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Secondhand Rights

August 10, 2011

How can you sue someone for stealing something that does not belong to you?

That is the question AcademyOne, a company that aggregates course data from various colleges to facilitate the transfer of credits between institutions, is asking CollegeSource, an older company that offers similar services. CollegeSource is suing AcademyOne for paying contractors in China to systematically download PDF copies of college course catalogs -- which CollegeSource itself had acquired for free and compiled, over the years, in a database that spans more than a decade.

CollegeSource sells licenses to colleges so they can gain access to the database. AcademyOne says it wants to let colleges and students use its own “transfer and curriculum alignment tools” for free, instead drawing revenue from advertising, premium services, and subsidies from state governments that want to facilitate transfers within state systems.

AcademyOne says CollegeSource is trying to stamp out competition by staking a claim on content that it does not own. Only the colleges that wrote the course catalogs have the standing to complain about who does what with them, says David Moldoff, the founder and CEO of AcademyOne. Moldoff says CollegeSource committed the original sin of lifting the catalog content without the colleges’ permission -- a theory he says he and his lawyers intend to prove. ("CollegeSource does not collect without permission or without the knowledge of the colleges," wrote Troy Holaday, president of CollegeSource, in an e-mail.)

The case certainly lacks the cinematic intrigue of Aaron Swartz, the Harvard researcher, sneaking into a server closet in the basement at the Massachusetts Institute of Technology and downloading millions of pay-walled files from the JSTOR database. But, like the Swartz case, CollegeSource v. AcademyOne touches on intellectual property issues without actually touching them at all.

When CollegeSource first sent AcademyOne a cease-and-desist letter in 2006, it “mentioned the word ‘copyright,’ ” says Darren Quinn, a lawyer representing CollegeSource. But when it came to court, CollegeSource did not sue AcademyOne for violating copyright. Instead it alleged a breach of contract.

CollegeSource’s terms of use prohibit users from redistributing the catalogs for commercial purposes. In California, the suit alleges computer fraud, computer crimes, and breach of contract, among other charges. (CollegeSource has brought lawsuits in California, its home turf, and in Pennsylvania, where AcademyOne is based. On Monday, a federal appeals court overturned an earlier ruling that would have prevented the California suit, which contains several charges pursuant to California state law.)

“Does CollegeSource have a copyright in its digitized information? Yes,” says Quinn. “Is it asserting infringement of those copyrights in either case? No, it’s not.”

CollegeSource does not have a problem with competition in the market for services that facilitate college transfers, added Quinn. “What CollegeSource has a problem with is if AcademyOne is going to be competing with CollegeSource using CollegeSource’s data,” he says. “That’s not fair.”

The lines of ownership here are fine. On its website, CollegeSource claims copyright on “the text, graphics, images, video, design, course description data, PDF college catalogs, [and] information” in its database -- as well as its “organization, compilation, [and] look and feel.”

But U.S. copyright law might not apply to college course catalogs even for the professors or registrars who originally produced them, says one university lawyer.

The 1991 U.S. Supreme Court case Feist Publications v. Rural Telephone Service Company “powerfully reinforces that U.S. copyright protects only creative original expression, not a ‘mere’ aggregation of facts, no matter how much effort went into assembling those facts,” says the lawyer, who asked that her name be withheld because she could not get authorization to comment on short notice.

“A course catalog probably contains some copyrightable expression -- or at least more than a phone book (the subject matter of the Feist case),” she says. “But, a typical course catalog sure is a lot closer to a telephone book than, let’s say, a creative work of fiction or a scholarly monograph.” (That is what makes appropriating course catalog information arguably different from, say, scanning every book in a library.) In the absence of a sturdy copyright argument, entities often use contract language to plant their flag on content they cannot otherwise protect, she says.

Barmak Nassirian, associate executive director of the American Association of Collegiate Registrars and Admissions Officers, says that he doubts colleges would try to stop any transfer service from copying and using their course catalogs even if they thought they had a claim on the content.

Aggregating course catalog content so as to facilitate the transfer of credits would be too burdensome for colleges to do on their own, says Nassirian. The services that CollegeSource and AcademyOne provide are much more valuable to colleges than the rights to their course catalogs, even if the companies charge for access, he says. “If they weren’t making money doing it this way, I’m not sure if we would have access to the information we need,” Nassirian says.

Still, the conflict between CollegeSource and AcademyOne puts colleges in a tricky spot, says Eric Goldman, an associate professor of law at Santa Clara University. Competition between transfer service providers theoretically benefits the colleges that use them, so those colleges might prefer for more than one company to be allowed to assemble a database from their old course catalogs, Goldman says. Then again, some colleges might be leery of wading into the middle of a legal feud between the two competitors, he says.

If they dared, institutions could try wielding their own intellectual property rights in an effort make the companies “play nice,” says Goldman. “Colleges and universities can stimulate that competition by controlling the rules and regulations of how vendors might build on [their] data,” he says.

For the latest technology news and opinion from Inside Higher Ed, follow @IHEtech on Twitter.

 

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