Can Copyright Law Prevent Cheating on Exams?

by Jo Dale Carothers, Ph.D.
The IP Law Blog

The recent opportunities for remote work and learning have provided improvements in lifestyle for a number of employees and students. Many of those able to work or study from home have benefited from more flexible schedules, reduction in time and money spent on commuting, reduction in work- and school-related stress, and more family time. But those benefits have come with some new challenges. For example, professors and teachers have confronted the challenge of how to prevent students from cheating on exams. When standard approaches failed, a business professor recently turned to copyright law, hoping for a solution.

David Berkovitz is an Assistant Professor at Chapman University in Orange, California. During the spring 2021 semester, he taught Business 215 to remote students. As part of that course, Prof. Berkovitz administered a midterm exam and a final exam, which comprised copyrighted material. According to reports, he included strict exam instructions, including “forbidding students from using any class materials, notes or online resources while taking the tests,” and instructing the students they were “prohibited from copying any part of the exam.”

Despite those instructions, around January 2022, he learned that portions of the two exams had been posted on the Course Hero website, along with requests for help with the questions. The Course Hero website is an education-focused website for document sharing.

It has been reported that Prof. Berkovitz found evidence that one or more students sought help with the questions during the actual exam. His attorney stated that after finding portions of his exam on the public website, Prof. Berkovitz contacted Course Hero, seeking the identity of the students who posted his material. Course Hero declined to provide the information absent a subpoena.

To obtain a subpoena, Berkovitz would have to register his copyrights and file a lawsuit for copyright infringement, which he did. His complaint named John Does 1-5 as placeholders for the students to be identified during discovery. Berkovitz alleged that the Defendants infringed his exclusive right to reproduce, make copies, distribute, or create derivative works by publishing the midterm exam and final exam on the Course Hero Website without permission. He further alleged that Defendants knew or should have known that their acts constituted copyright infringement. Given the exams were part of a business law class that included the topic of copyright infringement, the professor’s attorney found the copying ironic.

This lawsuit was dismissed one month after it was filed. Likely, a subpoena issued and the individuals who posted the material were identified, at least by user account, and are being dealt with through the university’s honor code provisions.

This case, however, raises the problem our educators are facing: when dealing with remote learning, it is difficult to police exams but necessary. Cheating artificially inflates grades and skews curves, potentially causing students who did not cheat to receive lower letter grades than fair.

To counter this problem, some faculty have used cameras and monitoring systems or services to watch students take exams, but that raises various privacy rights and requires viewing of hours of videos. Some have made the exams open book, hoping to reduce the “need” for cheating. Some make exams extra difficult or longer than normal to leave little time for unsanctioned collaboration. Some use multiple choice questions in random order with the answers randomly scrambled, making it harder for students to compare answers remotely.  One faculty member conducted individual exams orally by videoconference but that raises issues of whether each student had the same test experience. Others rely on the integrity of the students and the honor code of their schools, hoping students will not risk failing the class or being kicked out, if they are caught cheating.

But Prof. Berkovitz, an attorney, used a more creative approach by turning to copyright law. While he apparently was not truly interested in a monetary sanction against the students, he apparently did want to identify the students and have them sanctioned under the university’s cheating policies. Hopefully, this will have the effect of deterring students from seeking outside help on sharing websites, because they now know that it is not only cheating, but a violation of copyright law. Not only can this lead to monetary damages, but also, as in this case, they risk having their identity exposed through a subpoena to the website where they posted the material.