College Course Description Aggregator Loses First Round in Fight Against Competitor in Scraping Case — CollegeSource v. AcademyOne

[Post by Venkat Balasubramani with comments by Eric]

CollegeSource, Inc. v. AcademyOne, Inc., 10-3542 (E.D. Pa.; Apr. 22, 2011)

This is a scraping case between CollegeSource and its competitor AcademyOne. It looks like it’s part of a long running dispute between the parties. AcademyOne previously brought cybersquatting and false advertising claims against CollegeSource and lost. CollegeSource separately sued AcademyOne for a violation of its terms of use in California. The court dismissed on the basis of lack of personal jurisdiction and CollegeSource appealed the dismissal to the Ninth Circuit. CollegeSource then re-filed the same lawsuit in Pennsylvania, and a ruling from that court is the subject of this blog post. That’s a lot of litigation over pdf copies of college course catalogs!

Background: CollegeSource digitizes course catalogs and descriptions and makes them available online in pdf form. It also slaps a splash page, logo, and its terms of service on the pdfs which it creates. AcademyOne is also in the business of providing information regarding college course descriptions. The parties also both offer services which “evaluate the transferability” of college courses, but those particular services were not directly at issue in this dispute.

AcademyOne tried to license the pdf versions of CollegeSource’s catalogs, and CollegeSource refused. AcademyOne then crawled the web to obtain this information from other sources, including the colleges directly, but in the process, ended up copying and posting on its own site course catalogs which bore CollegeSource’s logos and terms of use. CollegeSource in turn sent AcademyOne a cease and desist letter, which AcademyOne largely complied with. AcademyOne received the letter in 2007 and removed the CollegeSource catalogs by mid-2007. AcademyOne also put in place safeguards to make sure CollegeSource’s pdfs did not end up on AcademyOne’s site again.

Despite these safeguards, two of the CollegeSource course catalog pdfs ended up on AcademyOne’s site. In response, in July 2010, CollegeSource sued. It moved for a TRO which was denied. Around the time the lawsuit was filed, AcademyOne’s CEO sent Freedom of Information Act (FOIA) requests to various colleges, seeking the details of agreements between the colleges and CollegeSource, to the extent those agreements existed. The letter said that the information was sought in the context of a pending copyright dispute.

In December 2010, CollegeSource moved for a preliminary injunction. It asserted that it was entitled to an injunction based on its breach of contract and unjust enrichment claims, and based on false advertising premised on statements in the letters sent to colleges by AcademyOne.

Breach of contract and unjust enrichment: Although CollegeSource asserted copyright claims in its cease and desist letter, in the lawsuit, it relies on AcademyOne’s alleged breaches of its terms of use. It would not have been able to claim copyrights in the course descriptions since these are likely factual in nature, and it did not create the course descriptions in the first place. With respect to CollegeSource’s breach of contract claims, the court finds that CollegeSource is not likely to be able to show irreparable harm for breaches of its terms of use and thus isn’t entitled to an injunction. The court notes that AcademyOne took steps to comply with any takedown requests and instituted safeguards to make sure no CollegeSource course catalogs ended up on AcademyOne’s website again.

False advertising: The crux of CollegeSource’s false advertising claim at this stage was centered around a letter sent by Academysource to various colleges. The letter sought copies of any agreements in place between the college and CollegeSource:

[that would] grant [] CollegeSource . . . the authorization to create and claim a derivative copyright of [the academic institution's] printed or digital catalog for [2006-2010]; limit the rights of distribution of the electronic version located on their website; archive the file; add their logo and Terms of Use to the front of each catalog and charge for access to the catalog.

CollegeSource claimed that the letter is false because it stated that it was sent in connection with copyright claims asserted in the lawsuit. The court says that there is nothing literally false about referencing copyright claims since that’s the subtext of CollegeSource’s claims. Ultimately CollegeSource sought control of the catalogs. The court also addressed CollegeSource’s argument that the letter had the tendency to deceive and resulted in at least one institution requesting that CollegeSource remove its catalogs from CollegeSource’s website. The court notes that there’s no evidence as to the precise reason for the college’s request.

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This is a dangerous dispute for CollegeSource. The idea that it should be able to somehow claim exclusive rights in college course descriptions is crazy. Once the institutions realize that this is what CollegeSource is doing with the course catalogs and descriptions they provide to CollegeSource, there is a high likelihood that many of them will tell CollegeSource to stop this practice. There’s not much room to claim copyright in course descriptions, and in any event, CollegeSource’s attempt to slap its logo and terms of use on the pdf copies of the descriptions looks like a naked rights grab which the colleges are not going to be happy with. This is almost similar to a city claiming copyright in its ordinance. It’s worse. It’s as if a public citizen or a corporation does this after slapping a logo and terms of use on a pdf version of it. Using a breach of contract claim to get around an ineffectual copyright claim can work in some circumstances, but courts will rightly be skeptical. (The court does not address the copyright preemption argument but I think there’s one lurking in the background, since the conduct CollegeSource is complaining of is the copying its materials by AcademyOne.)

The false advertising claim was extremely tenuous. It was sent in the context of a public records request in the middle of a dispute. I’m surprised there’s not a claim of privilege (or a SLAPP exception) that would have protected AcademyOne’s statements. Maybe it’s a jurisdictional quirk but I imagine in some jurisdictions, CollegeSource’s false advertising claims would have been slapped out of court.

More on this case from Rebecca.

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Eric’s comments

I’ve hinted at the issue before, but let me put my philosophy on the table explicitly: it is extremely dangerous for aggregators to bring IP enforcement actions. The enforcement lawsuits can directly backfire (see, e.g., the Barclay’s v. theflyonthewall lawsuit) because the plaintiff ends up talking out of both sides of its mouth: it says X isn’t permissible when we’re the rightsholders, but X is permissible when we’re the aggregator. At best, that kind of duplicity never impresses judges. Further, even if the enforcement lawsuit doesn’t lead to a direct form of collateral estoppel, it has the potential to create adverse legal precedent. For these reasons, plus the risk Venkat identified about educational institutions cutting off CollegeSource, it seems like an unnecessarily high-risk move for CollegeSource to bring this iteration of the lawsuits.

Having said that, AcademyOne’s experience reiterates the potential problems with scraping. Inevitably, scraping will gather up legally risky content; and as this case shows, that’s true even if the scraper institutes procedures designed to screen out that content. This particular ruling is good news for AcademyOne, but scraping remains a legally ambiguous proposition.