Sunday, July 23, 2017

Who owns copyright in student papers?

A post about VeriCite on Nibletz contains the text:

VeriCite integrates seamlessly with all of the popular learning management systems (LMS) like Moodle, Blackboard and of course Canvas. The students and you, retain ownership of the work turned into VeriCite even if you change LMS providers.

The question of "who owns" copyright in student papers was addressed in 26 Touro L. Rev. 207, titled Do Students Turn Over Their Rights When They Turn in Their Papers? A Case Study of , which discussed the "iParadigms" case, 544 F. Supp. 2d 473; 2008 U.S. Dist. LEXIS 19715.

There seems to have been no dispute that the students were authors, with standing to bring suit.

One also notes the text in the law review:

iParadigms' only reasonable conclusion is found in its analysis of the third factor. Relying heavily on Sony and Perfect 10, n153 iParadigms found that copying an entire work, when necessary to do so, does not preclude a finding of fair use. n154 It is conceded that to effectively locate a plagiarized portion of a paper, one must have access to as much data as possible and it must be in its original context. n155 This only comprises half of the answer though. Using the entire document does not preclude a finding of fair use, but it certainly does not favor one either. iParadigms acknowledged that the entire paper must be used for Turnitin's system to operate, but the statute does not ask the court to consider whether using the entire work is necessary, rather it questions "the amount and substantiality of the portion used in relation to the copyrighted work as a whole." n156 Taking into account the first two factors, which should not have favored Turnitin, this factor should be an additional strike against Turnitin, rather than an additional factor on its side.


Separately, from 90 St. John's L. Rev. 233 (2016);

In A.V. ex rel. Vanderhye v. iParadigms, LLC, n110 plaintiff students brought suit against iParadigms for copyright infringement of essays they wrote for submission to their high school teachers through the defendant's online plagiarism detection service. n111 The defendant owned and operated "Turnitin Plagiarism Detection Service" which allowed high school and college educators to evaluate the originality of their students' work. n112 A school could subscribe to iParadigms' service, and students would be required to submit their work through the web-based system. n113 Turnitin would then compare [page 247] the students' work with content already available online. n114 The students' work would subsequently become archived for future comparisons. n115 But for this process to occur, students had to agree through a "Clickwrap Agreement" when creating a profile to use the service. n116

Four high school students brought suit against iParadigms, claiming that they submitted a disclaimer on their assignments, which objected to the archiving of their work. n117 In reviewing the defendant's fair use defense, the district court held that iParadigms' use of the plaintiffs' work was transformative because "its purpose was to prevent plagiarism by comparative use, and that iParadigms' use of the student works did not impair the market value for high school term papers and other such student works." n118 On appeal, the Fourth Circuit held that while the commercial factor of the analysis tended to weigh against fair use, it had to be weighed alongside the other factors and was thus not determinative. n119 The plaintiffs argued that the district court erred in holding that iParadigms did not add anything new to a work to make it transformative, but simply stored the work in its archives. n120 They argued in the alternative that iParadigms still failed the transformativeness test because its service did not always prevent plagiarism and therefore did not have a transformative purpose. n121 The appellate court disagreed, holding that "the use of a copyrighted work need not alter or augment the work to be transformative in nature. Rather, it can be transformative in function or purpose without altering or actually adding to the original work." n122 Furthermore, the court determined that the use did not need to achieve its purpose perfectly, and that iParadigms' use of the works was transformative because it was "completely unrelated to expressive content" and was intended to discourage plagiarism. n123


The Sixth Circuit also reviewed the issue of transformativeness in verbatim copying. n64 In Princeton University Press v. Michigan Document Services, n65 the defendant, a commercial copyshop, reproduced substantial portions of copyrighted scholarly works and bound them into coursepacks for student use in reading assignments given by professors at the University of Michigan. n66 The copyshop did so without seeking or obtaining permission from copyright owners, and the plaintiff [*242] publishers filed suit for copyright infringement. n67 The district court found that the copyshop did not have a fair use defense, and on appeal, the Sixth Circuit agreed. n68 In considering the transformativeness of the coursepacks, the court stated, "If you make verbatim copies of 95 pages of a 316-page book, you have not transformed the 95 pages very much - even if you juxtapose them to excerpts from other works and package everything conveniently." n69


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