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May 23, 2011
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)
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.
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.
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:
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.
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.
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.