By Derek Newton
Reposted from Forbes, with permission
Course Hero, the academic file sharing and answer selling service, is being sued in federal court by Post University for infringement of copyright, unauthorized patent use, unjust enrichment, deceptive trade practices, and more.
Post University is a private, for-profit college in Connecticut, and if they win, the award could run into the tens of millions of dollars and threaten the core business model of the billion-dollar company.
The Course Hero business model is primarily file sharing in which users can upload documents, and Course Hero sells a subscription which allows other users to download or “unlock” the uploaded materials. The academic materials being monetized by Course Hero include things such as class notes, course syllabi, assignments, essays, and quizzes and exams – as well as their answers. The tests, answers and essays are frequently used by students to cheat on assignments and assessments.
That’s a problem. But it’s not the legal one.
The legal issue is, as Post alleges, that many of the documents being uploaded to Course Hero and shared in paid subscriptions do not belong to Course Hero. They belong to Post University, and those who uploaded them had no rights to do so – which puts Course Hero in the position of profiting from the legally protected work of others – in this case, Post University.
In many ways, it’s an updated Napster problem.
We’re not talking about a few pages here and there. According to the University’s challenge, as of 2021, Course Hero had more than “23,000 documents from 189 Departments at Post University” on its website. When I checked yesterday, the number was more than 53,000. That’s not abnormal. Course Hero has hundreds of thousands of user-uploaded documents from some schools and thousands of documents from thousands of schools.
It’s been a long, common understanding that many, if not most, of the documents accessible with a paid subscription to Course Hero were copyrighted by their creators and therefore not owned by Couse Hero. The problem in addressing it has always been that any given rights-holder may have only a handful of protected documents behind the company’s paywall and, if asked to, Course Hero would remove them as required. So, even if the number of protected documents being licensed by Course Hero was in the millions, they were fractured into thousands and thousands of individual rights-holders – usually the individual professors who made the tests or created the homework assignments.
But because Post University is a for-profit college, it holds all the rights to all the material created by its professors – all of it. So, instead of Course Hero having a few things owned by many individual professors at Post, they likely have thousands or many thousands of documents that are actually owned by a single owner, the school itself.
Complicating the issue is Course Hero keeps its uploaded and subscription-accessible materials blurred and behind the subscription paywall. But paid subscribers can only unblur thirty documents a month, and, as Post points out, that is kind of useless when you’re trying to see if thousands of your documents are being sold by someone other than you. And if you can’t see them, you can’t even insist that they be taken down.
According to the court documents, Post alerted Course Hero to the possible massive volume of copyright infringements and cited at least 99 examples of their protected materials available on the company’s platform. Course Hero removed the 99 documents but did nothing else, the documents and lawyers say. So, they sued and requested a jury trial, seeking compensation for the unauthorized use and sale of content they own.
What’s more, Post’s legal documents say that in blurring the content of the documents that non-subscribers can see, Course Hero modified or obscured the school’s clearly visible copyright notices, which the University says is a serious, separate legal issue. The school also says that Course Hero is using its trademarks without permission and is engaged in deceptive business practices.
But it’s the sheer volume of potential infringements that are noteworthy. In a written statement, lawyers for the University, “expressed their astonishment at the volume of infringing materials their teams have unearthed in the litigation.”
One of the school’s attorneys, Yonaton Aronoff of Harris St. Laurent & Wechsler LLP, told me, “Unauthorized copying is nothing new, but Course Hero’s business takes it to a shocking level, systematically capitalizing on content owned by others without their consent, facilitating violations of academic integrity across the higher education landscape. Academic integrity is a top priority for Post University, and our investigation has revealed a staggering number of infringements, amounting to tens of thousands of separate violations.”
Another lawyer for Post, Timothy Johnson of Getz Balich LLP, was equally pointed, saying, “Course Hero’s business model is fundamentally grounded in unauthorized use — it undermines academic integrity for students, deceives educators and parents, and, most egregiously, profits from the author’s work without permission.”
If Post can substantiate that there are thousands of violations, the liabilities can add up quickly because each individual violation carries its own penalty. And that’s not counting the other allegations.
But the real danger for Course Hero and similar academic file sharing sites is that if Post wins anything at all – monetary damages, access to Course Hero’s files, or even mass take-down actions – others are very likely to follow. Post University is, after all, just one school. And not even one with the most documents behind the Course Hero paywall. If other schools seek similar relief, or if academic publishers move to be compensated for the unauthorized use of their intellectual property, or if professors form a legal class and seek cumulative damages, it’s a different ballgame altogether.
Alternatively, Course Hero can decide that it wants to start reviewing and rejecting material from users that is clearly copyrighted. They never have. But if they started, that could perhaps shield them from the allegations of unfair and unjust use of protected materials, but it would likely deeply and permanently damage the company’s value proposition. Probably very few people, if any, would pay to see the documents that other students legally own, class notes for example.
As the legal complaint outlines, “the value of the Course Hero subscription service lies in providing access to infringing materials locked behind the paywall that are copyrighted materials.” Without those materials, the value and business model are very likely in question.
If you remember, the music file-sharing site Napster was destroyed by legal challenges over copyrights. eBay, another service powered by the contributions of its users, polices what it will allow people to buy and sell.
It’s not too speculative to predict that, if Post University has even an inch of success, Course Hero will have to do one, or become the other. If you’re Course Hero, or a business that sells similar academic products, neither is a good option.
