[Eugene Volokh, March 28, 2008 at 6:54pm] Trackbacks
High School Students' Copyright Lawsuit Against Anti-Plagiarism Site Rejected:

The opinion is here. The court quite correctly accepts the site's fair use claim. The court also accepts the site's clickwrap contract defense (a conclusion that might be more controversial, though I think the site's reasoning is still correct); but that doesn't really matter to the bottom line given the fair use result.

For more on the case, see my initial post from when the case was filed last year. Thanks to David Post for the pointer.

Related Posts (on one page):

  1. High School Students' Copyright Infringement Lawsuit Against Anti-Plagiarism Site Rejected:
  2. High School Students' Copyright Lawsuit Against Anti-Plagiarism Site Rejected:
  3. High School Students Sue Anti-Plagiarism Site for Copyright Infringement (and Thirteenth Amendment Violation):
Ex-Fed (mail) (www):
That's some serious chutzpah by those students.
3.28.2008 8:12pm
anym_avey (mail):
This is terrible news. Having now lost at their day in court, these students may very well be inspired to become laywers.
3.28.2008 8:12pm
Casual Peruser:
But what, pray tell, happened to their Thirteenth Amendment claim?
3.28.2008 8:33pm
Elliot123 (mail):
Would the situation change if a competing service actually paid the students for each paper it archived, and that payment was a function of the total number of all papers checked by the competing service? Hence, the free use of the students' papers would compete with the paid use.
3.28.2008 8:36pm
Dave B (mail):
I am not yet a law student (I hope to be this fall). Aside from that, what I have read about contract law amounts to very little.

On Page 7 the decision read "in Viriginia, the essential elements of a contract are. . ."
The statement was in rather simple terms, which I assume is for the benefit of the secondary school students that filed the suit.

However, the issue of contract bothered me because I was under the impression that contracts involving minors are voidable by the minor. At what point does a minor lose that right, or are there situations under which the ability to void cannot apply? I appreciate any insight.
3.29.2008 1:29am
Dave B (mail):
Just to be clear, I was not comfortable with the reasoning in the decision.
3.29.2008 1:32am
neurodoc:
David B, you sound like someone tightly coiled, just waiting for the starter's gun to go off to launch from the blocks in a mad dash for law review. May your enthusiasm for the law never flag, and good luck in making law review or whatever else you may aspire to during and beyond law school.
3.29.2008 1:40am
DiverDan (mail):
Just why wasn't the licensing agreement a contract of adhesion? The students were compelled by their school district to use Turnitin, with the only alternative being a failing grade in the class. What if a student went to the Teacher and said "I'll be glad to turn in my assignment to you in electronic form, but I cannot use Turnitin, because I will not agree to its unreasonable Licensing Agreement." How can a School District compel a student to forfeit his or her right to decide what contracts to accept or reject as a condition of getting an education?
3.29.2008 7:08am
Sean M:
My concern on the contract decision was that the students, in addition to clicking 'I agree,' apparently included a statement that they did not consent to the use.

In normal contract law, even if the contract said, "We will not accept modification of this contract," and I said, "Okay, I agree, but I want the price to be $10.00," that's not an agreement at all. It's a rejection and counter-offer. Why not the same here?

Presumably, because the "disagreement" was on the paper not the "contract" itself.

As for DiverDan's comment, it's not Turnitin's fault that teachers make submission necessary, but it should lead schools to wonder if they want to use the service, given that it gobbles student papers.
3.29.2008 11:07am
Tony Tutins (mail):
Here the only market for the student's papers was unwilling to pay for their use -- is that automatically a fair use? What precedential value does this have?
3.29.2008 1:04pm
one of many:
it's not Turnitin's fault that teachers make submission necessary, but it should lead schools to wonder if they want to use the service, given that it gobbles student papers.
I could agree with this and the court's reasonsing of it weren't for the fact that there is a relationship between the schools and Turnitin, which deals intimately with the issue at hand. Turnitin is the agent of the school district which is coercing the students to accept Turnitin's agrrement. I imagine a realestate company I contract to buy property for me may be blameless if I threaten to burn peoples houses down if they do not sell them to that company - but I cannot see the issue being so moot as to be dismissed in a sumary judgement.
3.29.2008 1:15pm
Sean M:
One of many,

I doubt Turnitin is the agent of the school. It is, instead, like a college graphic design program that states that our course will use Photoshop and that each and every student is expected to purchase the Photoshop program and use it for the assignments for the class.

Even if Photoshop's clickwrap agreement is oppressive, and even if I will fail the course without Photoshop, the mere fact the college requires Photoshop does not make THE COLLEGE the ones that impose the contract of adhesion on me.
3.29.2008 1:46pm
PDXLawyer (mail):
I agree with One of Many. Turnitin is in privity of contract with the school, so the school's duress is attributable to Turnitin. This seems escpecially true since Turnitin seems to be relying on the schools using duress in order to get the students to "agree" in the first place.

SeanM's analogy with a class which requires using Photoshop is, I think, not applicable. I haven't read Photoshop's license, but I have a hard time imagining Photoshop asserting a right to the works which others create.

That said, I think Turnitin's fair use argument is a clear winner. It is hard to work up too much sympathy for an organization willing to use such thuggish tactics against minors, but their basic fair use position was right.
3.29.2008 2:49pm
PDXLawyer (mail):
EV,

I just re-read your post and would be interested in knowing your analysis of the contract side of this. Two points occur to me.

The first is duress.

More interesting, to me, is the issue of unconscionability in clickwrap licenses, or more generally consumer contracts of adhesion. Seems to me that this area has been getting progressively further out of control, and that legislative efforts at "consumer protection" have more often licensed abuses. Safe harbor provisions impose ineffective, formalistic "notice" requirements and preempt substantive limitations.

Still, it appears that there is little public backlash against oppressive terms in consumer contracts, so maybe its just me.

Hey, you, VISA! Get off my lawn.
3.29.2008 3:08pm