Pearson Education’s recently filed copyright-infringement lawsuit against Chegg raises interesting questions concerning the provision of supplementary educational materials. This post provides an overview of the issues raised by the case. Potentially at stake with a decision in Pearson’s favor is whether all manner of independently created supplementary materials, such as answer sets and study guides, infringe on a creator’s exclusive right to create derivative works.
In many of its textbooks, Pearson includes questions at the end of each chapter to test the students’ understanding of the information conveyed in the chapter. Chegg, through an army of independent contractors, prepares answers to those questions, which it makes available to students online. Chegg presents its answers in a manner that corresponds to the Pearson questions. Pearson claims that Chegg’s answers infringe Pearson’s copyright in its questions.
Pearson alleges that Chegg’s answers infringe in two different ways. First, some of Chegg’s answers quote or closely paraphrase portions of the matching Pearson questions. Second, the answers are “based upon, and necessarily derive from” Pearson’s questions. The answers thus are “a byproduct of the questions, and a result of the creativity set forth in the questions.”
In support of its first theory, Pearson’s complaint contains several examples of Chegg repeating or paraphrasing “detailed, fictitious fact patterns” from the Pearson questions. A question in a Pearson human anatomy textbook presents a hypothetical case involving a patient “noticing flashes of light and tiny specks in her right visual field.” The Chegg answer incorporates the original fact pattern, including that the patient had been “noticing flashes of light and tiny specks in her right visual field.” The Pearson complaint provides two similar examples of paraphrased fact patterns from this anatomy textbook, and three examples of paraphrased fact patterns from a math textbook.
To find infringement, a court would have to find that the Pearson anatomy textbook and the corresponding Chegg answers were substantially similar in protected expression. The analysis would turn on whether what Chegg copied in each answer was expression (and thus protectable) or idea (and thus unprotectable). While the amount of expression in any one question might be small, Pearson might be able to convince the court that Chegg infringed copyright if Pearson shows this level of copying of many questions in the textbook at issue. The three examples in the complaint almost certainly would not be sufficient. (In contrast, a court found that a lexicon based on the Harry Potter series infringed copyright by including numerous long passages from the novels.)
Pearson’s second theory is more abstract. It claims that even where the Chegg answers do not repeat the Pearson questions, the answers are derived from protected expression in the Pearson questions. The Copyright Act grants the copyright owner the exclusive right to prepare a derivative work, which is defined as “a work based upon one or more preexisting works…in which a work may be recast, transformed, or adapted” (17 U.S.C. § 101). Examples include translations, dramatizations, and abridgements. To show infringement of the derivative work right, the copyright owner must demonstrate that the defendant incorporated protected expression in the derivative work. In its complaint, Pearson does not demonstrate precisely what expression Chegg copied in the answers that do not paraphrase the questions. However, Pearson suggests that the selection and arrangement of the questions at the end of each chapter is expressive. Presumably, Pearson will argue that by presenting the answers to the questions in the same order they are asked, Chegg copies the original selection and arrangement of the Pearson questions.
Chegg’s likely defense is that the selection and arrangement of the questions is not expressive, but is functionally dictated. Pearson isn’t making aesthetic judgments, but is trying to convey technical material in the best manner possible. A few years ago, for example, the Ninth Circuit held that a sequence of yoga positions intended to promote well-being was not expressive.
Chegg probably would also raise a fair use defense in response to both theories. It would argue that its use was transformative; its answers complemented and did not supersede the Pearson questions. The Pearson questions were elements of fact-works, entitled to thin copyright protection. Chegg copied only as much Pearson expression as necessary to achieve its transformative purpose; the answers needed to repeat some of the facts patterns to be coherent, and the answers needed to be presented in the same order so that a student knew which question a given answer was addressing. Finally, the Chegg answers did not harm the market for the textbooks; if anything, they enhanced the market by making the textbooks a more complete learning solution.
Pearson in its complaint anticipated Chegg’s fair use defense by stressing the pedagogical harm the Chegg answers were causing; students were cutting and pasting the Chegg answers, rather than learning the material in order to answer the questions themselves. Pearson claimed that the availability of Chegg answer sets may cause some educators to reconsider using Pearson textbooks. Pearson also suggested that by providing answer sets, Chegg prevented Pearson from entering that market.
Were Pearson to prevail on its derivative use theory, a wide range of supplementary educational materials could be implicated. Independently created guides of all sorts exist to assist students and teachers with complex material. These guides supplement widely-used textbooks, and often track the arrangement of the textbooks in a detailed manner. An overly broad decision in this case could call into question the lawfulness of some of these guides. Unless the parties settle, these issues raised by the case may not be resolved for years.