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Turnitin is an online service offered to schools and colleges that evaluates, by a digital comparison, whether a paper submitted by a student contains content that is identical to existing content, both online and in the existing Turnitin database. Once a paper has been submitted, the service stores the work in its digital archive, making it available for comparison with future works.

The high school students who brought a copyright infringement action against the service were required by the policies of their respective institutions who were subscribers to the service to submit their works to Turnitin or suffer a "zero" in the class for which the work was assigned. In order to submit a paper to the service, the students were required to create a user profile on the Turnitin Web site. That process required the students to click "I agree" on the site's "terms of agreement."

Under the terms of agreement, use of the service was conditioned on the user's acceptance of the terms without modification. The agreement also relieved the service of liability "for any … damages arising out of or in any way connected with the use of this web site." In an attempt to avoid the provisions of the clickwrap agreement, the students included a disclaimer on their papers indicating that they did not consent to the archiving of their works. 

In response to the students' copyright infringement suit, Turnitin argued, among other things, that the disclaimer of liability precluded any award of damages against Turnitin for copyright infringement.

In the district court, the students took several approaches in challenging the enforceability of the agreement. First, they argued that enforcement of the agreement was barred by the doctrine of infancy. Second, they argued that the agreement was executed under duress. Finally, they argued that the limitation of liability was negated by the disclaimers that they put on their papers indicating that they did not consent to archiving.

In A.V. v. iParadigms, LLC, 544 F. Supp. 2d 473 (E.D. Va. Mar. 11, 2008), the district court enforced the clickwrap agreement, including its limitation of liability. The court rejected the student's attempt to modify the limitation of liability via the disclaimer added to their papers. The district court made short work of each argument proffered by the students.

The district court found that the disclaimers on the student papers neither modified the agreement nor rendered it unenforceable, because a non-modifiable agreement was created when they clicked "I agree" to the proffered terms. Consequently, the limitation of liability was enforceable and barred and the service could not be held liable for any damages arising out of the students' use of the site, including damages arising out of submission and archiving of their papers. The court declined to read the site's usage policy as part of the contract, as the clickwrap agreement's own language stated that no other agreements were relevant as it was not independently agreed to.

As to the argument concerning duress, the court concluded that Turnitin did not engage in any conduct toward the students that constituted duress, and the students could not assert duress by a third party, i.e., the school, in attempting to invalidate the agreement with Turnitin. Furthermore, the district court concluded, any such coercion or duress was not unlawful or wrongful because the students' schools "have a right to decide how to monitor and address plagiarism in their schools and may employ companies like iParadigms to help do so."

With respect to the infancy defense, the court ruled that while a contract with an infant is voidable under the law of Virginia, the students obtained benefits under the agreement and were thus barred from disclaiming it: "

Plaintiffs received benefits from entering into the Agreement with iParadigms. They received a grade from their teachers, allowing them the opportunity to maintain good standing in the classes in which they were enrolled. Additionally, Plaintiffs gained the benefit of standing to bring the present suit.

In affirming the district court, the appeals court addressed none of these arguments, concluding that because the archiving of the papers was a permissible fair use, it need not reach the question of whether the disclaimer in the terms of agreement barred relief on the copyright claim.

The ruling in the lower court is helpful to the defense of clickwrap agreements on several points. First, the district court's treatment of the infancy defense offers a line of analysis that is very favorable to the enforceability of clickwrap agreements executed by minors. It could be argued, for example, that merely obtaining access to the content or services on a Web site is a benefit that bars a minor from later disclaiming the agreement on the grounds of infancy. Second, the district court's rejection of the student disclaimers suggests that any after the fact attempt to modify a clickwrap agreement will be unavailing if the agreement provides that the terms must be accepted "without modification." The resulting enforcement of the limitation of liability provision shielded the Web site from the students' claims, highlighting the importance of including the provisions in standard Web site terms and conditions.

The pro se attorney plaintiff in Burcham v. Expedia brought suit against the travel site under Missouri consumer law, claiming that Expedia knowingly misrepresented the hotel amenities for a room that he booked on the site. He sought $5 million in damages and class certification.

It didn't help the court's view of the case that the room was booked for a hotel in Missouri in November, and one of the amenities that Burcham claimed was absent when he and his children arrived at the hotel was an outdoor swimming pool. Fair enough, Burcham also claimed that the hotel lacked an indoor swimming pool, conference room, restaurant and bar/lounge. But the court pointed out that Burcham's complaint did not allege that he or his children wished to use any of the absent amenities.

Burcham was off to a bad start.

Expedia moved to dismiss Burcham's complaint, relying on the forum selection provision that specified Kings County, Washington as the proper venue. Expedia submitted evidence showing multiple versions of its terms of use, including the current and past versions, which the court concluded contained the same material terms.

Expedia also established by affidavit that Burcham's booking had been made by a process under which the user was presented with a legend stating: "By continuing on you agree to the following terms and conditions." Beneath the legend, the full text of the terms and conditions was displayed. In order to book a room, the user was required to click on the "continue" button.

Confronted with this evidence, Burcham argued that he simply did not remember seeing the terms and conditions when he used the Expedia site. He suggested that he may have used the site from a shared computer at his law office without checking to see if the prior user of the computer was already logged onto the site. Thus, he argued, the prior user may have clicked past the terms and conditions, but they were never presented to him.

The court briefly reviewed the relevant case law (e.g., Specht v. Netscape, Register.com v. Verio, ProCD v. Zeidenberg) and the distinctions between clickwrap, shrinkwrap and browsewrap agreements, and quickly concluded that Expedia had an "enforceable online clickwrap agreement" with Burcham. Burcham's argument that he never saw the terms and conditions was dismissed both on the facts and the law.

On the facts, the court found, Burcham offered no evidence to support his "clever theory" that someone else clicked past the terms and conditions, and the undisputed facts showed that the user account created at the time the terms and conditions were assented to was associated with Burcham's own e-mail address. On the law, the court concluded that if Burcham in fact had accessed the Web site under someone else's account, he was still bound by the terms and conditions to which that user had assented, citing, e.g., Motise v. America Online, Inc., 346 F.Supp. 2d 563 (S.D.N.Y. 2004) (individual using the online account of another user bound by the same terms and conditions as the account owner).

Burcham also tripped over the evidence he himself submitted to the court along with his brief. The court noted that the Expedia Web pages Burcham submitted as exhibits contained a hyperlink at the bottom to the full text of the Expedia terms and conditions. The court noted that the terms and conditions stated that users of the site consent to be bound by those terms and conditions by accessing and using the Web site. Thus, the court concluded, even if Burcham wasn't clickwrapped, he was browsewrapped.

Finally, the court quickly dismissed Burcham's arguments that the forum selection provision was unreasonable and in contravention of Missouri public policy and that the contract as a whole was one of adhesion.

The ruling in Burcham v. Expedia is a win for the enforceability of online agreements, and another loss for pro se attorney plaintiffs for whom courts seem to have little sympathy. See, e.g., Field v. Google, 412 F.Supp. 2d 1106 (D. Nev. 2006) (rejecting pro se attorney plaintiff's "manufactured" copyright infringement claim based on Google Web crawling and caching).

Burcham v. Expedia, Inc., 2009 U.S. Dist. LEXIS 17104 (E.D. Mo. Mar. 6, 2009)