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What's the Penalty for Publishing Bar Questions?

The National Conference of Bar Examiners (NCBE) is on a mission to discover who posted 41 multiple-choice questions from the 2006 MultiState Bar Exam (MBE) on a Web log, according to this article, EarthLink Subpoenaed for Customer Records When Anonymous Web Posting Reveals Bar Questions (4/20/07). The NCBE, represented by Fulbright & Jaworski, has obtained a subpoena directing EarthLink to reveal the identity of the poster. The NCBE claims that the poster violated U.S. copyright laws that protect the exam questions, as well as a warning on the exam that states that "unauthorized disclosure of the contents" can result in criminal penalties, cancellation of test scores or denial of a bar application. 

Professor Maule has harsh words for the anonymous poster. He writes:

Posting the questions on the internet is foolish and dishonest. Doing so is an act of ignorance, not only about the restrictions but also about the consequences. Simple common sense tells a would-be lawyer that exam questions ought not be disclosed. The copyright law protects the owner of the copywritten material. Violating the copyright illegal; even if it does not violate the criminal law, it breaks the civil law.

The issue isn't as clearcut, however, for Alfred Yen in this post at Yen writes:

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?

As for me, quite frankly, I don't see what all the fuss is about. For starters, the poster only posted the questions, not the answers. If viewers don't know the answers, then what's the harm? Moreover, some of the MBE questions are so obtuse that I'm not certain that a group of law professors would always agree on the right answer. Moreover, I assume that the NCBE owns hundreds of multiple-choice questions and that it doesn't give the same exam year after year. And indeed, the NCBE couldn't give the same test, because exam takers who flunk and need to retake the exam, presumably, don't get the same combination of questions each time around. So again, what's the harm in posting questions that won't benefit test takers?

I realize that test takers agree to the warning that they won't reveal exam questions, and for that reason, I understand professor Maule's point about how those who violate that pledge are acted dishonestly. But test takers don't have a choice but to make that agreement, or they can't take the bar. To me, whomever posted the exam questions wasn't acting in defiance of NCBE's regulations; rather, he or she was trying to generate some discussion over the questions or give others an idea of what's in store on the bar. Perhaps the poster violated the forced pledge, but given that NCBE hasn't been harmed, I don't think that a severe penalty is warranted.

Posted by Carolyn Elefant on April 24, 2007 at 07:51 PM | Permalink | Comments (6)


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