Excelsior College Awarded $7.8M in Copyright Lawsuit

[EDTEd]

Some interesting reading on one of the college preps companies.

Excelsior College Awarded $7.8M in Copyright Lawsuit Award by Jury Includes Punitive Damages and Defendant Profits

ALBANY NY (November 29, 2006) – Excelsior College, an accredited, nonprofit institution, has been awarded $7.8 million against defendants who were accused of infringing on the College’s copyrights and for misappropriating its trade secrets.

The jury verdict rendered on November 14, was the culmination of a more than three-year long litigation involving defendants Professional Development Systems School of Health Sciences, a California corporation, and its owner, Charles M. Frye. Defendant Frye was found to have willfully infringed on Excelsior's federally registered copyrights in three of its examination content guides. The jury also found that both defendants Frye and Professional Development Systems had infringed copyrighted questions and answers on several of Excelsior's credit-bearing examinations.

In addition, the jury found that the test questions and answers at issue were legally protected trade secrets of Excelsior College and that the defendants had misappropriated this material for their own benefit.

“This is both a victory for Excelsior College and recognition of the diligence with which we protect our intellectual property,” said John F. Ebersole, Excelsior’s president. “As an accredited educational institution it is both our duty and responsibility to ensure the validity of our assessment processes and to take all appropriate action to prevent the unauthorized use of our intellectual property.

“When we learned that our examination questions had been misappropriated we took swift and deliberate action to replace the compromised exams with entirely new ones to ensure the continued integrity of our underlying academic program,” added Ebersole.

Earlier this year, the United States District Court for the Southern District of California determined that Charles M. Frye had violated Excelsior’s copyrights in three of its examination content guides. At the ensuing trial, the jury found that the infringement had been “willful” and assessed the maximum financial penalty permitted by law against Mr. Frye.

The jury also determined that defendants Charles M. Frye and Professional Development Systems infringed Excelsior’s copyrights in questions and answers found on several of the College’s nursing examinations, and had profited from the use of this material. Having made this determination, the jury awarded Excelsior College the cost to replace the federally copyrighted examinations that had been infringed as well as the total profits generated by defendant Frye as a result of this infringement. In addition, the defendants’ were assessed punitive damages in excess of $2.5 million.

“This should serve as a warning to all who may seek to improperly and unjustly enrich themselves by trading on the College’s name and copyrighted materials,” said Joseph B. Porter, Excelsior’s vice president and general counsel. “Litigation is the last step we want to take but it is one which we are not afraid to pursue when necessary.”

Excelsior College, established 35 years ago to help working adults and those not well served by traditional higher education, is a leader in the area of assessing student learning for college credit.

Excelsior College was represented in this litigation by David P. Miranda, Esq. and Alana M. Fuierer, Esq. of Heslin Rothenberg Farley & Mesiti P.C. an Intellectual Property law firm based in Albany, New York

[EricJRN, MSN, RN]

Interesting. This is the same guy behind the series of books that includes Frye's 3300 Nursing Bullets - NCLEX-RN.

[BSNtobe2009]

Eric, I'm wondering how they get ahold of that information to start with? Do they hire someone with a Photographic memory to take the NCLEX? (Being serious).

I can see with Excelsior where they can register someone as a student and copy down test questions and do the research from that point.

[EricJRN, MSN, RN]

Good question. Not sure how that all went down, except that I know Frye and Excelsior have been involved in legal disputes since at least 2004.

Similar things happened at the traditional school I attended prior to entering nursing. A local private tutor was essentially buying test info from currently enrolled students. Over a period of a few years he was able look at the exams and say, 'Dr So-and-So has had an essay question about ______ on Test #1 every year for the last 12 years.'

[DutchgirlRN, ASN, RN]

Now if they ever collect that's a whole other fight but this victory is a start!

[BSNtobe2009]

Good question. Not sure how that all went down, except that I know Frye and Excelsior have been involved in legal disputes since at least 2004.

Similar things happened at the traditional school I attended prior to entering nursing. A local private tutor was essentially buying test info from currently enrolled students. Over a period of a few years he was able look at the exams and say, 'Dr So-and-So has had an essay question about ______ on Test #1 every year for the last 12 years.'

ATI Testing has the same thing going with a company in Texas. So it will be interesting to see how that plays out.