And here I thought I was forever done with anything involving the bar exam. But, the National Conference of Bar Examiners won a copyright case against bar exam prep company PMBR: National Conference of Bar Examiners v. Multistate Legal Studies, Inc., 04-03282-JF (PAED Aug. 22, 2006).
The NCBE administers a little exam twice a year called the MBE. Perhaps you’ve heard of it? That’s right, it is part of the bar exam throughout the US. It is a 200 question multiple choice exam administered over 6 hours in one day.
Each question comprises a brief fact pattern, a lead-in asking the test-taker about a particular legal issue, and four answer choices. Drafting these questions is a lengthy process for which NCBE retains panels of professors, judges, and practitioners. Each MBE contains approximately 60 questions from earlier tests to provide a basis for comparing the performance of applicants on one MBE with that of previous groups. Using these data, plaintiff corrects for variations in the degree of difficulty of the examination when computing individual scores. Questions may appear on several MBEs before being retired.
The bar examiners work diligently to make sure that the MBE is a secure exam. The NCBE requires that proctors read a long warning before the test is administered reminding test takers that the MBE is a “secure exam” and that copying any questions or discussing the content of the exam is a copyright infringement.
PMBR is a company that prepares students for the MBE. It offers 3 and 7 day classes where students show up to learn the law and test-taking skills necessary to do well on the MBE from a videotaped version of PMBR’s founder Robert Feinberg. PMBR also sells review books and lectures on CD. In order to best prepare his students for the exam, Feinberg attempted to create practice exams that would be very similar to the actual MBE. So, PMBR needs to be sure that its practice tests are similar enough to the real MBE to be useful study materials. The company’s founders have taken a larger number of bar exams than usual.
Given that these individuals are highly paid to prepare students to take (and presumably to pass) the bar exam, their failure rate is strikingly high. Mr. Feinberg, for example, failed five consecutive bar examinations in Alaska before barely passing in February 2004. Once an applicant passes the bar in a given jurisdiction, he may not take it there again. Perhaps even more startling, Ms. Zimmerman twice failed the Kentucky Bar Examination despite passing the essay portion, because her scores on the MBE were so low. Her testimony that she failed because the MBE “is quite a difficult examination” speaks poorly of either her professional qualifications or her credibility as a witness.
In prior orders, the court upheld the validity of the NCBE’s copyright. As such, to establish copyright infringement, the defendant must have actually copied from the plaintiff’s copyrighted works.
Plaintiff has proven copying both with direct evidence and by demonstrating that there is substantial similarity between the MBE and PMBE questions.
This is the rare case in which there is direct evidence that defendants copied plaintiff’s work. Mr. Feinberg and other PMBR employees regularly write down information about the fact patterns, prompts, and answer choices appearing on MBE examinations that they have taken. Mr. Feinberg admitted that he uses these notes when writing PMBE questions. In order to facilitate this process, PMBR employees sought out the only jurisdiction that allowed test-takers to use scratch paper, taking (and in all but one case failing) the Alaska Bar Exam eight times from 2001 through 2003. In February 2003, Mr. Feinberg was caught leaving the examination room with his scratch paper. In addition, PMBR advertisements brag about how close its
questions are to those on the actual MBE, and Mr. Feinberg has made similar statements. Finally, many PMBE questions reproduce MBE questions nearly verbatim, and others contain trivial variations that suggest awareness of copying.1
The court goes on to cite examples of the substantial similarity between NCBE questions and PMBR questions.
Does copyright prohibit test prep services from creating their own questions that are similar enough to the actual exam to be useful?
This sentence from the court’s calculation of damages serves as an interesting aside for those of us who took the July 2005 bar exam: “The July 2005 MBE had to be reprinted at a cost of $59,000 because defendants’ copyright infringement had compromised the initial version.”
(via How Appealing)
More:
Concurring Opinions: Copyright and Bar Exam Questions: “The court concluded that many of the questions in PMBR’s materials are similar to those on the Multistate Bar Exam.”
Frank Pasquale, madisonian.net: The Trouble With Copyrighting Test Questions (and Test Prep Materials): “I hope to criticize the doctrine it’s based on at some point this week. But I’d like first to look at how the exclusionary nature of ‘copy rights’ creates unique problems in the test setting.”
