Levings sued in copyright dispute

An educational CD-ROM publisher has filed a lawsuit against Levings Learning LLC alleging that the Oklahoma-based education software company plagiarized its copyright-protected content.

The nearly 500 schools using software licensed from Levings Learning will suffer no harm as the result of the federal lawsuit filed against the company on Dec. 24, CEO Kenton Levings told eSchool News. Levings’ comments notwithstanding, news of the suit has raised concerns among the company’s school customers.

“The allegations are flat-out false lies,” Levings declared in a telephone interview. He added that schools using his firm’s software “will not lose their work or their money.”

Zane Publishing Inc., of Texas, filed the lawsuit against the company and Levings. The suit followed a similar legal action filed in October by former Levings Learning investors. Neither suit extends copyright infringement allegations against school districts that are using Levings Learning products, Levings said.

The company publishes several computerized assessment and training tools, including PASS Plan, Assessor, Keys to Reading Success, and Keys to College. Only the PASS Plan product is affected by the allegations, according to a statement from Levings Learning.

In its lawsuit, Zane Publishing says a substantial number of the questions and answers contained in Levings Learning’s web-based assessment tool, PASS Plan, were taken directly from Zane’s educational CD-ROMs without permission.

“Zane Publishing has never entered into any type of licensing agreement with Levings Learning,” said Stewart Cross, CEO of Zane Publishing. “I don’t have any direct relations with Kenton Levings, and I do not know of anyone else that I do business with that has direct relations.”

The Zane lawsuit requests seizure of all Levings Learning products found to contain copyright infringements, an injunction that prevents Levings Learning from continuing to sell products that contain the allegedly infringed material, damages of $150,000 for each alleged copyright infringement, and recovery of all profits arising from sales of the copyrighted material.

A person formerly affiliated with Levings Learning told eSchool News the presence of allegedly copyrighted material in the company’s products was discovered when potential investors were examining Levings Learning. The former company consultant said Levings refused to remove the material and inform customers about the problem.

In his interview with eSchool News, however, Levings contended he could not have refused to remove material and inform customers, because he did not learn of the second lawsuit until Christmas morning.

According to Levings, he had no warning that the second suit was coming. The plaintiff’s attorney never sent any cease-and-desist demand before filing the lawsuit, Levings said. Such warning letters are customary in copyright infringement cases.

The plaintiffs in the first suit, known as the Kite Family Investment Co. lawsuit, are each asking for more than $1.3 million invested in the company, plus $5 million for punitive damages.

Upon entering that agreement with the venture capitalists, the consultant said, Levings maintained that he had properly licensed the educational content. “Levings asserted that all of its assets were properly owned so we executed that transaction,” the consultant said. “He defrauded us. He lied to us. And we want our money back.”

According to the Software and Information Industry Association (SIIA), education customers of Levings Learning have little to worry about regarding the copyright-infringement charges.

“The action is against Levings Learning, and in theory, the customers are not liable,” said Keith Kupferschmid, vice president for intellectual property policy and enforcement at SIIA. “It’s unlikely that the customer would be sued, because the customer is not knowledgeable that there is a copyright violation.”

If an injunction does go through, Levings Learning will have to notify its customers and stop selling products if any are found to have violated copyrights.

Education customers who spoke with eSchool News said Levings Learning immediately informed them about the lawsuit. “It was really smart of them to send an eMail to say to us, ‘This is what was in the paper today,’ instead of letting us find out some other way,” said Linda Fernandez, assistant superintendent at Goochland County, Va., Public Schools near Richmond.

The news did raise some questions, however.

“Levings is a completely online company, so what happens if you’ve paid your money and they can’t deliver the product?” Fernandez asked. “We’d be out our money as well as the time that it took to do the start-up, and we’d have to look for a new provider. We certainly hope it doesn’t come to that, because they have been a good company and a good provider.”

Statement issued Jan. 12 by Kenton Levings, CEO of Levings Learning

Our customers, clients and business partners may have become aware of recent events and negative publicity concerning what we believe are unfounded allegations made against Levings Learning. We want you to have the full picture since reported accounts have been less than complete.

Levings Learning has been notified of a lawsuit filed by Zane Publishing which alleges that we have improperly used copyrighted material in our product PASS Plan. We believe this lawsuit was prompted and encouraged by a group of investors who previously filed a similar lawsuit in an effort to recover their investment once their attempt to seize control of Levings Learning failed. The same law firm represents both Zane and the investors.

Allegations made in these lawsuits that Levings has intentionally and knowingly misappropriated intellectual property from other sources in violation of protected copyrights, or intentionally and knowingly made false statements regarding Levings’ rights to use such materials are simply false. In the case of Zane Publishing, it made no attempt to confirm these allegations or discuss its beliefs with management of Levings Learning prior to filing suit.

Levings Learning believes these lawsuits are without merit and will continue to defend itself against these claims as well as aggressively prosecute its counterclaims against some of the investors. At times, these lawsuits can be disruptive to the continuing business of Levings Learning, but we pledge to continue providing our customers with uninterrupted service and product enhancements to meet their needs. We ask for your patience and understanding while we are forced to deal with these misguided tactics, and affirm our intention to you to resolve these disputes as soon as possible.

See these related links:

Levings Learning LLC

Zane Interactive Publishing

Software & Information Industry Association

eSchool News Staff

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