ACT publishes “WorkKeys”—“a system of workforce-development assessments that measure skills affecting job performance” and “Skill Definitions,” descriptions of the skills tested by each assessment. ACT collaborated with WIN to promulgate those assessments, from 1997-2011. The contractual relationship ended in 2011. WIN developed and promoted its own career-readiness-assessment materials. In 2017, ACT contracted with the South Carolina Department of Education and Workforce to provide its WorkKeys assessments to state employers. The state later solicited competing bids for new assessments, ultimately awarding the contract to WIN. WIN’s “Learning Objectives” for Applied Mathematics, Locating Information, and Reading for Information assessments were virtually indistinguishable from ACT’s Skill Definitions. ACT sued.

The district court granted ACT partial summary judgment on copyright claims. When the COVID-19 pandemic caused prolonged delays in the litigation, WIN enlisted an education consultant to revise its product. The court ordered ACT to amend its complaint to include allegations about the revised Learning Objectives. WIN then unsuccessfully tried to assert a new defense: derivative sovereign immunity. The district court entered a preliminary injunction, restraining WIN from knowingly infringing ACT’s copyrights in its Skill Definitions, 17 U.S.C. 106, barring WIN from distributing the original and revised Learning Objectives and WIN’s corresponding assessments. The Sixth Circuit affirmed the imposition (and scope) of that preliminary injunction and the rejection, as untimely, of WIN’s argument that because WIN designed the Learning Objectives to bid on state contracts, it was entitled to assert state sovereign immunity. View “ACT, Inc. v. Worldwide Interactive Network, Inc.” on Justia Law