Testing Organization ACT Settles Court Case Over Copyright Infringement (UPDATED)

Contributing Writer
ACT wins legal battle over copyright, EdWeek Market Brief

UPDATED: (Sept. 27)

A major testing provider has settled a longstanding copyright infringement lawsuit with a former business partner centered in a dispute over their assessment products.

ACT sued Worldwide Interactive Network in 2018, alleging WIN Learning had directly copied key segments of its career-readiness assessments and then used that material to market and sell their own product. 

This month, a Tennessee federal jury sided against ACT on all copyright infringement counts, and awarded its rival $5.6 million in damages, according to court documents. 

The two companies have since reached a settlement that resolves “all issues between them,” Teresa Chasteen-Dunn, WIN Learning’s CEO, said in a statement.

“We can now focus on what’s most important – our state partners and continuing to deliver high quality, customer-centric career readiness solutions and services,” she said.

ACT declined comment.

The jury verdict, and ensuing settlement, capped a years-long legal skirmish in which ACT had previously received favorable court rulings against WIN Learning. Earlier this summer, a federal appeals panel ruled in favor of ACT and upheld preliminary injunctions against WIN Learning issued by a lower court. 

At issue in the case was ACT’s “Skill Definitions,” descriptions of various workplace competencies that it tests with career-readiness assessments. Those descriptions are published in technical manuals accompanying ACT’s assessments, which are sold to school districts, workplaces, and state departments of education. 

ACT argued that its copyright on those descriptions was infringed by WIN after the two organizations’ business relationship soured.

Disputes over copyright, intellectual property, and publicly awarded contracts are not uncommon in the K-12 education market. Companies jostling for state and district business seek to stay attuned to their competitors’ product lines and business strategies while looking for ways to innovate and differentiate their own work.

The two companies were partners from 1997 to 2011, according to court filings. And at one point during that stretch, ACT designated WIN as a “Preferred Content Provider,” granting the company authority to develop and sell ACT’s product line of workforce-development curricula in exchange for annual fees and royalties. 

However, the two sides reached an impasse in 2011, terminating their contract, and WIN began to develop and sell its own career-readiness tests. 

Battle Over State Business

Seven years later, ACT sued for copyright infringement after the two companies found themselves jockeying for a contract with the state of South Carolina. ACT had been the contract holder with the South Carolina Department of Education and Workforce for career-readiness assessments. The state, however, later issued an RFP and eventually awarded the contract to WIN.

According to court filings, a review of WIN’s materials submitted to South Carolina revealed that descriptions for various workplace skills used for its tests were “virtually indistinguishable from ACT’s Skill Definitions.”

In March 2020, a district court ruled against WIN on the copyright claims. A trial was expected to follow on other claims, according to court filings, but the pandemic created prolonged delays. 

During that period, WIN hired an education consultant to revise its descriptions of various workplace skills — what it calls “Learning Objectives” — that it tests for. 

WIN claimed that the revisions “do not infringe upon the description selection, or arraignment of ACT’s Skill Definitions.” 

ACT disagreed, and in 2021 the company amended its lawsuit to include WINs revised “Learning Objectives” as part of the copyright claim. 

The Tennessee federal jury rejected ACT’s claims, finding that WIN Learning had not violated ACT’s copyright with either its initial or revised descriptions of various workplace skills. 

The jury also found ACT liable for several counterclaim damages, awarding WIN Learning $5.6 million. That total includes $218,000 for false advertising and $5.4 million for “intentional interference with business relationships.” 

Details of the settlement were not disclosed.

UPDATE (Sept. 27): This post has been updated to reflect the results of a jury verdict and settlement in the case between ACT and WIN.

Image by iStock/Getty 

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