September 02, 2005
Student Sues Term Paper Website (and its Host)
Macellari v. Carroll, no. 4:05-CV-04161-JPG (S.D. Ill. complaint filed Aug. 31, 2005).
Blue Macellari, a student at Duke and Johns Hopkins, has sued a term paper vendor (Rusty Carroll/R2C2, Inc.) operating three websites (doingmyhomework.com, freeforessays.com and freefortermpapers.com) for copyright infringement, a Lanham Act violation, defamation, privacy invasion and unfair trade practices. The lawsuit also names the web host Digitalsmiths.
I'm not sure what the Lanham Act violation could be, and the defamation claim seems a little tough. The copyright infringement claim, however, seems potent. If, in fact, the term paper vendor didn't have permission, it doesn't have a lot of great defenses. I'm less clear about the web host's liability--did Blue send a 512(c)(3) notice? If not, the theory is that they shouldn't be liable, although a number of courts have bypassed that requirement.
Depending on the outcome, this case could create some real issues for Turnitin and similar services. I've never been fully clear that a court was going to bless their use of student papers for commercial benefit, and this lawsuit might expose weaknesses in their legal posture.
Another interesting angle: Blue's lawyers are doing this pro bono.
UPDATE: A copy of the complaint (thanks to John O for pulling it from PACER)
Whoever sent this paper to www.doingmyhomework.com agreed to give the website copyright to the paper. The website keeps track of every person that sends them papers..........it seems like if the person was not the person who wrote the paper they should be the one being sued for copyright infrg.
I don't know the law though :)
Posted by: Tena at September 4, 2005 06:41 PM
Tena, you're right that the person who uploaded the term paper is also potentially liable for copyright infringement. However, because copyright is a strict liability tort, the term paper provider could also be liable--even if they relied upon the uploader's promises that the paper wasn't infringing. This may not be fair, but it's well-settled under copyright law. Eric.
Posted by: Eric Goldman at September 5, 2005 10:59 PM
It seems to me that if Ms. Macellari wanted copyright protection on the paper that she wrote, she would have had to taken the proper steps. Those steps being, registering the work with the Copyright Administration and having a copy of the paper on file with that administration. Nowhere in the article did I read that she took those steps. Somehow this website got a hold of her article and "published" it. She may have other claims, but I don't think copyright infringement would be one of them.
She must register her copyright before suing. However, her copyright interests are formed when she wrote the paper, even if she didn't register it then. Therefore, she should still have a copyright claim.
However, depending on when she registered her copyright, she may not be eligible for statutory damages or attorneys fees--in which case she can only get "actual damages," and these are potentially a pretty small number. Eric.
Posted by: Eric Goldman at September 6, 2005 09:46 AM
This case illustrates the weakness of using the copyright system against an entire industry of infringers, as opposed to individual, isolated instances of infringement. Ms. Macellari may have better luck in her Section 43(a) claim or her right to publicity claim than on the copyright claim.
Making out a prima facie case of liability should be a slam dunk on the copyright claim. Even if successful, however, she did not register the copyright before the infringement or after the infringement but within three months of her first publication, so Section 512 says she cannot claim statutory damages or attorneys’ fees, only actual damages and profits. What are her actual damages? And how much profit can be made from one of these papers (maybe we will be surprised!)? An occasional injunction and payment of actual damages and profits does not appear to be a large threat to a term paper mill. Moreover, there is unlikely to be any mass coordinated lawsuit campaign by individual authors against the term paper mills, unlike the movie studios’ and music publishers’ campaigns against music downloaders.
Is there a statute of limitations defense here? The published information says that the paper was written in 1998, and posted on a personal website at Mount Holyoke College in 1999. Section 508 of the Copyright Act says the action has to be commenced within three years after the claim accrues. Generally, the claim would accrue when the unauthorized copy is first posted. If this has been longer than three years, then Ms. Macellari may be out of luck on the copyright claim.
Fair use defense? Forget it!
I'm curious as to why she did not allege an "inducement" claim for copyright infringement, under the Supreme Court's recent Grokster decision.
Posted by: John at September 6, 2005 04:43 PM
She found out about the paper being on the website in Jan. 2005. She went to file a legal copyright in July 2005.
I am assuming the lawyers told her to do this. Does this make any diffrence?
Posted by: Tena at September 7, 2005 04:49 AM
Do you think it makes a difference that he doesn't actually sell the paper. He sells access to a database of papers. So you don't really buy one paper you buy the ability to view them all. So if he’s charging $9.95 and he has 30,000 papers, does that make it worth 1/30th of a cent for every customer he has had? Or if he were to look at his logs and find that 2 people actually looked at the paper would she be owed $19.90. Only $999,980 to go.
She also claimed to have had the paper on her own site to be viewed free of charge.
Does this prove that no actual monetary damages were caused? She had already given it out to the public for free. That would show that she didn’t plan to make money on it.
Also, they did not send Digital Smiths a notice to remove the paper. I thought the only way you could sue and isp is if you sent them a notice to remove the paper and they refused.
As far as www.doingmyhomework.com claming copy right on the paper. Does he really? Looks to me that the same copy right notice is on every page of his site and not just on the papers. This would make me think he is claiming copyright on the web page as a hole and not the individual content. In the paper it self the suit claims that Ms. Macellari’s name is include in the paper. That sounds to me like she is given credit, and that he isn’t claiming copyright.
It also says that she found out about the paper being on the site in Jan, and she waited till SEP to sue. Then she says it hurt her Name. If she was really concerned about her name would she have waited so long to get it removed?
Posted by: Chuck at September 7, 2005 05:09 AM
Tena, I haven't traced through the complaint on this. However, I think the facts you describe would bar eligibility for statutory damages and attorneys fees. So the copyright damages would just be "actual damages" (plaintiff's loss plus defendant's gain), which may not be much. Note that the plaintiff makes other non-copyright claims, so the damages under those claims could be more significant. Eric.
Posted by: Eric Goldman at September 7, 2005 10:59 AM
Chuck, as for the idea of selling access to a database rather than selling the paper individually, I don't think that makes a difference. See, e.g., Playboy v. Webbworld, UMG Recordings v. MP3.com.
Having posted the paper for free to the web might undercut her claims that she lost revenues. However, she would still be entitled to the defendant's gain. You're right that this could be a trivially small number, and as a defendant, I would absolutely try to show the evidence like the small number of downloads/accesses.
As for DigitalSmith's liability, some argue that a 512(c)(3) notice is required before the web host can be contributorily or vicariously liable. Some cases have followed that thinking as well. However, other cases haven't. For a good example of a case that didn't require a 512(c)(3) notice, see ALS Scan v. RemarQ.
I wouldn't make too many inferences about the delay from January to September. Maybe this delay was inexcusable, but there could be lots of legitimate reasons--including potentially the time-delay of finding a pro bono attorney.
Thanks for the good comments! Eric.
Posted by: Eric Goldman at September 7, 2005 11:05 AM
So who is the biggest, baddest, and best law firm for this kind of stuff?
Posted by: chuck at September 7, 2005 01:54 PM
I am wondering the same thing as Chuck........How could a clueless person find an awesome lawyer???? I have no idea.
Posted by: Tena at September 7, 2005 04:29 PM