National Conference of Bar Examiners v. Multistate Legal Studies, Inc.

elated to the creative choices made by plaintiff in drafting MBEquestions. Notably, even when plaintiff was inspired by a caseor newspaper article, defendants’ “source binders” often omitthese clearly related materials. In addition, defendants did notdraft any new PMBE questions for 18 months after agreeing not totake the MBE while this suit was pending. Defendants also failedto provide a credible legitimate explanation for the strikingsimilarity in the wording of many PMBE and MBE questions.I also reject defendants’ attempt to invoke laches andestoppel. Their contention that plaintiff’s failure to object toearlier PMBE questions that may have violated NCBE copyrightsholds no merit. The issue in this case is whether 113 specificquestions are infringing, and defendants could not reasonablyhave taken plaintiff’s silence after publication of otherquestions as general permission to engage in copyrightinfringement. All but thirteen of the infringing questions werefirst published by PMBR within the statutory limitations period,creating a strong inference that plaintiff timely asserted itsclaim. 4 Seven of these thirteen were first published in 2001,4While defendant’s proposed findings of fact suggests thatthere are 26 such questions, it identifies only 21. Six of thosequestions are not currently being challenged by plaintiff, and Iconclude that two others, 1588_EVD and 1886_EVD, are not similarenough to suggest copying.16