Friday, August 7, 2020
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PARCC attacks critics with copyright claims

The Partnership for Assessment of Readiness for College and Careers, or PARCC, sent takedown requests to Twitter for several tweets that linked to active test questions that had been posted from the fourth-grade English language arts test, the Washington Post reported in May.

An anonymous teacher posted a piece on the blog of Celia Oyler, an education professor at Teachers College at Columbia University, that harshly critiqued the test and included three questions from the test to support that negative opinion. Others tweeted about the blog post. We can no longer provide a link to the original blog post or to the tweets about it, except for this one, which merely refers to it:

This is a notice filed under the Digital Millennium Copyright Act. A DMCA takedown notice is a notification to a company, usually a web host, platform (like Twitter), or a search engine, that they are either hosting or linking to copyright-infringing material. It provides them notice to remove the copyrighted works. PARCC issued more than 30 takedown notices.

“Students are given an unfair test environment when anyone posts active test questions on the Internet—whether the test is PARCC, the SAT, or any other exam,” the Post quoted Heather Reams, director of communications and public relations at PARCC Inc, as saying in a statement. Laura Slover, another PARCC official, sent a letter to Ms Oyler, part of which is reproduced here:

PARCC, Inc. is the owner of all intellectual property contained in the various PARCC assessments (other than third party literary excepts, for which we have reprint permission), including the essay prompts you have posted. Those prompts are protected by copyright. In addition, the materials are treated as confidential information as they are “live” test questions; indeed, the teacher who furnished you with the material stated in her essay that he or she had breached a written undertaking not to reveal any of the material and wished to avoid personal responsibility for having done so.

Your reproduction of those items infringe the PARCC, Inc. copyrights in the test, amplify the teacher’s breach of confidentiality, and threaten the utility of the assessments, both as their administration is completed over the next few weeks and in versions of the assessment to be administered in the future.

On copyright of test questions

Although I support confidentiality and non-disclosure of test questions, I also think PARCC’s claim of copyright infringement would not hold up in court. In other words, while the teacher who exposed the test questions acted against the terms of his or her employment and should be fired and suffer any appropriate civil penalties, I believe application of the DMCA takedown notice, dozens of times, cannot be supported by current case law.

For example, when the publisher of two trivia encyclopedias sued the makers of the “Trivial Pursuit” game, a district court granted summary judgment in favor of the defendants and the US Court of Appeals for the Ninth Circuit affirmed the judgment.

The case, Worth v Sechlow & Righter Company, basically said questions like those asked in “Trivial Pursuit” cannot be copyrighted. That was in 1987 and the DMCA came about in 1996 or so. But the nature of the content suggests that questions asked on a test are not the intellectual property of anyone, including PARCC Inc.

However, substantial differences exist between the nature of PARCC questions and the nature of questions in “Trivial Pursuit.” For example, many PARCC questions involve multiple choice, where the student must choose one, two, three, or four “correct” answers from a list of between four and six options, which are not included in Trivial Pursuit-like games that only have the questions. Those differences, however, were not the subject of the teacher’s critique on the offending blog post.

But PARCC should think twice before asserting an actual copyright interest in questions about math or reading in the future, since a loss in court would be devastating to the testing industry. If PARCC, as the only agency that would appear to have standing in the case, since they claim to be the owner of the intellectual property on the test, were to actually sue someone for infringement of copyright, they might shoot themselves in the foot.

We note that PARCC has decided to release several hundred actual test questions on a routine basis. The last public release was in October. So I’m on their side when it comes to transparency. I just think they overstep their bounds—and may be reflecting a superficial understanding of copyright law—when they claim they have a “copyright” interest in test questions.

Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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