govinfo:USCOURTS-ctd-3_21-cv-01242-0

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UNITED STATES DISTRICT COURT 
DISTRICT OF CONNECTICUT 
 
POST UNIVERSITY,  
 Plaintiff, 
 
 v. 
 
COURSE HERO, INC., 
 Defendant. 
 
 
 
Civil No. 3:21-cv-1242 (JBA) 
 
 
August 25, 2023 
RULING DENYING DEFENDANT’S PARTIAL MOTION TO DISMISS 
 Defendant Course Hero, Inc. moves to dismiss with prejudice the portions of Count 
VI of the Amended Complaint alleging violations of 17 U.S.C. § 1202(a)  as to its Copyright 
Notice and its Watermark, arguing that the two pieces of information do not constitute false 
copyright management information (“CMI”) because the Copyright Notice is not distributed 
“in connection with” Plaintiff Post University’s works, and because the Watermark is not 
“false”. (Def.’s Mot. to Dismiss [Doc. # 47] at 1.) Plaintiff responds  that its Amended 
Complaint pleads with specificity multiple examples of the provision and distribution of false 
CMI in connection with its works. (Pl.’s Opp’n [Doc. # 50] at 6.)  
For the reasons set forth below, Defendant’s motion is DENIED.  
I. Factual Background 
A. Course Hero’s Business Model 
Defendant Course Hero is an “online learning platform for course- specific study 
resources” that offers “learning resources and tools” including “a library of study resources, 
organized by both school and subject[.]” (Def. ’s Mem. [Doc. # 48] at 1.) Initially, these 
documents are “locked,” which means that the full content cannot be viewed. (Amend. 
Compl. ¶ 17 -19, 40.) While the document remains locked, individuals can o nly view an 
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alternate document called a “Preview,” which is based on the original uploaded document, 
created by Course Hero, and which previews some or all of the content from the original 
while altering, removing, or hiding other content. ( Id. ¶ 18.) Alte rations might include 
“blurring, placing opaque boxes or banners directly over the content, and removing entire 
pages” of the original content.” (Id. ¶ 19; see, e.g., Amend. Compl. Exh. 1 [Doc. # 31-2].)  Below 
these Previews and at the bottom left -hand corner of the website, the words “Copyright © 
2021, Course Hero, Inc.” appear in white text on a blue bar; the bottom right -hand corner 
states that “Course Hero is not sponsored or endorsed by any college or university.” (Exh. 1 
at 4.)  
To view a document in full, visitors to Course Hero’s website must have either an 
Educator or Student account. (Amend. Compl. ¶¶ 17-18.) Student accounts allow students to 
either contribute their own study resources or to pay a monthly subscription fee in order to 
gain access  to Defendant’s materials; a subscribing student has access to 30 “unlocks” 
through which they can view and/or download a document per month, with additional 
unlocks available either for purchase or to be earned through uploading study resources. (Id. 
¶¶ 40.) Educator accounts allow educators to create free accounts through which they can 
upload and share class resources. ( Id. ¶¶ 38, 45- 56.) Once a document is unlocked and 
downloaded, a watermark on the document appears stating “This study resource was shared 
via CourseHero.com” in pale gray behind the text. At the bottom of the page, small black text 
appears that notes when a document was downloaded; for example, Exh. 7 [Doc. # 31-8] says 
at the bottom of each page that “This study source was downloaded by 100000824591884 
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from CourseHero.com on 06 -14-2021 13:49:30 GMT - 05:00” and on the line below it, 
“https://www.coursehero.com/file/89968964/Assignment-Weekly-Newspaperpdf/.”  
B. Post University’s Takedown Notices   
Plaintiff Post University is a for -profit higher education institution that creates 
documents such as tests, quizzes, assignments, course learning material, lesson plans, study 
guides, and other educational resources in furtherance of its degree programs. (Am. Compl. 
¶¶ 6, 10.) Plaintiff invests “substantial resources” in the creation of these resources, the 
maintenance of its content and to ensure the academic integrity of its programs. ( Id. ¶¶ 10, 
12.)  
Defendant’s library of documents includes  study reso urces specific to Plaintiff 
available at https://www.coursehero.com/sitemap/schools/456-Post-University/. ( Id.  
¶ 15.) Exhibits 1 -6 of the Amended Complaint are Preview documents derived from 
documents owned by Post University; Exhibits 7-11 are copies of original documents owned 
by Post University with a watermark added to the center , with additional information on 
when the document was downloaded from Course Hero and a Course Hero URL to the 
document on the bottom left; each of the documents has a registered copyright. ( Id. ¶¶ 53-
58.) At the time the Amended Complaint was filed, the Course Hero website stated that over 
23,000 documents from 189 departments at Post University had been uploaded, and Plaintiff 
alleges upon information and belief that there are “hundreds if not thousands” of additional 
Plaintiff-owned copyrighted documents available on the Defendant website hidden behind 
the paywall or which have been modified and displayed as Previews. (Id. ¶¶ 16, 36-37.)  
Plaintiff sent Defendant a take- down letter on January 6, 2021 identifying 64 
instances of materials it believed in good faith were copyrighted materials that were owned 
by Post University, and notifying Defendant that additional copyrighted materials were likely 
to exist on the website. (Id. ¶ 47.) Defendant responded to the letter informing Plaintiff that 
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a ticket had been generated to address the issue, and on January 12, 2021, Defendant emailed 
Plaintiff informing them that all identified copyrighted documents were removed. (Id. ¶¶ 48-
49.) Plaintiff sent a second take- down letter to Defendant on February 24, 2021 identifying 
another 35 instances of Plaintiff’s copyrighted documents appearing on Defendant’s site, and 
additionally offering to negotiate for free access to the Study Resources for the purpose of 
locating additional copyrighted materials owned b y Plaintiff on Defendant’s website. (Id. ¶ 
50.) Plaintiff explained that it was difficult, if not impossible, for it to police whether 
Defendant’s website was hosting its copyrighted documents due to the access restrictions. 
(Id.) Once more, Defendant took the identified copyrighted documents off of its website but 
did not address Plaintiff’s offer or suggest that any further steps were taken to determine if 
other copyrighted materials owned by Plaintiff were still up on the website. (Id. ¶ 52.)  
The Amended Complaint brings nine counts; however, the motion to dismiss 
concerns only the specific allegations in Count IV that Defendant’s Copyright Notice and 
Watermark violated 17 U.S.C. § 1202(a).  
II. Legal Standard 
“To survive a [12(b)(6)] motion to dismiss, a complaint must contain sufficient factual 
matter, accepted as true, to state a claim to relief that is plausible on its face.” Sarmiento v. 
United States, 678 F.3d 147, 152 (2d Cir. 2012) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678 
(2009).) The “plausibili ty” requirement is “not akin to a probability requirement,” but it 
“asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. 
at 678. In other words, a valid claim for relief must cross “the line between possibility and  
plausibility.” Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 557 (2007). The “plausibility 
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer 
possibility that a defendant has acted unlawfully.”  Iqbal, 556 U.S. at 678. T he Court must 
“accept as true all factual allegations and draw from them all reasonable inferences.” 
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Hernandez v. United States, 939 F.3d 191, 198 (2d Cir. 2019). Although it is “not required to 
credit conclusory allegations or legal conclusions couched as factual allegations,” id., motions 
to dismiss “assess the legal feasibility of a complaint” and are not the place to “assay the 
weight of the evidence which might be offered in support” of the merits. Ontario Teachers' 
Pension Plan Bd. v. Teva Pharm. Indus. Ltd., 432 F. Supp. 3d 131, 151 (D. Conn. 2019).1 
III. Discussion 
Congress enacted the DMCA in 1998 “to strengthen copyright protection in the digital 
age.” Universal City Studios, Inc. v. Corley, 273 F.3d 429, 435 (2d Cir. 2001). “Fearful that the 
ease with which pirates could copy and distribute a copyrightable work in digital form was 
overwhelming the capacity of conventional copyright enforcement to find and enjoin 
unlawfully copied material, Congress sought to combat copyright piracy in its earlier stages, 
before the work was even copied.” Id. The purpose of protecting CMI under the DMCA is “to 
facilitate licensing of copyright for use on the Internet and to discourage piracy.” S. REP. 105-
190 at 92 n.18 (1998).  Under 17 U.S.C. § 1202(c), c opyright management information 
includes  
any of the following information conveyed in connection with copies or 
phonorecords of a work or performances or displays of a work, including in 
digital form, except that such term does not include any personally identifying 
information about a user of a work or of a copy, phonorecord, performance, or 
display of a work: 
(1) The title and other information identifying the work, including the 
information set forth on a notice of copyright. 
(2) The name of, and other identifying information about, the author of a work. 
(3) The name of, and other identifying information about, the copyright owner 
of the work, including the information set forth in a notice of copyright. . . .  
 
1 Unless otherwise indicated, this opinion omits internal quotation marks, alterations, 
citations, and footnotes in text quoted from court decisions.  
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(6) Terms and conditions for use of the work. 
(7) Identifying numbers or symbols referring to such information or links to 
such information . . .  
The relevant provision of the DMCA at issue in this motion, 17 U.S.C . § 1202(a) , 
provides that “[n]o person shall knowingly and with the intent to induce, enable, facilitate, 
or conceal infringement[,] (1)  provide copyright management information that is false, or 
(2) distribute or import for distribution copyright management information that is false.” In 
order to plead a violation of § 1202(a) , “[a] plaintiff must allege (1) the provision or 
distribution of CMI; (2) that the defendant knew that the CMI was false; and (3) that the 
Defendant acted with the intent to cause or conceal copyright infringement.” Michael Grecco 
Prods., Inc. v. Alamy, Inc., 372 F. Supp. 3d 131, 137 (E.D.N.Y. 2019). 
A. Defendant’s Copyright Notice 
Defendant’s position is that its  Copyright Notice is not false CMI because it is not 
“conveyed in connection with” any of Plaintiff’s documents when it is located at the bottom 
of Defendant’s website, in a different colored bar that separates it from the rest of the page, 
and is not accompanied by any further CMI such as terms of use claiming authorship of the 
documents. (Def.’s Mem. at 6.) In Defendant’s view, “conveyed in connection with” is a legal 
term of art for the Court to construe and rule on based on objective factors such as the 
proximity of the information to the work, the content, and whether it is visually distinct from 
the work at issue. Plaintiff argues that “conveyed in connection with” as used in Section 
1202(c) is to be interpreted broadly and does not require any particular proximity, and thus 
all it must do at this stage is “plausibly allege” that the Co pyright Notice appears in 
conjunction with the works , which it has done by submitting e xhibits showing that the 
Copyright Notice was at the bottom of the webpage on which its works appeared. (Pl.’s Opp’n 
at 8 -10.) The ultimate question of w hether the Copyr ight Notice conveys  false CMI in 
connection with the work, Plaintiff argues, is not something to be definitively decided at the 
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pleadings stage, but is instead a factual question that the jury should  determine after 
considering the content of the website as a whole.  
Defendant cites SellPoolSuppliesOnline.com, LLC v. Ugly Pools Arizona, Inc ., 804 F. 
App'x 668 (9th Cir. 2020), an unpublished, non-precedential opinion where the Ninth Circuit 
agreed with  the district court’s order granting summary judgment to the defendant and 
finding that a copyright notice “located at the bottom of the webpage in a shaded box” and 
separated “from the rest of the content on the webpage” was not conveyed in connection 
with copies of a work when it was “generic and did not communicate that Defendants owned 
the photos,” was “not located on or next to Plaintiff’s photos,” and “Plaintiff’s photos were 
imprinted with their own copyright markings.” Id. at 670- 671.
2 However, neither 
SellPoolSupplies.com— which spends only two paragraphs discussing the false CMI claim at 
issue—nor any of the other cases  Defendant relies on explain how requiring information in 
a copyright notice to “suggest that it was associated with or linked to” the work in question, 
id. at 671, can be reconciled with the DMCA’s legislative history , in which legislators 
expressed their intent that the phrase “conveyed” be understood in the “broadest sense” 
possible. Janik v. SMG Media, Inc ., No. 16CIV7308JGKAJP, 2018 WL 345111, at *12 (S.D.N.Y. 
Jan. 10, 2018) (quoting S. REP. 105-190 at 35 (1998) ). The phrase “is not meant to require 
any type of transfer, physical or otherwise, of the information. It merely requires that the 
 
2 Although Defendant claims that district courts “routinely” apply the 
SellPoolSuppliesOnline.com “analysis” at the 12(b)(6) stage “to dismiss Section 1202(a) 
claims based on generic copyright notices that lack physical proximity to the asserted 
works,” (Def.’s Mem. at 7) , the Court notes that according to Westlaw, 
SellPoolSuppliesOnline.com has been cited in total by only 10 other cases , several of which 
were not motions to dismiss and at least two of which distinguish rather than follow the 
analysis. The only case either Defendant or the Court could locate from this Circuit applying 
the SellPoolSuppliesOnline.com analysis on a motion to dismiss is Lixenberg v. Complex Media, 
Inc., No. 22-CV-354 (RA), 2023 WL 144663, at *5 (S.D.N.Y. Jan. 10, 2023), which involved a 
generic logo on a photograph rather than a copyright notice with a copyrigh t symbol below 
a set of documents and is thus inapplicable. 
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information be accessible in conjunction with, or appear with, the work being accessed.” Id. 
“Physical proximity” is “not the only appropriate measure of whether a copyright notice 
constitutes CMI ,” Pierson v. Infinity Music & Ent., Inc ., 300 F. Supp. 3d 390, 391 (D. Conn. 
2018); “ ’[i]n connection with, ’ by plain reading and common sense, comprehends 
information conveyed in or with a copyrighted work if that information otherwise satisfies 
§ 1202(c)'s criteria.”  Bounce Exch., Inc. v. Zeus Enter. Ltd ., No. 15CV3268 (DLC), 2015 WL 
8579023, at *3 (S.D.N.Y. Dec. 9, 2015) (emphasis in original).  
The broad meaning of “conveyed in connection with” is consistent with its place 
within the statutory structure—not as part of the sections outlining the various violations, 
but as part of the definition that determines whether information falls under the category of 
CMI at all. Thus, at the motion to dismiss stage, unless it is “implausible” that a viewer could 
understand the information to be referring to the defendant as the work’s copyright holder, 
dismissal is inappropriate. Agence France Presse v. Morel, 769 F. Supp. 2d 295, 305 (S.D.N.Y. 
2011); see also BanxCorp v. Costco Wholesale Corp., 723 F. Supp. 2d 596, 610 (S.D.N.Y. 2010)  
(declining to hold as a matter of law that “CMI must be placed on the actual information on a 
website in order to state a claim under the DMCA” because “[a]t summary judgment, 
Defendants will have an opportunity to present evidence that the placement of the CMI []  
indicated that it did not refer to the [work].”)
3  
In the Co urt’s view, the question of whether information qualifying as CMI implies 
that the defendant is a copyright holder of a work that does not belong to them based on 
 
3 Plaintiff also argues that the Copyright Notice is “conveyed in connection with” the work 
based on the district court’s holding in Pierson that a Copyright Notice at the bottom of the 
page is “c onveyed in connection with” the work appearing there; Defendant disagrees, 
arguing that Pierson is distinguishable based on Terms and Conditions that it contends 
implied copyright ownership in a way that Defendant’s do not . Because the Court has 
determined that the Amended Complaint sufficiently pleads that the Copyright Notice is CMI 
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specific factors such as visual presentation and proximity is properly considered not as part 
of that threshold inquiry, but as part of considering falsity and intent; at this stage, Plaintiff’s 
allegations and exhibits showing a Copyright Notice at the bottom of a page on which 
Plaintiff’s works appear is enough to allege that it “appears” with and is “accessible in 
conjunction with” the works at issue. To the extent Defendant argues that the Amended 
Complaint does not plausibly allege that the Copyright Notice is also false, Plaintiff has pled 
that its works were altered to make Previews in which  Defendant blurred Plaintiff’s own 
copyright statement and CMI on the work ; that Defendant offered that work for sale on a 
website with its own Copyright Notice at the bottom of the webpage on which the work 
appeared; and that the copy of the work a user w ould receive after paying to unlock it was 
watermarked with Defendant’s name and additional information about the document’s 
download from and virtual location on Defendant’s website . These facts, considered 
together, are enough to plausibly allege both falsity and intent for purposes of a motion to 
dismiss, and the motion is deni ed with respect to the Section 1202(a) claims related to the 
Copyright Notice.  
B. Watermark 
“[M]ost courts that have considered the issue have found that the meaning of CMI is 
broad and, at least in some circumstances, includes watermarks.” Michael Grecco Prods., Inc. 
v. Alamy, Inc., 372 F. Supp. 3d 131, 137 (E.D.N.Y. 2019) (collecting cases). Defendant argues 
that because its Watermark accurately describes “the manner in which the documents are 
accessed from the Course Hero website: by sharing or downloading ,” a fact uncontested by 
 
because it appears on the page with the works in question, it need not consider the parties’ 
arguments as to the applicability of Pierson at this stage of the proceeding  and w hether 
Defendant’s Terms and Conditions are incorporated by reference in the Amended Complaint 
such that the Court may consider them on a motion to dismiss.  
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the Amended Complaint, it cannot constitute false CMI . (Def.’s Mem. at 11 -12.) Plaintiff 
responds that the language “share via” and “downloaded from,” does “not negate the 
suggestion of ownership.” ( Id. at 10-11.) Plaintiff points to Paragraph 119 of the Amended 
Complaint, which  alleges that Defendant “provides and distributes copyright information 
that is false” by “applying a Course Hero watermark to Post University’s copyrighted works 
available for download from the Course Hero w ebsite,” as satisfying the pleading 
requirements for a false CMI claim  where the Watermark includes “Course Hero ’s name, 
website address, and a unique URL link directing customers to a webpage where Post’s work 
is unlawfully offered for sale by Course Hero,” because the information is “facially suggestive 
of ownership” and thus false. (Pl.’s Opp’n at 10) (quoting Agence France Presse v. Morel, 934 
F. Supp. 2d 547, 577 11 4894-4477-5762, v. 1 (S.D.N.Y. 2013)).  
In Michael Grecco Prods., Inc. v. Alamy, Inc ., 372 F. Supp. 3d 131 (E.D.N.Y. 2019), the 
court considered whether the defendant’s placement of the marks “alamy” and “a” on the 
plaintiff’s photographs constituted “false” CMI. The plaintiff in Alamy had previously entered 
into a distribution agreement fo r its photographs that allowed the defendant to host them 
on its website; when those agreements terminated, however, the defendant continued 
hosting plaintiff’s work s without permission. Id. The defendant argued that “its alleged 
placement of watermarks” did not “indicate authorship or copyright ownership” but simply 
identified itself as  “the originator of the website” on which the photos appeared ; the court 
disagreed, finding that “a watermarked corporate name or symbol may refer to the author 
or copyright owner when displayed on a copyrighted work in connection with the marketing 
of that work for sale or license[.]”  
The parties reach different conclusions as to Alamy’s  applicability; Plaintiff argues 
that the facts here are a close parallel, while Defendant distinguishes the case based on the 
addition of the words “downloaded from” or “shared via” in its own watermark, which it 
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claims makes clear that it is merely the source of the document as opposed to the copyright 
holder. In the Court’s view, Plaintiff’s interpretation is the better one; while the “alamy” or 
“a” on the photos were not literally “false” statements, the court considered the overall 
context in which they were made in determining whether the plaintiff had plausibly pled that 
the watermarks constituted false CMI, and at least one other court from within this c ircuit 
has taken the same approach. See Penske Media Corp. v. Shutterstock, Inc., 548 F. Supp. 3d 
370, 381 (S.D.N.Y. 2021)  (denying a motion to dismiss a Section 1202(a) claim when the 
plaintiff’s photos appeared  on defendant’s website with the name “Shutterstock” 
watermarked on them and were not accompanied with an explanation that another company 
owned the copyright); but see Steinmetz v. Shutterstock, Inc., 629 F. Supp. 3d 74, 85 (S.D.N.Y. 
2022), appeal withdrawn, No. 22 -2699, 2022 WL 19560566 (2d Cir. Dec. 8, 2022)  (finding 
that making a low-resolution, watermarked copy of a n image uploaded by a third -party to 
its website to advertise that the non -watermarked, high-resolution copy was available for 
purchase from defendant was not false CMI but instead “identifie[d] Defendant as the source 
of an image downloaded from its portfolio or platform.”)4  
In the Court’s view, Alamy and Penske’s approach of leaving determinations about the 
impression created by a website for summary judgment or trial, rather than resolving them 
on a motion to dismiss, is the correct one, and at least one court outside this district has taken 
the same approach. See Merideth v. Chicago Trib. Co., LLC, No. 12 C 7961, 2014 WL 87518, at 
*3 (N.D. Ill. Jan. 9, 2014)  (holding that so long as the complaint alleges facts and specific 
language used by the defendant  that could “plausibly be said” to be construed as false CMI, 
the motion should be denied because “whether [the] language is sufficient to be considered 
 
4 Steinmetz, however, was decided on summary judgment based on the undisputed facts and 
included evaluation of the website, the terms of use, and the defendant’s business model as 
a whole to determine what impression the information alleged to be false CMI created.  
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CMI in specific reference to the [plaintiff’s works’ ] is a matter of degree, not kind.” ) 
Considering the overall impression created by the information added by a  defendant is also 
consistent with how closely related Section 1202(b) claims are treated. See Wood v. Observer 
Holdings, LLC, No. 20 CIV. 07878 (LLS), 2021 WL 2874100, at *6 (S.D.N.Y. July 8, 2021) 
(finding for purposes of a 1202(b) claim that  a “reasonable person” could find that the 
addition of defendant’s copyright notice to the gutter credit below a photograph altered the 
the existing CMI in a photograph’s metadata when the gutter credit was more prominently 
displayed, because the credit could be “construed” as “trumping, diluting, or superseding” 
the plaintiff’s CMI.)   
Taking the allegations in the complaint as true and drawing reasonable inferences in 
Plaintiff’s favor, it has plausibly pled  that Defendant’s Watermark stating that a document 
was “shared via” or “downloaded from” Defendant’s website could be construed as false CMI 
when considered in conjunction with the Copyright Notice at the bottom of the website, and 
the fact that watermarked copies of the document are available only after a user has paid 
Defendant in some way to unlock them , and thus, the pleading standards of a 12(b)(6) 
motion and broad construction of the DMCA counsel in favor of denying the motion.  
IV. Conclusion  
Defendant’s motion to dismiss the Section 1202(a) portions of Count VI pertaining to 
the Defendant’s Copyright Notice and Watermark is DENIED.  
IT IS SO ORDERED. 
 
 _______________/s/_____________________________ 
 
 Janet Bond Arterton, U.S.D.J. 
 
Dated at New Haven, Connecticut this 25th day of August, 2023 
 
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