Licensing Boards Think Studying For A Test Is Copyright Infringement, Forbid Memorization Of Material

from the 'all-applicants-must-have-brain-wiped-before-leaving-testing-area' dept

Today’s copyright-induced stupidity is brought to you by… a whole host of regulatory institutions. An anonymous Techdirt reader sent in a pointer to this ridiculous warning that greets those accessing the National Association of Legal Assistants practice tests. (Press “Sign In” to view the legal threats pop-up.)

These online practice tests and all items contained herein are protected by federal copyright law. No part of this examination may be copied, reproduced or shared in any manner, in part or whole, by any means whatsoever, including memorization or electronic transmission.

While I realize there have been several attempts to broaden the coverage of copyright and extend its length towards the far end of perpetuity, I was unaware that federal copyright law now provides remedies for the creation of infringing memories.

This would be merely inane (but still noteworthy), if this stupidity began and ended with the NALA’s stern warning. But a search for that wording finds examples elsewhere.

Here’s the National Board of Chiropractic Examiners making the same ridiculous claim:

These sample tests and all items contained herein are protected by federal copyright law. No part of these tests may be copied, reproduced, or shared in any manner, in part or in whole, by any means whatsoever, including memorization or electronic transmission.

Here’s Michigan State University going one step further than the previous two and basically stating that studying for a test is copyright infringement.

The examination and the items contained therein are protected by copyright law. No part of this examination may be copied or reproduced in part or whole by any means whatsoever, including memorization, note-taking, or electronic transmission.

Who else thinks copyright law forbids the storage of infringing copies in the original cloud storage system, the human brain?

The list goes on from there, but as you can see, anyone offering some sort of expensive testing process/licensing claims you can’t memorize their tests. How they aim to prevent this remains unanswered. Presumably, if someone duplicates the test from memory and offers these materials to others, they would pursue this as infringement.

It’s clear they’re trying to head off students selling questions and answers, something that could undermine the certification system. (Of course, these agencies could change their questions from year-to-year to head this off, but that would be far more difficult than just smacking around applicants with highly-dubious legal language.) But claiming that memorization is forbidden under copyright law is just idiotic. Unauthorized duplication and distribution might be, but creating cached copies in your mind while studying certainly isn’t. It’s an integral part of studying for tests. Throughout their educational existence, students use memorization to become familiar with the subject matter, and now, when they attempt to apply that in hopes of receiving certification, they’re greeted with notices that say this practice is against the law.

Then there’s the question of fair use, that awkward part of copyright protection that many rights holders tend to ignore. A few sample questions being reproduced would be an obvious case of fair use, but according to the (literally) “don’t even think about it” warnings, this would also be an actionable offense.

A better solution would be to simply strike that asinine wording and deal with actual duplication of test materials that stretch beyond the limits of fair use. Those performing these acts of infringement are generally in it to profit from those who can’t be bothered to learn the material. Chances are, most people wouldn’t view the edited legal preamble as providing a but-I-can-store-it-in-my-brain loophole. The same goes for note-taking, which a few of these notices also single out. The problem isn’t the person’s notes, which are still personal. It’s the duplication and distribution to the public. You can still keep people from taking notes during the actual tests, but you certainly can’t keep them from remembering what they’ve seen.

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Comments on “Licensing Boards Think Studying For A Test Is Copyright Infringement, Forbid Memorization Of Material”

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91 Comments
Anonymous Coward says:

Re: Re:

no no no.. your approach is a bit wrong.

when taking the test for the exam write as answer: “according to the exam preparation rules, answering this question would be a copyright infringement violation”.

they HAVE to pass you with an EXCELLENT rating.. if not, you can sue their asses off for inducing copyright infringement.

Anonymous Coward says:

Re: Re: Re:

No no no, your approach is also wrong.

First you pass the test, then they can sue you for copyright infringement. Because obviously you memorized their intellectual property if you were able to pass the test.

But don’t worry, I’m sure they’ll work out a settlement with you, that involves say forking over 25% of your annual salary to them once you get a job that requires that certification.

Anonymous Coward says:

Legal idiocy is a rapidly traveling meme

Actually understanding the law tales work, and even lawyers got lazy at times, especially when confronted with something outside their specialty. Said lazy lawyers simply copy boilerplate text that seems relevant, assuming whoever wrote it actually did their legal homework. In fact, a lot of said boilerplate gets created by someone working way outside their specialty, doing a half-assed job, and throwing up anything they think *might* benefit their client.

This kind of crap is very akin to classic urban legends; no one knows where it comes from, there’s no evidence to support it, and it’s easy to find some idiot to swear that it’s absolutely true and they got it from a friend of friend.

Violynne (profile) says:

When I turned my test in, I put a disclaimer on it.

“The answers submitted are protected by United Stated Federal Copyright Law.

It is unlawful to use these works without express permission from the author.

If examination of the results is required, please contact the author for licensing terms.

Violators will be prosecuted to the fullest extent the law allows.”

I keep getting straight A grades.

Lucky me.

Austin (profile) says:

Quite Literally Insane

Insanity is a word that gets bandied about a lot but I do believe this is the most literal example of insanity I have ever witnessed, even here on TD, which is saying something.

They’re saying – someone PLEASE tell me I’m wrong – that if you memorize the information you’ve committed copyright infringement?

Let’s totally forget the fact that this is a system designed SPECIFICALLY TO AID IN >>>>> MEMORIZATION

Austin (profile) says:

Quite Literally Insane

NOTE: Reposting this because it took me a while to write it and apparently TD comments can’t include less than signs…

Insanity is a word that gets bandied about a lot but I do believe this is the most literal example of insanity I have ever witnessed, even here on TD, which is saying something.

They’re saying – someone PLEASE tell me I’m wrong – that if you memorize the information you’ve committed copyright infringement?

Let’s totally forget the fact that this is a system designed SPECIFICALLY TO AID IN MEMORIZATION FOR A TEST. Because rather than focusing on imbuing students with logic and reasoning in this country and letting natural curiosity take over, we throw volumes and volumes of raw information at students and pray that 70% sticks. I mean, Christ, we teach by shotgun, basically.

Disregarding that, how would this theoretical “copyright-violation-by-memory” be any different than me simply REMEMBERING a famous line from a movie? I’m remembering several right now. If the MPAA is employing any psychics right now, this would make me liable for at least 30+ cases of infringement. And it’s my memory! It’s not like I can manually make myself dumb because the law demands I do so. I can ACT dumb in the TSA line, sure. But I can’t BE dumb on command. Sorry, I really can’t.

What about music? Do I need to only remember the rhythm to infringe or does it have to include the lyrics? What if I’m playing Name That Tune in the car? Is the fact that I remember 90% of the song before it has played (well, usually) also infringement?

GASP! Wow I just had an epiphany. The RIAA needs to sue the MPAA for the TV show Name That Tune! I mean, clearly ALL of those contestants were committing memory-copyright-violations! That’s all that entire show was! And if they sue them, it has to be for every single song, even the ones where the contestants got the right answer after like 5 seconds, because clearly they were thinking of the whole song in their memory! This could be great, guys! We could have one goliath slay the other for us!

But of course, then remembering anything that has happened at all in the last 140+ years (or however long the specific copyright term for the specific thing is) is now a crime. Drats! Well, it was nice knowing you internet, electricity, and everything it has spawned since! I gotta go forget my entire life plus 70 years now, buh-bye!

Dan J. (profile) says:

Re: Re: Quite Literally Insane

Finally, someone gets it. This is a case of lawyer-speak running wild, but they’re not trying to say you can’t remember the information. They’re saying (or at least trying to say) you can’t take the test, memorize some or all of the questions, and then pass them on to other test takers. There’s a huge market for test questions on all sorts of qualification exams. Want to pass a test? Pay a membership to one of many websites that specialize in distributing the test questions, study the questions enough to recognize the correct answer, even if you have no real understanding of what the question is asking or why that particular answer is correct, then go pass the test. This devalues the certification and puts unqualified people in positions that should go to those who’ve taken the time to actually learn and understand the material. Yes, it’s a stupid way to phrase it but the intent is reasonable.

Anonymous Coward says:

Re: Re: Quite Literally Insane

So let’s say the exam is for people who are training for some life saving activity, like nurses or doctors…

They’re saying that once the exam is over, the ex-students aren’t allowed to think of any of the scenarios, find one that matches, take action on it (to save a person’s life) and then log it in the log book, because the log would be in copyright violation of the exam.

Yeah, we know the intent of what they’re saying: “Don’t reproduce the exam questions and sell/trade them with others taking the exam in the future” — but then that’s what they need to put on their legal warning; NOT “do not commit this exam to memory” which is what they HAVE stated.

I thought Tim was pretty straightforward about that in the article.

Anonymous Coward says:

Re: Re: Re: Quite Literally Insane

Wrong. Here’s what they HAVE stated:

“No part of this examination may be copied or reproduced in part or whole by any means whatsoever, including memorization, note-taking, or electronic transmission.”

If you remove the lawyerly crap & simplify it, it means this:

“…this exam may be … reproduced … by … memorization…”

As I said, you’re not allowed to REPRODUCE the exam FROM memory. I don’t know what they felt compelled to spell that out, but that’s what it says & means.

Anonymous Coward says:

Re: Re: Re:3 Quite Literally Insane

Yes. They are saying “this exam may not be reproduced by memorization”. What that actually SAYS is that you can’t keep a copy in your brain (that’s the only thing that memorization itself does) which is ridiculous.

We all know that what they MEAN is you can’t USE the copy in your brain to then type out the questions later, but then they should have said so. (Or not said so. It’s not like there’s some loophole where they must explicitly state that infringement by memorizing and then copying is infringement.)

Anonymous Coward says:

Re: Re: Re:3 Quite Literally Insane

To be fair, it won’t be a problem. The testmaker isn’t going to sue anyone for infringement for memorizing a practice test (unless they use that to make an actual copy), and people wouldn’t actually be afraid that they’d get sued for remembering a test, and if they DID try to sue someone for remembering something they’d lose badly.

The problem here is more general. Sure, we can recognize that THIS particular legalese is bogus, but we might not recognize that THAT particular bit of legalese is bogus. Or perhaps someone looks at that paragraph, correctly sees that it’s ridiculous, and incorrectly thinks that the fact that the warning is wrong means that they CAN copy the entire test.

Lawyers should be held responsible when they make ridiculous legal claims that have no basis in the law. If your lawyer tells you to put up a sign that says you aren’t responsible for damage done by shopping carts in your parking lot, but the law clearly says you are liable for that damage, then there should be an official mark against that lawyer’s license to practice law.

Anonymous Coward says:

Re: Re: Re:5 Quite Literally Insane

This person seems really sure, I’m sure someone is convinced.
Also this person does not think fighting lawsuits is expensive or that the simple threat of a lawsuit might be used to extract money via a so called “settlement” because obviously this has never happened – amirite?

Anonymous Coward says:

Re: Re: Quite Literally Insane

“They’re not saying you’re not allowed to memorize/remember the questions & answers. They’re saying you’re not allowed to REPRODUCE any part of the exam FROM memory.”

Try actually reading the story. “No part of this examination may be copied … by any means whatsoever, including memorization..” clearly states that it may not be copied to memory.

Jake says:

I Have A Theory...

The wording is similar enough that it’s plausible they all got their legal boilerplate from the same source. I mean, nobody hires a lawyer to write bespoke copyright notices at $300 an hour, right? And the firms that churn this stuff out probably do the same thing as the rest of the corporate Anglosphere and hand this stuff off to unpaid interns, some of whom are probably a lot less enamoured with current copyright law than their bosses and nearly all of whom know they’re being made to work 40 hours a week for empty promises instead of actual wages.

My conclusion? Someone decided to indulge in a little sabotage, and nobody noticed until now because nobody reads EULAs anyway.

OldGeezer (profile) says:

ASE certification testing

Before I retired I had 3 ASE automotive certifications. The system they use is a strong deterrent to cheating. There are different versions of every test so even if you could memorize every question there is not much way of using it to help anyone cheat. When you go for the testing you have an assigned seat that makes sure that you are not near anyone with the same version as you. The tests include five evaluation questions that are not scored. They are used to test the difficulty of questions for future versions of the test by the percentage of correct answers. Each question presents a problem and a diagnosis by technician A and B. Your answer is whether A or B is right, both are right or both are wrong. Trust me, you have to study your ass off to pass these tests.

John Fenderson (profile) says:

Re: ASE certification testing

“The tests include five evaluation questions that are not scored. They are used to test the difficulty of questions for future versions of the test by the percentage of correct answers.”

There must be more to it than that, because that makes little sense. First, why would they need special non-scoring questions to determine this. Can’t they get the same information from one the regular questions? Second, it makes it sound less like the test is gauging level of knowledge and more like the test is designed to adapt to be a “difficulty level” that is adjusted to the test-taking population. That would make a knowledge test fairly bogus. That can’t be right.

William O. B'Livion (profile) says:

You're missing what they're trying to prevent.

There are a bunch of websites where you can download various certification tests from “for practice”.

In effect these places offer you “the test” so you can avoid the hard work of studying and *learning* the material, and instead just memorize the specific answers needed to pass.

What this clause is meant to do is to tell you that *reproducing* the test is copyrighted and that by memorizing the questions and writing them out afterwards for distribution, you are violating the law.

John Fenderson (profile) says:

Re: You're missing what they're trying to prevent.

“so you can avoid the hard work of studying and learning the material”

You write this as if there is no legitimate purpose to practice tests. But practice tests serve an incredibly legitimate purpose: how you perform on the test has a lot to do with things aside from how well you’ve learned the material. Practice tests help to minimize the risk of doing poorly due to those other factors.

“What this clause is meant to do is to tell you that…”

We all know that. The point is that isn’t what the clause says. What it actually says is what matters, not the intent behind it.

ryuugami says:

These online practice tests and all items contained herein are protected by federal copyright law. No part of this examination may be copied, reproduced or shared in any manner, in part or whole, by any means whatsoever, including memorization or electronic transmission.

You view the online tests by electronically transmitting a copy to your computer.

So, what they’re trying to say is, “We give you access to these tests, but if you access them, you’re a dirty pirate terrorist lawbreaker.”

Anonymous Coward says:

What I want to see is East Asian countries like South Korea try and enforce this.

Memorization and dissemination of test questions is a fact of life for those communities. Anything to get an edge over the competition, i.e. everyone else. Using the test questions for mock exams is standard procedure for most East Asian schools. Universities have already tried to get around it by having unconventional entrance exam procedures. Didn’t work; concerned parents still figured out how to get the best responses out of examiners.

Make rote memorization of knowledge and questions a crime; you’ll have to arrest the whole fucking population of a few countries.

Whatever (profile) says:

I guess Tim you are trying to be funny (it’s hard to tell tongue in cheek from reality around here these days). However, I can tell you that there are people who want to know what is in an exam so that they can pass people. Since you cannot take in anything to copy with (no phones, no paper, no nothing), they will often ask people to remember a particular question. If they have multiple people going into the exam, they will ask them each to remember a different part. If you have a big enough sample, you end up with a pretty good indication of the questions on a given exam. That information is gold, especially if you are selling people on the idea of “we will assure that you pass”.

but you know that, right… ?

Whatever (profile) says:

Re: Re: Re:

Oh, Ninja, I think you are obnoxious too… remember that the chat shows up for everyone!

That said, it’s not about stopping the people from remembering, it’s about going after the companies who re-create the tests as a result of collecting this information. Few do it, but there is potential. They create a huge expense the exams must be updated and changed much more often to avoid this type of cheating.

Anonymous Coward says:

Re: Re: Re: Re:

“As you can see, I’ve memorized this utterly useless fact long enough to pass a test question. I now intend to forget it forever. You’ve taught me nothing except how to cynically manipulate the system. Congratulations.” – Calvin and Hobbes

Ask most adults if they remember everything from their schooling days. Most won’t. A large fraction will happily declare they’ve already disregarded most of that obsolete knowledge.

DaveHowe (profile) says:

I am assuming....

that this is actually aimed at “pass4sure” type websites, where memorizing the asked questions is a common method to acquire the actual question lists without having to sneak a camera or other recording device into the exam.

they are claiming copyright on the specific questions and answers, rather than the base study material that is supposed to impart the learning to pass the exam – but it does put them in the odd position that remembering what questions you took is a violation of their copyright (rather than, for example, the act of reproducing their exam questions from memory)

Anonymous Coward says:

On a matter of a market for questions and answers...

I once went to a study group run by a guy responsible for the certification exams for his organization. (He didn’t give us any answers, just reviewed the topics where people tend to make stupid mistakes. Nothing you wouldn’t get in good study guide where the author talked to people who took the exam.)

Anyway he mentioned that they, and all technical certification exams, have a huge problem with question banks in asia. They regularly rotate questions but the vetting process means that the new questions may already be known by the time they go live.

So he has a hobby. He’ll make up questions with outrageous answers and anonymously sell them to these banks. Outrageous answers that even someone guessing will never pick but someone who’s not an English speaker who’s mostly studied by a question bank might. Think Dilbert convincing his boss that a ‘mauve’ database is best.

He then watches for tests with these answers. It doesn’t prove the person directly paid for the questions – maybe he thought it was a legitimate study group and didn’t know the presenter bought the questions – but it gives them insight into how many test takers have been exposed to these question banks.

TheLogicalMind says:

Always illegal unless you already own a copy...

…and only use it for personal use. Or if it’s public domain.

If not…

Any unlicensed copying (even by our brains) is still an unlicensed copy. Period.

It’s only not prosecutable RIGHT NOW because we can’t perfectly scan a brain to verify that the copyrighted material has been illegally stored. And since there is no real way (yet) to retrieve that memory to reproduce a digital/analog copy, there’s no sense in wasting time chasing down those few gifted people. This will change in the future with better tech when people will be prosecuted for “thought crimes.”

Bottom line, it’s still illegal, but poses no immediate threat to the copyright holders… yet.

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