Copyright and Bar Exam Questions
posted by Daniel Solove
A federal district court recently held that PMBR was liable for a copyright violation for using questions from the Multistate Bar Examination in its classes and materials. PMBR, the “Preliminary Multistate Bar Review,” is a bar exam preparation course. The opinion is available here.
The court concluded that many of the questions in PMBR’s materials are similar to those on the Multistate Bar Exam. In assessing damages, the court noted that “[s]ince plaintiff lost no hypothetical royalties, I cannot award actual damages in compensation. I can and will, however, factor the uniquely proprietary nature of the infringed questions
into apportionment of defendants’ profits.” Accordingly, the court awarded the plaintiffs nearly $12 million, one third of PMBR’s gross revenues during the time period of the violations. Moreover, the court held:
Defendants will be enjoined from copying, duplicating, distributing, selling, publishing, reproducing, renting, leasing, offering or otherwise transferring or communicating in any manner, orally or in written, printed, photographic or other form, including any communication in any class or other presentation, any questions obtained directly from any of NCBE’s copyrighted secure tests.
Hat tip: Lawschool.com
August 26, 2006 at 2:07 pm
Posted in: Intellectual Property, Law Practice, Law School
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Responses (6)
James Grimmelmann - August 26, 2006 at 6:33 pm
The opinion contains a number of damning statements about PMBR, including one that confirms what many students cramming for the bar exam have long suspected: review courses feed you wrong answers.
At page 11, after reciting a question from the MBE and its nearly identical PMBE cousin, the opinion wryly notes:
Keith Sharfman - August 27, 2006 at 4:18 pm
This is fascinating, Dan. I wonder of there’s any copyright as well in canddiate answers. The examiners seem to have no problem making model answers available without getting a copyright waiver from the author. Perhaps this case will change things, since it’s hard to see a compelling distinction as a matter of copyright between exam questions and answers.
Keith Sharfman - August 27, 2006 at 4:19 pm
This is fascinating, Dan. I wonder if there’s any copyright as well in candidate answers. The examiners seem to have no problem making model answers available without getting a copyright waiver from the author. Perhaps this case will change things, since it’s hard to see a compelling distinction as a matter of copyright between exam questions and answers.
LM - August 28, 2006 at 9:57 am
James, I’m intrigued by your comment (“review courses feed you wrong answers”). I’ve heard/read this from others as well. Being as it is that I’ll be taking the bar in less than a year from now, I have to ask: if bar review courses commonly provide the wrong answers, thereby making the bar exam study process that much more difficult, should students even consider taking a review course? Or would we be better off saving our money for review books purchased on e-bay and a nice post-bar exam vacation?
Frank - August 28, 2006 at 4:18 pm
My sense of the opinion is that the judge found the course promoters quite distasteful, and wanted to put them out of business.
I thought the weakest part was the damages section, where he just plucks from nowhere a notion that 1/3 of PMBR’s revenues were due to the 100 or so substantially similar questions.
Admittedly, PMBR apparently did not submit good information on the companies’ books. But it seems to me that this is a case where statutory damages are far more appropriate than an “accounting of profits.” He could easily have gotten to the $11 million figure by fining them $100,000 per question.
FWIW, I have a post on this today at madisonian.net.
clvarallo - April 20, 2007 at 10:49 am
I’ve been in practice a long time and I’m licensed in 3 jurisdictions – soon to be 4 if all goes well this July ’07. PMBR is by far the best MBE review course I’ve taken, because of the number of practice questions. By the time you get to the exam you’re proficient with (1) time management; (2) legal nuances and distinctions; (3)confidence. There may be a few answers that can go either way in the materials, but it’s usually because the Bar Examiners sometimes give credit for two answers. I would recommend it to any individual studying for the bar exam. And for the guy who was thinking of not taking a review course, that’s just plain stupid. Even if it’s not PMBR, you’ve gotta take a review course.
CLV
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