Suing John Doe Students Over Copyright

An assistant professor of business at Chapman University is suing students for posting parts of his midterm and final course exams on the website Course Hero. But he doesn’t know who those students are yet. That’s what the lawsuit is for: by suing John Does for copyright infringement, the professor, David Berkovitz, seeks to legally compel Course Hero—which is not a defendant in the case—to produce the students’ identities.

“We had no choice,” said Marc Hankin, Berkovitz’s lawyer. “The only way to get a subpoena is to have a case pending.”

Prior to suing, Berkovitz contacted Chapman about his exam questions being on Course Hero and reached out to the website itself, Hankin said. But neither party could tell him who uploaded the exams.

While Chapman “has a very strong honor code and they don’t support cheating, obviously, they don’t know who it is and there was nothing they could do about it,” Hankin continued. Course Hero, meanwhile, allegedly told Berkovitz, “We’ll give you the information if you serve us with a subpoena.”

Professors automatically own the copyright to their original class materials, and Course Hero complies with takedown requests that allege violations of copyright. (It also says that it encourages students to take charge of their own learning by asking for help and helping others, not cheating.)

Course Hero said Wednesday that it had received a takedown request from Berkowitz, in February, and that it complied.

“Berkovitz was also assisted by a member of our educator partnership team prior to the takedown request, where they helped him understand the Digital Millennium Copyright Act process and spoke about further supporting him with preventing any future uploads,” a spokesperson said. “We are always available to assist educators in this process.”

Hankin said that Berkovitz sent a takedown request to Course Hero last month, but that many of Berkovitz's test questions were still on Course Hero earlier this week, "for all the world to see." (Hankin said he hasn't sent a takedown notice since the lawsuit was filed this month as to preserve evidence.)

Course Hero hasn’t been subpoenaed yet but said that it always follows the law and will do so in this case.

Students sign up for Course Hero with a name and email address, and the subpoena will allow the website to link the documents in question to a unique IP address, according to information from the company.

Surprising Discovery and Questions of Blame

In January of this year, Berkovitz discovered that parts of the midterm and final exams from his spring 2021 undergraduate business law course had been shared on Course Hero, which allows students and faculty members to share and seek information about specific courses and topics. This includes class notes, lectures and assignments, but exam questions have been known to make their way onto the site, too, giving Course Hero something of a reputation for enabling cheating. Concerns about Course Hero and other student-driven websites increased during COVID-19, when online learning and exam taking spiked—and increased stress and isolation arguably made cheating more tempting. (Course Hero says much of this reputation is undeserved, as the website has its own honor code but can’t police everything that users upload.)

In February, Berkovitz filed expedited copyright applications with the U.S. Copyright Office for both documents and was granted copyright registrations the next day. This isn’t necessary to prove ownership of the materials, but it is necessary to sue for copyright infringement.

Berkovitz’s lawsuit alleges violations of his “exclusive right to reproduce, make copies, distribute, or create derivative works by publishing the Midterm Exam and Final Exam on the Course Hero website without Berkovitz’s permission.”

The defendants “knew or should have known that their acts constituted Copyright Infringement,” the lawsuit also says.

Hankin said the exams in question included explicit directions about not seeking outside help or sharing questions or answers. These were “closed-book exams. ‘Do not use any outside sources. You may not use the internet. Do not ask anyone for help.’ And it literally says, ‘Do not copy any of the exam questions or your exam answers.’ It says it right at the top.” Yet “one or more students violated that and posted the exam of the course to ask for help during the exam.”

Not only should those students be “disciplined by the university, whatever the university decides to do,” he said, “it’s unfair to the other students on the curve whose grade was lowered through no fault of their own.”

While Berkovitz grades on a curve—a controversial practice that many professors have moved away from—he is not required to do so by Chapman’s Argyros School of Business and Economics.

Berkovitz is seeking a permanent injunction preventing the defendants from infringing, directly or indirectly, on the copyrights for the exams, plus an order impounding all devices containing copies of the copyrighted material within the defendants’ possession and within their distribution channels.

The lawsuit also says Berkovitz is seeking damages. Hankin said his client is “solely” interested in finding out who cheated.

Chapman’s honor code says that the university “is a community of scholars that emphasizes the mutual responsibility of all members to seek knowledge honestly and in good faith. Students are responsible for doing their own work, and academic dishonesty of any kind will be subject to sanction by the instructor/administrator and referral to the University’s Academic Integrity Committee, which may impose additional sanctions up to and including expulsion.”

Cerise Valenzuela Metzger, a university spokesperson, said, “While we wouldn’t comment on specific situations with students, unauthorized posting of exam questions would likely constitute a violation of our academic integrity policy. Consistent with our policy, we would encourage the professor to report the incident and students involved to the Academic Integrity Committee for adjudication.”

Karen Costa, an independent faculty trainer who focuses on online pedagogy and trauma awareness, and who has previously criticized Course Hero—which is valued at $3.6 billion—as not doing enough to protect student privacy, said that this case raises a slew of additional concerns.

“Course Hero presents itself, quite literally, as a hero to students, right?” Costa said. “Yes, a lot of students know that it’s cheating, but at the same time, there’s this very professional website that’s filled with rhetoric born of what I have to imagine is a multimillion-dollar marketing budget, all telling students—and faculty—that it’s a community supporting students and learning.”

Beyond Course Hero, Costa questioned why Berkovitz was grading on a curve in the first place, and why he was taking the extraordinary step of suing students—especially when a platform like Course Hero was so central to their transgression.

“You’ve got a multibillion-dollar company whose business model is to grant students access to quote-unquote ‘study materials’ when they post their own writing, assignments and content from their courses,” she said. “It’s an exploitive, predatory model that preys on students’ worst angels. Does the responsibility fall with a few desperate undergrads or with the multibillion-dollar company? I know where it falls in my book.”

Hankin said Course Hero certainly isn’t blameless or unproblematic, but that if “somebody cheats and puts themselves artificially at the top of the curve, they are actually harming others.” He added, “It’s not just cheating for yourself—you’re actually hurting your fellow classmates. And that’s what the professor cares about.”

Sean Michael Morris, a digital pedagogy expert who taught English and, later, education at the University of Colorado at Denver, and who is Course Hero’s new vice president of academics, said in an interview that empowering students to excel in their own educations is Course Hero’s “DNA,” and that he didn’t like the idea of assigning blame to specific entities as to why or how students cheat.

“As someone who really believes in students and wants to support students, I think what we actually need to be looking at is something much more systemic,” he said. “That means looking at grades, specifically grading on a curve—I think there’s real problems involved in that. That puts unnecessary pressure on students to succeed beyond the point of just regular success. They have to get more than an A—they have to get the best A.”

He continued, “‘Oh, the students did it. Oh, Course Hero did it. Oh, the teacher did it.’ What we need to be looking at instead is why students and teachers have this sort of adversarial relationship with each other, based on the fact that they’re constantly being graded and evaluated in some way, and in ways that put more pressure on them than should be there.”