Questions and Answers — Copyright Column

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 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 discussed a recent bill (SB432) passed in Maryland that requires any publisher offering to license “an electronic literary product” to consumers in the state to also offer to license the content to public libraries “on reasonable terms” that would enable library users to have access.

In late September, the U.S. Senate also raised questions about eBook pricing and access. In a letter from Senate Finance Committee Chair Ron Wyden and U.S. Representative Anna G. Eshoo, the Committee asked a set of questions to the big five eBook publishers (Penguin Random House, Hachette, HarperCollins, Simon & Schuster and Macmillan). The questions request information related to pricing and access restrictions, as well as legal actions taken in response to library activities including interlibrary loan, electronic reserves, and controlled digital lending. Answers to these questions have been requested by October 7. It should be worth watching to see how these publishers respond and what actions the Senate takes in response. You can read the complete overview from the Senate Finance Committee as well as the letters themselves here: https://www.finance.senate.gov/chairmans-news/wydeneshoo-press-big-five-publishers-on-costly-overly-restrictive-ebook-contracts-with-libraries.

QUESTION: An access services librarian asks, “Are librarians liable for copyright violations related to work done on the job?”

ANSWER: Traditionally, library employees acting within the scope of their duties have been able to rely on significant protections from liability when they are doing the work they have been assigned in line with institutional policies. After all, libraries have always been recognized as fulfilling a special role under copyright and libraries as institutions can only meet their mission through the actions of their employees. As such, many of copyright’s protections against liability were expressly written to protect library employees in cases where their resources were misused (17 U.S.C. 108) or where they have a good faith belief that their use is fair (17 U.S.C. 504(c)2).

Some recent developments, however, have muddied these waters in potentially troubling ways. Several previous columns have discussed recent challenges to the doctrine of sovereign immunity, which librarians at public institutions have historically relied on to limit liability in copyright cases. Along with these challenges, librarians may find themselves vulnerable under the recently-passed Copyright Alternative in Small Claims Enforcement Act of 2019, often called the CASE Act.

The CASE Act is designed to reduce the cost and administrative hurdles of filing a copyright lawsuit, based on the belief that many creators with limited resources are unable to adequately address infringement under the current rules. CASE specifically supports the creation of a small claims court called the Copyright Claims Board (CCB) to hear “small dollar” infringement claims in the Copyright Office, with maximum damages of up to $30,000. Since CASE was passed last year, the Copyright Office has been establishing rules and structures with a stated intention of beginning operation in 2022. As part of this process, the Copyright Office released a Notice of Proposed Rulemaking in September asking for comments on, among other things, a rule that permits libraries and archives to preemptively opt out of proceeding under the CCB. Significantly, however, the proposed opt out expressly does not apply to individual employees working in a library or archive.

In response, individual librarians and many library organizations have submitted comments noting that allowing suits under CASE against individual librarians such as a library director or the library technician that scans materials as directed by their supervisor would be perverse. As comments submitted by the Library Copyright Alliance (LCA) note, since libraries can only act to meet their mission through the activities of individual employees, “requiring this array of library employees to opt-out of individual CCB claims brought against them would defeat the purpose of the preemptive opt-out.” You can read the full set of comments from the LCA here: https:// www.librarycopyrightalliance.org/wp-content/uploads/2021/04/ CASE_NOI.pdf.

Comments were due to the Copyright Office on October 4th and the Office will review comments and continue to develop the specific rules over the coming months. Hopefully the Office will hear and understand the clear concerns voiced by librarians about the dangers posed by holding them individually liable for doing assigned work as described under library policies. Stay tuned for a full discussion about the specifics of CASE and the CCB once it is finalized next year.