turnitin is an effective anti-plagiarism system.

By Matthew Heller and Peyton Burgess
11/29/08