Learning from ambiguity

I have long believed that one of the most important skills one can develop in life is the ability to tolerate ambiguity and to learn from all side of a complex and irresolvable situation.  Perhaps that philosophy helps explain how I can tolerate being a copyright lawyer in the current IP environment.  But I continue to have an especially ambivalent reaction to the case involving the plagiarism detection software called Turnitin.  I wrote about the district court decision over a year ago. Now the appeal has been decided — a win for Turnitin on ever front, upholding the major parts of the district court ruling and reversing only that aspect that disfavored iParadigms, the Turnitin parent company — and I still find myself feeling rather torn.  So now I am trying to learn from the ambiguity.

The heart of the case, and the major issue affirmed by the Fourth Circuit Court of Appeals, is that Turnitin makes a fair use of submitted papers when it copies and stores them to be compared with later submissions.  On this issue, I have been convinced; the 4th Circuit opinion has put to rest my earlier doubts.  I still don’t think Turnitin is a particularly useful tool, especially for higher education, but the reasoning of the court on the fair use issue is so clear and compelling that I cannot resist their conclusion.  Besides, I really wanted to agree with them on this point all along.

There are two important points that I want to emphasize in the appellate decision that really help explicate fair use.  First, the Court is very clear that a work can be transformative, and so a favored candidate for fair use, even when the second work does not add anything to the original, but merely copies it for a different “function or purpose” that that for which the original was created.  Here is the conclusion of the Court:

“The use of the 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.”

The Ninth Circuit has made similar rulings regarding Internet indexing in Kelly v. Arriba Soft and Perfect 10 V. Amazon, but it is nice to see this conclusion, which really broadens the scope of the transformative use analysis, arise in another circuit as well (especially in the one in which I live and work).  This is a significant advance in the analysis of transformative uses over its original discussion by the Supreme Court in the “Oh Pretty Woman” case, and it offers grounds for hope that many of the innovative uses of copyrighted materials that new technology make possible could be considered transformative.

Even more exciting to me, is this remark made by the Court as it considered the second fair use factor, the nature of the original copyrighted work:

if the disputed use of the copyrighted work “is not related to its mode of expression but rather to its historical facts,” then the creative nature of the work is mitigated… the district court concluded that iParadigms’ use of the plaintiffs works “related solely to the comparative value of the works” and did not “diminish the incentive for creativity on the part of the students.”

This specific holding would benefit only a fairly limited class of uses, I think, but it is significant to me because it involves the Court’s recognition that the incentive structures for different kinds of works differ.  Since the incentive structure for academic work is significantly different from that of commercial production, I would argue, the scope of transformative fair use for academic work should be broader than it might be for Disney films or songs by U2.  The reasoning of the Fourth Circuit here, its willingness to ask how this specific use impacts the incentive for these specific authors, takes a step toward that kind of argument.

In general this decision is a very comprehensive and cogent fair use analysis that deserves to be widely read.  So why am I still feeling ambivalent?  Because the Court never did address the issue that troubled me most in the lower court’s ruling, the assertion that the “click-wrap” license that the plaintiffs had to agree to in order to get access to the site was valid and enforcable, even thought the plaintiffs were minors and took steps to indiccate that they did not agree to the non-negotiable terms.  The appellate ruling, based as it was on fair use, never needed to address this holding, but I continue to think it was a mistake.  The fact that courts will give such weight to contracts that users can neither negotiate nor avoid suggests to me that this is a problem in need of a legislative solution.  I would like to see the copyright law ameded to state that non-negotiable contracts do not preempt copyright law; that is, that consumers cannot give away their statutory rights as users of copyrighted content unless they have a meaningful chance to do so intentionally and with forethought.  If we could add such a provision to the federal law, my ambivalence about the Turnitin case would vanish altogether.