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Questions & Answers — Copyright Column Column Editor: Will Cross (Director of the Open Knowledge Center and Head of Information Policy, NC State University Libraries) <wmcross@ncsu.edu> ORCID: 0000-0003-1287-1156 QUESTION: An academic publisher asks, “What is going on with the recent lawsuit over textbook materials?” ANSWER: Some of the most valuable aspects of academic textbooks are the ancillary materials such as questions at the end of a chapter, homework problems, and so forth. Indeed, the lack of ancillary materials has been identified as a significant obstacle for uptake of some open educational resources (OER) and their inclusion has been a key selling point for OER developers such as OpenStax. Given their value and the fact that these questions are often used to assess and grade student performance, it should come as no surprise that many online sites have sprung up offering unauthorized access to these questions and providing answers. One of the best-known companies in this business is Chegg, which hires an army of independent contractors to prepare answers to those questions and then makes those answers available to students online. Services like Chegg have been criticized by faculty instructors for facilitating student cheating, but a recent lawsuit by textbook publisher Pearson raises a distinct set of claims under copyright law. In a lawsuit filed in September (Pearson Education, Inc. v. Chegg, Inc. (2:21-cv-16866)), Pearson claims that Chegg’s “Chegg Study” service — which sells access to ancillary materials aligned to textbooks including Pearson’s for $14.99 a month — violates Pearson’s copyright in their textbooks and ancillary materials. At first blush, a claim that Chegg’s answers violate Pearson’s copyright in the corresponding questions may seem strange. After all, the answer to a question is likely to include a fair amount of factual information and to primarily reflect ideas rather than the specific expression of those ideas, all things that are not protected under U.S. copyright law. Pearson, however, offers two arguments that Chegg is infringing. First, Pearson argues that many of the answers quote or closely paraphrase the answers provided in the Pearson textbooks. They also argue that the answers are “based upon, and necessarily derive from” Pearson’s questions. As such, Pearson argues that the answers are “a byproduct of the questions, and a result of the creativity set forth in the questions” and thus derivative works. While Pearson offers several examples of Chegg answers that may meet the legal requirement that they be “substantially similar” to Pearson’s, it is difficult to tell at this stage whether
34 Against the Grain / November 2021
the copying is pervasive enough to overcome a fair use defense. In a blog post discussing the case, legal expert Jonathan Band suggests that the three examples provided in the initial complaint by themselves “almost certainly would not be sufficient” to prove infringement. Pearson’s second claim that Chegg’s answers are infringing because they derive from Pearson’s question is broader but may not be much stronger. Pearson argues that the selection and arrangement of questions is creative and that the answers are derivative works. Chegg, however, is likely to argue that questions are generally selected functionally to present the materials covered in the textbooks, perhaps analogously, to the Bikram Yoga sequence that the Ninth Circuit found to be unprotectable in a 2015 case. (https:// caselaw.findlaw.com/us-9th-circuit/1714982. html) Chegg is also likely to raise a fair use defense based on an argument that Chegg’s use is transformative and any copyright protection is thin and only applies to the selection and arrangement of the questions and answers. For libraries, faculty, and academic publishers, this case raises interesting questions about how much services like Chegg help or hinder student learning. Are services like Chegg an asset, improving the quality and usefulness of textbooks and offering alternatives that create market competition? Are they simply a tool for academic dishonesty that allows students to cut and paste answers without engaging with the materials? Questions like these may be on the mind of the judges as they consider the case. Assuming this case goes to trial, the answers we receive may have a significant impact on for-profit businesses like Chegg but also on a variety of open study aids and guides, especially where they are keyed to well-known textbooks. QUESTION: A library collection manager asks, “What is happening with eBook pricing for libraries?” ANSWER: Libraries’ struggles with eBooks have been well documented in this column and elsewhere. So far, the inability to rely on any sort of digital first sale has left libraries at the mercy of publisher contracts, which have led to astronomical pricing and a parade of horror stories about eBooks disappearing without notice or even being changed in ways both ridiculous and dangerous. In the past year, however, legislators at the state and federal level have begun to respond. The September issue of this column
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