This article was written for the American Bar Association for Law Students and may look better on their site:
Before posting exam questions online, students should know they could be liable for $150,000 in statutory damages plus attorney fees for copyright infringement when they upload exam questions to online platforms like Quizlet and Chegg. Professors may also want to know that they may be entitled to the $150,000 if they registered their questions with the US Copyright Office and the online platform knew of the infringement.
A copyright is a type of intellectual property that protects an author’s rights to “literary, dramatic, musical, and artistic works such as poetry, novels, movies, songs, computer software, and architecture.”
Once someone transforms an idea into a tangible form, the work is protected under copyright law, and the creators have exclusive rights to these creative works. Absent an exception to the law, no one else can make copies of these works without their creator’s permission.
Why Register a Copyright?
If everyone who creates a tangible work is protected under copyright law, why should anyone file to register their copyright with the US Copyright Office? The reason is in the remedies. An infringer of a copyright is liable for either actual financial damages and profits or statutory damages. However, statutory damages are available if the copyright owner registers the work with the US Copyright Office “within three months after the first publication of the work.”
Statutory Damages
Why would someone want statutory damages instead of the actual damages and lost profits caused by someone else’s copyright infringement? Actual damages are the financial losses suffered by a party. Profits are the financial gains the infringer receives because of the infringement. Actual damages and profits could be significant if a company releases a new Star Wars movie complete with new action figures, all without first getting permission from the appropriate copyright owner. The true owners of Star Wars would be entitled to any financial damages it suffered because of the unauthorized movie and any profits made from the infringement. However, unless someone is making movies and action figures or musicals out of some professor’s creative exam questions, the actual damages and lost profits suffered by infringing on a professor’s exam questions are probably relatively insignificant.
This is where statutory damages and registering one’s material with the US Copyright Office becomes important. Statutory damages are a financial award imposed by law. They do not require calculating damages or lost profits. They are like a parking ticket, where a city imposes a flat fee of $150 for parking in a certain area without paying the parking meter. The city does not have to prove that you caused them $150 in damages or lost profits. You broke the law, and if the statute says you owe $150, you owe $150. Statutory damages for copyright infringement can be up to $150,000 per infringement where the infringement is willful.
Do Quizlet and Chegg Violate Copyright Law?
Are online platforms like Quizlet and Chegg violating copyright law when they show exam questions and answers without a professor’s permission? Quizlet says they provide “learning tools & flashcards, for free.” Chegg says they provide “Homework Help.” Professors and attorneys may say these companies have a business model where they make money sharing copyrighted creative literary work (exam questions and answers) without permission.
As discussed, when a professor writes an exam question in tangible form, it is protected by copyright law. If the professor registers these questions with the US Copyright Office within three months after their first publication, would the professor be entitled to $150,000 in statutory damages? It may seem so, but there is an extra hurdle when the defendant in a copyright infringement lawsuit is an online platform.
The Digital Millennium Copyright Act of 1998
The extra hurdle is the Digital Millennium Copyright Act (DMCA) of 1998.The DMCA changed copyright law so that online platforms would not be liable for copyright infringement unless the platforms had actual knowledge of specific acts of copyright infringement (17 U.S. Code § 512). Without this protection, online platforms like YouTube could be liable for statutory damages to artists like Taylor Swift whenever someone uploads a video that happens to have Swift’s music in the background. Because of the protections in the DMCA, online platforms will not be liable for copyright infringement unless they know that something uploaded to their site infringes on someone else’s copyright.
Authors can provide conspicuous copyright notices to show that an online platform had actual knowledge of infringement. If the platform reviews material and ignores the notice, it could imply that the platform had knowledge of infringement. Therefore, to be entitled to statutory damages and defeat the DMCA, professors should register their work within three months of first publication and provide conspicuous warnings alerting the online platform that the work is protected by copyright law.
When Is Copying Not Copyright Infringement?
There are times when copying is not copyright infringement. Section 107 of the Copyright Code specifies that it is not copyright infringement to copy for a “fair use . . . for the purpose of criticism, comment, news reporting, teaching, scholarship, or research.” In Princeton Univ. Press v. Mich. Document Servs., an “off-campus, for profit, copy shop,” was established to copy and sell anthologies to college students right next door to the campus bookstore. The copy shop argued that their copying was a fair use for teaching, research, and scholarship. The court disagreed because the copyrighted materials were copied for a commercial purpose and the “same intrinsic purpose” as the copyrighted material. However, in Williams & Wilkins Co. v. United States, a court found that copying was a fair use when it was done by
…nonprofit institutions…devoted solely to the advancement and dissemination of medical knowledge…[where they] normally restricted copying on an individual scientist’s request to a single copy of an article and to articles of less than fifty pages…[and] medical science would be seriously hurt if such photocopying were stopped…and there was no showing of economic injury to [the] plaintiff.
Are Quizlet and Chegg more like the fair use nonprofit institution in Williams & Wilkins Co. or the “unfair use” copy shop in Princeton Univ. Press v. Mich. Document Servs? Quizlet and Chegg (NYSE symbol CHGG) are NOT nonprofit institutions with “restricted copying” and no economic injury to others. They are billion-dollar companies sharing exam questions and answers for a fee, like the off-campus, for-profit copy shop in Princeton Univ. Press v. Mich. Document Servs, which was found liable for copyright infringement.
Student Liability
Students who upload copyrighted material to the internet should remember that the DMCA was designed to protect online service platforms, not the individual who uploads copyrighted material to the online platform. The individual who uploads copyrighted material may still be liable for copyright infringement even if the DMCA protects the online platform where the material is shared.
Students may also be found liable not directly from copyright law but from contract law. Courts have found that clicking “I agree” or “I accept” to the terms of a contract on a website is sufficient to forming an enforceable contract even if the individuals did not read all the conditions and even if they would not have accepted the terms had they read and understood them. Before uploading material online, students agree to indemnify and hold these sites harmless for all claims and expenses arising from a student’s use of the site. This includes all “expenses (including . . . reasonable attorneys’ fees) arising out of . . . material…that infringes . . . any copyright.” Therefore, if Quizlet or Chegg are found liable for copyright infringement based on questions uploaded by a student, the students may be liable to reimburse these sites based on contract law—terms of service for Quizlet and Chegg.
Conclusion
Exam questions and answers are the creative work of the professors who create them. If professors register their creative work at copyright.gov within three months of first publication, they could be entitled to statutory damages of up to $150,000 per infringement. The DMCA shields online platforms from liability unless they know of the infringement. Professors can add conspicuous copyright warnings on their exam questions to show that these platforms knew of the infringement. Unfortunately for students, the DMCA does not protect students from liability for copyright infringement nor from their contractual agreement to reimburse these sites for any damages and costs associated with the online platform’s liability for copyright infringement.