In A.V. v. iParadigms, LLC, 2009 U.S. App. LEXIS 7892 (4th Cir. Apr. 16, 2009), the Fourth Circuit concluded that the archiving of high school student term papers by a plagiarism detection service is protected by the fair use doctrine. Having so ruled, the appeals court did not address the district court’s analysis of the enforceability of the clickwrap agreements executed by the minor students when they submitted their papers to the service.  The district court ruling on the issue of enforceability is, therefore, left intact.

The district court opinion offers some other general points of interest with respect to clickwrap agreements.

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.