IN THE UNITED STATES DISTRICT COURT __.

_
FOR THE EASTERN DISTRICT OF VIRGINIA hjfi-. ~: r -• ""T^

Alexandria Division

A.V., et aJU, )

Plaintiffs, )

v. ) Civil Action No. 07-0293

IPARADIGMS, LIMITED LIABILITY )

COMPANY, )

Defendant. )
)

MEMORANDUM OPINION

This matter comes before the Court on Plaintiffs' Motion for

Summary Judgment and Defendant's Motion for Summary Judgment.

Plaintiffs, four minor high school students, have filed a

complaint against Defendant iParadigms, LLC alleging copyright

infringement based on iParadigms' digital archiving of

Plaintiffs' copyrighted materials. iParadigms has filed a

counterclaim seeking indemnification against all Plaintiffs.

iParadigms' counterclaim also alleges, as against Plaintiff A.V.,

(1) trespass to chattels, (2) violation of the Computer Fraud and

Abuse Act, 18 U.S.C. §§ 1030(a) (5) (A) (iii) and 1030(a) (5)(B) (I)

and (3) violation of the Virginia Computer Crimes Act, Va. Code.

§§ 18.2-152.3 and 18.2-152.6.

Defendant iParadigms owns and operates Turnitin, a

proprietary technology system that evaluates the originality of

written works in order to prevent plagiarism. Educational

institutions contract with iParadigms and require their students

to submit their written works via Turnitin. When the student

work is submitted to Turnitin, the system compares the work

electronically to content available on the internet, student

works previously submitted to Turnitin and commercial databases

of journal articles and periodicals. Turnitin then produces an

Originality Report for each submitted work, which indicates

whether a student's paper is not original. The teacher then

evaluates the Originality Report and decides whether to address

any issues with the student. Upon request to Turnitin, the

teacher can obtain, for comparison purposes, copies of archived

works which appear to be plagiarized by the student.

Turnitin also has the ability to archive a student's work

upon its submission to Turnitin. This allows Turnitin's database

to grow with each student work submitted. However, this feature

must be specifically authorized by the school district in order

to allow Turnitin to archive the student-submitted works. Over

7,000 educational institutions worldwide use Turnitin, resulting

in the daily submission of over 100,000 works to Turnitin.

In order to submit a paper to Turnitin, a student must first

register by creating a profile on the Turnitin web site. The

final step in the profile creation process requires that the

student click "I Agree" to the terms of the "user agreement"

(also referred to as the "Clickwrap Agreement") which is

displayed directly above the "I agree" link that the student must

click. The Clickwrap Agreement states: "Turnitin and its

services are maintained by iParadigms, LLC ["Licensor"], and are

offered to you, the user ["User"]( conditioned on your acceptance

without modification of the terms, conditions, and notices

contained herein." (emphasis added). The Clickwrap Agreement

also contains a limitation of liability clause:

In no event shall iParadigms, LLC and/or its suppliers be

liable for any direct, indirect, punitive, incidental,
special, or consequential damages arising out of or in
any way connected with the use of this web site or with
the delay or inability to use this web site, or for any
information, software, products, and services obtained
through this web site, or otherwise arising out of the
use of this web site, whether based in contract, tort,
strict liability or otherwise, even if iParadigms, inc.
or any of its suppliers has been advised of the
possibility of damages.

(emphasis added).

At the time of the filing of the complaint, Plaintiffs

attended high school in Virginia, in the Fairfax County Public

Schools ("FCPS") system, and in Arizona, in the Tucson Unified

School District ("TUSD"). Both school systems contracted with

iParadigms to utilize iParadigms' Turnitin technology system and

both authorized Turnitin to archive student-submitted work.

According to school administrators, plagiarism had become a major

problem in each school district and Turnitin was employed in an

effort to decrease plagiarism in their schools. Both school

districts required their students to use Turnitin to submit their

written works. If a student chose not to submit his or her work

via Turnitin, that student would receive a zero on the

assignment.

Each of the Plaintiffs read and clicked "I agree" to the

terms of the Clickwrap Agreement and each used Turnitin to submit

their written works. However, in an attempt to prevent Turnitin

from archiving their written works, Plaintiffs included a

disclaimer on the face of their works indicating that they did

not consent to the archiving of their works by Turnitin.

iParadigms continued to archive all student-submitted works,

including all the works submitted by Plaintiffs. Plaintiffs

claim iParadigms' continued archiving of their works constitutes

copyright infringement.

iParadigms' first counterclaim seeks indemnification from

all Plaintiffs based on an indemnification clause contained in

Turnitin's Usage Policy. The Usage Policy is a separate and

distinct document from Turnitin's Clickwrap Agreement. In order

to view the Usage Policy, the user must click on the "Usage

Policy" link, which appears on each page of Turnitin's web site,

including the login screen. Once the link is clicked, the user

can view the entire Usage Policy, which includes the following

provision:

Indemnification: You agree to indemnify and defend

iParadigms from any claim (including attorneys fees and
 costs) arising from your (a) use of the Site, (b)
violation of any third party right, or (c) breach of any
of these Terms and Conditions.

iParadigms contends that Plaintiffs were aware of and

assented to the Usage Policy by their continual use of Turnitin,

and should indemnify Plaintiffs for the cost of defending itself

against Plaintiffs' underlying claims, which iParadigms alleges

constitute "claim[s] . . . arising from [Plaintiffs'] use of the

Site."

iParadigms' remaining counterclaims are based on Plaintiff

A.V.'s alleged misuse of the Turnitin system. A.V. did not use

Turnitin to submit his written work to McLean High School, where

he was a student. Rather, he used Turnitin to submit his written

work to the University of California, San Diego {"UCSD"), an

educational institution in which A.V. was not enrolled. A.V.

gained access to UCSD's Turnitin system by using a login ID and

password for the UCSD system that A.V. or A.V.'s next friend

found on the internet. A.V. acknowledged that he misrepresented

himself as a UCSD student in order to submit his written work to

UCSD. The User Guidelines established by FCPS require that

students enrolled in the FCPS system, such as A.V., use Turnitin

"only for FCPS classes and only in accordance with the terms and

conditions on the Turnitin.com website." iParadigms alleges that

A.V.'s misuse of the Turnitin system constitutes trespass to

chattels, violation of the Computer Fraud and Abuse Act, 18

U.S.C. §§ 1030(a)(5)(A)(iii) and 1030(a)(5)(B)(I), and violation

of the Virginia Computer Crimes Act, Va. Code. §§ 18.2-152.3 and

18.2-152.6.

Summary judgment is appropriate where there is no genuine

issue as to any material fact and the moving party is entitled to

judgment as a matter of law. See Fed. R. Civ. P. 56(c). Once a

motion for summary judgment is properly made and supported, the

opposing party has the burden of showing that a genuine dispute

exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp..

475 U.S. 574, 586-87 (1986). A material fact in dispute appears

when its existence or non-existence could lead a jury to

different outcomes. See Anderson v. Liberty Lobby. Inc.. 477

U.S. 242, 248 (1986). A genuine issue exists when there is

sufficient evidence on which a reasonable jury could return a

verdict in favor of the non-moving party. See id. Mere

speculation by the non-moving party "cannot create a genuine

issue of material fact." Beale v. Hardy. 769 F.2d 213, 214 (4th

Cir. 1985); see also Ash v. United Parcel Serv., Inc.. 800 F.2d

409, 411-12 (4th Cir. 1986). Summary judgment is appropriate

when, after discovery, a party has failed to make a "showing

sufficient to establish the existence of an element essential to

that party's case, and on which that party will bear the burden

of proof at trial." Celotex Corp. v. Catrett. 477 U.S. 317, 322

(1986) .
 Defendant i Paradigms first contends that Tumi tin' s

Clickwrap Agreement constitutes a valid contract entered into

between Plaintiffs and iParadigms and that the limitation of

liability clause precludes any liability in this action. In

Virginia, the essential elements of a contract are offer,

acceptance and consideration. See Montagna v. Holiday Innsf

Inc., 221 Va. 336, 346 (1980). As one court has stated, "[a]

contract is no less a contract simply because it is entered into

via a computer." Forrest v. Verizon Communications, Inc.. 805

A.2d 1007, 1010 (D.C. 2002) . In fact, many courts have found

clickwrap agreements to be enforceable. See id. at 1010-11

(clickwrap agreement enforceable and adequate notice provided of

agreement terms where users had to click "Accept" to agree to the

terms in order to subscribe); DeJohn v. The .TV Corp. Int'1., 245

F. Supp. 2d 913, 921 {N.D. 111. 2003) (clickwrap agreement valid

and enforceable contract and ll[t]he fact that the contract is

electronic does not affect this conclusion"); Koresko v.

RealNetworks, Inc., 291 F. Supp. 2d 1157, 1162-63 (E.D. Cal.

2003) (clicking box on the screen marked, "I agree" on web site

evinced express agreement to terms); i.Lan Systems. Inc. v.

Netscout Serv. Level Corp., 183 F. Supp. 2d328, 338 (D. Mass.

2002) (clicking "I agree" box is an appropriate way to form

enforceable contract); Stomp, Inc. v. NeatO, LLC. 61 F. Supp. 2d

1074, 1081 (CD. Cal. 1999) (enforcing assent to terms by

clicking "accept" button). Additionally, "waivers and limitation

of liability clauses are enforceable" in Virginia. Regency Photo

& Video. Inc. v. America Online, Inc.. 214 F. Supp. 2d 568, 573

(E.D. Va. 2002) (citing Blue Cross of Southwest Virginia and Blue

Shield of Southwest Virginia v. McDevitt & Street Co., 234 Va.

191 (1987)) .

The Court finds that the parties entered into a valid

contractual agreement when Plaintiffs clicked "I Agree" to

acknowledge their acceptance of the terms of the Clickwrap

Agreement. The first line of the Clickwrap Agreement, which

appears directly above the "I Agree" link, states: "Turnitin and

its services . . . are offered to you, the user ["User"],

conditioned on your acceptance without modification of the terms,

conditions, and notices contained herein." {emphasis added).

Also, the Clickwrap Agreement provides that iParadigms will not

be liable for any damages "arising out of the use of this web

site." By clicking "I Agree" to create a Turnitin profile and

enter the Turnitin web site, Plaintiffs accepted iParadigms'

offer and a contract was formed based on the terms of the

Clickwrap Agreement. Because a limitation of liability clause

was among the terms of the Agreement, the Court finds that

iParadigms cannot be held liable for any damages arising out of

Plaintiffs' use of the Turnitin web site, which includes the

submission and archiving of their written works.

8
 The existence of disclaimers on the written works indicating

that Plaintiffs did not consent to the archiving of their works

does not modify the Agreement or render it unenforceable. The

Clickwrap Agreement itself provides that the terms of the

Agreement are not modifiable. Plaintiffs had the option to

"Agree" or "Disagree;" no third option was available to allow

Plaintiffs to modify the Agreement. See Reqister.com. Inc. v.

Verio. Inc.. 356 F.3d 393, 403 (2d Cir. 2004) ("[The] choice was

either to accept the offer of contract, taking the information

subject to the terms of the offer, or, if the terms were not

acceptable, to decline to take the benefits"). By clicking "I

Agree," Plaintiffs agreed to the terms of the contract as

described in the Clickwrap Agreement. Any attempted disclaimers

written onto papers submitted after clicking "I Agree" did not

change the terms of the Agreement.

Plaintiffs assert the defense of infancy in an attempt to

void the terms of the Clickwrap Agreement. In Virginia, a

contract with an infant is voidable by the infant upon attaining

the age of majority. See Zelnick v. Adams. 263 Va. 601, 608

(2002) (citing Mustard v. Wohlford's Heirs. 56 Va. (15 Gratt.)

329, 337 (1859)). However, the infancy defense cannot function

as "a sword to be used to the injury of others, although the law

intends it simply as a shield to protect the infant from

injustice and wrong." MacGreal v. Taylor. 167 U.S. 688, 701

(1897). In other words, " [i]f an infant enters into any contract

subject to conditions or stipulations, he cannot take the benefit

of the contract without the burden of the conditions or

stipulations." 5 Williston on Contracts § 9:14 (4th ed. 2007).

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. Plaintiffs cannot use the infancy defense to void their

contractual obligations while retaining the benefits of the

contract. Thus, Plaintiffs' infancy defense fails.

Plaintiffs also seek to invalidate the contract on the

grounds of duress. In Virginia, duress is defined as the

"overbearing of a person's free will by an unlawful or wrongful

act or by threat such that the party's consent to a contractual

agreement is involuntary." Freedlander v. NCNB Nat. Bank of

North Carolina. 921 F.2d 272 (4th Cir. 1990) (unpublished table

opinion) (citing Bond v. Crawford. 193 Va. 437, 444 (1952)).

Though Plaintiffs plead duress, there is no evidence that

anyone was coerced in any fashion by Turnitin or iParadigms.

Insofar as Plaintiffs' duress defense is asserted against

Plaintiffs' respective schools, rather than Defendant iParadigms,

there is no support for the proposition that a contract can be

10
invalidated on the basis of third party duress. See Nelson v.

Nelson. No. 0603-05-2, 2005 WL 1943248 at *2 (Va. Ct. App. Aug.

16, 2005) {"[Appellant] provides no support in Virginia law for

the invalidation of a contract based on a claim of 'duress or

undue influence of a third party,' and we know of none").

Nevertheless, even if there was evidence of coercion by

iParadigms, or even if a claim of third party duress by the

school systems was viable, such coercion would not rise to the

level of "an unlawful or wrongful act." 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. As the

Supreme Court has recognized in the constitutional context, "the

rights of students in public school are not automatically

coextensive with the rights of adults in other settings" and the

"rights of students must be applied in light of the special

characteristics of the school environment." Morse v. Frederick,

127 S.Ct. 2618, 2622 (2007) (internal quotations omitted). If

Plaintiffs' objection is that their schools' policies requiring

students to use Turnitin are wrongful, Plaintiffs' proper redress

is with the school systems. See id. at 2635 (Thomas, J.,

concurring) ("If parents do not like the rules imposed by those

schools, they can seek redress in school boards or legislatures;

they can send their children to private schools or home school

them; or they can simply move"). Thus, Plaintiffs' duress

11
defense fails.

iParadigms claims that even if the Clickwrap Agreement does

not preclude liability in this case, iParadigms' use of the

written works is a fair use under 17 U.S.C. § 107 and, as such,

does not constitute copyright infringement. Fair use is a

statutory exception to copyright infringement. The unauthorized

use or reproduction of copyrighted work "for purposes such as

criticism, comment, news reporting, teaching (including multiple

cases for classroom use), scholarship, or research, is not an

infringement of copyright." 17 U.S.C. §107. In determining

whether a particular use is a fair use, the following four

factors must be considered:

(1) the purpose and character of the use, including

whether such use is of 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.

Id.

In assessing "the purpose and character of the use," the

fact that the new work, produced by the defendant, is

"transformative" or "adds something new, with a further purpose

or different character" is strong evidence that the use is a fair

use. See Harper & Row, Publishers, Inc. v. Nation Enters., 471

12
U.S. 53 9, 562 (1985). In fact, "the more transformative the new

work, the less will be the significance of the other factors,

like commercialism, that may weigh against a finding of fair

use." Id. at 579. In Perfect 10. Inc. v. Google. Inc.. 487 F.3d

701 (9th Cir. 2007), the Ninth Circuit recently addressed the use

of works in a computer database and found the defendant's use to

be transformative. Plaintiff Perfect 10 sued Google for

infringement based on Google's display of thumbnail-sized images

from Perfect 10's web site, which were displayed by Google in

response to a user search. The court held that Google's

reproduction of the images was "highly transformative" because

"[a]lthough an image may have been created originally to serve an

entertainment ... or informative function, a search engine

transforms the image . . . [and] provides a social benefit by

incorporating an original work into a new work, namely, an

electronic reference tool." Perfect 10. 487 F.3d at 721.

This Court finds the "purpose and character" of iParadigms'

use of Plaintiffs' written works to be highly transformative.

Plaintiffs originally created and produced their works for the

purpose of education and creative expression. iParadigms,

through Turnitin, uses the papers for an entirely different

purpose, namely, to prevent plagiarism and protect the students'

written works from plagiarism. iParadigms achieves this by

archiving the students' works as digital code and makes no use of

13
any work's particular expressive or creative content beyond the

limited use of comparison with other works. Though iParadigms

makes a profit in providing this service to educational

institutions, its use of the student works adds "a further

purpose or different character" to the works, see Harper & Row,

471 U.S. at 562, and provides a substantial public benefit

through the network of educational institutions using Turnitin.

Thus, in this case, the first factor favors a finding of fair

use.

The second factor to be considered is "the nature of the

copyrighted work." 17 U.S.C. § 107. This factor "focuses

attention on the extent to which a work falls at the core of

creative expression," and, in particular, whether "the incentive

for creativity has been diminished." Bond v. Blum. 317 F.3d 385,

395-96 (4th Cir. 2003). In this case, this factor is of lesser

import because the allegedly infringing use makes no use of any

creative aspect of the student works. Rather, iParadigms' use

relates solely to the comparative value of the works.

Nevertheless, iParadigms' use in no way diminishes the incentive

for creativity on the part of students. On the contrary,

iParadigms' use protects the creativity and originality of

student works by detecting any efforts at plagiarism by other

students. Thus, the second factor either favors neither party or

favors a finding of fair use.

14
 The third factor to be considered is "the amount and

substantiality of the portion used." 17 U.S.C. § 107. The

Supreme Court and the Fourth Circuit have indicated that a new

work's complete and entire use of the original work does not

automatically preclude a finding of fair use. See, e.g.. Sony

Corp. Of America v. Universal City Studios. Inc.. 464 U.S. 417

(1984) (making copies of complete television shows for purposes

of time-shifting is a permissible fair use); Bond. 317 F.3d at

3 96 (use of entire manuscript "was not for expressive content"

and "[did] not undermine the protections granted by the Act").

For example, in Perfect 10. the fact that Google displayed the

entire Perfect 10 image in its search engine results did not make

the use impermissible because the use was also highly

transformative. See Perfect 10, 487 F.3d at 724.

In this case, it is clear that iParadigms uses the entirety

of the original works. In order to be successful in its

plagiarism detection services, it must. However, the use of the

original works is limited in purpose and scope. The student

works are stored digitally and reviewed electronically by

Turnitin for comparison purposes only. The only circumstance in

which a student work can be produced for viewing is when another

student's submission triggers an Originality Report that

indicates the possibility of plagiarism. If this occurs, the

teacher can request to view the document which produced the

15
plagiarism alert in order to compare the two works. This use is,

as discussed above, highly transformative and highly beneficial

to the public through educational institutions using Tumitin.

Thus, this factor either favors neither party or favors a finding

of fair use.

The fourth factor to be considered is "the effect of the use

upon the potential market for or value of the copyrighted work."

17 U.S.C. § 107. This factor "is undoubtedly the single most

important element of fair use." Harper & Row, 471 U.S. at 566.

As the Fourth Circuit has stated, "[a] use that does not

materially impair the marketability of the copyrighted work

generally will be deemed fair." Sundeman v. SeaJay Society.

Inc., 142 F.3d 194, 206 (4th Cir. 1998). This factor requires

courts to consider both the extent of the market harm caused by

the defendant and whether the conduct of the sort engaged in by

the defendant "would result in a substantially adverse impact on

the potential market for the original." Campbell v. Acuff-Rose

Music. Inc.. 510 U.S. 569, 590 (1994) (internal quotations

omitted). A "key element" in this analysis is "whether the

allegedly infringing work is a market substitute for the

copyrighted work." Sundeman, 142 F.3d at 207.

Here, it is clear that iParadigms' use of Plaintiffs' works

has caused no harm to the market value of those works.

Plaintiffs have failed to present any evidence of harm. In fact,

16
when asked in deposition whether iParadigms' use of their works

impinged on the marketability of their works or interfered with

their use of the works, each Plaintiff answered in the negative.

Furthermore, iParadigms' use of Plaintiffs' works will not have a

"substantially adverse impact on the potential market" for high

school papers.1 Clearly, iParadigms' use does not amount to a

"market substitute" for Plaintiffs' works. iParadigms stores its

archived papers digitally and they are not publicly accessible or

disseminated in any way. In fact, iParadigms' use of Plaintiffs'

works has a protective effect, preventing others from using

Plaintiffs' works as their own and protecting the future

marketability of Plaintiffs' works.

Plaintiffs point to a potential harm that could arise if a

future recipient of Plaintiffs' work, such as a literary magazine

or a college admissions counselor, checks the originality of the

work using Turnitin. Plaintiffs argue that Turnitin would return

a plagiarism alert because of the presence of the original work

1 In their pleadings, Plaintiffs argue that iParadigms' use

of their works will have an adverse impact on their ability to
sell their works to web sites, such as www.ibuytermpapers.com,
that purchase original high school papers and resell them to
other high school students. However, in deposition testimony,
each Plaintiff asserted that he or she would not sell their
papers to such sites because they viewed it as "cheating."
Moreover, to accept Plaintiffs' argument would contravene the
public benefit underpinnings of the Copyright Act and would run
counter to the Copyright Act's purpose of encouraging creative,
original work. Thus, Plaintiffs' adverse market impact argument
is unpersuasive.

17
archived in the Tumitin system. According to Plaintiffs, this

could falsely indicate to the recipient that Plaintiffs are

plagiarists, thereby harming the marketability of their works or

their chances of college admission.

This argument is unpersuasive. First, this type of harm is

entirely speculative as there is no evidence indicating that

Plaintiffs, or anyone else, have been harmed in this manner.

Second, this type of harm is highly unlikely based on the manner

in which the Turnitin system operates. After Turnitin compares

the submitted work to its database of archived works, it produces

an Originality Report which identifies the percentage of the work

that is not original. Importantly, if the Report indicates that

the work is not original, the Report identifies the original

archived work and the educational institution in which it was

first turned in. Anyone who is reasonably familiar with

Turnitin's operation will be able to recognize that the identical

match is not the result of plagiarism, but simply the result of

Plaintiff's earlier submission. Individuals familiar with

Turnitin, such as those in the field of education, would be

expecting the works submitted to have been previously submitted.

Because Plaintiffs have presented no evidence of harm and the

potential harm alleged is both speculative and highly unlikely,

the fourth factor strongly favors a finding of fair use.

Considering all four factors, the Court finds that

18
iParadigms' use of Plaintiffs' written works constitutes fair use

under 17 U.S.C. § 107.

Next, the Court considers Defendant iParadigms' four

counterclaims. First, iParadigms claims a right to

indemnification against all Plaintiffs based on the

indemnification clause contained in Turnitin's Usage Policy.

iParadigms' indemnification claim fails for two reasons. First,

the Usage Policy was not incorporated into the Clickwrap

Agreement which Plaintiffs assented to when they clicked "I

Agree" on the Turnitin web site. The Clickwrap Agreement states:

Turnitin and its services . . . are offered to you, the

user ["User"], conditioned on your acceptance without
modification of the terms, conditions, and notices
contained herein. Your use of this web site constitutes
your agreement to all such terms, conditions, and
notices. . . . This agreement constitutes the entire
agreement between the user and iParadigms' with respect
to usage of this web site and it supersedes all prior
communications and proposals, whether electronic, oral,
or written, between the user and iParadigms' with respect
to usage of this web site.

(emphasis added). This language makes clear that, by clicking "I

Agree," Plaintiffs were agreeing only to the provisions contained

within the Clickwrap Agreement. The Clickwrap Agreement contains

no indemnification clause and makes no reference to the Usage

Policy. Additionally, the inclusion of the phrase, "[t]his

agreement constitutes the entire agreement . . . with respect to

usage of this web site" precludes any argument that additional

terms, not contained in the Clickwrap Agreement, can be binding

19
on Plaintiffs.

Second, the Usage Policy is not binding on Plaintiffs as an

independent contract because Plaintiffs did not assent to the

Usage Policy. While contractual indemnification clauses are

valid and enforceable in Virginia, see Safeway, Inc. v. DPI

Midatlantic. Inc., 270 Va. 285, 289 (2005), "mutuality of assent

— the meeting of the minds of the parties" is nevertheless "an

essential element of all contracts." Phillips v. Mazyck. 273 Va.

630, 636 (2007) (internal quotations omitted). In this case,

there is no evidence that Plaintiffs assented to the terms of the

Usage Policy. There is no evidence that Plaintiffs viewed or

read the Usage Policy and there is no evidence that Plaintiffs

ever clicked on the link or were ever directed by the Turnitin

system to view the Usage Policy.

There is no evidence to impute knowledge of the terms of the

Usage Policy to Plaintiffs. In some instances, courts have

imputed knowledge to web site users of the terms of use of those

sites based on the users' repeated use of the sites and exposure

to their terms of use. See, e.g.. Reqister.com. Inc.. 356 F.3d

at 401; Fru-Con Constr. Corp. v. County of Arlington. No.

l:06cvl, 2006 WL 273583 (E.D. Va. Jan. 30, 2006). In this case,

however, such imputation is improper because there is no evidence

indicating that Plaintiffs were exposed to the terms of the Usage

Policy. For instance, in Register.com. the court imputed

20
knowledge of and assent to the web site's terms of use because

the user "was daily submitting numerous queries, each of which

resulted in its receiving notice of the terms Register exacted."

Reaister.com. 356 F.3d at 401. Similarly, in Fru-Con Constr.

Corp.. the party denying the existence of a contract had

represented to the defendant that it had "reviewed and thoroughly

understood] the scope, terms and conditions set forth" in a

separate, specifically referenced document. Fru-Con Constr.

Corp.. 2006 WL 273583 at *2. In this case, Plaintiffs did not

have the same type of exposure to the terms of use as did the

users in Recrister.com or Fru-Con Constr. Corp. . There is no

evidence that the terms of the Usage Policy were presented to

Plaintiffs beyond the existence of the Usage Policy link that

appeared on each page. And, as discussed above, the terms of the

Usage Policy were not incorporated into the Clickwrap Agreement

to which Plaintiffs assented. For these reasons, iParadigms'

counterclaim for indemnification fails.

iParadigms' second counterclaim alleges trespass to chattels

against Plaintiff A.V., based on A.V.'s acts of submitting

written works to UCSD, where he was not enrolled. Trespass to

chattels occurs "when one party intentionally uses or

intermeddles with personal property in rightful possession of

another without authorization." America Online. Inc. v. LCGM.

Inc.. 46 F. Supp. 2d 444, 451-52 (E.D. Va. 1998). One who

21
commits a trespass to a chattel is liable "if the chattel is

impaired as to its condition, quality, or value." id. (internal

quotations omitted). In other words, one who has committed such

a trespass is liable only "for actual damages suffered by reason

of loss of [the chattel's] use." Vines v. Branch. 244 Va. 185,

190 (1992) .

There is no evidence that Turnitin has been impaired as to

its condition, quality, or value, or that Defendant has suffered

actual damages due to a loss of Turnitin's use. iParadigms'

second counterclaim asserts that "Turnitin has expended

substantial time and resources investigating and rectifying the

situation with the instructors at the educational institutions in

which A.V. and [A.V.'s next friend] improperly logged in as

students in order to submit papers." However, iParadigms has

only presented evidence of consequential damages resulting from

the steps taken by iParadigms in response to A.V.'s submissions.

This evidence fails to establish any actual damage or impairment

to the Turnitin system as a result of A.V.'s allegedly

unauthorized submissions to UCSD. Because there is no evidence

of damage, iParadigms' counterclaim for trespass to chattels

fails.

iParadigms' third counterclaim alleges violation of the

Computer Fraud and Abuse Act, 18 U.S.C. §§ 103 0(a)(5)(A)(iii) and

1030(a)(5)(B)(I), against Plaintiff A.V.. According to sections

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1030(a)(5)(A)(iii) and 1030(a)(5){B)(I), whoever "intentionally

accesses a protected computer without authorization, and as a

result of such conduct, causes damage" resulting in "loss to 1 or

more persons during any 1-year period . . . aggregating at least

$5,000 in value" can be subject to civil liability. However,

"[djamages for a violation involving only section (a)(5)(B)(I)

are limited to economic damages." 18 U.S.C. § l030(h). As

discussed above, iParadigms has failed to produce any evidence of

actual or economic damages resulting from A.V.'s allegedly

unauthorized submissions to UCSD. Therefore, iParadigms' third

counterclaim for violation of the Computer Fraud and Abuse Act

fails.

iParadigms' fourth counterclaim alleges violation of the

Virginia Computer Crimes Act, Va. Code §§ 18.2-152.3 and 18.2-

152.6, against Plaintiff A.V.. Section 152.3 states that "[a]ny

person who uses a computer or computer network, without authority

and: (1) Obtains property or services by false pretenses ... is

guilty of the crime of computer fraud." Va. Code. §§ 18.2-152.3.

Additionally, section 152.6 states that n[a]ny person who

willfully obtains computer services without authority is guilty

of the crime of theft of computer services." id. at §§ 18.2-

152.6. The Virginia Computer Crimes Act also provides that

"[a]ny person whose property or person is injured by reason of a

violation of any provisions of this article . . . may sue

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therefor and recover for any damages sustained and the costs of

the suit." Id^ at §§ 18.2-153.12. As discussed above,

iParadigms has failed to produce any evidence of actual or

economic damages resulting from A.V.'s allegedly unauthorized

submissions to UCSD. Therefore, iParadigms' fourth counterclaim

for violation of the Virginia Computer Crimes Act fails.

For the foregoing reasons, Plaintiffs' Motion for Summary

Judgment should be granted as to all counterclaims and denied as

to the complaint. Furthermore, Defendant's Motion for Summary

Judgment should be denied as to all counterclaims and granted as

to the complaint. An appropriate order shall issue.

/s/
Claude M. Hilton
United States District Judge
Alexandria, Virginia
March // , 2008

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