Yesterday, news broke that Pearson Education, the largest publisher of textbooks in the world, has filed a lawsuit against the website Chegg alleging widespread copyright infringement of its content on the site.
The lawsuit specifically targets Chegg Study, a subscription service of Chegg that, according to Pearson, makes up the majority of the site’s $644 million in revenue. In the lawsuit, Pearson alleges that Chegg, through the use of thousands of freelancers, provides answers to questions found in textbooks it publishes and, in doing so, often copies the question verbatim or with slight paraphrasing.
As a result, Pearson is suing Chegg alleging copyright infringement. As part of that lawsuit, they are seeking unspecified damages as well as an injunction barring further infringement and the destruction of any infringing materials Chegg created.
For educators, this is potentially a crucial lawsuit and one that doesn’t feature a clear hero. Chegg, as a homework helping site, has become so linked to academic integrity violations that “Chegging” is a term that is synonymous with “Cheating”.
That opinion is not unearned. A survey of 52 students that used Chegg found that 48 of them admitted to using the site for cheating. This has been bolstered by the fact that Chegg has seen a huge spike in traffic and interaction during the pandemic.
On the other hand, Pearson is often seen as a “Godzilla” of publishing, and one that has been accused of abusing that position for its gain. Furthermore, in the complaint, Pearson admitted to doing business with Chegg though it didn’t say what the nature of the partnership was, only that it has since ended.
But regardless of the opinions of educators about the two parties involved, the case is likely to be an important one for education and educators moving forward.
That’s because it delves into a complicated legal question: When can you own a question or its answer?
Questions, Answers and Copyright
The complaint focuses on two ways that Pearson alleges Chegg infringed its copyright, both of them dealing with Chegg Study and the questions contained in Pearson textbooks.
The first is more direct. Pearson alleges that, with many of the questions and answers in Chegg Study, Chegg simply repeats the question verbatim or uses a poor paraphrase of it.
In short, it’s claiming that Chegg, in many cases, either directly copies the content or creates a thinly veiled derivative work based upon it, both of which are violations of copyright law. Pearson alleges that this takes place both in text and video format in the service.
However, where things get more interesting is what Pearson also alleges, even in the cases where the question is not copied or rewritten, that there is still infringement.
In those cases, Pearson argues the following:
Those answers are based upon, and are necessarily derived from, Pearson’s questions and other protected expression from Pearson’s textbooks. The answers are a byproduct of the questions, and a result of the creativity set forth in the questions.Original Complaint
In short, since the answers require the question to be created, those answers are themselves a derivative work of the question and one that harms the value of those questions.
As a result of these two alleged infringements, Pearson is seeking relief for direct copyright infringement, claiming that the Chegg is engaged in unauthorized reproduction, unauthorized derivative works and unauthorized distribution.
For that, they are seeking unspecified damages as well as an injunction against further infringement and the destruction of infringing materials.
Chegg’s Potential Defenses
Chegg, for its part, has remained relatively quiet. It has released a statement saying that they “believe we are in full compliance with copyright law” and that they intend to defend themselves against the allegations vigorously.
With that said, what would those defenses likely be? One can only speculate at this time, but there are several defenses that Chegg is likely to at least attempt.
- Not Covered by Copyright: This is a likely argument where just the answers are presented. Since copyright doesn’t cover facts, they may argue that the answers are just factual responses to the questions, not derivative works based upon them. This may be especially an issue in cases where the question wasn’t copied, and the answer is just a number or short phrase.
- Fair Use: Since the questions at issue only make up a small portion of the textbooks at issue, Chegg may argue fair use. However, that argument will likely be hampered by the fact that their use is not particularly transformative, takes from a very core part of the book, is a commercial use and definitely impacts the value of the original work. To make matters worse for Chegg, companies engaged in behavior seen as “unethical” by the courts, often struggle to make fair use arguments.
- DMCA Protections: Chegg could argue that the content was uploaded by a user and, thus, the Digital Millennium Copyright Act (DMCA) provides them protection. Chegg does have a DMCA agent, as required under the law and, to the best of my knowledge, does respond to DMCA notices. However, Pearson alleges that the content was uploaded by freelancers hired by and under the direction of Chegg, which would likely strip that protection away.
However, these are just some of the more likely defenses that Chegg may use. There are many others out there. Just as Pearson is trying a variety of approaches to convince the court that Chegg is liable, Chegg will likely do the same to convince the court they are not.
In short, this case is a battle between two giants in the field of education (for better or worse) and it does deal with some interesting copyright questions, in particular when looking at whether answers to questions are a potential infringement.
It’s going to be a case to watch, in particular if you’re in the education field.
Predicting the outcome of a case is a fool’s errand. This is especially true when you’re dealing with two juggernauts that have some kind of business history with one another. It’s likely this case will be decided not through a court decision, but through negotiation and settlement.
Still, if the courts do rule on this case, it could be one with significant impacts, especially in the education field.
Though much of this case is a straightforward copyright matter that deals with verbatim copying and close derivative works, it also raises unique questions and enters some gray territory.
Schools, educators and anyone else involved in the field needs to watch this case closely as it may drastically change the way you do your work, depending upon the outcome.