Pedagogical “Approach” Is an Unprotectable Idea: Thin Copyright in Educational Course Materials and Early Dismissal Absent Substantial Similarity in Protectable Expression

1. Introduction

Usman Roshan v. New Jersey Institute of Technology involves a dispute between a university professor (Usman Roshan, proceeding pro se) and his employer, the New Jersey Institute of Technology (“NJIT”), over alleged copying of graduate-level machine-learning course materials. Roshan alleged he created an introductory machine learning course (CS 675) and later discovered a different NJIT course (DS 675) that he claimed was derived from his materials without consent. After registering components of his CS 675 materials (syllabus, slides, notes, assignments, projects, and exams), Roshan sued NJIT for copyright infringement under 17 U.S.C. § 501.

The central issue on appeal was not copyright ownership, but whether Roshan plausibly pleaded “material appropriation”—i.e., substantial similarity of protectable expression—such that infringement could be inferred. The Third Circuit affirmed the District Court’s dismissal with prejudice under Rule 12(b)(6), holding that the attached course materials themselves foreclosed a plausible claim of substantial similarity.

2. Summary of the Opinion

The Third Circuit affirmed dismissal with prejudice because, comparing the works side-by-side and excluding unprotectable elements (ideas, concepts, formulas), no reasonable trier of fact could find the two courses substantially similar in protectable expression. The court emphasized:

• Copyright protects expression, not ideas—including an asserted “geometric-intuitive approach” to teaching machine learning.
• Educational course materials in a technical subject often contain a high proportion of unprotectable factual or conceptual content, producing “thin” protection.
• At the pleading stage, when the complaint includes or attaches the allegedly infringed works, courts may decide substantial similarity as a matter of law and dismiss when no reasonable juror could find infringement.
• Differences in sequencing, format, examples, images, and textual explanations, plus limited overlap in exam/assignment topics and dissimilar phrasing and structure, defeated substantial similarity.
• Leave to amend was properly denied as futile because the record already contained the operative works needed for the substantial-similarity analysis.

3. Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

Dun & Bradstreet Software Servs. v. Grace Consulting, Inc., 307 F.3d 197 (3d Cir. 2002)

The panel used Dun & Bradstreet for the basic two-element infringement framework: (1) valid ownership and (2) unauthorized copying of original elements. This case anchors the analysis in “copying of original elements,” setting up the decisive inquiry: whether the similarities concern protectable expression.

Tanksley v. Daniels, 902 F.3d 165 (3d Cir. 2018)

Tanksley does most of the doctrinal work. The court invoked it for three propositions central to the outcome:

• Copying has two components: “actual copying” and “material appropriation,” and a claim fails if material appropriation is absent even if copying is alleged.
• Substantial similarity can be resolved at 12(b)(6) when the works are before the court, because the works themselves can show that no rational factfinder could find substantial similarity.
• Judicial economy: where no reasonable juror could find substantial similarity, “justice is best served by putting a swift end to meritless litigation.”

The panel mirrored Tanksley by focusing on material appropriation, reviewing the works attached to the complaint, and concluding that the claim fails as a matter of law.

Dam Things from Den. v. Russ Berrie & Co., Inc., 290 F.3d 548 (3d Cir. 2002)

The court relied on Dam Things from Den. for the “lay-observer” substantial-similarity framing and for the “side-by-side” comparison methodology that excludes unprotectable elements. This supports the conclusion that substantial similarity is ultimately a comparison of expressive choices, not of generalized themes or subject matter.

Whelan Assocs., Inc. v. Jaslow Dental Lab'y, Inc., 797 F.2d 1222 (3d Cir. 1986)

Whelan Assocs. was cited in two distinct ways:

• Ordinary observer caveat for complex works: the court noted that the ordinary observer test may mislead for “particularly complex” subjects like computer programs, but found this dispute did not involve “exceptionally difficult materials” requiring departure from that test—especially because Roshan himself argued similarities were lay-identifiable and offered only conclusory requests for experts.
• Idea/expression and limited ways to express facts: the court invoked Whelan to emphasize that fact-intensive works get limited protection because there are fewer ways to express factual material.

Kay Berry, Inc. v. Taylor Gifts, Inc., 421 F.3d 199 (3d Cir. 2005)

Kay Berry supplied two key limiting principles:

• Similarity is not enough where it stems from shared subject matter—factfinders must distinguish appropriation of “unique expressions” from overlap expected when two works “express the same idea or explore the same theme.”
• Where there are limited ways to express an idea, plaintiffs face a “heavy” burden and may need to show “near identity.”

This strongly favored NJIT because introductory machine learning courses predictably cover common topics, and similarities at the topic level are often “expected,” not probative of copying of expression.

Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991)

The opinion uses Feist to articulate “thin” protection for compilations and factual material: others may use the underlying facts so long as they do not copy the same selection and arrangement. This frame is directly applied to course structure: even assuming protectability of selection/arrangement, the court found the courses differed in order and content, defeating a Feist-style claim.

Baker v. Selden, 101 U.S. 99 (1879)

Baker grounds the idea/expression dichotomy in the pedagogical context. Roshan conceded that concepts, formulas, and figures are not protected; the court used Baker to reinforce that copyright in a scientific or mathematical work cannot grant an exclusive right over methods of operation or explanatory diagrams used to convey them.

Educ. Testing Servs. v. Katzman, 793 F.2d 533 (3d Cir. 1986)

This case was used to reject the notion that sharing subject matter in exam questions shows infringement. Educ. Testing Servs. stands for the principle that one cannot appropriate “concepts” to prevent others from framing noninfringing questions that test the same subjects. That is especially salient where exams necessarily track the content of the course.

Grayson v. Mayview State Hosp., 293 F.3d 103 (3d Cir. 2002)

Grayson informed the leave-to-amend analysis. The court affirmed denial of further amendment as futile because Roshan had already supplied the materials needed to assess substantial similarity; no new pleading could cure the mismatch between the works’ protectable expression.

In re Wettach, 811 F.3d 99 (3d Cir. 2016)

In re Wettach was cited for appellate forfeiture: issues not developed in the opening brief are forfeited. This mattered because Roshan did not pursue on appeal (a) the time-bar ruling on a 2020 allegation and (b) dismissal of other claims.

Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136 (3d Cir. 2017) and Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80 (3d Cir. 2013)

These cases reinforce appellate waiver/forfeiture rules: new allegations or arguments raised for the first time on appeal or only in a reply brief are not considered. The panel used them to constrain the dispute to what was properly presented below and in the opening appellate brief.

3.2 Legal Reasoning

(a) The court isolates “material appropriation” (substantial similarity of protectable expression)

Following Tanksley v. Daniels, the court treated “material appropriation” as dispositive. This move is significant: even if Roshan could plausibly plead access and some degree of copying, infringement still fails unless what was taken is protectable expression and the taking is substantial.

(b) The “ordinary observer” test applies; expert analysis is not automatically required

Roshan alternately argued (i) similarities were lay-identifiable and (ii) experts/discovery were needed. The panel declined to depart from the ordinary observer approach noted in Dam Things from Den. v. Russ Berrie & Co., Inc., distinguishing Whelan Assocs., Inc. v. Jaslow Dental Lab'y, Inc. because the materials were not so complex that meaningful comparison required specialized expertise—particularly where Roshan did not explain what expert methodology would reveal beyond what the documents already showed.

(c) The court filters out unprotectable ideas, methods, and factual/conceptual content

The panel emphasized that Roshan’s “geometric-intuitive approach” is an idea, not an expression, and is therefore outside copyright—consistent with Feist Publ'ns, Inc. v. Rural Tel. Serv. Co. and Baker v. Selden. While Roshan tried to recharacterize the approach as protectable “expression,” the court treated it as a pedagogical concept that others remain free to use, so long as they do not appropriate the same protectable expressive choices.

(d) Side-by-side comparison defeats substantial similarity as a matter of law

Applying the side-by-side method from Dam Things from Den. v. Russ Berrie & Co., Inc., the court found:

• Different ordering and organization of material across the courses;
• Different formats of presentation;
• Different examples and images;
• No overlap in textual explanations of topics;
• Some topics unique to each course;
• For exams: only a handful of overlapping topics, but with different question format, different written text, and different sequencing;
• For assignments: overlapping topics without similarity in text/images and with different format/order.

In the panel’s view, these differences mean any overlap is attributable to the shared domain (introductory machine learning) rather than appropriation of Roshan’s protectable expression—precisely the distinction drawn in Kay Berry, Inc. v. Taylor Gifts, Inc..

(e) Thin protection and the practical reality of technical instruction

The opinion implicitly treats machine-learning instruction as “fact intensive” and constrained by the field’s standard topics and techniques. Drawing on Whelan Assocs., Inc. v. Jaslow Dental Lab'y, Inc. and Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., the court emphasizes that when expressive choices are limited by the subject matter, the plaintiff’s burden rises (sometimes to “near identity,” per Kay Berry, Inc. v. Taylor Gifts, Inc.). In that environment, generalized similarity in curriculum topics rarely suffices.

(f) Dismissal with prejudice and denial of leave to amend

The court affirmed dismissal with prejudice because the decisive comparison depended on documents already provided. Under Grayson v. Mayview State Hosp., amendment is futile where additional allegations cannot change what the works show on their face.

3.3 Impact

(a) Early-stage resolution of course-material copyright claims

The decision illustrates how universities and instructors can expect courts to handle course-material infringement suits when the plaintiff attaches the relevant materials: substantial similarity may be resolved at the motion-to-dismiss stage under Tanksley v. Daniels. Practically, this encourages litigants to focus early on the actual expressive overlap, not merely parallel subject matter.

(b) Pedagogical “approach” as unprotectable idea

The court’s treatment of Roshan’s “geometric-intuitive” method reinforces a key boundary: educators cannot use copyright to monopolize teaching methods or conceptual frameworks. This aligns with Baker v. Selden and the idea/expression dichotomy emphasized in Feist Publ'ns, Inc. v. Rural Tel. Serv. Co..

(c) “Thin” protection for technically constrained educational content

The opinion signals skepticism toward infringement theories premised on overlapping topics, standard ordering, or common assessment targets in a technical course. Where the discipline strongly shapes what must be taught and tested, protectable expression narrows, and plaintiffs may face the “near identity” hurdle described in Kay Berry, Inc. v. Taylor Gifts, Inc..

(d) Exam and assignment overlap is not enough

By invoking Educ. Testing Servs. v. Katzman, the panel underscores that testing the same concepts is not infringement; only copying of the expressive formulation (wording, structure, distinctive selection/arrangement) can be. This is a recurring point in disputes over instructional assessments.

4. Complex Concepts Simplified

• Idea/expression dichotomy: Copyright protects your specific phrasing, selection, arrangement, and original visuals—not the underlying concept, method, or subject matter (e.g., a “geometric” way of teaching machine learning).
• Material appropriation: Even if someone had access to your work, you must show they took a meaningful amount of protectable expression, not just shared topics.
• Substantial similarity (ordinary observer): The question is whether a typical observer would view the later work as copying protected expressive elements of the earlier work, after ignoring unprotectable material.
• Thin copyright protection: In fact-heavy or technically constrained works, there are limited ways to present material; protection is correspondingly narrow, and infringement may require “near identity.”
• Selection and arrangement: You may have protection in how you choose and organize factual material, but only if the alleged infringer’s organization is materially the same—not merely similar because the subject is the same.
• 12(b)(6) dismissal based on the works themselves: If the complaint includes the relevant works, a court can compare them immediately; if no reasonable juror could find substantial similarity, the case can be dismissed without discovery.

5. Conclusion

Usman Roshan v. New Jersey Institute of Technology applies established copyright principles to academic course materials and emphasizes a practical litigation rule: when the works are before the court, substantial similarity of protectable expression can be resolved at the pleading stage. The court reaffirmed that pedagogical methods and conceptual approaches are unprotectable ideas, and that technical educational works often receive thin protection, making topic overlap and shared instructional goals insufficient to plead infringement. The key takeaway is doctrinally orthodox but operationally important: without close similarity in expressive choices—text, structure, sequencing, and distinctive presentation—copyright cannot be used to police parallel course design in the same discipline.