Is copyright law the best tool for responding to student cheating?

A Chapman University professor has sued a handful of his former students. Berkovitz v. Does, 2:22-cv-01628 (C.D. Cal., Mar. 11, 2022). The complaint charges that they violated his copyright in his former examinations. They were uploaded onto a popular website used for study and test preparation. Professor sues 5 unknown students in copyright case, L.A. Times (Mar. 20, 2022, p.B3).

The plaintiff’s lawyer claims that this professor “has been contacted by dozens of professors all around the country applauding him and cheering him on.” Professor draws praise for suing to out cheaters, Daily Journal (Mar. 21, 2022). Both individuals claim that this uploading of the professor’s prior exams is unfair to the students that do not have access to them.

There are two other actors in this drama: Chapman University and a website named Course Hero. A university spokesperson stated that its professor’s ethics concerns cannot be investigated at present. No one knows the identity of the uploaders. But she did say this unauthorized posting likely violates the school’s Academic Integrity Policy <https://www.chapman.eduacademics/academic-integrity/_files/academic-integrity-policy,-2021-22.pdf>. The other entity is Course Hero. It hosts the website where the former exams were posted <www.coursehero.com>. The site does not tolerate copyright infringement. But it will honor appropriate takedown requests.

One might bristle at the hypocrisy of the best practices issue presented. Should professors mask their past exams? Should they write new ones, and share the old ones with students who can better prepare for their exams? Furthermore, not sharing this tool ignores the constant threat of information breaches.

I posted more than two decades of all my exams (prior to my 2018 retirement). They remain on my course websites for all to view and study. See, e.g., https://www.tjsl.edu/slomansonb/FED_CP1_e-book.html, scroll to Prior Final Exams. I encouraged my students to study those exams. These were vehicles for facilitating both student learning and exam preparation. They illustrated my summative expectations. I never had a concern about a tech savvy student having greater access to my work product than others. I believed that writing new final exams for all my courses kept me up to date on the latest developments in my field. Their online availability also meant that any mistakes on my part would be conspicuously viewable to all the examined and future students. That motivated me to exercise an additional layer of caution when drafting exams.

The plaintiff’s attorney told reporters that his client’s lawsuit is less about punishment, and more about protecting others. But uploading prior exams would provide maximum protection for all students in the highly competitive college and graduate school environment. This reluctance effectively promotes a black market for such prior exams. Many university students are on scholarships requiring a minimum grade point average. Removing the incentive to surreptitiously republish prior exams prevents these supposed crimes of opportunity.

There are a number of questions related to the presumption that professors should lock up prior exams, to prevent access by future students. First, are the alleged cheaters really cheaters? One can reasonably conclude that the plaintiff professor did not expressly prohibit the use of his old exams−so as not to bring attention to their existence.

So do university policies specifically address the plaintiff’s cheating claim? Chapman’s most relevant Academic Integrity Policy (AIP) violation is the “[f]raudulent possession of a test prior to exam date, or possession of a similar test (e.g. from a different section of a class) that has not been distributed back to students.” The plaintiff’s lawyer could claim that applying this language to the sharing of prior exams embraces the spirit of the AIP. But it would violate the due process rights of an alleged cheater. Drawing upon a criminal law analogy, there can be no crime without a defining statute. Linking Chapman’s quoted AIP provision with the “Doe” defendants’ former exam uploading is a bridge too far. Their careers should not be jeopardized by this academic sleight of hand.

One hopes that other universities have been as vigilant as Chapman, via its comprehensive listing of policies, violations, and sanctions. But the first step in dealing with academic dishonesty is defining academic dishonesty. Chapman’s quoted articulation was apparently meant to apply to the surreptitious acquisition of an exam about to be given. Stretching Chapman’s AIP policy, to cover this alleged breach, would contravene academic best practices.

The plaintiff and his attorney claim they did not file the Los Angeles federal copyright suit for monetary gain. The professor’s suit will supposedly be voluntarily dismissed when the identities of the student uploaders are obtained. That revelation would be followed by triggering the university’s Academic Integrity Process. Yet the plaintiff professor’s legal arsenal includes the reported threat of a class action lawsuit.

The glaring procedural tactic−suing multiple unknown “Doe” defendants in federal court − presents yet another question about the viability of this lawsuit. In an oft-cited opinion, the Ninth Circuit growled that: ‘‘ ‘[t]hese John Doe complaints are dangerous at any time. It is inviting disaster to allow them to be filed and to allow fictitious persons to remain defendants if the complaint is still of record. . . .’ ’’ Craig v. U.S., 413 F.2d 854, 856 (9th Cir. 1969) (citing precedent). A survey of federal judges revealed that they generally abhor “Doe” defendants in federal court. Slomanson, John Doe Strikes Out in the Ninth, 8 California Lawyer 51 (May, 1988).

There is also a problem in state practice. “Doe” defendants routinely appear in California state practice. Cal. Code. Civ. Proc. § 474. But they are not as welcome, when the plaintiff sues multiple “Does” but no named defendant. Per Pearlson v. Does 1-646: “no defendants were named in the complaint, only fictitious defendants pursuant to section 474. While such a pleading is legally permissible, the fact that appellant cannot identify even one potential [named] defendant in connection with allegations of nefarious conduct … raises a significant question regarding the viability of the claims alleged.” Pearlson, 76 Cal.App.th 1005, 1010, 90 Cal.Rptr.2d 787, ___ (1999).

Professor Berkovitz’s lawyer will likely assert that he has a reasonable chance of identifying the five unknown defendants. A subpoena to Course Hero would presumably aid in that quest. But there is an unavoidable substantive issue regarding using the judicial process to seek discovery in this case. The Chapman University Academic Integrity Policy − as illustrated above − does not neatly wrap around the “cheating” alleged by the complaint. That problem will presumably surface, when another unknown player− a defense attorney − moves to dismiss the complaint and plaintiff’s related plea for discovery.

In this writer’s opinion, opting to deny access to old exams also denies equality of opportunity to all students. So it is not a given that the hearing judge will fill the above substantive and procedural gaps.