Copyright; Whether plaintiff’s “Skill Definitions” were entitled to copyright protection: Application of the preliminary injunction factors; “Irreparable harm”; Worldwide Interactive Network, Inc. (WIN)

In these two appeals from rulings in a copyright dispute, the court affirmed the district court, holding that defendant-WIN likely infringed plaintiff-ACT’s “intellectual property, that the infringement threatened ACT with irreparable harm, and that the balance of the equities and public interest favored an injunction.” ACT and WIN are testing companies that used to be partners. ACT sued WIN for copyright infringement of its “Skill Definitions, which are descriptions of the various workplace skills tested with career-readiness assessments. These assessments are marketed to schools, workplaces, and state education departments. WIN’s version was called “Learning Objectives.” The district court granted ACT partial summary judgment on its claim for copyright infringement and enjoined WIN from continuing the infringement. In challenging the injunction, WIN argued the district court misapplied the preliminary injunction factors. The court concluded that “ACT’s mere ‘selection’ of its three Skills—its decision to test the fields of Locating Information, Reading for Information, and Applied Mathematics—is likely unprotectable.” However, it held that “ACT’s description of the Skills” likely was protectable, as was its arrangement of the Skills. Further, ACT was likely to successfully show that “WIN’s original and revised Learning Objectives infringe at least ACT’s description and arrangement of its Skills and subskills. The original Learning Objectives are virtually identical copies of ACT’s Skill Definitions. . . . And the revised Learning Objectives preserve much of the same arrangement of subskills across different levels, while simply regurgitating the original Learning Objectives with slight rewording.” The court also found no merit in WIN’s assertion the district court presumed irreparable harm. “To the contrary, the district court explicitly acknowledged the presumption’s likely abrogation,” and it explained why, absent an injunction, ACT was likely to suffer irreparable harm. Further, the court found that the injunction was not “overbroad,” and that the district court did not err by finding “the public interest favored a preliminary injunction.” WIN next challenged the district court’s ruling striking “the derivative-sovereign-immunity defense from its amended answer.” While the court agreed that “the immunity denial here is immediately appealable,” it also agreed “with the district court that WIN’s significant delay in asserting the defense resulted in a forfeiture[.]”