North Carolina Law Review » Addendum

Paradigms of Plagiarism: Fair Use and Plagiarism Detection Software in A.V. ex rel. Vanderhye v. iParadigms, LLC

nclrev — Tue, 05 Apr 2011 15:58:59 +0000

Multiple surveys taken over the past four years indicate that a large portion of undergraduate students at America’s colleges and universities admit to cheating on a college exam or assignment. In fact, in one survey, over fifty percent of college students confessed to having plagiarized from the Internet. As information has become easier to access, students are increasingly tempted to plagiarize content from online sources. More troubling, many students who use the Internet to conduct research are unable to define plagiarism.

Plagiarism has been described as an epidemic plaguing the nation, but it is not a novel concept. Despite plagiarism’s historical presence, it is a real problem in academic institutions that threatens, not only the original work of those who are victimized by this type of intellectual thievery, but also jeopardizes the continued intellectual growth of society. Teachers have begun to describe plagiarism as a form of “intellectual rape,” and some journalists have even opined that the standards of education universally have been “dumb[ed] down” because of this pestilence.

In order to combat the rise of plagiarism in academic institutions, software companies have created novel and effective programs designed to detect and deter plagiarism. An estimated fifty-five percent of colleges and universities use some type of anti-plagiarism software. With the increased use of these advanced software programs, which can identify portions of a student’s work that are similar to other works in the programs’ massive and ever-growing document databases, Zack Morris tactics can no longer go on undetected.
As could be expected, the burgeoning market for plagiarism detection software has been accompanied by litigation challenging the use of such programs.

In the recent case, A.V. ex rel. Vanderhye v. iParadigms, the U.S. Court of Appeals for the Fourth Circuit held that iParadigms, LLC (“iParadigms”), a company specializing in plagiarism detection software, was not liable for infringing on the copyrights of four students when its software, Turnitin Plagiarism Detection Service (“Turnitin”), archived digital copies of the students’ works in its database. The court held that iParadigms’ use of the student works qualified as fair use.

This Recent Development explores the Fourth Circuit’s fair use analysis and argues that its decision was, not only the correct application of the law, but also aligns with both the legislative purpose of fair use and the underlying constitutional purpose of copyright law. In Part I, this Recent Development examines the fair use exception within the historical and constitutional context of copyright law. Part II briefly describes how Turnitin detects and deters plagiarism and provides a summary of the facts of A.V. ex rel. Vanderhye. Part III argues that the Fourth Circuit properly affirmed the district court’s decision by performing a valid fair use statutory analysis but that the panel missed an opportunity to strengthen its argument by failing to interpret the factors in light of the purpose of copyright. Part III further contends that a finding of fair use comported with the constitutional purpose of copyright law because iParadigms’ use contributes to the “Progress of Science and useful Arts.”

Murders & Executions: The SEC’s Regrettable Reluctance to Formalize a Finder’s Exemption in M&A Transactions

nclrev — Fri, 04 Feb 2011 07:05:30 +0000

“Mergers and acquisitions” is an often misunderstood and perhaps intimidating field encompassing both complex transactional law issues, as well as specialized business practices. Since the decade of the 1980s and the birth of the hostile takeover, business combinations have become more frequent and involve increasingly large capital expenditures. So numerous have mergers and acquisition transactions become, popular culture has embraced their drama in both film and novel. While the volume of mergers and acquisitions is increasing at a rapid pace, the Securities and Exchange Commission has lagged behind, failing to put in place proper regulatory reform that would provide freedom for small businesses to capitalize upon business combinations.

While investment bankers, registered as broker-dealers under the Securities Exchange Act of 1934, are often used by larger corporations seeking to coordinate a business combination, smaller businesses often “fly below the radar.” Smaller corporations planning to purchase a business typically use informal channels to find companies interested in selling. These avenues often include meetings between senior management, attorneys, financial advisers, and third party consultants, or “finders.”

A particular subset of these “finders” is made up of “business brokers,” who “attempt to initiate or arrange transactions between potential buyers and sellers of a business.” The SEC has implicitly recognized that some business broker activities fall outside of the intent and purpose of the ’34 Act, and thus a de facto exemption currently exists. Given a niche, these business brokers could provide critical merger assistance to those small businesses that lack the resources necessary to attract and retain an investment bank.

This piece begins with an analysis of the SEC no-action letters addressing business brokers in the context of mergers and acquisitions. Drawing upon the acknowledged differences between finders and broker-dealers, it then puts forth a proposal for a formal exemption to broker-dealer registration under the ’34 Act.

No Brothers Allowed: How Expanding a Juvenile’s Miranda Rights Backfired on a North Carolina Sheriff’s Department

nclrev — Wed, 05 Jan 2011 23:52:10 +0000

Imagine watching the nervousness wash over fifteen-year-old Micah. His parents have brought him to the sheriff’s office to talk with a female detective about sexual contact he allegedly had with his younger brother Jake. He does not want to talk with the detective alone—it would be embarrassing to talk to a female about this, and talking one-on-one would be intimidating. And there is no way he would allow his parents to be present during the questioning, either— talk about nerve-racking, plus they might actually be more intimidating than the detective since Micah was being questioned about assaulting their youngest son. Micah refuses to talk one-on-one with the investigator, or even with his parents present. Rather, he wants his twenty-one-year-old brother Bill—a Marine, no less—to be present during the questioning. With his brother in the room, Micah would not have to face the investigator alone, plus Bill may not be as judgmental or imposing as his parents.

Here’s the problem: Under current North Carolina law, if Micah asks for his older brother to be present, the detective can refuse the request and continue to talk to Micah one-on-one. Indeed, the detective must refuse to allow Bill’s presence during the questioning lest it result in Micah’s statements being suppressed in court. This confusing set of interrogation rules results from the North Carolina Court of Appeals’ odd ruling in In re M.L.T.H., which held that a juvenile could not have anyone present during interrogation except for a parent, guardian, custodian, or attorney.

This Recent Development argues that In re M.L.T.H. was wrongly decided. Part I lays out the facts of In re M.L.T.H. Part II discusses the North Carolina Court of Appeals’ interpretation of the state’s juvenile Miranda statute. Part III argues that In re M.L.T.H. was not based upon a proper interpretation of the juvenile Miranda statute nor upon state supreme court precedent. Part IV contends that In re M.L.T.H. could have far-reaching negative repercussions because it risks putting future investigators and juveniles at a disadvantage during questioning.

A Time for Action: Reforming the North Carolina Tax Code

nclrev — Fri, 07 May 2010 15:29:08 +0000

The economic recession has forced almost all states to make difficult budget decisions, including cuts to education funding and other essential government services. North Carolina is no exception. Faced with a projected $4.6 billion budget shortfall, the General Assembly last year cut services, increased taxes, and yet still had to rely on federal recovery funds to balance the budget. While the depth of the recession may have made last year’s budget shortfall to some extent unavoidable, the state’s outdated and volatile tax system exacerbated its magnitude. This Article examines the shortcomings of North Carolina’s existing tax structure. It then suggests alternatives to modernize the state’s tax system and stabilize tax revenues. These suggestions include broadening the sales tax base to include more services and closing existing corporate income tax loopholes. Reforms to the North Carolina tax system are long overdue. This Article provides a pathway to improving that system and calls for legislators to enact long-term solutions to the problems hampering North Carolina’s existing tax code. Ultimately, failure to do so will risk the state’s ability to continue providing much-needed services and educational opportunities to its citizens.

Hall v. Torero’s II, Inc.: Drunken Driving, Bar Liability, and the Quest for Safer Roadways

nclrev — Fri, 07 May 2010 12:08:45 +0000

Tragedy can strike in the blink of an eye. For Michael and Theresa Hall, tragedy struck at approximately 10:40 p.m. on December 3, 1997. That evening the couple was driving on Guess Road in Durham, less than a mile from Torero’s, a local Mexican bar and restaurant. Unbeknownst to them, William Terry, an admitted alcoholic, was driving in the opposite direction. Terry had spent the evening at Torero’s consuming numerous drinks over the course of the night. By 10:30 p.m.—some five hours after he first arrived at the bar—patrons and the bartender raised questions among one another about Terry’s ability to drive, but when an obviously intoxicated Terry stumbled out of Torero’s, keys in hand, no one stood in his way. Just minutes later, Terry’s Jeep swerved across the centerline and collided with the Halls’ Toyota Corolla. Michael died within minutes of the collision; Theresa sustained serious injuries and was pinned in the vehicle until rescue crews arrived. Authorities later determined that Terry’s blood alcohol content at the time he left Torero’s would have been 0.20—about two-and-a-half times the legal limit. For the Hall family, an intoxicated driver had changed their lives in an instant.