Archiving is Fair Use?

Rebecca Tushnet has an interesting blog post about a recent federal court decision. A group of students sued a company called iParadigm, L.L.C. over that company's archiving of their term papers in a database.

Apparently, iParadigm does this via a service called "Turnitin," so that they can authenticate the originality of a student's submitted paper.

The school districts these students attend have contracted with this company to provide this service.

From Tushnet's post:

Turnitin is a plagiarism-detection service. Schools using Turnitin require students to submit papers through Turnitin’s system, which compares their papers to Turnitin’s database and, if there’s a suspicious match, generates a report for the relevant teacher. Schools can also choose to allow their students’ papers to be added to the database to improve Turnitin’s ability to detect among-student cheating. Plaintiffs objected to Turnitin’s approach and sued for copyright infringement based on papers they’d been required to submit as a condition of receiving school credit.

The plaintiffs were, understandably, miffed at a company being able to use their works to generate a profit.

Well, the court found that the Plaintiffs' claims were without merit. Apparently, a contract of adhesion (I'm sorry, a "clickwrap license") is only a bad thing if you're not signing it at the insistence of a third party.

The court said that iParadigm's use of the papers is "fair use" under copyright law, mainly because they're not using the papers for anything but plagiarism detection...

So, for those of you out there who care...

That huge library of unlicensed songs you've got on your computer is no longer a "library." It's a "database of songs for use in determining if there's anything new under the sun."

Hope that helps.