Chapman University professor David Berkovitz has sued his students, as “John Does,” for publishing his midterm and final exams on the platform Course Hero. According to The Washington Post, Berkovitz claims that as students were taking his exams remotely they posted test questions on Course Hero with requests for help with answers.
The Post reports that Berkovitz’s goal with the lawsuit is to force Course Hero to reveal who posted the questions so he can report the students to Chapman’s honor board for possible disciplinary action—all in an effort to prevent cheating. Notably, Chapman University is not involved in the lawsuit.
This case serves as a reminder about some basics of copyright law and information about infringers in cyberspace.
In his complaint, Berkovitz says he is an “Assistant Professor” and has a place of business at the address of the university. In his capacity as professor, Berkovitz creates and administers various assignments and exams. Berkovitz obtained a copyright registration for the tests as author and claimant.
Under U.S. copyright laws, the author of a work is its creator unless it is a “work made for hire.” Works made for hire include works prepared by an employee within the scope of his or her employment. However, there is a long-standing tradition in higher education that academic works such as books and articles, lectures, syllabi, visual materials, and other teaching materials are owned by the faculty member authoring them rather than the employing educational institution.
If Berkovitz was an employee of Chapman University when he created the tests, and if these tests were prepared within the scope of his employment, then it is arguable that the author and claimant of these tests is Chapman University and not Berkovitz.
Berkovitz evidently employed the “takedown notice” provisions of the Digital Millennium Copyright Act (DMCA). After Course Hero refused to provide information on who posted the tests without a subpoena, Berkovitz filed a lawsuit. The Post reported that Berkovitz had to have a case pending in court to get the information he needs.
The DMCA provides for a subpoena to identify an infringer (17 U.S.C. § 512(h)) and filing a lawsuit is not required. The contents of the request for the subpoena include a sworn declaration to the effect that the purpose for which the subpoena is sought is to obtain the identity of an alleged infringer and that such information will only be used for the purpose of protecting copyrights. Berkovitz may have elected to not use this provision because the prevention of cheating does not fit within its confines.
What information is available to obtain?
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