Re: Understanding and transforming the secrets

["Sherman Dorn (fac)" <dorn@TYPHOON.COEDU.USF.EDU>]

On Fri, 19 Feb 1999, Richard Gibson wrote:

> I would love to reproduce the current questions in Michigan's carefully
> vetted exam, the MEAP. After all, it takes up about 40 percent of the
> school year now, and I have copies of all of the exams that are being
> given. But I cannot post the questions, some of them so moronically racist
> that they surprised even me, because the exam is copyrighted. I can see
> what has happened in Chicago, and I do not have the resources to make an
> expensive defense.

The folks in Chicago took a particularly radical stance by trying to
distribute every single test question (and whole test items at that).
A more narrow criticism of specific language might well be defendable as
"fair use" of copyrighted material, as academics use fair use provisions
all the time (and we get sued very rarely, despite the fact that we, too,
have limited resources).  Courts judge whether quotation of material is
fair use depending on several factors, including the proportion of the
whole quoted (so I could quote a few sentences of a book quite freely, but
not most of a poem, without permission), the possible effect on future
markets of the work, and a few other issues -- but the two listed seem
most relevant to me in discussing tests.  (Terry Carroll has written a
Copyright FAQ that's floating around somewhere on the Internet that gives
more detailed information.  None of this, of course, substitutes for a
lawyer's advice, and constitutes my lay judgment only.)  If I had
possession of questionable test items and wanted to publicize them, I
could imagine going several routes without getting in trouble
copyright-wise (although some states, such as Tennessee's, have laws
regarding test item security, which is a different matter).

1.  One could discuss specific items without quoting any of the language,
if the item requires a factually incorrect answer or has flaws that you
don't need to quote the item to discuss.

2.  One could quote just those parts of a test item that were necessary to
show the problem -- egregious language, incorrect assumptions, or
something similar.  No one could really accuse you of revealing a whole
item or jeopardizing future markets if you quote just a few words, I
suspect.  (Again, laws regarding test security are a different matter, and
courts may analyze the treatment of specific items to judge possible
effect on copyright.)

By the way, while it may be true that the Chicago Public Schools may not
have registered the copyright on tests until filing against the editors of
Substance, U.S. law makes clear that you don't have to register a
copyright in order to have it.  Any publication of material automatically
means the author has a copyright.  For example, by pressing the keys to
send this message, I am effectively copyrighting it.  (Publication doesn't
have to be by a press, either.)  There are certain extra rights to authors
who register a copyright, but you don't have to.

--
Sherman Dorn
University of South Florida
http://www.coedu.usf.edu/~dorn/

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