Egalitarian Copyright (3): The Trouble With Copyrighting Test Questions (and Test Prep Materials)

Dan Solove has highlighted the recent $11 million verdict against PMBR for infringing the Multistate Bar Examination’s copyright in about 100 questions. 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.

Test scores are what economists might call “pure positional goods:” their value is entirely relative to the scores of other test takers. Positional goods can give rise to both a) wasteful competition and b) unfair competition. While economists and psychologists have focused on the wasteful aspects of positionality, philosophers have focused on the unfairness of many positional struggles, and it’s that latter point I’d like to explore here. . . .

Consider the case of a college junior, strapped for cash, who learns that many of her friends are taking an LSAT Preparation Course. She can either take an extra job in order to earn the money to pay for the course, or take her chances that her own methods of preparation can compete with the insights garnered by a large company. She knows that the company employs hundreds of individuals not merely to “outsmart” the test, but to base their work on otherwise secret test questions memorized by co-workers. Does she take the course?

Dilemmas like this make it unclear whether the development of test prep is either efficient or equitable. For instance, enrollees may gain, on average, 10 points more on the relevant test, in exchange for the discipline of studying plus the cash for the materials. To the extent the latter advantage is gained merely by virtue of their being richer, it raises difficult questions. Are we really comfortable with such a direct commodification of advantage?

The opinion in the PMBR case suggests that the MBE tries hard to defeat the test prep companies, or at least the advantage they gain by memorizing questions. Apparently MBE sues those who are closely copying its “unreleased” questions. Still, the long history of Kaplan/Princeton Review in the U.S. suggests that there is virtually no way to stamp out “reports” of what was on the latest tests. South Korea’s effort to criminalize analogous “cram schools” was a resounding failure, finally formally overturned by their Supreme Court in 2000.

Given the futility of “leveling down” by banning or crippling test prep programs, why not go the opposite direction, by putting both their materials–and all previous test questions–into the public domain? This “leveling up via laissez-faire” promises to add some fairness to a competitive process too often skewed by wealth and connections.

This may seem like an extreme step, but the high stakes of test results may mandate nothing less than universal access and disclosure. If the price of test prep materials is high, though the number of students using them may be small, they will nevertheless manage to leverage financial advantage into educational advantage. Moreover, even if the price of the course goes down, inequity persists until it is universally accessible. This is because the more accessible the course is, the greater the pressure to take it (spreading its cost more generally), and the greater the disadvantage suffered by those who don’t take it (increasing the penalty for non-participation).

But perversely, once the course becomes universally accessible, it will afford no one a positional advantage, because all will see their scores raised by the same amount. Therefore, the innovative course either generates some inequity, or inefficiency (since universal accessibility destroys the only value of the course—the ability to raise one’s score relative to others).

Now of course one might argue that the course itself teaches valuable skills. But if that is the case, why not make every aspect of both the test, and the preparation materials, available? Those wealthy or dedicated enough to want an advantage can still pay for *teaching*–we just assure a baseline of common access to test preparation materials.

Ordinarily one might ask: what about incentives here? Where is the incentive to create good tests or test prep absent the right to reap licensing fees from them? Here I think we can be pretty confident that the interests of the bar and the test prep companies themselves can be relied on to assure the materials’ creation as a byproduct of licensure and preparation.

What’s the solution? Though some “truth in testing” legislation has nibbled at the edges of the problems I discuss above, I have little faith Congress will intervene here (or that states *can* intervene directly, given the copyright statute’s preemption of too-similar state laws.) But I do think there is some doctrinal “wiggle room,” which I’ll try to explore later this week.

And finally…why is this part of the Egalitarian Copyright series? ThankMichael Walzer’s analysis of commodification in Spheres of Justice. Walzer develops an “open ended distributive principle,” whereby “No social good x should be distributed to men and women who possess some other good y merely because they possess y and without regard to the meaning of x.” In the case of education, there is an ongoing debate over the exact criteria of merit that should govern the distribution of admissions slots at colleges and professional schools. However, there should be consensus that using money to get “inside information” about tests is a troubling development. The law should try to ameliorate the differential access of poor and rich to courses designed to prepare them for the SAT, LSAT, MBE, and other pivotal tests.