A.V. v. iParadigms, LLC

sufficiently present evidence of actual damages. id. light of this finding, the court remanded the counterclaim without section 107 lists the following four nonexclusive in order to submit copyright."32 of these exceptions, the court focused its (2003)). 6. id. fraud and abuse act ("cfac") and the virginia computer plaintiffs argued that the district court did not consider the judgment in favor of iparadigms as to the plaintiffs' copyright iparadigms' use of the student's copyrighted work constituted "fair copyrighted material that is used increases, the likelihood that the 79. a.v., 563 f.3d at 645. the fair use test: "the purpose and character of the use, including liability related to the use of the system.12 39. id. the district court analyzed this factor with a focus on whether the use fair use of a copyrighted work . . . for purposes such as criticism, market effect on (1) the plaintiffs' own testimony that the marketability of their the court next considered the appeal of the counterclaim by iparadigms on the copyright claim based on the doctrine of fair periodicals.9 purposes; 222 depaul j. art, tech. & ip law [vol. xx:1 counsel.16 crimes act ("vcca").2 effect of the use upon the potential market for or the value of the transformative nature of the work, erred in its analysis of the third the fourth circuit first considered the district court's summary the court concluded that the plaintiffs further argued that iparadigms' use could not be works had not been harmed; (2) the lack of the plaintiffs' intention to sell their 220 depaul j. art, tech. & ip law [vol. xx:1 in considering the character of iparadigms' use, the court stated 42. id. 24. 17 u.s.c. � 107 (2006). material is presumptively an unfair exploitation of the monopoly finally, plaintiffs argued that even if iparadigms had a schools chose to do so, the students' work was archived and 77. id. under the cfaa, "loss" is defined as "any reasonable cost to the does not cover consequential damages. a.v., 563 f.3d at 646. whether such use is of 1030(e)(11). the court dismissed this argument, stating that a noting that the supreme court has instructed lower courts to resist that iparadigms' archiving of the students' work was determine whether the use "merely supersed[ed] the objects of the the copyright."28 the is made upon consideration of all above factors."59 password intended for ucsd students, violated section based on the determination that there was no evidence to support distribute an author's works."25 for these according to the court, such a determination is outside the scope 82. a.v., 563 f.3d at 647. the district court granted summary judgment to and the amount of allowed copying is related to the purpose and supplant the copyrighted work in the marketplace and are 78. a.v., 563 f.3d at 646. 1030(a)(5)(a)(iii) prohibiting any person from "intentionally in its second counterclaim, iparadigms asserted that a.v. public benefit," thus becoming "highly transformative" and weighing in favor of prevent plagiarism.5 iparadigms were reasonable, adequately proven, or indirectly the generated millions of dollars in revenue while accumulating an the fourth circuit affirmed the district court's summary section . . . to obtain compensatory damages and injunctive relief or other infringement claim.84 216 depaul j. art, tech. & ip law [vol. xx:1 factors in accordance with supreme court precedent.45 privilege that belong to the owner of the copyright."41 26. id. (citing 17 u.s.c. � 106). (4) the effect of the use upon the potential market 218 depaul j. art, tech. & ip law [vol. xx:1 of, the copyrighted material need not be prohibited in order to therefore, the fact that the distinction [was] not whether the sole motive of the use [was] finding that nothing in the virginia statute excluded consequential including "the right to copy, the right to publish and the right to factors.63 iparadigms' counterclaims.4 failing to consider that the students' works were unpublished.55 weighing each factor in isolation.58 created.70 2003). not recognizing the commercial nature of iparadigms' usage of the 18. id. at 636. interpreted the vcca to exclude consequential damages from the 51. id. at 640. as enumerated in secition 107 through section 122 of the 21. id. 28. id. (quoting sony corp. of america v. universal studios, inc., 464 u.s. 85. id. at 638-45. for or value of the copyrighted work.33 robert a. paul iparadigms owned and operated "turnitin plagiarism detection deemed transformative.48 adverse effect.68 68. id. the district court based its determination that there was no adverse use" under 17 u.s.c � 107.19 participating schools also had the option of archiving provide enough evidence to support actual economic damages.3 75. id. counterclaims, the court reversed the district court's grant of 41. id. (quoting sony, 464 u.s. at 451). gap, inc., 246 f.3d 152, 176 (2d cir. 2001). copyright act specifically states that "[t]he fact that a work is 33. id. (quoting 17 u.s.c � 107). 7. a.v., 563 f.3d at 634. iii. legal analysis eastern district of virginia granted summary judgment in favor of (4th cir. 1998)). victim, including the cost of responding to an offense . . . ." 18 u.s.c. � works, but the works were archived despite the disclaimer.15 224 depaul j. art, tech. & ip law [vol. xx:1 service, turnitin.com, brought a copyright infringement action 48. id. analysis on section 107, which codified the doctrine of fair use.30 because iparadigms' system could the district court found that iparadigms' actions qualified as "fair the united states district court for the contained in a copyrighted work, but also expression itself in online database without authorization in violation of the computer register and submit their work to the turnitin system, they had to the district court granted summary judgment to iparadigms unauthorized access were merely consequential damages. the district court the court determined that in response, the court noted that the district court did recognize 417, 433 (1984)) (internal quotation marks omitted). the court upheld the district court's finding 2009] a.v. v. iparadigms 217 used in relation to the under the cfaa and vcca and remanded for further the court noted that there were several exceptions to these rights 16. id. a.v. v. iparadigms, llc character of the use.62 became part of the database that turnitin used to determine work as a whole."60 84. id. 64. id. service and effectively shielding iparadigms from any liability.17 brought counterclaims alleging one of the plaintiffs accessed its 71. id. abuse act ("cfaa").73 11. id. at 634. 34. id. at 638 (quoting campbell v. acuff-rose music, inc., 510 u.s. 569, that the goal of an analysis of the first factor should be to not attend, it expended numerous man hours to determine the archiving option.14 that iparadigms' use was commercial and relied on the supreme 17. id. 22. id. a finding of fair use.43 cfaa and vcca.21 not be considered transformative because iparadigms did not fair use "allows the public to use not only facts and ideas provision too narrowly.76 exploitation of the copyrighted material without paying the contended that because this fact was omitted from the district also noted that although "[c]opying an entire work weighs against costs of the suit."81 statute to "sue . . . and recover for any damages sustained and the 53. id. educators verification of their students' original work.6 the court disagreed, noting that the district court original creation, or instead add[ed] something new, with a further nevertheless, it found no error in the district court's analysis.64 implied in its analysis that the scope of "economic damages" under � 1030(g) also, included in these rights is district court correctly recognized the commercial nature of be considered fair use required a case-by-case analysis and that the 25. a.v., 563 f.3d at 636 (citing harper & row, publishers, inc. v. nation meaning of "economic damages" should be used in the application phrase "any damages" contained in the statute.82 62. id. (quoting sundeman v. the seajay soc'y, inc., 142 f.3d 194, 205-06 found that, though commercial use generally does weigh against a the fourth circuit concluded that in light of the above analysis, students' submission did not alter the agreement.18 44. the ability to display, perform, and prepare derivative works.26 vcca states that "[a]ny person who uses a computer or computer use, and granted summary judgment in favor of the plaintiffs on transformative purpose in archiving the students' work, it could importantly, the court noted these rights become those of the plaintiffs district court's holding to the fourth circuit.22 violated the virginia computer crimes act ("vcca").79 be circumvented by paraphrasing works in its database, it failed to 74. id. (quoting 18 u.s.c. � 1030(a)(5)(a)(iii)). 50. id. at 639-40. considered the potential market for the students' work too the court next considered the second factor, pointing to the the students' work within the turnitin system. if participating 40. id. in a.v. v. iparadigms, llc, four high school students who iv. conclusion 80. va. code ann. � 18.2-152.3 (2009). first public appearance of his undisseminated expression," a fair 37. a.v., 563 f.3d at 638 (quoting harper & row, 471 u.s. at 562). 1. first factor � purpose and character of the use the plaintiffs emphasized that iparadigms the court began its analysis by noting the overlap of this factor 66. id. at 642-43 (quoting sony 464 u.s. at 450). judgment order as to the plaintiffs' copyright infringement claim.23 instructor suggesting whether a percentage of the work may not be service," an online system to analyze written works to detect and 63. id. further consideration without expressing any opinion as to whether 12. id. at 635. transformative and "completely unrelated to the expressive 58. id. (citing campbell 510 u.s. at 578). the purpose or function is altered.47 however, the court noted that sony also 38. id. (quoting campbell, 510 u.s. at 578-79). 59. id. (quoting 17 u.s.c � 107). three plaintiffs submitted their work to 43. a.v., 563 f.3d at 639 (citing sony, 464 u.s. at 448). of section 1030(g) and that the district court considered the for a private party who "suffers damage or loss by reason of violation of this the court dismissed this iparadigms argued and the court agreed that the ordinary iparadigms counterclaim was insufficient because � 1030(g) limits violations of on the determination that the comparative nature of iparadigms' statutory factors should not be "treated in isolation" but "weighed the court noted that such an economic harm is not the further, the district count found that the disclaimers attached to the exclusive rights enumerated in section 106 of the copyright act original.10 the court emphasized that the question of whether a work would typically, plagiarism detection was fair use, reasoning that it was 4. fourth factor � effect on potential market harm the market value of the works.85 4. id. iparadigms in response to a suspected violation of the cfaa.77 in weighing the third factor, the court considered "the amount 60. id. at 642 (quoting 17 u.s.c. � 107(3)). achieve its intended purpose and could not be considered against iparadigms, the operators of the service.1 language of section 1030 (e)(11) included the costs incurred by copyrighted work as a whole; and california, san diego (ucsd) with a password provided by expressing an opinion as to whether the costs incurred by 2009] a.v. v. iparadigms 219 comment, news reporting, teaching (including multiple copies for (9th cir. 2007)). in order for students to unpublished shall not itself bar a finding of fair use if such finding anyone who trespasses into his exclusive domain by using or fourth plaintiff, a.v., submitted his work to turnitin using a the district court based its finding by false pretenses . . . is guilty of the crime of computer fraud."80 35. id. (quoting 17 u.s.c � 107(1)). the court emphasized that "a use that has that iparadigms' archiving of students' work for the purposes of reasons, the plaintiff's contended that iparadigms' usage could not together, in light of the purposes of copyright."34 content" of the work.53 source of the glitch.75 further, it noted that the certain circumstances."31 court's order, its analysis of the second factor was invalid.57 equitable relief." 18 u.s.c. � 1030 (2006). customary price."37 works to other students; and (3) the fact that the archiving of the plaintiffs' work 15. id. 47. id. (citing perfect 10, inc. v. amazon.com, inc., 508 f.3d 1146, 1165 fair use determination is not made solely on whether or not a not engage in the selling of their work to other students.69 578 (1994)). copyright act.29 protect the author's incentive to create."66 importance of this point, the plaintiffs looked to the supreme in actual damages were caused by the alleged violation.83 2. second factor � nature of copyrighted work 36. id. (quoting harper & row, 471 u.s. at 562). as to iparadigms' 13. a.v., 563 f.3d at 635. 87. id. at 647. enters., 471 u.s. 539, 547 (1985); 17 u.s.c. � 106). the work.20 author's from the time of creation.27 and the first factor, specifically that transformative works do not 19. a.v., 563 f.3d at 636. 2009] a.v. v. iparadigms 221 it noted that generally "as the amount of the 20. id. 46. id. iparadigms contended that the district court incorrectly factor, effectively merging the analysis of the first and third 44. id. (quoting sony 464 u.s. at 449 n.32). service, which contained language absolving iparadigms of any result of such conduct, caus[ing] damage."74 iparadigms' usage and appropriately weighed it against the other doctrine of fair use through the four-factor test enumerated in use" and the district court properly issued summary judgment on 5. id. linked to the alleged cfaa violation.78 the turnitin system compared the students' work against other 55. a.v., 563 f.3d at 640. the district court dismissed both of iparadigms' counterclaims the court first applied the plaintiff's claim to the first factor of 45. id. a commercial nature or is for nonprofit educational whether such use is of a commercial nature or is for nonprofit for the market of student created work, no market substitute was in factual works than in fictional works."54 23. id. would not cause any harm to them in the college admissions process. id. at 643- authorizing the use of the copyrighted work . . . is an infringer of transformative and the turnitin system merely suppressed demand and substantiality of the portion used in relation to the copyrighted of fair use."36 considered transformative because they merely archived the work copyrighted work."65 iparadigms the service provided high school and college (3) the amount and substantiality of the portion the district court did not properly consider damages to iparadigms finding a fair use . . . it does not preclude a finding of fair use," plaintiffs argued the district court misapplied this factor by 2. id. they argued that because an author has "the right to control the the court noted the overlap between the first and third monetary gain, but whether the user [stood] to profit from evidence to support its claim that once it determined that a user 562 f.3d 630 (4th cir. 2009) additionally, 2009] a.v. v. iparadigms 225 76. id. at 646. the district court found that as a matter of law, the create a profile and click "i agree" to the turnitin terms of in response, the fourth circuit dismissed plaintiffs argument by 2009] a.v. v. iparadigms 223 students submitted their work through www.turnitin.com or to emphasize the 10. id. of its analysis.52 30. id. at 637-45. as such, the fourth circuit affirmed the district court's ruling iparadigms against plaintiff a.v. under the computer fraud and 56. id. (quoting harper 471 u.s. at 555). a.v. on the counterclaim, based on the reasoning that iparadigms did not 61. a.v., 563 f.3d at 642 (quoting bond v. blum, 317 f.3d 385, 396 (4th cir. b. defendant's counterclaims court case, sony corp. v. universal studios, inc., which held that plaintiffs argued that the district court's analysis was flawed for i. introduction at the time of litigation, the four plaintiffs were students of high finding of fair use, it must "be weighed along with [the] other 73. a.v., 563 f.3d at 645. the cfaa, primarily a criminal statute, allows student submissions and a database of journal articles and factors in that both considered the intended purpose of the use; purpose or different character."38 speculative and that plaintiffs themselves stated that they would "potential market" for their works in determining that there was no section 107 of the copyright act.24 achieve its intended effect.49 29. id. at 637. papers, students entered a password supplied by their instructor.8 network, without authority and . . . [o]btains property or services court's language that "every commercial use of copyrighted the parties cross-appealed and the fourth circuit affirmed the 86. id. at 646-47. 57. id. further, "[a]nyone who schools that required submission of written work to turnitin in was able to access turnitin as a student of a university that he did 54. id. (quoting stewart v. abend, 495 u.s. 207, 237 (1990)). damages, agreed with iparadigms and remanded the claim for 65. id. (quoting 17 u.s.c. � 107(4)). iparadigms submitted the court, explaining the basis of copyright law, pointed to the actual economic damages arising from the alleged violations of the summary judgment to the plaintiffs.86 entirely different purpose by preventing plagiarism and provided a "substantial the court, 81. va. code ann. � 18.2-152.6 (2009). 3. id. iparadigms' counterclaims, concluding that iparadigms did not 52. id. 32. id. (quoting 17 u.s.c � 107). the schools also elected to use the 83. id. usage was transformative and did not impair the market value of the court outlined the statutory basis of copyright law and the was transformative, and found that iparadigms used the students' work for an 14. id. classroom use), scholarship, or research is not an infringement of work.67 reversed and remanded the summary judgment order regarding originality of other students' work.11 plaintiffs contended that the district court, by referring to the 49. a.v., 563 f.3d at 639. ii. background (1) the purpose and character of the use, including factors in fair use decisions."44 constitute fair use as outlined by section 107.42 commercial use of copyrighted material does not in itself preclude 3. third factor � amount and substantiality of the portion used violates any of the exclusive rights of the copyright owner, that is the vcca entitles anyone who is injured by a violation of the copyright use "perfectly achieves its intended purpose."51 the court finally considered the fourth factor to determine "the no demonstrable effect upon the potential market for, or the value fair use. id. copyrighted material.39 educational purposes."35 8. id. supreme court's statement that "fair use is more likely to be found 70. id. at 644. protected, even when the effect is harm to the market for original password designated for students enrolled in the university of 69. id. at 643-44. material for commercial purposes "tends to weigh against a finding summary judgment order on the copyright infringement claim, but access[ing] a protected computer without authorization, and as a order to receive credit.13 a. plaintiff's appeal � copyright infringement claim through their school's computer system.7 factors for courts to consider when determining fair use: 1. a.v. v. iparadigms, llc, 562 f.3d 630, 634 (4th cir. 2009). further, "[t]he crux of the profit/nonprofit 9. id. without adding anything new.46 type protected by copyright law.71 the copyright infringement claim.72 plaintiffs and defendants cross-appealed the the court determined that the broad the system generated an "originality report" for the argument, stating that a work does not need to be altered to be 72. id. at 645. consideration.87 the preamble of section 107 states "the 31. a.v., 563 f.3d at 637 (quoting eldred v. ashcroft, 537 u.s. 186, 219 (2) the nature of the copyrighted work; iparadigms alleged that a.v., by accessing turnitin through a considered transformative and can be considered transformative if 27. id. (citing harper & row, 471 u.s. at 547). ever-growing database of students' work.40 submitted written assignments to the online plagiarism detective the court noted that using copyrighted turnitin with a disclaimer objecting to the archiving of their transformative, and although used commercial purposes, did not additionally, the court reasoned that because the use was the cfaa to economic damages. here, iparadigms' labor expenses to find the use will constitute a `fair use' decreases."61 transformative.50 67. a.v., 563 f.3d at 643. see sundeman, 142 f.3d at 207; davis v. the enrolling in the turnitin system, thereby agreeing to the terms of given that, the court based on the fact that the students clicked on "i agree" when students' work was not altered did not preclude it from being use consideration should be narrower in scope.56