A test-preparation must pay a $1,000 fine for each of 87 items the company forced the examination provider to retire due to copyright infringement, the U.S. District Court, Western District of Texas, San Antonio Division, ruled August 26, 2013 (American Registry of Radiologic Technologists v Bennett).
The company, Limited X-Ray Licensure Course Providers, owned by defendant Diane Bennett, was started in 2007 to provide tutoring assistance to help students pass examinations to become radiologic technologists.
According to the American Registry of Radiologic Technologists (ARRT), which sued Bennett, she obtained access to copyrighted examination questions by asking the students she taught to send her questions they saw on ARRT exams. ARRT alleged copyright infringement, breach of contract, tortious interference, and misappropriation of trade secrets.
Although not identical, the copyrighted question and the infringing question are substantially similar, the court found.
For example, one of the copyrighted questions in Plaintiff’s Test Item Bank asked:
According to the NCRP (National Council on Radiation Protection and Measurements), which of the following has the highest occupational radiation exposure limit?
Defendant disseminated a question that read:
Which can handle the most radiation according to the NCRP? Torso, Head, Hand.
Items from two exams were implicated: the Limited Scope of Practie in Radiography Examination and the Bone Densitometry Equpiment Operator Examiantion. ARRT maintains a bank of about 1000 test items, using them repeatedly in successive years as well as across multiple exam sites, so the confidentiality of the exam items is carefully protected.
Twenty of the 28 states that require individuals to be licensed to practice limited scope radiography use the ARRT examination. Fifteen states use the ARRT bone densitometry exam.
Candidates must agree not to disclose any exam items and click to accept the following statement: “This exam is confidential and is protected by trade secret law. It is made available to you, the examinee, solely for the purpose of assessing qualifications in the discipline referenced in the title of this exam. You are expressly prohibited from disclosing, publishing, reproducing, or transmitting this exam, in whole or in part, in any form or by any means, verbal or written, electronic or mechanical, for any purpose, without the prior express written permission of ARRT.”
But to conduct her exam prep business, the court found, Bennett asked her students who took the exam to recall any items they could and send them to her. She applied pressure if the student pleaded forgetfulness. In an email quoted by the court, Bennett wrote to one student: “You have GOT TO REMEMBER some questions! You must! Sit down right now and call Tina and you both try to come up with some!!! They do really help!!! Even if you could just remember the questions, you don’t have to remember all the choices! Email me those as soon as you can!
As a result of Bennett’s actions, the court found that ARRT was forced to retire 87 questions from its Test Item Bank at a cost of $1,000 each. Court Providers filed for bankruptcy ib 2010, but Bennett now conducts business through a separately incorporated firm.