That's Tough, That's Tricky, That's...
...the Multistate! Oh, Feinberg, how you disappoint me. PMBR, one of the two popular bar exam review courses (BarBri being the other) has been
ordered to pay almost $12 million for infringing the copyright in the MBE questions authored by the National Conference of Bar Examiners (
read the decision). Apparently PMBR employees would attend various bar exams and either memorize or somehow leave with the exam questions, which would then be used -- sometimes in slightly re-written form ("x10 widgets" becomes "x-10 gidgets") -- in their prep course materials. It didn't help matters that PMBR's ads featured students exclaiming "I recognized so many of the [real exam's] questions from PMBR," though I have to say I never took that literally when I saw those posters all over my school. I assumed the happy student was saying he recognized the
type of question, not the actual language. If PMBR made that argument, the judge didn't buy it. I also assumed that PMBR based their practice exams on questions the NCBE released -- that is, old questions that would no longer appear on the MBE. But as it turns out, those released questions aren't just let out into the wild, they're made available for license or purchase, and PMBR neither licensed nor purchased them (admittedly, I would have known this had I read PMBR's promotional materials closely, in which they make clear they don't use released questions).
The judge held "By exposing its students to questions likely to appear on the MBE, PMBR undermined the integrity of the bar examination, possibly causing the admission of unqualified applicants." As
this blogger notes, this might be overstating things just a bit. The whole point of bar exam prep is to expose test-takers to questions likely to appear on the exam. But the intent is not that the student will recognize the question and immediately know that, for example, answer choice C is correct. Frankly, the chances of that happening are incredibly slim, as no student in his right mind would trust that he's memorized the question properly or that the NCBE hasn't made some small but significant change to the fact pattern or the answer choices. The intent is that students recognize the concept being tested more quickly than they would otherwise, which in turn gives them a bit more time to nail down the correct answer choice.
Nevertheless, it is hard to fault the judge's conclusion given the evidence of access and copying. For PMBR, this means they may need to put some of the millions they make every year toward writing original questions. Heck, they'll be saving on exam fees.
Of particular interest to me is that the July 2005 MBE, the one I took, had to be completely rewritten because it had been compromised by PMBR. This explains quite a bit. When I finished the MBE portion of the exam, I was struck -- as were my classmates -- by how much harder it was than any of the practice exams we took, either through PMBR or BarBri. Many of the questions were, frankly, bizarre. I wonder if perhaps the NCBE cobbled together the test from questions they had previously rejected or were still being tweaked. And I wonder further how, if at all, this was taken into account in the grading of the exam.
Between this and the
BarBri class action, it would appear the bar prep landscape is due for some changes in the near future. Is
MicroMash ready to pounce?
The Palookas of College Football
I pay zero attention to college football, so it comes as a complete shock to me that
contending teams actually pay weaker teams for the privilege of getting crushed. And I'm further shocked that the NCAA would come right out and admit that they've added a twelfth game to the season purely for financial benefit. I know I'm being naive to think college sports were all about the joy of competition, but this is ridiculous. Maybe the
Sports Law Bloggers will set me straight about why this doesn't render the entire college football system -- the polls and the BCS in particular -- a joke.
VARA and Site Specific Art
First Circuit affirms District Court in Phillips v. Pembroke. I sure there will be much commentary. I would also expect a request for an
en banc hearing. The following quote sums up the opinion.
VARA does not protect site-specific art and then permit its destruction by removal from its site pursuant to the statute's public presentation exception. VARA does not apply to site-specific art at all.
Holy royalty dispute, Batman!
Some days you just can't get rid of a bomb. And other days you find out you've been
getting stiffed on royalties for forty years to the tune of $4.4 million.
Zwapp!
NSFW Stadium Naming
The Arizona Republic is reporting that the Pink Taco restaurant chain has offered 30 million dollars over ten years for naming rights to the
new Arizona Cardinal's stadium.
Patriots Sack Attack Mild Italian Sausage
The New England Patriots have
launched their own line of meats. In my opinion, high fat meat products should never be branded with the word "attack."
Likely to Further Confuse
Yes, it is puff, but
articles like this one in the Boston Globe only work to further the confusion over trademark law. Excepting dilution laws, trademarks do not exist in a vacuum. They are associated with specific goods and services.
Massachusetts to Adopt Plug-In Strategy for Open Document Format
Massachusetts is postponing a Jan. 1 deadline to roll out open-source software to comply with its OpenDocument policy.The I[nformation] T[echnology] D[epartment of Massachusetts] also signed a commitment with the Massachusetts Office on Disability and the state's Department of Health and Human Service to design, procure, certify and develop training for software that is accessible to people with disabilities, according to a document obtained by Computerworld. The memorandum of understanding also calls for ITD to establish a unit devoted to accessible technology.Gutierrez found himself in a bind in February when he assumed the CIO's position in Massachusetts. The state's ODF policy called for executive-branch agencies by Jan. 1, 2007, to use office applications that are conformant with ODF and to configure those applications to save documents in ODF by default. But the only office applications that could do that -- such as the open-source OpenOffice and Sun Microsystems Inc.'s StarOffice -- are not fully supported by the major screen readers and magnifiers that people with disabilities use.
First Circuit Reversal Under Architectural Works Copyright Protection Act
The First Circuit has reversed summary judgment for the Defendant in T-Peg, Inc. v. Vermont Timber Works, Inc. I will leave comments when I have had a chance to read the entire opinion. It seems to address some interesting issues, including the scope of protection for architectural works and the admissability of expert testimony in determining substantial similarity. Bill Patry has
recently discussed this section of the Copyright Act.
A Blog Can Dream, Can't It?
3L Epiphany has an updated list of
cases that cite to legal blogs. No, Legal Fixation isn't on the list. But you just wait until the brutal Maine/New Hampshire lobster litigation of 2007.
Google, Xerox, Kleenex.... Maine Lobster?
Is the Maine lobster "brand" getting devalued by all those New Hampshire restaurants serving inferior product and saying it's from Maine? That's
the claim being made by the Maine Lobster Promotion Council. As for me, despite my New Hampshire roots I'm a Maine lobster man. In fact, let me suggest a slogan to the MLPC...
Maine Lobster: The Way Being Boiled To Death And Dunked In Butter Should Be.
Feeling Minnesota
Don't let your divorce lawyer handle your IP. That's the lesson learned by former Soundgarden frontman Chris Cornell, who recently discovered
his lawyer gave his ex-wife co-ownership of his songs as part of his divorce settlement. I expect the ex Mrs. Cornell knew exactly what she was getting, and was more than happy to take it. She was, after all, Soundgarden's manager.
Is Circuit City Offering a DVD Ripping Service?
Ars Technica is reporting on a
Consumerist article that states that Circuit City is offering a DVD ripping service to consumers. Developing...As expected, it looks as if Circuit City may have a
rogue employee on its hands.
Massachusetts Trademark Law Updated
The
Boston Bar Association is reporting that Massachusetts has enacted legislation updating state trademark law to conform with
INTA's model. The highlights:
- The duration of state trademark registrations is halved, from ten to five years, reducing the number of “deadwood” registrations on the books.
- State trademark registrations can be canceled for genericness.
- Owners of state trademark registrations are able to seek treble damages for infringement that is committed knowingly or in bad faith.
- In deciding whether to allow a trademark application, the Secretary of State is empowered to ask the applicant whether it previously sought to register the mark with the U.S. Patent and Trademark Office (USPTO) and, if registration was refused, to disclose why.
I can't for the life of me find anything about this legislation on the
mass.gov website, but perhaps that's just me. For reference, Massachusetts' trademark statute as it currently stands is
available here.
Search Engines Form Alliance to Combat Click Fraud
Google, Microsoft, Yahoo, and some smaller players have
formed an alliance to combat click fraud. There is a lot on the line here, not the least of which millions and millions in advertising revenue, which is inexorably linked to consumer and adveriser confidence in the system.
