Fair or foul? Under the fair use doctrine, transformative use of a copyrighted work may preempt any infringement liability. But can a commercial use that merely archives a work without adding anything to the work qualify as “transformative”? This was precisely the issue faced by the Fourth U.S. Circuit Court of Appeals in A.V. v. iParadigms, LLC. The case syllabus iParadigms owns an online plagiarism detection system called Turnitin. Participating schools can “archive” student works so the works become part of the database used to evaluate the originality of future submitted works. Claiming that their copyright interests were infringed when their works were archived without their permission, four high school students sued iParadigms. The plaintiffs appealed the district court’s determination that iParadigms’ use of the plaintiffs’ written works qualified as fair use under the Copyright Act and, therefore, didn’t constitute infringement. In particular, the court found that iParadigms’ use of the works to prevent plagiarism was transformative and favored a finding of fair use. 4 nonexclusive factors The fair use doctrine limits a copyright owner’s “monopoly” in their work by allowing third parties to use the work in certain circumstances without the owner’s consent. The Copyright Act specifically allows fair use of a copyrighted work for the purposes of criticism, comment, news reporting, teaching, scholarship or research. The act lists four nonexclusive factors that courts should consider in determining whether a use is fair: 1. The purpose and character of the use, including whether it’s of a commercial nature or for nonprofit educational purposes, 2. The nature of the copyrighted work, 3. The amount and substantiality of the portion used in relation to the work as a whole, and 4. The effect of the use on the potential market for or the value of the work. The determination requires a case-by-case analysis. The court’s homework On appeal, the Fourth Circuit noted that, under the first factor, courts must examine “whether and to what extent the new work is transformative … the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” The court defined a transformative use as one that employs the copyrighted material in a different manner or for a different purpose than the original. Although a commercial use finding generally weighs against a finding of fair use, the court explained that the fact that iParadigms’ use of the students’ works was commercial wasn’t determinative in and of itself. It agreed with the district court’s conclusion that the commercial aspect wasn’t significant in light of the transformative nature of iParadigms’ use. The students argued that iParadigms’ use couldn’t qualify as transformative because the archiving didn’t add anything to their work. The court deemed this argument was “clearly misguided” because the use of a copyrighted work need not alter or augment the work to be transformative; a use can be transformative in function or purpose. iParadigms’ use of the students’ works had an entirely different function and purpose than the original works had. Final grade The Fourth Circuit ultimately agreed with the district court that the remaining factors either favored neither party or favored a finding of fair use. iParadigms was, therefore, entitled to summary judgment on the copyright infringement claims. • |