Is It Test Prep... Or Is It A Copyright Violation?

from the misuses-of-copyright-law dept

Mon, Jul 7th 2008 11:08am — Mike Masnick

The standardized testing business is a big business -- though many are extremely critical of it. However, given how many universities rely on standardized tests for admissions, it's difficult to overstate how important some of these tests can be. And, because of that, there's a huge ecosystem of test preparation built around all of these tests, trying to help applicants prepare for the exams. These usually involve practice exams, often with questions from older exams. However, what if you got questions that were appearing on current exams? Given how many people take these tests, would it really be that surprising that someone would tell others about some of the questions they received on the test? In the long run, it probably wouldn't make a huge difference in testing results since it's unlikely anyone would see all the questions they could get, let alone remember the correct answers (it would be easier to just study in general).

However, one website that did test preparation for the GMAT (needed for business school) not only was sued for copyright infringement because test takers passed on "live questions" to the site, but in winning the case, the creator of the GMAT, Graduate Management Admission Council (GMAC) got access to the all of the site's computers, logs and records: meaning that it's now threatening to go after those who used the site, potentially getting them kicked out of school or having their degrees revoked. It's one thing to go after obvious "cheaters" but this is very much a gray area. These students were simply doing test prep, trying to practice with various questions. It's not as if they had the actual test itself beforehand. Would they similarly go after a friend who had taken the test who then mentions a couple questions he remembers to someone else? Furthermore, it seems really questionable to use copyright for this purpose. The test prep site wasn't "competing" with GMAC. If anything, it was driving more business to GMAC by helping people get ready to take the GMAT.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: business school, cheating, copyright, gmat, test prep
Companies: gmac

15 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Johnny, 7 Jul 2008 @ 11:36am

It's all a joke...
In the US anyway. Teachers in public schools teach to standardized tests. Collage Prep courses teach the tests. Students don't learn the material, they only learn the answers to preconceived questions. They then get into collage and get lost because all they know is the answers to certain questions, well, at least until collages get on the standardized test bandwagon.

..
[ link to this | view in thread ]
Anonymous Student, 7 Jul 2008 @ 11:41am

How is this any different than the study schools that are found in Japan, South Korea, India, and China? You don't see GMAC going after any of those programs do you. Two friends of mine, one from China and another from South Korea, each spent the better part of a year studying for the GMAT exam.

The question as to whether something is a 'live question' and having copyright over a question is just absurd. How can GMAC honestly tell us that they were the only group/people to ask such questions before. It is like copyrighting the question, How are you?

It is all bollocks!
[ link to this | view in thread ]
Joseph Wills, 7 Jul 2008 @ 11:47am

Re: It's all a joke...
Somehow, I don't think you've been to "collage." You probably haven't been to college, either.
[ link to this | view in thread ]
Grae, 7 Jul 2008 @ 11:55am

What exactly are they claiming copyright on? I assuming the questions and answers are based on fact, otherwise they'd be useless to the schools, so are they trying to claim ownership of hypothetical situations (i.e. the questions) based on fact? Does that even fly under copyright law?
[ link to this | view in thread ]
Brooks, 7 Jul 2008 @ 12:37pm

Umm....
Johnny: you haven't taken one of these tests, have you? It shows.

Grae, I think the issue is copyrighting the test itself, and arguably individual question/answer sets. I don't think anyone is claiming that they have a copyright on "What is (3x - 6)(2x+4)?" -- what they are claiming copyright on is that question plus "a) 6x + 24, b) 6x - 24, c) 6x^2 + 24... etc" -- the set of a question and answers.

It does seem dodgy to me, and if the exaxt same question and possible answers came up in a different context (especially if the answers were in a different order), I'd have a hard time supporting the copyright claim. But for a site to say "This is a question and its possible answers taken from the real GMAT, presented exactly as it appeared on the test," well, I think I'm going to support the copyright claim there.

The law is primarily concerned with fact, not intent, but I certainly see some value in protecting qualification tests from widespread dissemination. At least, I can't see that it would in the public interest to assert that even complete tests with every question intact should have no copyright protection.

That said, to the extent that there is legal basis for asserting copyright on individual questions, it makes sense to go after commercial operations that are reproducing them, but it is crazy and indefensible to go after end users. That's not going to be a smart move, either legally or from a PR standpoint.
[ link to this | view in thread ]
Anonymous Coward, 7 Jul 2008 @ 12:38pm

Re:
They are not copyrighting the facts, but how the question and answers are worded.
[ link to this | view in thread ]
Brent, 7 Jul 2008 @ 12:41pm

Re: It's all a joke...
College....it's spelled college.

Collages are things you did in art class.
[ link to this | view in thread ]
Brooks, 7 Jul 2008 @ 12:46pm

PS
Argh, thought of this after I posted. It's also important for armchair experts to know that, for the GMAT in particular, about 25% of the questions are "experimental" -- that is, they don't count toward your score. GMAC uses these to test new questions and ensure that test takers' answers on them correlate well to the real questions, so GMAT scores can be relatively comparable over time and over different versions of the test.

There's no indication of which questions are experimental. So part of GMAC's concern here is probably that experimental questions which will appear verbatim on future tests are being posted to prep sites, which serves to devalue the test as an indicator of MBA success.

None of that has bearing on copyright law -- this could be argued as one of those "interfering with a business model" things, where just because it's inconvenient for GMAC to have its results devalued doesn't mean that infringement took place. But it's still worth noting something that's probably part of their motivation.
[ link to this | view in thread ]
Kilgore Trout, 7 Jul 2008 @ 1:48pm

A modest proposal
How about we just outlaw MBA degrees?
[ link to this | view in thread ]
Anonymous Coward, 7 Jul 2008 @ 1:48pm

I've always liked the way the FAA does this for pilot written tests. When you take the test for real, you will see 60 or so questions pulled from a pool of 600 or so. Those 600 are PUBLISHED and you can review them as much as you wish.

Of course, if the published question has something like "how long... X miles... wind is Y... aircraft speed of Z..." or whatever, the X and Y and Z values are all changed on the "real" question. Further, these are multiple choice, and the answers are carefully chosen so that the common ways to miscalculate are in the list of choices. And the just plain "memorization" questions, no math, like "To whom do you report an accident?" also have different wrong answers on the "real" vs. "published" questions and the wrong ones are carefully selected to look very reasonable.

Anyway... publishing the questions, then changing only the values and/or answers on the "real" test... it is a very effective technique. It forces the test taker to have actual knowledge of how to work the problems.

And, it neatly sidesteps all the copywrong BS.
[ link to this | view in thread ]
jonk, 7 Jul 2008 @ 2:20pm

they are competing
gmac does sell the "official study guides" and they have official classes too. So these types of websites ARE competing with them. They dont need any help getting people to take the test, it is required for almost all b-schools!

What they need to make sure is that the test scores are useful as a 'first cut' to weed out applicants. If people start cheating/ acing these tests and schools decide a super high GMAT is wirthless, then gmac is useless.

I've taken the GMAT. It is really , really difficult. Basically it keeps getting harder until you fail. Eight hours of fun! I dont think seeing a few questions ahead of time would really help. This move by gmac is more to show the colleges that test is meaningful than it is about catching ' cheaters'
[ link to this | view in thread ]
Anonymous Coward, 7 Jul 2008 @ 5:36pm

And I suppose that the Graduate Management Admission Council is quite proud of their staff who lack the initiative to do any self study and research.
[ link to this | view in thread ]
Danny, 7 Jul 2008 @ 6:12pm

This is a huge problem
GMAC going after the test takers is even worse than the RIAA going after down loaders; these guys did even less wrong.

GMAC probably can't win any direct judgment against them; and any college worth its salt will ignore the GMAC on this particular point.

But Mike's point about the test prep ecosystem and AS's (above) about non-US test prep are on the mark. Of course GMAC will have a much harder time going after overseas test prep process, but overseas is where the major issues are.

To point:

I sat on our PhD admissions committee a few years back. We had almost 50 applicants from mainland China. Over 40 of those 50 applicants had a Math GRE score of 800. Not near 800, but 800.

We inquired about this both with our contacts in China and among our current Chinese students. We learned that the prep schools in China hire test takers to go in to each exam, and each taker is assigned specific question numbers to memorize. [I note now that question order randomization would help here; perhaps the GRE does so today.] The prep schools do this often enough that they are able to build and maintain a complete database of the exam question pool. Then their prep students are given, over time, the entire database of questions and answers to memorize.

So, yes, the students work hard to memorize the question pool. That the 800 scores are from students studious enough to complete the memorization process. But, of course, this does not at all test the students' ability to solve a new and unknown question.

We ended up ignoring the GRE scores and evaluating the Chinese applicants in other ways.
[ link to this | view in thread ]
Josh, 7 Jul 2008 @ 7:23pm

Other questions
If the GMAC wins its case, what would that mean for other questions in other sources? Could math textbook publishers copyright specific questions, so if a teacher wanted to use one on an assignment, would that be infringement? Maybe this isn't relevant, but it would set a ridiculous precedent if it were the case.
[ link to this | view in thread ]
average joe, 7 Jul 2008 @ 7:33pm

Re: they are competing
what GMAT did you take? Mine lasted less than half that and I made a 690 without much prep. Don't consider myself ivy material, just didn't get overhyped. These test companies are crooks, basically have a monopoly
[ link to this | view in thread ]