Quizlet Sued By Test Prep Company

On July 16, Barkley & Associates, a test prep company based in California, filed a copyright and trademark infringement lawsuit against Quizlet, a site that lets users create flashcards and study guides for various topics.

The lawsuit alleges that Quizlet currently hosts a variety of works and pages that not only feature Barkley-produced content but use their trademarks in various ways. As a result, they are suing for trademark infringement, copyright infringement, unfair competition, common law trademark infringement and unfair business practices.

The lawsuit seeks a minimum of $1 million in statutory damages and an injunction barring future infringement. Quizlet has not responded to the lawsuit.

For those familiar with academic integrity issues, the lawsuit echoes the Pearson lawsuit against Chegg. There, the textbook publisher Pearson sued Chegg over their Chegg Study program, which, according to Pearson, directly copied questions and answers from Pearson textbooks.

That lawsuit is ongoing. However, Chegg is facing other serious challenges as a company. It struggles to find its footing in a world where students have broad access to AI systems to help them cheat.

On the other hand, Quizlet doesn’t seem to be facing those challenges, at least not to the same degree.

So, what is the outlook on this latest lawsuit? That is a somewhat complicated question.

Background and Information

Barkley & Associates is a test prep and continuing education company that serves nurse practitioners and those seeking to become nurse practitioners. According to its website, it offers a variety of continuing education courses and tools to help prepare for various certification exams.

According to its website, Quizlet is a place for users to upload and share their own study aids. It focuses heavily on quizzes and flashcards but also provides other study aids.

However, Quizlet has long been controversial in academic circles. Like many other “homework help” websites, many students use the site not to study but to cheat on tests and assignments.

To be clear, Quizlet’s terms of service prohibit all forms of cheating. They further say that using Quicklet to take shortcuts is “disheartening” them. However, that doesn’t mean that cheating isn’t both rampant and profitable.

That said, this case is not about cheating. It’s about allegations of copyright and trademark infringement. According to Barkley, Quizlet hosts many quizzes and study aids featuring content created by the company using its name or logo.

Barkley even highlights one case where a student used the Quizlet quiz without realizing it wasn’t the official source. This was worsened because, for some searches, Quizlet ranked higher than Barkley’s site for the same content.

As such, Barkley is accusing Quizlet of copyright infringement of at least 12 separate works and trademark infringement of their name and logo.

The Big Problem Barkley Will Face

Correction: A sentence below referring to Section 230 protection for federal trademark claims is incorrect. Section 230 has an exception for intellectual property law, in trademark, so there is no section 230 defense on the two federal trademark claims. They may have a strong nominitive fair use defense on the trademark claims, but that’s a separate analysis. Major thanks to Angus MacDonald for catching this and helping parse these claims.

On the surface, the lawsuit seems very strong. Through screenshots and other exhibits, Barkley shows that their work and names are used heavily in Quizlet.

However, there’s a serious problem: Quizlet may not be responsible for the infringement.

Quizlet, at least through its presentation, is a user-generated content site. Under the Digital Millennium Copyright Act (DMCA), it is protected from copyright infringement by its users so long as it designates an agent to receive copyright notices and expeditiously remove material after receiving a notice.

To that end, Quizlet has appointed a DMCA agent and has a policy on their site detailing their notice-and-takedown system.

For federal trademark claims, Section 230 of the Communications Decency Act provides broad immunity for hosts when dealing with user-uploaded content that violates federal trademark law. Though there is a circuit split on whether that extends to state law, the Ninth Circuit, where the case was filed, has previously held that it doesn’t. As such, the state trademark claims are more likely to survive any initial challenges.

However, the lawsuit only briefly mentions that the site allows users to upload material. It does not mention the DMCA, whether the company filed takedown notices or took any other action before filing the lawsuit.

Quizlet, as unpopular as it is in academic circles, likely enjoys a great deal of legal protection. However, that doesn’t mean Barkley can’t win the lawsuit. But it does have to prove the protection doesn’t apply.

A Direct Approach

To be clear, these protections are not absolute nor unconditional. However, they will have to be addressed, and Barkley will have to show why they don’t apply to Quizlet.

The easiest and most direct way would be to show that Quizlet uploaded some or all of the content directly. There have been cases where a site or service uploaded content themselves and made it appear from a third party. If that were true here, it would pierce these protections.

However, something along those lines may be what Barkley is looking to argue. The reason is that those protections are for secondary infringement. That is where a secondary party is liable even though they were not the direct infringer.

Barkley accuses Quizlet of being the direct infringer in their copyright and trademark claims. They aren’t arguing that Quizlet failed to comply with the DMCA but that they are directly liable.

That likely won’t be the case if a user uploaded the content. Though the lawsuit repeatedly highlights Quizlet’s “sale” of the material, that isn’t wholly accurate. Quizlet does have a QuizletPlus plan for unlimited access to the site ad-free, but it also earns money through ads as well.

Other sites like YouTube have similar approaches to accessing user-uploaded content and have not sacrificed their safe harbor protections. As much as I dislike Quizlet, it isn’t easy to see why they would be different.

Bottom Line

To be clear, I’m not a fan of Quizlet and sites like it. Though they, much like Chegg, claim that their site is for legitimate learning and not for cheating, they are aware of how much cheating they enable and take little to no action to prevent it.

I’m also very sympathetic to Barkley. Their company went through great time and expense to generate this content, only to have it uploaded to Quizlet for free or a very small subscription fee. They are right to be upset and right to protect their content.

However, if Quizlet is as they say they are, the law likely favors them. Holding hosts accountable for uploading copyright or trademark-infringing content is difficult. The DMCA and Section 230 provide user-generated sites like Quizlet a great deal of protection.

That’s not to say that the case is hopeless or that Barkley cannot win. They just have some tough legal obstacles to overcome.

We likely if and how they can until much later in the case.