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

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evenues from the 3-day course from July 2001 through 2005 were$35,708,361. 6 These revenues will be apportioned, and damagesawarded only to the extent that they are attributable to theinfringement. Doing so does not involve a mathematical formula,but rather an assessment of the relative importance of theinfringing questions. See, e.g., Bruce v. Weekly World News,Inc., 310 F.3d 25, 31-32 (1st Cir. 2002); Blackman v. HustlerMagazine, Inc., 800 F.2d 1160, 1164-65 (D.C. Cir. 1986).In determining how much of defendants’ revenues toaward, I take into account PMBR’s advertisements and excerptsfrom Mr. Feinberg’s lectures. The heavy emphasis on similaritybetween PMBE questions and MBE questions suggests that this is amajor selling-point for the company. It is not difficult tounderstand why this might be the case, as PMBR’s potentialcustomers are almost all already enrolled in a general bar-reviewcourse that includes MBE preparation. Some students may enroll6While the average cost per student undoubtedly rose againin 2005, it was plaintiff’s burden to introduce such evidence, soI have not accounted for any increase in calculating 2005revenues.2001: 19,503 students x $254.39 = $ 4,961,3682002: 24,853 students x $275.62 = $ 6,849,9842003: 25,150 students x $277.34 = $ 6,975,1012004: 26,497 students x $304.74 = $ 8,074,9692005: 29,032 students x $304.74 = $ 8,847,212Total $35,708,36120
in PMBR simply to get extra practice or to access the particularexpertise of its instructors, but there can be no question thatthe high quality of PMBR questions is a major attraction. Whilethis quality may be due in part to the ability of defendants togenerate realistic practice questions, the evidence in this casereveals that it is largely a result of blatant copyrightinfringement. On the other hand, students taking the 3-daycourse also receive workbooks containing 2000 other practicequestions, substantive law outlines, and study aids. Still, thePMBE is clearly the heart of the course. Because questionsimilarity is a major draw, and because infringing questions madeup close to 40% of the PMBE from 2003 through 2005 (though asubstantially lower percentage in 2001 and 2002), I conclude thatattributing one-third of defendants’ revenues to the infringingquestions is justified. Plaintiffs will be awarded $11,902,787.I find that injunctive relief is also warranted, ascopyright liability has been established, and there is a realthreat of future infringement. 17 U.S.C. § 502. Defendants willbe enjoined from copying, duplicating, distributing, selling,publishing, reproducing, renting, leasing, offering or otherwisetransferring or communicating in any manner, orally or inwritten, printed, photographic or other form, including anycommunication in any class or other presentation, any questions21
Page 1 and 2: IN THE UNITED STATES DISTRICT COURT
Page 3 and 4: Conference of Bar Examiners v. Sacc
Page 5 and 6: third reported that he was “alrea
Page 7 and 8: cryptic, they clearly relate to top
Page 9 and 10: The substantial similarity between
Page 11 and 12: Answer key: BThis question tests th
Page 13 and 14: (A) Yes, because Bilko should have
Page 15 and 16: question from 2003/2004 copied the
Page 17 and 18: and thus may also have been challen
Page 19: 2001). Here, I find that there coul
Page 23 and 24: integrity of the bar examination, p
Page 25: purpose other than to obtain bar ad

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

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