This is a strong example of where fair use is being asked to do the heavy lifting on the internet when it comes to legalizing creative but technically infringing business models that are “transformative” commercial uses.
Fair Use under17 U.S.C. § 107 of the copyright act is a four factor balancing test that includes:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
In this case many of the factors weighed in favor of iParadigms’ use. Below I will quoting some of the more interesting part of the opinion and commenting on the courts logic.
Factor #1 Purpose and charter of use.
The court started by emphasizing that “transformative” (work) or (work that) “adds something new, with a further purpose or different character” is strong evidence that the use is a fair use. See Harper & Row, Publishers, Inc. v. Nation Enters., 471
Comment by Rowe: This is a very important point. The “transformative” logic used by the court is turning factor 1 into a super factor that has more weight then the other factors.
In Perfect 10. Inc. v. Google. Inc.. 487 F.3d 701 (9th Cir. 2007), the Ninth Circuit recently addressed the use of works in a computer database and found the defendant’s use to be transformative. Plaintiff Perfect 10 sued Google for infringement based on Google’s display of thumbnail-sized images from Perfect 10’s web site, which were displayed by Google in response to a user search. The court held that Google’s reproduction of the images was “highly transformative” because “[a]lthough an image may have been created originally to serve an entertainment … or informative function, a search engine transforms the image . . . [and] provides a social benefit by incorporating an original work into a new work, namely, an electronic reference tool.” Perfect 10. 487 F.3d at 721. (emphasis added by Rowe)
Comment by Rowe: This reading of Perfect 10 (P10) as focusing on the “transformative” nature of the use along with a public benefit is very accurate. I think this is a much better summary of the P10 case then was presented two weeks ago at the 13 Annual WSBA IP Institute where the case was described as a “mere miniaturization” case. In P10 the other factors were seen to be only neutral or slightly in the favor of the plaintiff and factor 1 became the deciding factor. It is worth noting that P10 seems to state that for factor 4 one must show real harm not just theoretical harm. .
Though iParadigms makes a profit in providing this service to educational institutions, its use of the student works adds “a further purpose or different character” to the works, see Harper & Row, 471 U.S. at 562, and provides a substantial public benefit through the network of educational institutions using Turnitin. Thus, in this case, the first factor favors a finding of fair use.
Comment by Rowe: This is the correct finding on this factor and a strong example of how to frame fair use arguments for creative transformative business models online.
Factor #2 Nature of the copyrighted work
This factor “focuses attention on the extent to which a work falls at the core of creative expression,” and, in particular, whether “the incentive for creativity has been diminished.” Bond v. Blum. 317 F.3d 385, 395-96 (4th Cir. 2003).
In this case, this factor is of lesser import because the allegedly infringing use makes no use of any creative aspect of the student works. Rather, iParadigms’ use relates solely to the comparative value of the works. Nevertheless, iParadigms’ use in no way diminishes the incentive for creativity on the part of students. On the contrary, iParadigms’ use protects the creativity and originality of student works by detecting any efforts at plagiarism by other students. Thus, the second factor either favors neither party or favors a finding of fair use.
Comment by Rowe: The court is asserting here that a use of a work that is functional and not reliant on the creative nature of a work makes this factor irrelevant. The case law cited to support this is a weak comparison at best. In Bond v. Blum the court was evaluating whether to admit an unpublished book manuscript into a court record for a custody hearing. It appears to me that court in this case and Bond are simply dismissing this factor if the infringing use is not creative and does not harm the commercial value. These courts are conflating or modifying this factor based on factor 1 and 4 making it much less important then the other factors.
Factor #3 The amount and substantiality of the portion used.
The Supreme Court and the Fourth Circuit have indicated that a new work’s complete and entire use of the original work does not automatically preclude a finding of fair use. See, e.g.. Sony Corp. Of
Americav. Studios. Inc.. 464 U.S. 417 (1984) (making copies of complete television shows for purposes of time-shifting is a permissible fair use); Bond. 317 F.3d at 3 96 (use of entire manuscript “was not for expressive content” and “[did] not undermine the protections granted by the Act”). For example, in Perfect 10. the fact that Google displayed the entire Perfect 10 image in its search engine results did not make the use impermissible because the use was also highly transformative. See Perfect 10, 487 F.3d at 724. In this case, it is clear that iParadigms uses the entirety of the original works. In order to be successful in its plagiarism detection services, it must. However, the use of the original works is limited in purpose and scope. The student works are stored digitally and reviewed electronically by Turnitin for comparison purposes only. The only circumstance in which a student work can be produced for viewing is when another student’s submission triggers an Originality Report that indicates the possibility of plagiarism. Universal City
If this occurs, the teacher can request to view the document which produced the plagiarism alert in order to compare the two works. This use is, as discussed above, highly transformative and highly beneficial to the public through educational institutions using Tumitin. Thus, this factor either favors neither party or favors a finding of fair use. (emphasis added by Rowe)
Comment by Rowe: The outcome of this factor as neutral is correct but for different reasons. Access to the copies does not normally affect this factor and should not. Access is about harm to the work’s commercial value not about how much was copied. The need to copy the heart of a work or all the work for the particular use can clearly affect this factor.
Factor #4 The effect of the use upon the potential market for or value of the copyrighted work.
This factor “is undoubtedly the single most important element of fair use.” Harper & Row, 471
at 566. As the Fourth Circuit has stated, “[a] use that does not materially impair the marketability of the copyrighted work generally will be deemed fair.” Sundeman v. SeaJay Society. Inc., 142 F.3d 194, 206 (4th Cir. 1998). … U.S.
Plaintiffs have failed to present any evidence of harm.
A “key element” in this analysis is “whether the allegedly infringing work is a market substitute for the copyrighted work.” Sundeman, 142 F.3d at 207. Here, it is clear that iParadigms’ use of Plaintiffs’ works has caused no harm to the market value of those works… iParadigms stores its archived papers digitally and they are not publicly accessible or disseminated in any way. In fact, iParadigms’ use of Plaintiffs’ works has a protective effect, preventing others from using Plaintiffs’ works as their own and protecting the future marketability of Plaintiffs’ works.
Comments by Rowe: The court got this factor mostly right. This is where access should matter as limited or no public access weighs in favor of the defendant. Additionally I find it interesting that the plaintiff is required to provide evidence of harm. In most copyright infringement cases harm is theoretical in nature especially if the infringer is not selling the copies. I would like to see a requirement to prove actual harm for factor 4 to weigh in favor of the plaintiff. Most noncommercial distribution of works actually increase the value of a work by increasing its popularity. A move to actual harm could force plaintiffs to look at the economic models involved in online distribution and stop suing their fans.
Additionally having to prove actual harm could increase the likelihood that distribution of copyrighted works to poor people in third world nations would be deemed fair use as the poor who can not afford a text book would not be a lost sale and would not cause actual harm.
Finally, I no longer think factor 4 is the key factor. Transformative works may interfere with the market value of works, but they may also add such a benefit to society that they do not quash the value of the original in its original market. I hope to see this trend continue in the direction of limiting copyright privileges to uncreated derivative works. Many transformative uses are derivative in nature and have not yet found a legal safe haven to ensure that creativity can flourish on the shoulders of giants.
On a related note Rebecca Tushnet of 43(B)log makes a great point on how copyright is being used here by the student to put forward a moral claim:
There’s something here about the use of copyright claims to express what are really moral objections–many students perceive the system as operating on a presumption of guilt and reinforcing an antagonistic, rather than a cooperative, relationship between teachers and students.
The practice of trying to use copyright to upholding moral rights is becoming increasingly more prevalent and a bit troubling. Copyright was meant to be an incentive not moral tort duct tape. If copyright is used as a moral enforcement it may stifle innovation even more than it does now. I think we need a separate limited moral rights scheme to allow people to opt-in for these protections.
iparadigms-3-11-08-opinion.pdf (fair use starts on page 12) ( Warning PDF)
iparadigms-3-11-08-order-dismissing-case.pdf ( Warning PDF)
Perfect 10 v. Google at EFF (Warning PDF)
Bond v. Blum 317 F.3D 385 at AltLaw
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