Saturday, April 18, 2009

Turnitin still on top

A.V. v. iParadigms, LLC (4th Cir. 2009)

The court of appeals affirmed the district court’s finding of fair use, though reversed on the counterclaim for violation of the CFAA. I only have things to say about the former.

Further evidence for Tony Reese’s explanation of transformativeness as dealing with purpose, not transformation of the content of the work: “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.” This is true even if the function isn’t well served, the Fourth Circuit says, rejecting the claim that Turnitin isn’t transformative because it’s not very good as a plagiarism detector: “The question of whether a use is transformative does not rise or fall on whether the use perfectly achieves its intended purpose.”

Other bits of the fair use analysis: the second factor didn’t favor plaintiffs even though the works were creative because the use here was “unrelated” to the creative components—it was designed to find plagiarism. Same with the third factor.

On market harm: the potential market effects were “theoretical and speculative” because plaintiffs declined to participate in the market that did exist—the market for selling term papers and other student work.

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