Last week Pearson, a billion-dollar public education and publishing company, sued Chegg, another billion-dollar public education company. Although to call Chegg an education company is an exaggeration.
And while the outcome is unclear, experts say the lawsuit could place Chegg and other liability companies in prolonged legal jeopardy.
The essence of Pearson’s legal claim is that Chegg is engaging in a “massive” infringement of copyright owned by Pearson because Chegg published and sold answers to the tests and practice questions that Pearson has in its textbooks. . Pearson argues that questions and answers are theirs and that they should be able to decide when and how they are used.
If Pearson wins, it could damage not only Chegg’s business model, but also the businesses of several other companies that sell answers to academic questions written by professional text editors, professors, or licensing bodies. These companies include illicit cheat services, file sharing companies that sell access to tests and answers, and respectable tutoring and test prep companies.
In other words, the implications of this legal challenge could extend far beyond Pearson v Chegg.
Given the stakes of the challenge, I asked several legal experts in the copyright and intellectual property field what they thought of Pearson’s claims and Chegg’s possible defenses.
“This case is difficult for Pearson,” said Nicole Haff, litigation partner and intellectual property / copyright lawyer at Romano Law in New York.
“When the current US copyright law was amended in the 1960s, stakeholders in the textbook industry pushed to expand derivative works to include what were described as additional works,” he said. said Haff. This work included those “prepared by another for the purpose of explaining, illustrating or commenting on tests and test responses.” The fact that this was not adopted probably shows that the answers to the study guides and the explanations to the questions in the study guides are not protected as derivative works under the Copyright Act. ‘author.
William Scott Goldman of the Goldman Law Group in Washington DC said: “While Chegg’s copying of the study questions from Pearson’s textbooks may be considered a violation, Pearson may go too far in asserting that Chegg’s answers, based on these questions, also violate the copyright of Pearson. Chegg may be able to successfully assert that said answers are simply derivative works. ”
Dorothie Laguerre Smith, IP attorney for IPS Legal Group in Miami, was also part of the reach camp and said that “Pearson is ready to fight because they are making claims on issues that are generally not protected. by copyright law but rather by patent law ”, describing the copyright claim as“ far-reaching ”.
At the same time, Smith says, “Pearson certainly carries weight in the lawsuit where he can show that Chegg verbatim copied material from his textbook. However, she also says, Chegg can perhaps be sure that other people, and not Chegg in particular, have downloaded the copied content and that procedures already exist to remedy these circumstances.
Ray Harris, a copyright attorney at Fennemore Craig in Phoenix, also took into consideration Pearson’s argument, who said: “Work for pay is defined as including specially commissioned work used as a test or as response material for a test ”. So Harris added, “I would consider the test and answers copyrighted.”
And while lawyers have agreed that copyright protections do not apply to the facts – that two and two is four cannot be protected, for example – Harris said that copyright “protects a compilation of facts selected, coordinated or organized by the author to create an original work. . “And,“ even though the answers to, say, math questions can be facts, the selection and organization of the questions, and therefore the answers, can be protected as a compilation. ”Harris seems pretty clear, saying again, “Copying responses infringes an exclusive right of the copyright owner.”
Ryan Vacca, a professor of law at the University of New Hampshire Law School, who is the author of a body of law and numerous articles on copyright, also appeared to land in this camp, stating : “Pearson’s questions are entitled to copyright protection.” And, “The complaint gives several examples of Chegg reproducing the questions, either verbatim or in a substantially similar version, before providing the answer. Assuming these are representative samples, that would be a fairly straightforward violation of Pearson’s reproduction right.
On whether answers are also protected, Vacca said: “While it seems reasonable that an answer is based on a question, courts have not always interpreted this literally.” The professor added that we would not consider a student who wrote the same answers to the same questions as having violated anyone’s protections.
Yet, he said, if Chegg’s responses turn out to violate Pearson’s copyright, “then Chegg can try to make a fair use plea. The factual basis of many of Pearson’s questions may be of use to Chegg, but given the commercial nature of Chegg’s business, the number of alleged copies, and the fact that his products are implicated in fraud scandals, it looks like to an uphill battle for Chegg.
This is similar to the opinion of Francelina Perdomo, a partner at Gallet Dreyer & Berkey in New York, who focuses on copyright, trademark and publishing issues. She says, “Chegg uses extracts from Pearson’s copyrighted works to formulate answers to questions. The copy itself infringes Pearson’s copyright, and the answers to Pearson’s end-of-chapter questions are likely derivative works. She added: “The fact that we are dealing with educational matters does not make the use of Chegg fair use. “
Significantly, Professor Vacca also said: “If [Chegg is] responsible, the amount of damages that Pearson obtains could be quite significant. This could include market damage to Pearson’s textbook sales, profits Chegg earned by reproducing these issues, or legal damages.
If you’re scoring at home it’s something like two and a half lawyers saying Pearson will have a hard time and three and a half leaning in the direction of giving Pearson’s claims some weight. You don’t know what else to expect from lawyers.
But it is the follow-up question that is potentially even more important to the education market – if Pearson wins, others who have seen their questions similarly “used” by answer sellers such as Chegg could. they also sue?
Smith, IPS’s Miami lawyer is a yes. “If Pearson is successful in his case, this decision can affect the entire academic sector. This can give rise to a cause of action for college professors, universities and others, the content of which is used by Chegg to create answers.
Professor Vacca agrees, saying, “Yes, that could be a possibility,” adding, “as long as Chegg collects teachers’ questions and includes them in their database for others to use. , then the result should be similar.The damage would probably be less because individual teachers do not have much power in the market.
It’s just. But, while an individual professor’s claims may be smaller than Pearson’s, there are many more. Thousands and thousands of teachers and schools have had their copyrighted exam and course material used by Chegg and others to sell answers.
If those dominoes fall, if Pearson wins and there are professors or schools suing as well, it could be a bombshell changing the market. Chegg, who derives the majority of his income from the unit that sells answers to other people’s questions, could be directly affected. And according to other recent reports, Course Hero, a file-sharing site – much of which is copyrighted lesson materials and answers to homework written by other people – is considering an introduction in stock Exchange.
And they’re not even close to the only companies that sell academic answers for profit. A court decision subjecting the answers to the copyright of the author of the question would, at least in theory, have an impact on all of them.
There are still many if and based on this sample of legal experts no outcome is certain. But with billions of dollars at stake, it deserves special attention.