It had to happen sooner or later. According to Law.com, the NCBE has obtained subpoenas commanding Earthlink to disclose the identity of an anonymous person who posted 41 multistate bar exam questions on a blog. The postings apparently appeared in the comments section of the blog “tabandbrandy.blogspot.com.” The story also states that the NCBE subpoenaed Google as well about the posting. If you try to visit the blog, it no longer appears at Blogspot. I don’t know if the poster took the blog down voluntarily or whether Google did it as part of a notice and take down procedure. If you hunt for the cached pages of the offending posts, they show several “This post has been removed by a blog administrator” messages where the offending posts might have been.
As far as the merits of this individual case go, it seems pretty likely that the posting of 41 questions is infringement. That case is particularly strong if the poster repeated the questions verbatim (darn, that would be hard to do). But what if the questions are merely summarized? Or what if the questions aren’t summarized, but merely discussed in ways that reveal their substance? I can understand that the NCBE doesn’t want its questions disclosed, but – as they appear to acknowledge – they can’t stop people from talking about the exam. If that’s true (and it surely is), what about those who write about the exam?
Does anyone know what other standardized testing services do about this problem? Do they only go after the mass posters of near-verbatim repetition? Or do they try to stop all disclosure? And, do they only use the notice and take down procedures, or do they file real copyright litigation?
There is nothing new under the sun. This reminds me of the old English case of Abernethy v. Hutchinson (1824) 3 L.J. Ch. 209; 47 E.R. 1313. Here, the plaintiff had delivered lectures to students at St. Bartholomew’s Hospital, London; a student sought to publish the plaintifff’s lectures; and the plaintiff obtained injunctions restraining the publication against the diligently transcribing student and his publisher.
I am deeply troubled by the supposed “lockdown” of many test questions, if only because creative private companies find ways of copying them in undetectable ways, and passing on that advantage to paying customers.
To the extent the questions are really unsummarizable, perhaps they shouldn’t even be copyrightable….see the Gladwell quote in this post:
https://madisoniannet.mystagingwebsite.com/archives/2006/08/30/merger-doctrine-test-questions-yo-momma/
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