All The Answers

Every so often, I find out about a case in an industry rife with IP litigation, even though we don’t usually associate that industry with litigious IP owners. In the most recent example, I saw an interesting article about a high-stakes copyright between former partners in the (shockingly) profitable educational textbook industry. On one side is the putative copyright holder, textbook publishing giant Pearson Education — which has also recently sued Shopify, together with  other publishers, for allegedly failing to stop “digital textbook piracy” — going after a former distributor and current competitor in the lucrative digital textbook access space for alleged “massive” copyright infringement. That competitor, “ed tech” darling Chegg, now faces an intensive battle in the District of New Jersey to try to fend off Pearson’s copyright infringement allegations against Chegg’s subscription-based Textbook Solutions answer guides.

Make no mistake, we are talking about serious revenue, with Chegg alone having over 6 million reported users as it comes off a significant boost in revenue due to pandemic-driven moves toward online learning. And Pearson is no slouch, earning billions a year in revenue off its catalog of expensive, but widely used, textbooks. I guess the challenge of paying for higher education is not limited to tuition for students and their parents, considering the expense associated with buying access to textbooks. Or even for access to “study aids” like Chegg Study, which charges monthly fees in exchange for answers to homework questions, including those found in textbook end-of-chapter question sets. Now that Pearson is offering a similar product, it is not surprising to see it file copyright litigation as a way of sending a message to Chegg that its days of offering students access to answers to questions in Pearson textbooks — without recompense to Pearson — are numbered.

In its complaint, Pearson “lists 150 of its textbooks for which Chegg provides hundreds of thousands of answers,” using language “copied or paraphrased from the original question.” Even my old biology textbook, “Campbell Biology,” is apparently prominently featured on Chegg Study, which “lists more than 700 answers for questions from Campbell Biology, a popular biology textbook.” At bottom, Pearson argues that it dedicates “significant creative effort to develop effective, imaginative, and engaging questions to include in the textbooks it publishes” — and is being harmed by Chegg’s selling of answers to subscribers. Pearson, therefore, seeks to enjoin and recover money damages from Chegg since “Chegg usurped for itself” Pearson’s right to choose how and when to present “answer sets to its textbook questions.” In cataloging the harm from Chegg’s alleged infringement, Pearson argues that Chegg’s study aids serve to shortcut the educational process for students, just as they harm “educators’ ability to use the textbooks and end-of-chapter questions.” Whether Chegg’s provision of answers will ultimately cause educators to cease using Pearson’s textbooks is a highly debatable prospect, but there is no doubt that Pearson’s complaint is a howitzer shot across the bow of one of Chegg’s key product offerings.

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As would be expected, Chegg is not shy about sticking up for its conduct. In it’s November 19, 2021, answer, Chegg accuses Pearson of “improperly seeking to leverage any copyright it owns in textbooks to obtain a monopoly over solutions to its textbook questions, which is a monopoly beyond the scope of exclusive rights conferred under the Copyright Act.” While we can expect that the question of whether Chegg’s drafting of answers — via an army of freelance experts — to questions in Pearson’s textbooks constitute fair use of Pearson’s copyrights will get significant attention, what struck me as most interesting about Chegg’s answer was the emphasis it gave to the equitable defences of laches and estoppel. Considering the lengthy history between the two combatants, those defenses seem apt — even if only to deflect the weightiest allegations of freeloading raised publicly by Pearson.

In fact, Chegg alleges that Pearson knew of “Chegg’s practice of displaying on its website original solutions to end-of-chapter questions from Pearson’s textbooks” since 2010. As a result, Chegg argues that it invested heavily in developing the Chegg Study platform, including by taking a license to certain Pearson textbook questions, so that it could display the original questions next to Chegg’s suggested answers. In short, Chegg alleges that Pearson’s delay in raising its infringement complaints against Chegg’s offering was prejudicial, at least in part because of Chegg’s reliance on Pearson’s silence. Put another way, Chegg asks for a free pass on its alleged infringement because Pearson itself was ostensibly fine with it until only recently. As equitable defenses, it would be up to the trial judge’s discretion to determine if those defenses have merit, most probably on a motion for summary judgment.

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Ultimately, there is still a long way to go in terms of getting to a resolution on the merits in this already hot-tempered dispute between former friends turned rivals. It will be interesting to see just how far Pearson is willing to go to try to force Chegg to either pay up, change its behavior, or both. Given its solid track record in copyright litigation, the likelihood is that Pearson will not think twice about taking this matter toward a resolution on the merits. We will see just how much stomach Chegg has for the fight. Early returns suggest that they will press their defenses rather than roll over. At the same time, Chegg would prefer to see this lawsuit disappear if at all possible.

In short, the onus is on Chegg to respond to Pearson’s questions with some litigation answers.

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Please feel free to send comments or questions to me at [email protected] or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at [email protected] or follow him on Twitter: @gkroub.

Topics

Chegg, Copyright Infringement, Education, Gaston Kroub, Intellectual Property, Pearson Education, Textbooks


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Originally posted on: https://abovethelaw.com/2021/12/all-the-answers/