PUBLISHED
`
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`
`
`A.V., a minor, by his next friend
`Robert Vanderhye; K.W., a minor,
`by his next friend Kevin Wade,
`Sr.; E.N., a minor, by her next
`friend Scott Nelson; M.N., a
`minor, by her next friend Scott
`Nelson,
`
`Plaintiffs-Appellants,
`v.
`IPARADIGMS, LLC,
`Defendant-Appellee.
`
`
`
`A.V., a minor, by his next friend
`Robert Vanderhye; K.W., a minor,
`by his next friend Kevin Wade,
`Sr.; E.N., a minor, by her next
`friend Scott Nelson; M.N., a
`minor, by her next friend Scott
`Nelson,
`
`Plaintiffs-Appellees,
`v.
`IPARADIGMS, LLC,
`Defendant-Appellant.
`
`No. 08-1424
`
`No. 08-1480
`
`Appeals from the United States District Court
`for the Eastern District of Virginia, at Alexandria.
`Claude M. Hilton, Senior District Judge.
`(1:07-cv-00293-CMH-BRP)
`
`(cid:252)
`(cid:253)
`(cid:254)
`(cid:252)
`(cid:253)
`(cid:254)
`

`
`2
`
`A.V. v. IPARADIGMS, LLC
`
`Argued: December 4, 2008
`
`Decided: April 16, 2009
`
`Before WILKINSON, MOTZ, and TRAXLER,
`Circuit Judges.
`
`Affirmed in part, reversed in part, and remanded by published
`opinion. Judge Traxler wrote the opinion, in which Judge
`Wilkinson and Judge Motz joined.
`
`COUNSEL
`
`ARGUED: Robert Arthur Vanderhye, McLean, Virginia, for
`Appellants/Cross-Appellees. James F. Rittinger, SATTER-
`LEE, STEPHENS, BURKE & BURKE, New York, New
`York, for Appellee/Cross-Appellant. ON BRIEF: Joshua M.
`Rubins, Justin E. Klein, SATTERLEE, STEPHENS, BURKE
`& BURKE, New York, New York, for Appellee/Cross-
`Appellant.
`
`OPINION
`
`TRAXLER, Circuit Judge:
`
`Plaintiffs brought this copyright infringement action against
`defendant iParadigms, LLC, based on its use of essays and
`other papers written by plaintiffs for submission to their high
`school teachers through an online plagiarism detection service
`operated by iParadigms. See 17 U.S.C. § 501. iParadigms
`asserted counterclaims alleging that one of the plaintiffs
`gained unauthorized access to iParadigms’ online service in
`violation of the Computer Fraud and Abuse Act, see 18
`
`

`
`A.V. v. IPARADIGMS, LLC
`
`3
`
`U.S.C. §§ 1030(a)(5)(A)(iii) & (B)(i), and the Virginia Com-
`puter Crimes Act, see Va. Code Ann. § 18.2-152.1-18.2-
`152.16. The district court granted summary judgment in favor
`of iParadigms on plaintiffs’ copyright infringement claim
`based on the doctrine of fair use. See 17 U.S.C. § 107. On the
`counterclaims, the district court granted summary judgment
`against iParadigms based on its conclusion that iParadigms
`failed to produce evidence that it suffered any actual or eco-
`nomic damages.
`
`The parties cross appeal. We affirm the grant of summary
`judgment on the plaintiffs’ copyright infringement claim, but
`reverse the summary judgment order as to iParadigms’ coun-
`terclaims and remand for further consideration.
`
`I.
`
`Defendant iParadigms owns and operates "Turnitin Plagia-
`rism Detection Service," an online
`technology system
`designed to "evaluate[ ] the originality of written works in
`order
`to prevent plagiarism." S.J.A. 1. According
`to
`iParadigms, Turnitin offers high school and college educators
`an automated means of verifying that written works submitted
`by students are originals and not the products of plagiarism.
`When a school subscribes to iParadigms’ service, it typically
`requires its students to submit their written assignments "via
`a web-based system available at www.turnitin.com or via an
`integration between Turnitin and a school’s course manage-
`ment system." S.J.A. 1-2. In order to submit papers online,
`students "must be enrolled in an active class" and must "enter
`the class ID number and class enrollment password" supplied
`by the assigning professor. J.A. 240.
`
`After a student submits a writing assignment, Turnitin per-
`forms a digital comparison of the student’s work with content
`available on the Internet, including "student papers previously
`submitted to Turnitin, and commercial databases of journal
`
`

`
`4
`
`A.V. v. IPARADIGMS, LLC
`
`articles and periodicals." S.J.A. 2.1 For each work submitted,
`Turnitin creates an "Originality Report" suggesting a percent-
`age of the work, if any, that appears not to be original. The
`assigning professor may, based on the results of the Original-
`ity Report, further explore any potential issues.
`
`The Turnitin system gives participating schools the option
`of "archiving" the student works. When this option is
`selected, Turnitin digitally stores the written works submitted
`by students "so that the work becomes part of the database
`used by Turnitin to evaluate the originality of other student’s
`works in the future." S.J.A. 2.2 The archived student works are
`stored as digital code, and employees of iParadigms do not
`read or review the archived works.
`
`To submit a paper to Turnitin, a student must create a user
`profile on the web site, a process that requires the student to
`click on "I Agree" under the "terms of agreement" or "Click-
`wrap Agreement." The Clickwrap Agreement provided,
`among other things, that the services offered by Turnitin are
`"conditioned on [the user’s] acceptance without modification
`of the terms, conditions, and notices contained herein," and
`that "[i]n no event shall iParadigms . . . be liable for any . . .
`damages arising out of or in any way connected with the use
`of this web site." J.A. 340.
`
`When they initiated the lawsuit, the four plaintiffs were
`minor high school students and thus appeared in this litigation
`via their next friends. Plaintiffs A.V. and K.W. attended
`
`1The comparison occurs as follows: "[T]he Turnitin system makes a
`‘fingerprint’ of the work by applying mathematical algorithms to its con-
`tent. This fingerprint is merely a digital code. Using the digital fingerprint
`made of the student’s work, the Turnitin system compares the student’s
`work electronically to content available on the Internet . . . and student
`papers previously submitted to Turnitin." S.J.A. 2.
`2At the time plaintiffs filed this action, there were approximately 7,000
`institutional Turnitin subscribers that, in turn, resulted in the submission
`of about 125,000 papers each day.
`
`

`
`A.V. v. IPARADIGMS, LLC
`
`5
`
`McLean High School in Fairfax County, Virginia, which
`began using Turnitin in 2006 and opted to have its student
`papers archived in the Turnitin data base. Plaintiffs E.N. and
`M.N. attended Desert Vista High School in Tucson, Arizona,
`which also subscribed to the Turnitin service and elected the
`archiving option. According to the complaint, both schools
`required students to submit their written assignments via
`Turnitin.com to receive credit; failure to do so would result in
`a grade of "zero" for the assignment under the policy of both
`schools.
`
`Plaintiffs K.W., E.N. and M.N. allege that their teachers
`adhered to school policy and required them to submit their
`written assignments to Turnitin. Using the passwords pro-
`vided by the schools, K.W., E.N. and M.N. submitted their
`papers, each of which included a "disclaimer" objecting to the
`archiving of their works.3 As requested by the two high
`schools, however, each of these submissions was archived.
`A.V., the fourth plaintiff, did not submit his paper for credit
`in a high school course; instead, he submitted his work to
`Turnitin using a password designated for students enrolled in
`a college course at the University of California, San Diego
`("UCSD"). The password was provided to A.V. by plaintiffs’
`counsel who obtained it by conducting an internet search.
`
`According to iParadigms, "no one at iParadigms read[ ] or
`review[ed]
`the
`[p]apers submitted" by plaintiffs, and
`iParadigms did not send any "[p]aper at issue in this action
`. . . to anybody other than the instructor to whom plaintiffs[ ]
`submitted their own papers." S.J.A. 2.
`
`Plaintiffs filed a complaint alleging that iParadigms
`infringed their copyright interests in their works by archiving
`them in the Turnitin database without their permission.4 The
`
`3Shortly before plaintiffs submitted their assignments to Turnitin, plain-
`tiffs’ counsel applied for and was granted a copyright registration for each
`paper at issue.
`4Plaintiffs also alleged that the Turnitin system offends copyright law
`because it "may send a full and complete copy of a student’s unpublished
`
`

`
`6
`
`A.V. v. IPARADIGMS, LLC
`
`district court granted summary judgment to iParadigms on
`two bases. First, the court found that the students and
`iParadigms entered into binding agreements when the stu-
`dents clicked on "I Agree," and that the agreements shielded
`iParadigms from liability arising out of plaintiffs’ use of the
`Turnitin website. Furthermore, the court concluded that the
`disclaimers included on plaintiffs’ written submissions did not
`"modify the Agreement or render it unenforceable." J.A. 50.5
`
`Second, the court determined that iParadigms’ use of each
`of the plaintiffs’ written submissions qualified as a "fair use"
`under 17 U.S.C. § 107 and, therefore, did not constitute
`infringement. In particular, the court found that the use was
`transformative because its purpose was to prevent plagiarism
`by comparative use, and that iParadigms’ use of the student
`works did not impair the market value for high school term
`papers and other such student works.
`
`manuscript to an iParadigms client anywhere in the world upon request of
`the client, and without the student’s permission." J.A. 22. Plaintiffs, how-
`ever, have not produced any evidence to demonstrate that this occurred
`with respect to the plaintiffs’ works at issue here. Accordingly, we confine
`our review of the copyright issues to iParadigms’ practice of archiving
`documents.
`5Plaintiffs offered two other theories upon which the district court could
`find the Clickwrap Agreement unenforceable, which the court also
`rejected. First, the district court disagreed that the agreement was an unen-
`forceable adhesion contract, finding no evidence that plaintiffs were
`coerced by iParadigms (as opposed to the schools). Second, the district
`court refused to void the contract based on the doctrine of infancy, see Zel-
`nick v. Adams, 561 S.E.2d 711, 715 (Va. 2002) ("[A] contract with an
`infant is not void, only voidable by the infant upon attaining the age of
`majority."), concluding that plaintiffs cannot use this doctrine as a "sword"
`to void a contract while retaining the benefits of the contract — high
`school credit and standing to bring this action, cf. 5 Richard A. Lord, Wil-
`liston on Contracts § 9.14 (4th ed.) ("When the infant has received consid-
`eration which he still possesses, . . . he cannot, upon reaching majority,
`keep it and refuse to pay.")
`
`

`
`A.V. v. IPARADIGMS, LLC
`
`7
`
`iParadigms asserted four counterclaims, but only two are
`now at issue: (1) that plaintiff A.V. gained unauthorized
`access to Turnitin by using passwords designated for use by
`college students enrolled at UCSD, in violation of the Com-
`puter Fraud and Abuse Act ("CFAA"), see 18 U.S.C. § 1030;
`and (2) that plaintiff A.V., based on the aforementioned unau-
`thorized access, violated the Virginia Computer Crimes Act
`("VCCA"), see Va. Code Ann. § 18.2-152.3.
`
`The district court rejected both counterclaims, granting
`summary judgment to plaintiff A.V. on the grounds that there
`was no evidence of actual or economic damages suffered by
`iParadigms as a result of the alleged violations under the
`CFAA and the VCCA.
`
`II.
`
` Plaintiffs’ Appeal
`
`We first consider the summary judgment order as to plain-
`tiffs’ copyright infringement claim. The owner of a copyright
`enjoys "a bundle of exclusive rights" under section 106 of the
`Copyright Act, Harper & Row, Publishers, Inc. v. Nation
`Enters., 471 U.S. 539, 546 (1985), including the right to copy,
`the right to publish and the right to distribute an author’s
`work, see id. at 547; see also 17 U.S.C. § 106 (also including
`among fundamental rights in copyrighted works rights to dis-
`play, to perform, and to prepare derivative works). These
`rights "vest in the author of an original work from the time of
`its creation." Harper & Row, 471 U.S. at 547. "‘Anyone who
`violates any of the exclusive rights of the copyright owner,’
`that is, anyone who trespasses into his exclusive domain by
`using or authorizing the use of the copyrighted work . . . ‘is
`an infringer of the copyright.’" Sony Corp. of America v. Uni-
`versal City Studios, Inc., 464 U.S. 417, 433 (1984) (quoting
`17 U.S.C. § 501(a)).
`
`The ownership rights created by the Copyright Act, how-
`ever, are not absolute; these rights, while exclusive, are "lim-
`ited in that a copyright does not secure an exclusive right to
`
`

`
`8
`
`A.V. v. IPARADIGMS, LLC
`
`the use of facts, ideas, or other knowledge." Bond v. Blum,
`317 F.3d 385, 394 (4th Cir. 2003). Rather, copyright protec-
`tion extends only to the author’s manner of expression. See 17
`U.S.C. § 102(b) ("In no case does copyright protection for an
`original work . . . extend to any idea, procedure, process, sys-
`tem, method of operation, concept, principle, or discovery,
`regardless of the form in which it is described . . ."); Feist
`Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 344-45
`(1991) ("The most fundamental axiom of copyright law is that
`no author may copyright his ideas or the facts he narrates."
`(internal quotation marks and alteration omitted)).
`
`Moreover, the copyright owner’s rights are subject to sev-
`eral exceptions enumerated by the Copyright Act. "[T]he defi-
`nition of exclusive rights in § 106 of the [Copyright] Act is
`prefaced by the words ‘subject to sections 107 through [122].’
`Those sections describe a variety of uses of copyrighted mate-
`rial that ‘are not infringements of copyright’ ‘notwithstanding
`the provisions of § 106.’" Sony, 464 U.S. at 447 (quoting 17
`U.S.C. § 106).
`
`One of these statutory exceptions codifies the common-law
`"fair use" doctrine, which "allows the public to use not only
`facts and ideas contained in a copyrighted work, but also
`expression itself in certain circumstances." Eldred v. Ashcroft,
`537 U.S. 186, 219 (2003); see Campbell v. Acuff-Rose Music,
`Inc., 510 U.S. 569, 577 (1994) ("Congress meant § 107 to
`restate the present judicial doctrine of fair use . . . and
`intended that courts continue the common-law tradition of fair
`use adjudication." (internal quotation marks omitted)). "From
`the infancy of copyright protection, some opportunity for fair
`use of copyrighted materials has been thought necessary to
`fulfill copyright’s very purpose, ‘[t]o promote the Progress of
`Science and useful Arts . . . .’" Campbell, 510 U.S. at 575
`(quoting U.S. Const., Art. I, § 8, cl. 8). Courts have tradition-
`ally regarded "fair use" of a copyrighted work as "a privilege
`in others than the owner of the copyright to use the copy-
`righted material in a reasonable manner without his consent."
`
`

`
`A.V. v. IPARADIGMS, LLC
`
`9
`
`Harper & Row, 471 U.S. at 549 (internal quotation marks
`omitted).
`
`Thus, the copyright owner’s "monopoly . . . is limited and
`subject to a list of statutory exceptions, including the excep-
`tion for fair use provided in 17 U.S.C. § 107." Bond, 317 F.3d
`at 393 (internal quotation marks and citation omitted). A per-
`son who makes fair use of a copyrighted work is not an
`infringer even if such use is otherwise inconsistent with the
`exclusive rights of the copyright owner. See 17 U.S.C. § 107
`(providing that "the fair use of a copyrighted work . . . is not
`an infringement of copyright"); cf. Bond, 317 F.3d at 394 ("A
`fair-use analysis bears relevance only when a challenged use
`violates a right protected by the Copyright Act.").
`
`Section 107 provides that "the fair use of a copyrighted
`work . . . for purposes such as criticism, comment, news
`reporting, teaching (including multiple copies for classroom
`use), scholarship, or research, is not an infringement of copy-
`right." 17 U.S.C. § 107. Congress provided four nonexclusive
`factors for courts to consider in making a "fair use" determi-
`nation:
`
`(1) the purpose and character of the use, including
`whether such use is of a commercial nature or is for
`nonprofit educational purposes;
`
`(2) the nature of the copyrighted work;
`
`(3) the amount and substantiality of the portion used
`in relation to the copyrighted work as a whole; and
`
`(4) the effect of the use upon the potential market for
`or value of the copyrighted work.
`
`17 U.S.C. § 107. Section 107 contemplates that the question
`of whether a given use of copyrighted material is "fair"
`requires a case-by-case analysis in which the statutory factors
`
`

`
`10
`
`A.V. v. IPARADIGMS, LLC
`
`are not "treated in isolation" but are "weighed together, in
`light of the purposes of copyright." Campbell, 510 U.S. at
`578.
`
`With these general principles in mind, we consider each of
`the statutory factors.
`
`First Factor
`
`The first fair use factor requires us to consider "the purpose
`and character of the use, including whether such use is of a
`commercial nature or is for nonprofit educational purposes."
`17 U.S.C. § 107(1). A use of the copyrighted material that has
`a commercial purpose "tends to weigh against a finding of fair
`use." Harper & Row, 471 U.S. at 562. "The crux of the prof-
`it/nonprofit distinction is not whether the sole motive of the
`use is monetary gain but whether the user stands to profit
`from exploitation of the copyrighted material without paying
`the customary price." Id.
`
`In assessing the "character" of the use, we should consider
`the specific examples set forth in section 107’s preamble,
`"looking to whether the use is for criticism, or comment, or
`news reporting, and the like," with the goal of determining
`whether the use at issue "merely supersedes the objects of the
`original creation, or instead adds something new, with a fur-
`ther purpose or different character." Campbell, 510 U.S. at
`578-79 (internal quotation marks, alteration and citation omit-
`ted). Courts, therefore, must examine "whether and to what
`extent the new work is transformative . . . . [T]he more trans-
`formative the new work, the less will be the significance of
`other factors, like commercialism, that may weigh against a
`finding of fair use." Id. at 579 (internal quotation marks omit-
`ted). A "transformative" use is one that "employ[s] the quoted
`matter in a different manner or for a different purpose from
`the original," thus transforming it. Pierre N. Leval, Commen-
`tary, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105,
`1111 (1990).
`
`

`
`A.V. v. IPARADIGMS, LLC
`
`11
`
`In considering the character and purpose of iParadigms’ use
`of the student works, the district court focused on the question
`of whether the use was transformative in nature. The court
`concluded that "iParadigms, through Turnitin, uses the papers
`for an entirely different purpose, namely, to prevent plagia-
`rism and protect the students’ written works from plagiarism
`. . . by archiving the students’ works as digital code." J.A. 54.
`Although the district court recognized that iParadigms intends
`to profit from its use of the student works, the court found that
`iParadigms’ use of plaintiffs’ works was "highly transforma-
`tive," J.A. 54, and "provides a substantial public benefit
`through the network of educational institutions using Turni-
`tin." J.A. 55. Accordingly, the court concluded that the first
`factor weighed in favor of a finding of fair use.
`
`Plaintiffs argue the district court’s analysis contained sev-
`eral flaws. First, they suggest that the district court ignored
`the commercial nature of iParadigms’ use of their materials,
`highlighting the fact that iParadigms is a for-profit company
`that enjoys millions of revenue dollars based on its ever-
`increasing database of student works. Seizing upon the
`Supreme Court’s suggestion in Sony that "every commercial
`use of copyrighted material is presumptively an unfair exploi-
`tation of the monopoly privilege that belong to the owner of
`the copyright," 464 U.S. at 451, plaintiffs contend that the
`archiving of their papers cannot constitute a fair use under
`section 107.
`
`The district court, however, did not ignore the fact that
`iParadigms’ use of the plaintiffs’ works occurred in the com-
`mercial context; indeed, the court expressly noted that
`"iParadigms makes a profit in providing this service to educa-
`tional institutions." J.A. 55. But the fact that the disputed use
`of copyrighted material is commercial is not determinative in
`and of itself. See Sony, 464 U.S. at 448. As the Second Circuit
`observed, "[s]ince many, if not most, secondary users seek at
`least some measure of commercial gain from their use, unduly
`emphasizing the commercial motivation of a copier will lead
`
`

`
`12
`
`A.V. v. IPARADIGMS, LLC
`
`to an overly restrictive view of fair use." American Geophysi-
`cal Union v. Texaco, Inc., 60 F.3d 913, 921 (2d Cir. 1994);
`see Campbell, 510 U.S. at 584 (observing that "[i]f . . . com-
`merciality carried presumptive force against a finding of fair-
`ness, the presumption would swallow nearly all of the
`illustrative uses listed in the preamble paragraph of § 107,"
`which "are generally conducted for profit in this country"
`(internal quotation marks omitted)). The Court has made clear
`that Sony did not establish a per se rule that a commercial use
`barred a fair use finding. See Campbell, 510 U.S. at 585 ("The
`Court of Appeals’ elevation of one sentence from Sony to a
`per se rule . . . runs as much counter to Sony itself as to the
`long common-law tradition of fair use adjudication."). Thus,
`although a commercial use finding generally weighs against
`a finding of fair use, it must "be weighed along with [the]
`other factors in fair use decisions." Sony, 464 U.S. at 449
`n.32.
`
`In this case, the district court determined that the commer-
`cial aspect was not significant in light of the transformative
`nature of iParadigms’ use. See Campbell, 510 U.S. at 578-79.
`The district court simply weighed the commercial nature of
`iParadigms’ use along with other fair use factors, as is appro-
`priate under Supreme Court precedent. See id. at 579
`(explaining that "the more transformative the new work, the
`less will be the significance of other factors, like commercial-
`ism, that may weigh against a finding of fair use").
`
`Plaintiffs also argue that iParadigms’ use of their works
`cannot be transformative because the archiving process does
`not add anything to the work — Turnitin merely stores the
`work unaltered and in its entirety. This argument is clearly
`misguided. The use of a 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. See, e.g., Perfect 10,
`Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1165 (9th Cir. 2007)
`(concluding that Google’s use of copyrighted images in
`
`

`
`A.V. v. IPARADIGMS, LLC
`
`13
`
`thumbnail search index was "highly transformative" even
`though the images themselves were not altered, in that the use
`served a different function
`than
`the
`images served).
`iParadigms’ use of plaintiffs’ works had an entirely different
`function and purpose than the original works; the fact that
`there was no substantive alteration to the works does not pre-
`clude the use from being transformative in nature.
`
`Plaintiffs further contend that, even if iParadigms’ use of
`their works has a transformative purpose, the use itself is not
`transformative if it fails to effect such purpose. Plaintiffs
`assert that there is at least a question of fact as to whether
`Turnitin effectively prevents plagiarism such that summary
`judgment is inappropriate. In support of this contention, plain-
`tiffs offered evidence showing that it is possible to defeat the
`Turnitin system by paraphrasing the original copyrighted
`work and that the system sometimes does not catch even ver-
`batim copying. In other words, because the Turnitin system is
`not fool-proof, the archiving of plaintiffs’ works to compare
`and detect plagiarism cannot be transformative.
`
`We reject this assertion as well. The question of whether a
`use is transformative does not rise or fall on whether the use
`perfectly achieves its intended purpose. Cf. Campbell, 510
`U.S. at 582 (declining to evaluate the quality of the parody
`and declaring that "when fair use is raised in defense of par-
`ody, [the threshold question] is whether a parodic character
`may reasonably be perceived"). Plaintiffs do not dispute that
`the Turnitin system does detect some level of plagiarism, even
`if, as they assert in the complaint, "[t]he Turnitin system is
`capable of detecting only the most ignorant or lazy attempts
`at plagiarism by students without significant monetary
`resources." J.A. 21. Whether a better plagiarism detection sys-
`tem could be designed is not important to our analysis of
`whether the disputed use serves a different purpose or func-
`tion.
`
`The district court, in our view, correctly determined that the
`archiving of plaintiffs’ papers was transformative and favored
`
`

`
`14
`
`A.V. v. IPARADIGMS, LLC
`
`a finding of "fair use." iParadigms’ use of these works was
`completely unrelated to expressive content and was instead
`aimed at detecting and discouraging plagiarism.
`
`Second Factor
`
`In considering the nature of the copyrighted work, the
`Supreme Court has instructed that "fair use is more likely to
`be found in factual works than in fictional works," whereas "a
`use is less likely to be deemed fair when the copyrighted work
`is a creative product." Stewart v. Abend, 495 U.S. 207, 237
`(1990) (internal quotation marks and alteration omitted). This
`postulate recognizes the notion that a work is entitled to
`greater copyright protection as it comes closer to "the core of
`creative expression." Bond, 317 F.3d at 395. However, 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. Id. at 396. And, in
`fact, the district court concluded that iParadigms’ use of the
`plaintiffs’ works "relate[d] solely to the comparative value of
`the works" and did not "diminish[ ] the incentive for creativity
`on the part of students." J.A. 55. The district court noted that,
`if anything, iParadigms’ use of the students’ works fostered
`the development of original and creative works "by detecting
`any efforts at plagiarism by other students." J.A. 55.
`
`Plaintiffs contend that the district court’s application of this
`factor was flawed in two respects. First, they argue that the
`court failed to account for the fact that their works were
`unpublished. Because an author enjoys the "right to control
`the first public appearance of his undisseminated expression,"
`the fair use of an unpublished work is narrower in scope. Har-
`per & Row, 471 U.S. at 555; see id. at 564 ("[T]he author’s
`right to control the first public appearance of his expression
`weighs against such use of the work before its release."). In
`its order, the district court omits mention of this fact; there-
`fore, plaintiffs suggest that the district court’s entire analysis
`of the second statutory factor is invalid.
`
`

`
`A.V. v. IPARADIGMS, LLC
`
`15
`
`We disagree that the lack of an express reference to the
`unpublished status of plaintiffs’ works undermines the court’s
`analysis under § 107(2). Not only has the Supreme Court
`admonished courts to resist weighing the fair use factors in
`isolation, see Campbell, 510 U.S. at 578, but Congress specif-
`ically provided that "[t]he fact that a work is unpublished
`shall not itself bar a finding of fair use if such finding is made
`upon consideration of all the above factors." 17 U.S.C. § 107.
`Therefore, in Bond, we were able to conclude that the intro-
`duction into a court proceeding of an original work of fiction
`constituted fair use under § 107 despite the fact that the copy-
`righted work was unpublished:
`
`That Bond’s manuscript is unpublished and contains
`a stylized mode of expressing his feelings about his-
`torical facts weigh against a finding of fair use. But,
`as Campbell instructs, we do not consider the § 107
`factors in isolation from one another, but we weigh
`them together in light of the purposes of copyright.
`Where, as here, the use of the work is not related to
`its mode of expression but rather to its historical
`facts and there is no evidence that the use of Bond’s
`manuscript in the state legal proceedings would
`adversely affect the potential market for the manu-
`script, one cannot say the incentive for creativity has
`been diminished in any sense.
`
`Id. at 395-96 (emphasis added) (internal quotation marks and
`citations omitted). Here, the district court, quoting Bond, con-
`cluded that iParadigms’ use was unconnected to any creative
`element in plaintiffs’ works. Given that the district court drew
`its language verbatim from a passage in Bond discussing the
`fair use of unpublished works of fiction, the district court
`clearly did not ignore the unpublished nature of these works.
`
`Moreover, it is clear that iParadigms’ use of plaintiffs’
`works did not have the "intended purpose" or "incidental
`effect" of supplanting plaintiffs’ rights to first publication.
`
`

`
`16
`
`A.V. v. IPARADIGMS, LLC
`
`Harper & Row, 471 U.S. at 562. This is significant in that the
`primary basis for the close scrutiny courts give the use of an
`unpublished work is, as previously noted, an "author’s right
`to control the first public appearance of his expression." Id. at
`564. iParadigms did not publicly disseminate or display plain-
`tiffs’ works and did not send them to any third party "other
`than the instructor to whom plaintiffs submitted their own
`papers." S.A. 2. In fact, the Turnitin digital archiving process
`does not involve any review of the submitted works at all,
`even by
`those at
`iParadigms. Thus, no employee of
`iParadigms read or reviewed the works submitted by plain-
`tiffs. We find no basis whatsoever for concluding that
`iParadigms’ use of the plaintiffs’ papers undermined their
`right to first publication.
`
`Plaintiffs contend that the district court’s consideration of
`the "nature of the copyrighted works" factor was flawed for
`a second reason: the district court ignored the fact that the
`works in question were works of fiction and poetry, which are
`considered "highly creative" in nature and deserving of the
`strongest protection. This argument is unpersuasive as well in
`that the district court expressly acknowledged its obligation to
`consider whether the works in question came within the "core
`of creative expression." J.A. 55. Rather than ignore it, how-
`ever, the district court simply concluded that even if the plain-
`tiffs’ works were highly creative in nature, iParadigms’ use of
`the plaintiffs’ works was not related to the creative core of the
`works. In concluding that the second factor favored neither
`plaintiffs nor iParadigms, the district court was merely apply-
`ing Bond in which we concluded that the use of an unpub-
`lished work of fiction in a court proceeding constituted fair
`use because such use was "not related to its mode of expres-
`sion but rather to its historical facts." 317 F.3d at 396.
`iParadigms’ use of the works in the case—as part of a digit-
`ized database from which to compare the similarity of type-
`written characters used in other student works—is likewise
`unrelated to any creative component. Thus, we find no fault
`in the district court’s application of the second fair use factor.
`
`

`
`A.V. v. IPARADIGMS, LLC
`
`17
`
`Third Factor
`
`The third fair use factor requires us to consider "the amount
`and substantiality of the portion used in relation to the copy-
`righted work as a whole." 17 U.S.C. § 107(3). Generally
`speaking, "as the amount of the copyrighted material that is
`used increases, the likelihood that the use will constitute a
`‘fair use’ decreases." Bond, 317 F.3d at 396. But this statutory
`factor also requires courts to consider, in addition to quantity,
`the "quality and importance" of the copyrighted materials
`used, Campbell, 510 U.S. at 587, that is, whether the portion
`of the copyrighted material was "the heart of the copyrighted
`work." Sundeman v. The Seajay Soc’y, Inc., 142 F.3d 194,
`205 (4th Cir. 1998) (internal quotation marks omitted).
`Although "[c]opying an entire work weighs against finding a
`fair use, . . . it does not preclude a finding of fair use"; there-
`fore, "[t]he extent of permissible copying varies with the pur-
`pose and character of the use." Id. at 205-06 (internal
`quotation marks omitted) (emphasis added).
`
`The district court found that this factor, like the second fac-
`tor, did not favor either party. The court concluded that
`although iParadigms uses substantially the whole of plaintiffs’
`works, iParadigms’ "use of the original works is limited in
`purpose and scope" as a digitized record for electronic "com-
`parison purposes only." J.A. 56. Having already concluded
`that such use of plaintiffs’ works was transformative, the dis-
`trict court concluded that iParadigms’ use of the entirety of
`plaintiffs’ works did not preclude a fin