Saturday, September 25, 2021

Can you copyright a test question?


Yesterday the Supreme Court of the United States handed down a 7-1 ruling to deny a plaintiff’s claim to patent rights concerning the use of its product after it was sold.

The case involved Lexmark, which manufactures toner cartridges for printers. The company was disturbed that another company had sprung up who was buying spent toner cartridges, refilling them, and selling them at a price lower than Lexmark was selling the new cartridges.

Lexmark said the company couldn’t buy, refurbish, and resell its cartridges, because doing so infringed on Lexmark’s patent rights in the product. The circuit court agreed with Lexmark, but the Supreme Court ruled nearly unanimously that no such patent right exists.

Keep in mind, patent holders are free to impose restrictions on the use of their technology or manufactured products after people buy them—say, by a contract between the patent holder and the buyer—but that contract cannot restrict the rights of third parties that weren’t involved in that initial sales contract.

A unanimous Supreme Court?

It happens occasionally. Not in this case, but even this one was pretty close. You may find it interesting that the Supreme Court, with a wide variety of political views held by its justices, could all agree on something.

The big news stories about the Supreme Court usually involve the controversial cases that are almost never decided unanimously. But it happens more often than most news reporters or media companies would like you to believe. The stories just aren’t all that exciting, and except for lawyers, people generally aren’t interested in these cases.

Why are we reporting this?

You may also be wondering why a school news service is reporting this story. That comes down to testing. Everybody has assumed that tests, like those from PARCC, are copyrighted. Notices are printed on them in written form that they can’t be reproduced. But that notice is about the test in its entirety, which is published as a collection of questions. No one can reproduce the entire test (or a sizeable portion of it) without infringing on the copyright interest of the test designer.

Last year, PARCC Inc issued a DMCA take-down notice to dozens of websites that had gotten a hold of a few test questions and republished them. Everybody who got the notices, which serve as a polite request to remove content because the original writer has a copyright interest in the material, complied, but only because fighting them would cost a lot more money than this particular fight would be worth.

As I wrote, those notices would be unenforceable, since you can’t copyright individual test questions. Test questions are basically a restatement of a known fact. Whether that fact is “What is 5+3?” or something more complex about algebra, those facts can’t be copyrighted. For the purposes of fair criticism, copyright law specifically allows a small portion of a copyrighted work to be reproduced. This is known as fair use.

Now, there are other protections in place that keep test questions safe and secure and out of the hands of would-be cheaters. Teachers sign confidentiality or non-disclosure agreements, etc., and they’re bound by those contracts by virtue of their teaching license. Teachers in Maryland, I know, have been stripped of their license for violating these contracts.

But when PARCC issues a DMCA take-down notice to people like Anthony Cody, who doesn’t work for PARCC or a school but for a news organization, PARCC is claiming an actual copyright interest in the test questions—a right that absolutely does not exist.

Mr Cody chose to comply, probably on the advice of attorneys, and take down the test questions from his blog, but if he had chosen to fight it, I am quite certain he would have won and PARCC would have been defeated. It’s just that, who has money to fight frivolous claims like this? Not Education Week, obviously.

As a writer and reporter, I have absolutely no interest in publishing content that is protected by a confidentiality or non-disclosure agreement, because, as an employee of the Maryland State Department of Education, I couldn’t do my job properly if I were to disclose this information, since releasing content to kids who have internet access when that content isn’t available to other kids makes the tests themselves unfair.

If I were to do something like that, I would be fired immediately, as I should be. But MSDE would lose in court if the basis of their claim was that I had violated a “copyright” interest they have in the test questions. There is no enforceable copyright interest in test questions. Nobody can enforce a right that never existed in the first place.

The Lexmark case is known as Impression Products, Inc. v. Lexmark International, Inc.

Paul Katula
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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