Case 1:10-cv-00620-CMH -TCB Document 5 Filed 06/09/10 Page 1 of 15

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA
(ALEXANDRIA DIVISION)

--------------------------------------------------------- X
DIANA CHRISTEN, : Civil Action No. 1:2010-CV-620
:
Plaintiff, :
:
vs. :
:
IPARADIGMS, LLC, :
Defendant. :
--------------------------------------------------------- X

MEMORANDUM OF LAW
IN SUPPORT OF
DEFENDANT’S MOTION TO DISMISS

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TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES ...........................................................................................................ii

PRELIMINARY STATEMENT.....................................................................................................1

STATEMENT OF RELEVANT FACTS ........................................................................................2

The Turnitin System ............................................................................................................2

Plaintiff’s Complaint ...........................................................................................................3

Prior Court Decisions ..........................................................................................................4

ARGUMENT...................................................................................................................................5

I. PLAINTIFF’S CLAIMS ARE PREEMPTED BY THE COPYRIGHT ACT ........5

A. Standard .......................................................................................................5

B. Plaintiff’s Conversion Claim Is Preempted. ................................................6

C. Plaintiff’s Replevin Claim Is Preempted And Unavailable Under Virginia

Law ..............................................................................................................8

D. Plaintiff’s Unjust Enrichment Claim Is Preempted. ....................................9

CONCLUSION..............................................................................................................................10

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TABLE OF AUTHORITIES
Page(s)
CASES

A. V. ex rel. Vanderhye v. iParadigms, LLC,

562 F.3d 630 (4th Cir. 2009) ............................................................................................passim

A.V. v. iParadigms, LLC.,

544 F. Supp. 2d 473 (E.D. Va. Mar. 11, 2008)......................................................................1, 3

Adkins v. Fairfax County School Bd.,

No. 08-cv-911, 2008 WL 2076654 (E.D. Va. May 15 2008) ....................................................2

Avtec Sys. Inc. v. Peiffer,

21 F.3d 568 (4th Cir. 1994) .......................................................................................................5

College of Charleston Foundation v. Ham,

585 F. Supp. 2d 737 (D.S.C. 2008) ...........................................................................................7

Collezione Europa U.S.A., Inc. v. Hillsdale House, Ltd.

243 F. Supp. 2d 444 (M.D.N.C. 2003) ......................................................................................9

Costar Group, Inc. v. LoopNet, Inc.,

164 F. Supp. 2d 688 (D.Md.2001), aff’d, 373 F.3d 544 (4th Cir. 2004) ...................................9

Kindergartners Count, Inc. v. Demoulin,

171 F. Supp. 2d 1183 (D. Kan. 2001)........................................................................................7

Madison River Mgmt. Co. v. Bus. Mgmt. Software Corp.,

351 F. Supp. 2d 436 (M.D.N.C. 2005) ..................................................................................5, 6

Microstrategy, Inc. v. Netsolve, Inc.,

368 F. Supp. 2d 533 (E.D. Va. 2005) ........................................................................................7

Pazmino v. LaSalle Bank, N.A.,

No. 09-1173, 2010 WL 2039163 (E.D. Va. May 20, 2010) ......................................................2

Phillips v. LCI Int’l, Inc.,

190 F.3d 609 (4th Cir. 1999) .....................................................................................................2

Stern v. Kaufman's Bakery, Inc.,

191 N.Y.S.2d 734 (Sup. Ct. 1959).............................................................................................8

In re Thomas,
--- N.Y.S.2d ----, 2010 WL 1781382 (N.Y. Sur. 2010) .............................................................8

Trandes Corp. v. Guy F. Atkinson Co.,

996 F.2d 655 (4th Cir. 1993) .................................................................................................5, 7

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United States ex rel. Berge v. Board of Trs. of the Univ. of Ala.,

104 F.3d 1453 (4th Cir.1997) ........................................................................................5, 6, 7, 8

STATUTES AND RULES

17 U.S.C. §§ 102, 103..................................................................................................................5, 6

17 U.S.C. § 106............................................................................................................................5, 6

17 U.S.C. § 107............................................................................................................................1, 4

17 U.S.C. § 301(a) ...........................................................................................................................5

Fed. R. Civ. P. 12(b)(6) ...................................................................................................................1

Virginia Code § 8.01-218 ................................................................................................................8

OTHER AUTHORITIES

1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright

§ 1.01[B][1] (2010)................................................................................................................7, 9

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Defendant iParadigms, LLC (“iParadigms”) respectfully submits this

memorandum of law in support of its motion to dismiss plaintiff’s Complaint pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure on the ground that her claims are preempted by

the Copyright Act.

PRELIMINARY STATEMENT

This action is the second attempt by plaintiff’s counsel to assert claims against

iParadigms based on the archiving of student papers in iParadigms’ proprietary Turnitin®

system. According to plaintiff, that system, which archives student works in a database as a

means of detecting possible plagiaris m, gives rise to various claims under Virginia state law.

Plaintiff’s counsel has previously filed suit -- unsuccessfully -- based on the same

essential underlying factual allegations. Specifically, in March 2007, plaintiff’s counsel brought

a purported copyright infringement action in this Court on behalf of four high school students

whose schools required students to submit their papers through the Turnitin system. The

students alleged that the “continued archiving of their works” by Turnitin “constitute[d]

copyright infringement.” See A.V. v. iParadigms, LLC., 544 F. Supp. 2d 473, 478 (E.D. Va.

Mar. 11, 2008). In decisive ly rejecting the students’ claims, this Court found that the archiving

of the papers constituted fair use under 17 U.S.C. § 107. See id. at 481-484. Plaintiff appealed

that decision to the United States Court of Appeals for the Fourth Circuit and, on April 16, 2009,

the Court issued a unanimous, published opinion affirming that holding. See A. V. ex rel.

Vanderhye v. iParadigms, LLC, 562 F.3d 630, 637-45 (4th Cir. 2009).

Approximately one year after his client’s claims were rejected by the Fourth

Circuit, plaintiff’s counsel instituted this action in state court based on the precise conduct at

issue in the federal suit: the archiving of student work in the Turnitin system (this time, the suit

was brought on behalf of a graduate student in Florida). Specifically, plaintiff purports to

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challenge iParadigms’ lawful archiving with three common law claims: replevin (Count I),

conversion (Count II), and unjust enrichment (Count III). These claims are nothing more than an

attempt by plaintiff’s counsel to make an end-run around this Court’s earlier decision and to

pursue state- law claims where federal claims have failed.

As explained below, the Copyright Act is the exclusive means for enforcing any

rights that fall within its protections; by Congressio nal mandate, any redundant state- law

remedies are preempted. Regardless of how plaintiff chooses to label her claims, it is clear from

the face of the Complaint that the fair use “copying” of plaintiff’s two papers by the Turnitin

system forms the basis of this action, and thus the claims overlap entirely with the rights granted

by the Copyright Act. Under well- established Fourth Circuit precedent, Plaintiff’s claims are

therefore preempted and must be dismissed.

STATEMENT OF RELEVAN T FACTS 1

The Turnitin System

iParadigms owns and operates Turnitin, an online technology system used by

educational institutions to “evaluate[] the originality of written works in order to prevent

plagiarism.” A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d at 634 (alteration in

original); see also Compl. ¶ 4. Works may be uploaded to Turnitin by instructors or by students

themselves. After a copy of the work is electronically uploaded to Turnitin, “the system

compares the work electronically to content available on the internet, student works previously

1
These facts are derived from the Complaint and documents, including the papers
referenced in the Complaint, and prior court decisions, of which this Court may properly take
judicial notice. See, e.g., Phillips v. LCI Int’l, Inc., 190 F.3d 609, 618 (4th Cir. 1999) (in ruling
on a motion to dismiss, a court may consider any documents that are “integral to and explicitly
relied on in the complaint”); Pazmino v. LaSalle Bank, N.A., No. 09-1173, 2010 WL 2039163,
at *1 n.7 (E.D. Va. May 20, 2010) (court may consider documents referenced and relied on in the
complaint) (Hilton, J); Adkins v. Fairfax County School Bd., No. 08-cv-911, 2008 WL 2076654,
at *1 n.1 (E.D. Va. May 15 2008) (court may properly take judicial notice of court opinions).

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submitted to Turnitin and commercial databases of journal articles and periodicals. A.V. v.

iParadigms, LLC, 544 F. Supp. 2d 473 at 477-78. Turnitin then produced an “Originality

Report,” which provides a percentage of the work that appears not to be original. Id. at 478. As

set forth in the Fourth Circuit Decision, “[t]he comparison occurs as follows: ‘[T]he Turnitin

system makes a ‘fingerprint’ of the work by applying mathematical algorithms to its content.

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.’” See A.V. ex rel. Vanderhye v.

iParadigms, LLC, 562 F.3d at 634 n.1.

Schools that participate in the Turnitin system may choose to archive student

works, which then “become[] part of the database used by Turnitin to evaluate the originality of

other student s’ works in the future.” Id. at 478; A.V. ex rel. Vanderhye v. iParadigms, LLC, 562

F.3d at 634. If this option is selected, the archived work is then “stored as digital code.” Id.

Plaintiff’s Complaint

According to the Complaint, plaintiff was a graduate student at the University of

Central Florida who allegedly learned that two of her papers were submitted into the Turnitin

System by her instructor. See Compl. at ¶ 4. As alleged, the submissions, “Mod One,

Environmental Trends” and “Mod Two, Assignment One,” had plaintiff’s name “and other

personal information about [plaintiff], and contained other confidential information.” See id. In

fact, as evidenced by the above referenced papers, they included no confidential information and

plaintiff has pointed to no specific confidential information on either of these papers. See Exhs.

A and B. Indeed, the only information about plaintiff in either paper is her name and, in one

paper, the year in which she was born – nothing more.

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Plaintiff alleges that she has never “consented to iParadigms’ commercial use of

her manuscripts, nor to the use or retention in its databases of [her] name, other personal

information, and confidential information contained in the manuscripts that [she] believed, and

had every right to believe, would not be shared with others by her professor, and certainly would

not be placed in a commercial database accessible via computer by millions of people

worldwide.” See Compl. at ¶ 7. 2 In other words, plaintiff objects to iParadigms’ commercial use

of her papers that are digitally archived in the Turnitin system. 3

Specifically, plaintiff alleges that through its use of her papers, iParadigms has

“unlawfully detained” plaintiff’s property. She asserts claims for replevin (Count I), conversion

(Count II), and unjust enrichment (Count III).

Prior Court Decisions

In the spring of 2007, plaintiff’s counsel, on behalf of four (4) high school

students, filed suit in this Court for copyright infringement based upon the archiving of papers in

the Turnitin System. Approximately one-year later, in March 2008, this Court granted summary

judgment dismissing plaintiff’s copyright claim on two grounds. Importantly, the Court held that

the only act of copyright infringement alleged by plaintiff – the digital archiving of their student

papers – constituted fair use under 17 U.S.C. § 107.

2
In the prior action, plaintiff’s counsel made a similar misstatement that the Fourth
Circuit rejected. See A. V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d at 635 n.4 (noting
that plaintiffs claimed that iParadigms “may send a full and complete copy of a student’s
unpublished manuscript to an iParadigms client anywhere in the world upon request of the client,
and without the student’s permission,” but holding that plaintiffs had “not produced any evidence
to demonstrate that this occurred . . .”).
3
Notably, plaintiff does not allege that a physical hard copy of her paper was sent to or
archived by iParadigms – nor could she -- because, as set forth above, papers are electronically
uploaded only as digital code.

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Plaintiff’s counsel, both as next friend and as counsel to the four high school

students, appealed to the United States Court of Appeals for the Fourth Circuit. In April 2009,

the Fourth Circuit issued a unanimous, published decision affirming this Court’s decision on all

four fair use factors. On May 12, 2009, the Fourth Circuit denied plaintiffs’ petition for

rehearing and petition for rehearing en banc. See Order annexed hereto at Exh. C.

ARGUMENT

I. PLAINTIFF’S CLAIMS ARE PREEMPTED BY THE COPYRIGHT ACT

A. Standard

Congress has specifically preempted all state- law rights that are equivalent to

those protected under federal copyright law. See 17 U.S.C. § 301(a). For preemption to apply, a

two-prong test must be met: (1) the work must be “within the scope of the subject- matter of

copyright as specified in 17 U.S.C. §§ 102, 103”; and (2) the “rights granted under state law

must be equivalent to any exclusive rights within the scope of federal copyright as set out in 17

U.S.C. § 106.” United States ex rel. Berge v. Board of Trs. of the Univ. of Ala., 104 F.3d 1453,

1463 (4th Cir.1997) (internal quotation marks omitted); Madison River Mgmt. Co. v. Bus.

Mgmt. Software Corp., 351 F. Supp. 2d 436, 442 (M.D.N.C. 2005). Any state- law claims that

are preempted must be dismissed. See, e.g., id.

The second prong of the preemption test is satisfied unless there is an “extra

element” that changes the nature of the state law action so that it is “qualitatively different from a

copyright infringement claim.” Berge, 104 F.3d at 1463 (quotation omitted). A copyright

infringement claim alleges, inter alia, that the defendant copied original elements of the

copyrighted work or encroached upon an exclusive right conferred by the copyright. See

Trandes Corp. v. Guy F. Atkinson Co., 996 F.2d 655, 660 (4th Cir. 1993); see also Madison

River Mgmt., 351 F. Supp. 2d at 443 (citing Avtec Sys., Inc. v. Peiffer, 21 F.3d 568, 571 (4th

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Cir.1994)). “The exclusive rights conferred by a copyright are to reproduce the copyrighted

work, prepare derivative works, distribute copies of the work, and perform or display the work

publicly.” Madison River Mgmt., 351 F. Supp. 2d at 443 (citing 17 U.S.C. § 106).

Here, there can be no question that the works at issue -- Plaintiff’s “unpublished

manuscripts” (Compl. ¶ 4) -- fall within the subject-matter of copyright protection. As the

Copyright Act explicitly states, the subject matter of copyright extends to any “literary works”

that are “fixed in any tangible medium of expression.” Copyright Act § 102. See also Berge,

104 F.3d at 1463 (holding that “[t]here can be no doubt” that the plaintiff’s dissertation fell

within the subject matter or the Copyright Act). Thus, claims are preempted unless they seek to

vindicate rights that are “qualitatively different” from those that are protected by copyright

infringement claims. As explained below, each of plaintiff’s claims allege rights that are

explicitly protected by the Copyright Act, and therefore each claim is preempted.

B. Plaintiff’s Conversion Claim Is Preempted.

Plaintiff’s conversion claim (Count II) alleges that, in storing digital copies of

plaintiff’s manuscripts in its database, iParadigms has “deprive[d]” plaintiff of her “exclusive

rights to her property.” (Compl. ¶ 12.) Notably, plaintiff does not claim that iParadigms has

unlawfully retained the tangible (i.e. hardcopy) manuscripts themselves. 4 Instead, plaintiff

alleges that iParadigms has stored and “commercially use[d]” copies of the manuscripts on its

system and accordingly demands the purging of the copies. (Id. ¶¶ 12, 13.)

It is clear on its face that the conversion claim is simply a copyright infringement

claim dressed in state- law clothing. Indeed, the claim seeks to hold defendant liable for

4
Nor could she, because, as this Court and the Fourth Circuit recognized, the iParadigms
system does not utilize physical copies of documents but instead stores students’ works “as
digital code.” See A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d at 641 (stating that
iParadigms stores works in a “digitized database”).

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encroaching on one of the exclusive rights granted by the Copyright Act -- i.e., the right to use

and reproduce the copyrighted work. See Trandes Corp., 996 F.2d at 660. Accordingly, as

courts in this Circuit have routinely recognized, conversion claims (such as the one alleged by

plaintiff) are preempted. See, e.g., Microstrategy, Inc. v. Netsolve, Inc., 368 F. Supp. 2d 533,

536 (E.D. Va. 2005) (“The Court grants Defendant’s motion to dismiss the conversion claim

because Plaintiff alleges no physical object was unlawfully retained by Defendant.”); Trandes

Corp., 996 F.2d at 659 (stating that allegations of “mere reproduction” are insufficient to avoid

preemption by the Copyright Act); College of Charleston Foundation v. Ham, 585 F. Supp. 2d

737, 748 (D.S.C. 2008) (“Federal courts, the n, have generally found that when a conversion

claim encroaches upon the subject matter covered under federal copyright law, the claim is

preempted and should be brought as a copyright claim.”); Kindergartners Count, Inc. v.

Demoulin, 171 F. Supp. 2d 1183, 1193 (D. Kan. 2001) (“[I]f the plaintiff is only seeking

damages from the defendant’s reproduction of a work -- and not the actual return of a physical

piece of property -- the claim is preempted.”); 1 Melville B. Nimmer & David Nimmer, Nimmer

on Copyright § 1.01[B][1] at 1-57 (2010) (stating that conversion claims based on “unauthorized

reproductions” are preempted). 5

Moreover, because plaintiff has not – indeed, cannot -- allege that iParadigms is

retaining a physical object that itself belongs to the plaintiff, dismissal of plaintiff’s conversion

claim is mandated by Fourth Circuit precedent. See, e.g., Berge, 104 F.3d at 1463-64 (a

conversion claim is preempted unless a pla intiff claims to own the object in which the

intellectual property is “embod[ied]”). Here, plaintiff does not claim that she owns the “digital

5
Although in an effort to get around the Copyright Act plaintiff purports to argue that
there is some “confidential” component of these papers that have been copied, it is clear from the
face of these papers that there is nothing confidential contained in them. See Exhs. A and B.

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code” in which her work is stored on the Turnitin system; instead, she claims she owns the

intellectual property stored in that code, a claim that is equivalent to a copyright infringement

claim and therefore preempted. See id. at 1463. Accordingly, Count II is preempted by the

Copyright Act and should be dismissed.

C. Plaintiff’s Replevin Claim Is Preempted And Unavailable Under Virginia

Law

Plaintiff’s replevin claim (Count I) alleges that defendant retains copies of

plaintiff’s “manuscripts” in its database. Plaintiff asks the Court to order defendant to “purg[e]”

the documents from its databases and to award damages for the “detention” of her work.

(Compl. ¶¶ 9-10.) This claim should be dismissed for several reasons.

Like plaintiff’s conversion claim, the replevin claim complains of defendant’s use

and retention of a copy of her manuscripts and thus seeks to vindicate a right that is the exclusive

province of the Copyright Act. (See supra I.B.) Thus, plaintiff’s replevin claim (Count I) is also

preempted.

Moreover, no claim for replevin is available under Virginia law. See Virginia

Code § 8.01-218, “Replevin abolished” (“No action of replevin shall be hereafter brought.”).

Finally, plaintiff’s replevin claim would fail even if it were a recognized cause of action in

Virginia because replevin seeks recovery of a specific piece of tangible property. See, e.g., In re

Thomas, --- N.Y.S.2d ----, 2010 WL 1781382, at *2 (N.Y. Sur. 2010) (“[T]he recovery sought in

a replevin or turnover action is the actual return of the actual tangible property.”); Stern v.

Kaufman's Bakery, Inc., 191 N.Y.S.2d 734, 735 (Sup. Ct. 1959) (Plaintiffs . . . may not maintain

replevin because the [the subject of the suit] is not tangible or visible”). Here, however, plaintiff

seeks destruction of the “digital code” that is stored in defendant’s databases (she does not seek

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the return of the digital code or the papers), which is not tangible property and therefore not the

proper subject of a replevin suit.

Accordingly, because plaintiff’s replevin claim is both preempted by the

Copyright Act and is not cognizable under Virginia law, plaintiff’s Count I must be dismissed.

D. Plaintiff’s Unjust Enrichment Claim Is Preempted.

Plaintiff’s unjust enrichment claim (Count III) alleges that iParadigms “received .

. . a commercial benefit” from the use of plaintiff’s property. (Compl. ¶ 14.) Like plaintiff’s

conversion claim, the unjust enrichment claim requests that the Court order iParadigms to

“purg[e]” the “unpublished manuscripts” from its databases. (Id. ¶ 16.) Because it is well settled

that unjust enrichment claims based on copying are preempted by the Copyright Act, this claim

should be dismissed.

According to the Complaint, the benefits received by defendant are the copies of

plaintiff’s papers that are stored in the iParadigms database as computer code. The alleged

wrongful act, according to plaintiff, is the use and reproduction of those papers, a claim that falls

squarely within the protections afforded by the Copyright Act. As the courts that have

considered the question have held, unjust enrichment claims based on allegations of unfair

copying and use are preempted, and therefore plaintiff’s unjust enrichment claim must be

dismissed. See, e.g., Microstrategy, 368 F. Supp. 2d at 537-38 (unjust enrichment claim alleging

unlawful use and retention of software preempted by the Copyright Act); Collezione Europa

U.S.A., Inc. v. Hillsdale House, Ltd. 243 F. Supp. 2d 444, 450-51 (M.D.N.C. 2003) (noting that

unjust enrichment claims typically survive preemption only when they allege a “quasi-

contractual relationship between parties”); Costar Group, Inc. v. LoopNet, Inc., 164 F. Supp. 2d

688 (D.Md.2001), aff’d, 373 F.3d 544 (4th Cir.2004); Nimmer & Nimmer, § 1.01[B][1] at 1-51

(2010) (“[A] state law cause of action for unjust enrichment . . . should be regarded as an

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“equivalent right” and hence, pre-empted”). Accordingly, Count III is also preempted by the

Copyright Act and should be dismissed.

CONCLUSION

For the foregoing reasons, iParadigms respectfully requests that Court dismiss

plaintiff’s Complaint.

Dated: New York, New York

June 9, 2010
STEPHEN R. PICKARD P.C.

By: /s/
Stephen R. Pickard
VA Bar # 16374
115 Oronoco Street
Alexandria, VA 22314
(703) 836-3505 (Phone)
(703) 836-3558 (Fax)
srpickard@aol.com

James F. Rittinger*
Justin E. Klein*
SATTERLEE STEPHENS BURKE & BURKE LLP
230 Park Avenue
New York, New York 10169-0079
Telephone: (212) 818-9200
Facsimile: (212) 818-9606
Of counsel
*Pro hac vice applications forthcoming
Attorneys for Defendant iParadigms, Inc.

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CERTIFICATE OF SERVICE

I hereby certify that on the 9th day of June, 2010, I will electronically file the foregoing with the
Clerk of Court using the CM/ECF system, which will then send a notification of such filing
(NEF) to the following:

Robert A. Vanderhye, Esq.

801 Ridge Drive
McLean, VA 22101-1625
ravar@nixonvan.com

By: /s/
Stephen R. Pickard, Esq.
Stephen R. Pickard P.C.
VA Bar # 16374
115 Oronoco Street
Alexandria, VA 22314
(703) 836-3505
(703) 836-3558 (Fax)
srpickard@aol.com
Attorney for Defendant

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