Unfortunately faculty should see this as a wake up call. As a first step, faculty should clearly display a copyright notice and an explicit statement of allowable uses of their material — AT the BOTTOM of EVERY SINGLE PAGE. The creative comments provides a nice model though I am not sure if they have licenses that are as restrictive as some faculty members might want.

That way there is no ambiguity for anyone. Secondly, I feel colleges and universities should have policies that students disseminating exams or teaching materials against the explicit wishes of a faculty member is misconduct that will be punished like cheating or any other misconduct. In my view that is appropriate and provides remedies that can be implemented without resorting to the legal system that would be far more costly and disruptive to faculty members and students.

As for people who want set up sites like this, if faculty clearly state acceptable uses and these sites violate them they are open to a lawsuit and potentially criminal penalties and they have no excuses. They have no right to say you have to sign up for some arbitrary “don’t post my material list” if the material clearly states it is not to be disseminated. Unfortunately, if the problem continues, it will be necessary for someone or better an organized group to go to court and force the issue. These sites will be easy to deal with, its when it goes underground that it will be more difficult.

Eduction would also be helpful. Student should realize that writing good exams not only takes a lot of effort but items need to be tried out and edited since even the most carefully written items do not always work. If they force faculty to have to write a new exam for every iteration of a course, they are guaranteed to have crappy exams. They might anyway, but this way it is assured.

Anonymous, at 7:45 am EDT on June 10, 2008

Pretty Clear, Actually

While I do agree with Larry that encouraging professors to not blindly re-use certain kinds of tests is generally a positive outcome, the copyright issue does seem pretty straightforward.

I’m a strong advocate for the exercise of fair use rights, but even within the excessively vague language of US copyright law, this practice appears to be a clear violation and Mr. Oral would be hard-pressed to make a good fair use case.

The copyright on the exams belongs to the professors (or the university, depending on what the professors’ contracts specify), so the students cannot give permission for use anymore than a student could buy a textbook, photocopy it, and give away the photocopy — purchasing a copy does not confer the right to copy the work. And the question of giving away versus the selling of said copy doesn’t make a difference — giving it away for free doesn’t make it any less of a copyright violation (and, in any case, the site is generating revenue by offering these materials, which proves that the exams have a monetary value that is being denied the creator of the works — a point that definitely weakens any fair use claim).

The exams have copyright protection as soon as they are fixed in a tangible form, regardless of whether there is a notice of copyright on them.

Having said that, I do think that this site will raise some interesting conversations, and if universities are willing to work with the site (or develop their own), this could be a useful pedagogical tool.

Douglas Eyman, George Mason University, at 8:10 am EDT on June 10, 2008

I’ve dealt with this on an administrative basis.

Personally, I share Larry’s view that these old test/homework files have been around for a long time. In fact, my institution has a term for such files—"koofers"—so of course, a web site has been developed around it.

I made faculty members in my department aware of the site, so that they could make appropriate arrangements to deal with the fact that old assignments are out there. I admit I was somewhat surprised to find that the concern was over the scale of availability. (Now everyone had access to materials, while only a few did before.)

I will admit it is challenging to develop new test material for courses that are taught fall, spring, summer I, and summer II, but that’s the position we’re in.

HokieEngineer, Virginia Tech, at 8:40 am EDT on June 10, 2008

How is Mr. Oral financing the website? Is this a non-profit activity on his part?

He’s giving away Starbucks certificates to encurage students to submit their exams. Is he selling ads targeted at college students?

Anonymous, at 10:10 am EDT on June 10, 2008

replies

Mr. Eyeman, You raise a good point, but I see a slight contradiction there. At one point you claim that the work is the property of the professor, and at another point you claim that some works “for hire” (a term of art) and property of the institution. As we agree, this varies by school. However, not all schools reserve copyrights in everything they produce. But, assuming that the school *does* do this, the professor wouldn’t have standing to sue.

While I am not an intellectual property jock, I don’t thing this practice is as “clear” a violation as it would seem. (When conducting a “fair use” analysis, whether the stuff is “given” away is relevant, as it means its use might not be commercial.) For example, if a professor law professor simply copies a “fact pattern” from a non-copyrighted source (such as something produced by the US government), I don’t think that he could claim that his selection is not only subject to his copyright, but also that any use of his selection is “fair use.” And, even if he did, what would be his damages?

My fear, Mr. Eyeman, is that some professors are trying to use the copyright law not to protect original work that they produced, but rather to try and maintain a veil of confidentiality over exams, so that they can reuse them like one of those cloth-like bags that Whole Foods gives you.

Anonymous, I don’t know if “ambiguity in the author’s intention” is what matters. I know that professors “wish” things to happen, but their “wishes” seem to be simply desires to keep things secret. The copyright act doesn’t provide for secrecy of content.

I think most of your point is sort of normative about what should happen. In my view, what SHOULD happen is that professors should recreate tests every year. Sure, it is hard, but they get paid. Likewise, all students should have precisely the same access to previous tests every year.

I don’t have the definitive answer on this issue. However, I think that most of the parties involved are not being honest. Professors are trying to be lazy. Schools are not providing students with equal access. And students are trying to get by as best they can.

Larry, at 10:30 am EDT on June 10, 2008

Copyright issue: A really big red herring

I’ve taught at every level from middle school through doctoral level and at all times have considered the purpose of a test to be an opportunity for students to show what they know. A well-designed test, one that covers the most essential knowledge of a course, does this. So why not use a test as a study guide?

Those students who want to cheat themselves by not doing the reading, coming to class, or sharing their learning in a study group can usually get their hands on old tests through a number of good old-fashioned low-tech methods anyway.

In addition, a test sharing site is an advantage to teachers. It becomes another resource for finding new and interesting test questions created by peers at other institutions, thus raising the standards of excellence all the way around.

Cecelia, at 10:30 am EDT on June 10, 2008

Douglas’ comment warrants repetition: “The exams have copyright protection as soon as they are fixed in a tangible form, regardless of whether there is a notice of copyright on them.”

Exactly! Faculty need to understand that simple fact. Of course fraternities and sororities have had exam files for decades and decades. In so doing they’ve been violating professors’ intellectual property rights for decades and decades. (That’s why they keep their files in secret, by the way).

Demir Oral should be sued into poverty. If I had an orange grove, I’ve be well within my rights to bring civil penalties against the individual whippersnappers who stole oranges from it. If some punk opened an orange stand comprised of illegally seized neighborhood fruit, we wouldn’t say, “Well, it’s okay because other kids steal fruit. Besides, the owners of the trees don’t know their property rights.”

Copyright kicks in at the moment of creation, but faculty members would be on better footing to push for statutory damages if they paid the $45 fee with the copyright office to register their exams. So, no, this is not a new “discovery” of professors’ copyright protection as Larry suggests. Likewise, I’ve met very few faculty members who *don’t* have a problem with fraternities and sororities keeping exam files – but those campus organizations are a little more discreet than the for-profit organization described in the article.

Cecelia: If faculty members want to get in a big digital drum circle and share exams in an open source setting, that’s fine. But that’s not what the article is talking about. The article is discussing an organization that provides financial incentives for third parties to steal professors’ copyrighted material so it can profit from the distribution of that material. Copyright is not a red herring; it’s the main plot.

Brian, Asst. Prof. at Large Midwest U, at 11:00 am EDT on June 10, 2008

secure tests

Ms. Greene, I should have mentioned the “Secure test” provision. However, I doubt that any professor really wants to administer a test in which “administered under supervision at specified centers on specific dates, all copies of which are accounted for and either destroyed or returned to restricted locked storage following each administration.”

Quite frankly, if a professor feels that so strongly about “securing” his test (which requires a personal trip to Washington), he obviously has little interest in writing a new test each year.

But, even if those procedures are followed, fair use would still apply. The copyright provisions themselves do not guarantee confidentiality, or even make it a crime to disclose what was on a “secure” test. Instead, they allow people to register works they claim a copyright in that are otherwise “secure.”

Larry, at 11:05 am EDT on June 10, 2008

There Are Just Too Many Misguided Wimps For Me!

One of the troubles with higher education these days is that there are just too many wimps standing in the front of the classroom ... or, more probably, sitting in a circle with their students thus decreasing the likelihood that the students can write, refer to reference materials, have access to their laptops, or even think about using an overhead projector or a white board.

“We will spend this semester chatting with each other ... and remember, civility is the watchword. Oh yes, and please call me Biff (or Wendy).”

Allow me to set the stage for my comments by telling you I have an appendix to my vita that lists thirty-five different courses I have taught over the years (and I’m certain there are more than that ... and there are definitely many variations on the themes of the listed courses depending on the backgrounds of the participants) These courses vary from “Mathematics for Elementary School Teachers” to “Foundations of Logic” to “Differential Equations” to “Advanced Statistical Methods” to “Public Choice” to “Operations Management” to “Total Quality Management.” I have had semesters during which I taught four courses, and, while most of my friends with those schedules prefer to teach multiple sections of the same course (that presumably “lightens” the load), I always preferred a schedule of four different courses. I hate to teach two sections of the same course during the same term.

In any event, I have composed at least one test (but almost always two tests) plus a final examination for every section I have taught of every one of those courses, and I generally post the tests for the past two courses for the students to use as study guides for an upcoming test.

Take, for example, my “Introduction to What’s Happening Now” course. First, I will have a very extensive syllabus describing, on a daily basis, what is expected of the student. I always have my own very clearly defined instructional objectives, my tests are always aligned with those objectives, and my students’ grades will be highly correlated with the extent to which their participation and subsequent knowledge is consistent with those objectives. I’m guessing there may be a maximum of 300 basic questions and multiple variations on those 300 themes that constitute the core of the course and, roughly speaking, form my “test bank” for the course. If I could, I would give my students this entire test bank at the beginning of the term and say, “Here’s the course. Learn it. During the term, I will test you on as much of this stuff – and variations thereof – as I can. Tests will be stratified random samples from this test bank.”

And what about copyrighting it? Nonsense! Most of the questions I might ask have already been asked by others. If I run into a really good test question elsewhere, I go right into plagiarism mode, and some variation of the question will find its way onto a future test of mine. Many of my (take-home) test questions are very extensive data analysis exercises based upon the published work of others, and, in those cases, I will cite the studies and give credit to the authors. But this notion that “Oh I spent many hours of hard work making this test, so it belongs to me in a copyright sense.” How bush league is that! I can hardly wait until my electrician brings suit against me for rewiring something he thought satisfied my objectives perfectively.

We academicians are in the business of disseminating information, exploring new ideas, and extending the use of knowing (of knowledge). It’s a mere test for God’s sake. Think about it, make sure it’s aligned with your instructional objectives, make sure it’s what your students have every reason to expect, administer it, grade it, and explain it after the fact (I usually give the students the key to the test immediately after they take it, because, after all, testing is supposed to be a learning experience). But give the damned thing away ... and be thankful someone wants it and even imagines they can make a buck from it! And don’t forget, if your testing strategy were optimal to begin with, your students would readily recognize they have no use for the PostYourTest.com product.

Frizbane Manley, at 11:35 am EDT on June 10, 2008

Copyright Issues at Hand

Hello everyone, this is Demir, creator of PostYourTest.com. To answer a few of the issues posted here regarding copyright, the site is fair and legal with all regards. If any material has been posted illegally, it is taken down very fast. There have been only a few complaints that have warranted this action, but I expect more to be on their way and I am ready to deal with them just as I have dealt with many other complaints. To the gentleman named Larry, who has posted a few comments regarding professors using copyrighted material to create exams, actually they do own the copyright even if using some previously copyrighted materials because they have manipulated the material into their own words. This however can translate a student to, for whatever reason, rewrite exams and then post them onto my site, voiding the professor’s previous copyright. This is just one of the reasons I need an individual to confirm they in fact have the appropriate permissions to post. There have also been some questions as to the legality of the actual posting process. I imagine most of you (from a legal standpoint) will compare my site to the music industry and the RIAA/p2p sites. The issue with these sites is that the copyright to the music is typically owned by a handful of studios, while exams can be owned by universities, professors, textbook companies, students, and/or really anyone that wants to take a few hours and write one and post it to the site. Unlike the music p2p sites however, if the poster was not honest with PostYourTest.com in agreeing with the terms and conditions set aside for that post, I take that exam down straightaway. There is one other issue presented with this copyright and the music industry. The music industry sells their music, while professors give out their exams to students with no expectation of material return from the students. There has only been one actual ban (at least that I have seen) due to a professor selling his exams in a book. I can absolutely understand this ban, however how many professors go and actually sell their exams? One person asked how I was funded. I am funded more or less through a company that I set up, and through money I make/made during college. Oh and to be honest, I am not at all “rolling in it". I work at another job, and this is something that I do in my off time. By the way, there are a couple of sites that charge for professors’ course materials, which I think is very unfair and very unethical. To also answer Professor Bertram-Gallant’s question of me being the UCSD central test hub, would you still want PostYourTest.com to be in charge of this? I know it would take unwanted strain off of UCSD’s servers. Send me an e-mail through the PostYourTest.com contact form if you are interested in doing so.

Demir Oral, at 12:15 pm EDT on June 10, 2008

“Demir Oral should be sued into poverty. If I had an orange grove, I’ve be well within my rights to bring civil penalties against the individual whippersnappers who stole oranges from it. If some punk opened an orange stand comprised of illegally seized neighborhood fruit, we wouldn’t say, “Well, it’s okay because other kids steal fruit. Besides, the owners of the trees don’t know their property rights.””

Brian, this comment is actually untrue. I do not have a long handle-bar mustache and a top hat, and I do not go into your offices and steal your exams. Nor do I ask your students to do the same.

The rewards program was actually for only a limited time, and this was an incentive to get people interested in the site. There have been students that have come to our table, signed our legal form (same as the one you see on the site), submitted exams, and then a day or two later the site received a ban request and some of the exams were taken down. End of story.

Demir oral, at 1:00 pm EDT on June 10, 2008

“The site actually does ask for permission — from the students.”

Hello, Demir again. I want to go over this particular point in the story that I forgot to comment on earlier. This is 1/2 true in the sense that yes, it asks for the student’s permission, but it also asks for the permission of everyone that is going to post. The site is not saying “Oh, you’re a student therefore we have to get you to sign this, but you’re a professor so go right ahead.” Everyone has to agree to the Terms and Conditions, and thats that.

“The degree of manipulation matters, and exactly where the contours lie is a beyond me. But, this discussion is sort of irrelevant to your position, since you want to get peoples’ permission.”

Larry yes I do want permission, but I would also like the site to be recognized as legal, which for some reason or another seems to be the biggest debate here (versus equality, which is what the site was created for in the first place). I do agree with you that indeed the degree of manipulation does matter.

Demir Oral, at 2:35 pm EDT on June 10, 2008

Why are students given copies of tests in the first place

If professors are concerned that students are getting and sharing old tests, then why are they giving tests back to students? I teach classes ranging in size from 9 to 135, and my students never get to keep their graded tests (let alone the key!). Instead, I invite students to make an appointment to visit me if they want to go over their tests (question by question, even). Few take me up on the offer. Plus, I DO rewrite tests (and create new assignments) every semester. Except for some core questions (which can be rephrased), why would a teacher keep using the same questions every semester? It just takes a little extra effort on the part of the teacher. Problem solved.

Dan Close, Associate Professor at Wichita State University, at 3:00 pm EDT on June 10, 2008

UCSD’s General Counsel and Technology Transfer and Intellectual Property Services office should initiate legal proceedings immediately against the owner of the website, for copyright theft.

There should be no pretense that this is for any purpose other than making it easy to get good grades without putting forth the effort to learn the material. Next, it can be extended to homework assignments, papers, reports, and all of the materials a student must produce to prove that s/he has earned the right to a good grade. Why bother going to college at all, in fact, if one can forge one’s way through life without negative repercussions?

This punishes the students who work hard, and without cheat-sheets, to earn the grades that will affect their future. I wonder if Demir Oral’s grades are something he’s proud of.

If Oral truly believed he was performing a public service to “equalize opportunities", he would do this without benefitting from any ad revenue.

lw, at 3:30 pm EDT on June 10, 2008

“Whatever the case, for those that think that this service is bad, there is an easy solution: Make up a new test every year.”

It’s a solution, but in no way an easy or good one. In fact, writing good, fair, demanding, and reliable tests is damned hard. It consumes considerable time and energy. Further, if new tests are to be redevised every term, duplication and unfair advantage based on review of past tests (and not on mastery of tested material) is not only inevitable, but almost immediate.

Shouldn’t education and accurate assessment of subject mastery be a concern?

JBM, at 4:15 pm EDT on June 10, 2008

“However, for the time being, subject mastery is measured the best way we know how: though examsmenship. We need to admit that to ourselves.”

“Examsmenship” is dependent on the caliber of exams administered, which is the concern that many here have expressed. It is not feasible to completely reinvent fair, reliable, accurate, and unique testing exercises for every course at least twice a year, every term. People with experience crafting such exercises understand the challenges they present and their importance for assessing student education.

Exams are not a game, or some IP hypo, or an Internet money-making scheme. They tell students what they do and do not know. Forcing conditions that foster inferior and recycled exercises does grave harm to the very students that exams are designed to serve.

JBM, at 6:25 pm EDT on June 10, 2008

don’t give them the exams

I do give essentially the same exams year after year, with some modifications here and there when needed (like a change in the lecture due to a new edition text being put out).

I NEVER let students keep an exam or the key after they take it. Exams are graded and handed out during the following class period, we go over every answer and I do not allow them to take notes at the time. They can ask all the questions they want about why they missed something, and are always told they can come by my office if they need further clarification. I take the exams back, and that’s it — problem solved.

J Fatherree, at 5:10 am EDT on June 11, 2008

If anyone is going to claim copyright on such a test or exam these sites would just disappear behind a login. A large part of the webs function is to share information. There’s no way you can fight that off.

If it becomes a problem for schools they will just have to find another way to test students. Making new tests every year seems like the only viable solution.

John Sportvoeding, at 5:10 am EDT on June 11, 2008

If professors expect student to put in 110% all the time, then they should be expected to function at the same capacity. Students have to write completely original papers multiple times a semester... professors should write new, completely original tests. that’s the only way to combat the inevitableness of a site like this. with academic forces constantly conspiring against students (turnitin.com for example which, by nature, does not benefit students in any way and discourages many by finding consequential similarities between completely random papers) it was only a matter of time before someone fought back. Now professors are being held to same unreasonable standards students are held to. Sucks doesn’t it? Well shelling out 5 to 40 grand a semester just to be screwed over by a test or a paper that only some people had access to before hand does too. It’s time to level the playing field and bring the focus of higher education back to learning and the continued pursuit of knowledge— not just creating and forcing students to prepare for tests designed to break, not make students.

Kelly, at 8:30 am EDT on June 11, 2008

I agree WHOLEHEARTEDLY with robert, phd. The educational system is supposed to be fair. It’s one thing to have knowledge about the subject before even signing up for the class. It’s another thing if know EXACTLY what is coming for the test. This is OUTRAGEOUS.

I’m in grad school right now, and I’m ticked that I have to use these sneaky methods in order to get good grades (which I didn’t do as an undergrad, by the way) It’s RIDICULOUS!

The tests don’t have to be available to the public. It should be available to students who are taking the course. Make it fair, professors!

Anonymous, Anonymous, at 11:45 am EDT on June 11, 2008

Steve C.If truly you feel that receiving past exams is cheating, then why do several UCSD professors AS WELL AS UCSD have a paper archive of old tests for students to view (I believe the UCSD primary archive is called “soft reserves")? That in fact was one of the reasons I picked UCSD to advertise at first.

It seems that UCSD’s academic policy is flexible (maybe even paradoxical) in this matter...

Demir Oral, at 3:45 pm EDT on June 11, 2008

This is RIDICULOUS

The teachers really should make old tests available to all if they give their tests out. It’s really unfair to people who don’t have access to the tests.

Anonymous, at 8:25 pm EDT on June 11, 2008

Let’s put ALL athletes on Steroids

Let’s put all Athletes on steroids so that nobody has an unfair disadvantage. Let’s allow ALL citizens to cheat on their taxes so that everyone is equal. Ah yes, the new morality—I love the smell of napalm in the morning.

Statements about “fairness” and “equality” are just attempts to establish a false “intent” (since infringement cases consider intent). Speaking of which: Please get informed about copyright law before posting more comments—the misconceptions are getting scary, and I worry that people actually believe these posts since supposedly intelligent people are writing them.

Juliet Davis, Associate Professor of COM at The University of Tampa, at 8:50 pm EDT on June 15, 2008

Past exams are study tools for both students and professors!

I had a professor that gave away many of her past exams knowing that they would be fantastic study tools. I imagine a site like this would be equally helpful if not more helpful to professors in preparing for exams, considering now professors have the option to look around the world for exam questions from similar departments and classes. It will improve the quality of education for everyone, especially those with little access to textbooks and paper documents.

I find it appalling that professors would hide behind copyright in order to be lazy. Novelists get paid to write one novel. Professors get paid to write new exams all the time, not to slack off. Students have to put in hours of work to pass classes, why can’t professors put in that same amount of thought-provoking time each semester? These aren’t upcoming exam keys that are being sold or given away to students, but rather exams from previous classes. In terms of copyright, the site looks like it requires anyone that posts to have proper permissions (I haven’t registered to the site, so I’m not sure exactly what they ask for after registration).

I think Professor Davis has a misguided view on this. This site doesn’t act like steroids or Al Capone, it acts more like a personal trainer or TurboTax.

Recently Graduated Student, at 6:35 pm EDT on June 16, 2008

user point system

Looks like postyourtest.com has a user-point system available now. I wonder if some professors will take advantage of this; it looks like they’re going to have the coffee cards available again!http://postyourtest.com/news/users-earn-points-post

anon, at 4:25 pm EDT on August 12, 2008