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

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MBE more than 20 times, and Ms. Zimmerman more than a dozen.Given that these individuals are highly paid to prepare studentsto take (and presumably to pass) the bar exam, their failure rateis strikingly high. Mr. Feinberg, for example, failed fiveconsecutive bar examinations in Alaska before barely passing inFebruary 2004. Once an applicant passes the bar in a givenjurisdiction, he may not take it there again. Perhaps even morestartling, Ms. Zimmerman twice failed the Kentucky BarExamination despite passing the essay portion, because her scoreson the MBE were so low. Her testimony that she failed becausethe MBE “is quite a difficult examination” speaks poorly ofeither her professional qualifications or her credibility as awitness.The events leading to this lawsuit began in Anchoragein February 2003. At the time, Alaska was the only jurisdictionthat permitted the use of scratch paper during the MBE. Even so,students were strictly prohibited from removing scratch paper orother exam materials from the testing room. At the conclusion ofthe afternoon MBE session, Mr. Feinberg broke this rule. As hewas leaving the room, a proctor noticed that he was carrying asheet of scratch paper with notes on it. She stopped him,confiscated the paper, and filed an Irregularity Report withNCBE. While the notes on the paper are brief and somewhat6
cryptic, they clearly relate to topics and answer choices ofparticular MBE questions. Upon receiving the Alaska IrregularityReport in April 2003, NCBE undertook an extensive review of thedefendants’ course materials, comparing each PMBE questionpublished from 2001 onward to a database of MBE questions. Afterconcluding that more than 100 questions had likely been copied,plaintiffs filed this lawsuit.A plaintiff alleging copyright infringement must proveboth ownership of a valid copyright and copying of the originalelements of the protected work. See Feist Publications, Inc. v.Rural Telephone Service Co., Inc., 499 U.S. 340, 361 (1991). AsI rejected defendants’ attempts to challenge NCBE’s copyright inorders of April 13 and July 21, 2005, all that remains is thequestion of copying. I find that plaintiff has proven copyingboth with direct evidence and by demonstrating that there issubstantial similarity between the MBE and PMBE questions.This is the rare case in which there is direct evidencethat defendants copied plaintiff’s work. See Rottlund Co. v.Pinnacle Corp., 452 F.3d 726, 732 (8th Cir. 2006) (“Directevidence of copying is rarely available because it includesevidence such as party admissions, witness accounts of thephysical act of copying, and common errors in the works ofplaintiffs and the defendants.”). Mr. Feinberg and other PMBR7
Page 1 and 2: IN THE UNITED STATES DISTRICT COURT
Page 3 and 4: Conference of Bar Examiners v. Sacc
Page 5: third reported that he was “alrea
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 and 20: 2001). Here, I find that there coul
Page 21 and 22: in PMBR simply to get extra practic
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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