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Turnitin's user agreement requires students to sign over all rights to their work: "You hereby grant iParadigms a non-exclusive, royalty-free, perpetual, world-

Turnitin's user agreement requires students to sign over all rights to their work: "You hereby grant iParadigms a non-exclusive, royalty-free, perpetual, world-wide, irrevocable license to reproduce, transmit, display, disclose, archive and otherwise use in connection with its Services". This court case is actually about clickwrap agreements, not fair use. Though the courts spent a fair amount of time blathering about fair use, the clickwrap agreement was already decisive. The only reason that the fair use argument was even mentioned was because one of the plaintiffs "hacked" the system, using a password not intended for him and (apparently) not agreeing to the clickwrap agreement. There's actually a really ugly line of reasoning in the cases about making contracts with minors. The minors were required to use Turnitin (sign over their copyright in their papers for free) by their schools. Since Turnitin didn't coerce them (the schools did), it's not a contract of adhesion. Since they received some consideration from it (the ability to graduate from their schools!), they cannot escape from the contract due to their being minors. SO: as a business owner, if you can get schools to require that students do X which benefits you, they have no hope of escaping from it legally, even if X is grossly unfair to the students. Let's consider: how much would Stephen King's/Madonna's/Oprah Winfrey's/Barack Obama's student papers be worth today? We don't know, because no one required them to use an archiving service that could sell them later on. But in just a few years, some people from the Turnitin.com generation will be reaching superstardom, and Turnitin can sell copies of their student papers to all comers. I suspect that the value of selling specific student papers will far exceed all other revenues ever realized by Turnitin.

batasrki 18y ago
I was about to make the same point, only not is so much detail. If the schools REQUIRE students to submit their papers in order to receive a grade, the binding agreement might not as well be there, since the students have no choice but to agree. Why didn't the students' lawyers focus on this point?
cduan 18y ago
The case is not about clickwrap agreements. Footnote 8 reads: > In light of our "fair use" analysis, we decline to address the question of whether the terms of the Clickwrap Agreement created an enforceable contract between plaintiffs and iParadigms. In other words: the court ignored the clickwrap agreement issue, because the fair use analysis was decisive.
- jellicle 18y ago
  And the lower court found that the clickwrap agreement was fully enforceable. So: lower court found it enforceable, higher court declined to address it, that's it. The higher court is essentially being lazy here.

batasrki 18y ago

I was about to make the same point, only not is so much detail. If the schools REQUIRE students to submit their papers in order to receive a grade, the binding agreement might not as well be there, since the students have no choice but to agree. Why didn't the students' lawyers focus on this point?

cduan 18y ago

The case is not about clickwrap agreements. Footnote 8 reads: > In light of our "fair use" analysis, we decline to address the question of whether the terms of the Clickwrap Agreement created an enforceable contract between plaintiffs and iParadigms. In other words: the court ignored the clickwrap agreement issue, because the fair use analysis was decisive.

jellicle 18y ago
And the lower court found that the clickwrap agreement was fully enforceable. So: lower court found it enforceable, higher court declined to address it, that's it. The higher court is essentially being lazy here.