Clickthrough Agreement Binding Against Minors–A.V. v. iParadigms

By Eric Goldman

A.V. v. iParadigms, 2008 U.S. Dist. LEXIS 19715 (E.D. Va., March 11, 2008),

I previously blogged that the judge was going to dismiss this case. The judge finally issued an opinion explaining his reasoning, and it’s quite an interesting read.

At issue is iParadigms’ Turnitin plagiarism detection service. It works as follows: a professor adopts the Turnitin service for a class. Students then submit class papers directly to the Turnitin database. Turnitin compares the submitted papers against its database, which includes Internet content, previously submitted student papers, and various commercial databases. Turnitin then provides the professor with an “Originality Report” assessing the likelihood that the paper was original to the student and not copied from one of the sources in the database. At the same time, Turnitin adds each student-submitted paper to its proprietary database so those papers create matches if submitted again.

Personally, I’ve never used the Turnitin service. I’m lucky enough that when I’ve taught “paper courses,” I’ve been able to work closely enough with each student that a plagiarized paper would be useless. However, not every professor or teacher can interact with students enough to make these individualized assessments, and there are plenty of courses where students basically dump a paper onto professors in a relatively impersonal exchange. In those cases, I could see why Turnitin is an important or even essential tool to combat student efforts to game the grading system.

Even so, I remain troubled by some aspects of the Turnitin service. Most of my concerns relate to the implicit coercion of students to use Turnitin. Some students may not be aware that the professor will require Turnitin use at the beginning of the semester when (in theory) objecting students could freely drop the course, in which case the student is effectively required to use Turnitin to pass the class regardless of student consent. Even more problematically, students might be required to take a Turnitin-mediated course–such as when the course is a mandatory prerequisite and there aren’t multiple professors teaching the course, or when students are assigned to a course without any choice (such as in high school). In those cases, students are forced to participate in the Turnitin scheme whether they want to do so or not. This isn’t the biggest travesty in the world, but I’m not sure it’s fair either.

The plaintiffs in this case–a group of four high schoolers–mount a solid attack on the Turnitin system for copyright infringement based on Turnitin keeping copies of their papers and occasionally republishing the papers to other professors when the papers trigger matches in future Originality Reports. iParadigms defends based on its mandatory clickthrough agreement, which every student must agree to as part of the submission process. The clickthrough was properly formed, so there’s no question that it superficially demonstrates mutual assent.

However, student consent is illusory in at least two ways. First, as I mentioned, many students don’t have a meaningful choice about consenting to the clickthrough agreement because they will fail their courses if they don’t submit. The students attack this as duress, and the court correctly notes that Turnitin is not the source of duress; instead, the schools are the source, and the court tells the students to take it up with them. While the court is right that duress doesn’t apply directly here, I could have seen other courts using the school-supplied duress as part of an unconscionability attack on the contract.

Second, the plaintiffs were minors, and well-settled law is that incomplete contracts with minors are voidable. The court sidesteps this issue by saying that the students had received the complete benefit of the Turnitin contract relationship when their papers were cleared by the Originality Report, and therefore they could not “return” the benefits conferred on them by Turnitin.

This is a ruling of potentially large significance. I’ve long believed that courts would struggle with dismissing claims by minors against websites because of the voidability issue, which seemingly left a large class action hole against all websites with minors as users. That hole may still exist–it depends on whether the contract is complete or not, and in many cases both parties will have incomplete obligations in a standard website EULA. Despite this, it’s clear that this judge wasn’t going to entertain any bypass that threatened the integrity of the Turnitin service, and I wouldn’t be surprised if many other courts would reach the same conclusion in other circumstances.

The court dismisses the copyright infringement claim on the alternative ground that Turnitin’s copying is fair use:

* storing the copy of the paper for plaigarism purposes is highly transformative

* the court twists the nature of work factor to weigh in favor of Turnitin, saying that Turnitin doesn’t use the papers for their creative meaning

* the court also twists the amount/substantiality of the portion taken to weigh in favor of Turnitin. Even though Turnitin takes 100% of the work, it doesn’t really publish the entire work (except in the occasional cases where a professor requests a copy after a match in the Originality Report) to others but simply flags the match.

* the court dismisses the effect on the market value of the work. Most student papers have no commercial value. The papers would have commercial value if resold to the term paper websites, but the plaintiffs conceded that they wouldn’t authorize this usage because that would be cheating.

While I can’t really quibble with the conclusion that Turnitin’s use is fair, especially given the laudable objective of plagiarism suppression, other judges would have reached the opposite conclusion because Turnitin forces students to put their papers into a database that iParadigms mines for its profit.

In any case, this fair use ruling may augur well for search engine fair use cases, most obviously Google’s book search and Google News–both of which pump third party copyrighted works into a for-profit database but republish only a limited portion.

The opinion also has some interesting discussion about iParadigms’ counterclaims against the students. iParadigms initiated a very aggressive counterattack against the students (the words “scorched earth” came to mind). I guess iParadigms wanted to send the message–don’t screw with us, because we’ll make your life heck. I don’t think iParadigms expected to get any meaningful payoff from their counterclaims, but they got nothing. In some sense they are lucky that it wasn’t worse; I could see some judges taking such umbrage at iParadigms’ tactics that they could have backfired.

iParadigms sought indemnity from the students based on a clause in its usage policy. The problem is that the usage policy wasn’t presented as a mandatory clickthrough (whoops!) and the court refuses to extend the Register.com v. Verio bailout here.

One of the students obtained false credentials to log into the system at one point, but the court rejects iParadigms’ claim that such a login was a trespass to chattels, Computer Fraud & Abuse Act violation or Virginia Computer Crimes violation because iParadigms couldn’t make any showing of damages from this unauthorized login. This is the right result (at least with respect to trespass to chattels) per Intel v. Hamidi, but we’ve seen plenty of courts ignore the damages requirement from the Hamidi case.

Other comments on this case:

* Tom O’Toole

* Rebecca Tushnet

* Siva Vaidhyanathan

* Georgia Harper

* William Patry

UPDATE: According to the Chronicle of Higher Education, the students plan to appeal. Given the many conflicting norms associated with this case, I would be surprised if the appellate ruling was as decisively favorable for Turnitin as the district court opinion was.

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