A pattern like AADBA=Copyrighted? SAT Answers & US Law

[uznuS]

I read a statement on the internal part (paid access) of a Kaplan standardized test preparation website that suggested that it would be illegal to reproduce the letter combinations (Kaplan pays a licensing fee for each historic test) corresponding to the correct answers for previously-administered standardized tests like the SAT or LSAT. So the implication would be that if in this thread I said, “hey dopers, the complete answers for 1997’s SAT were 1-D 2-C 3-A” etc I would be violating the copyright.

This really a little hard to believe. I am certain that it would be a violation of copyright laws to reproduce entire tests including the questions as those are clearly intellectual property however solutions, particularly in the form of otherwise arbitrary 5-letter combos don’t strike me as something that could be protected by law.

The first analogy that comes to mind is reprinting, without permission, the answers for the new york times crossword puzzle. I am sure that one couldn’t reproduce the whole puzzle with the questions, but the solutions on the other hand seem intuitively like something that could be shared or even sold.

This is all speculation though so I’m interested to read the opinions of more informed minds than my own.

thnx!

[padabe]

I’m not an authority on the subject, but it sounds reasonable to me. I would imagine the NYT crossword solution is copyrighted. Although you’d have a hard time giving it away (nevermind selling it at a profit), why couldn’t the Times go after you for that? I imagine they sell the solution on a 1-900 number or something, but even so, wouldn’t you be be irritated if the roles were reversed?

Just as a specific sequence of musical notes is protected as a song, Kaplan’s sequence of letters is protected in the context of their exam answers.

That’s not to say that no one else can use the same sequence for a different test–I imagine they’re just ensuring that no one profits at their expense.

[uznuS]

Thanks for posting padabe!

You raise some interesting points. I think we both make some unsupported assertions that may or may not be factually sound, but certainly you’ve cast doubt on my original hypothesis.

The gap I sense in your analogy to copy written music is that the notes in a song comprise its essence, whereas the pattern of correct choices for a standardized test are not in an of themselves reflective of the defining core of the IP in question.

still, there must be some more obvious precedents that we’re missing here.

[Chronos]

I don’t see how the answer key could be copyrighted, since it isn’t creative. I could take an SAT and completely randomly scramble all of the answers, but the creative content of the test would remain exactly the same. If I can destroy all of the information in the answer key without changing the creative content of the test, that implies that there is no information in the answer key. In fact, the answer key probably is generated randomly, to begin with, and no court would support the notion that a random number generator can produce creative output.

[uznuS]

That’s an excellent point, I hadn’t considered how ‘random’ the assignment of correct letters actually is.

[RealityChuck]

Copyright has to do with making copies, not creating. Copying the answer key is no different from copying a book; you need to author’s permission to do so. There are things like fair use, but if you’re copying an entire answer key for the test, it wouldn’t apply (fair use is only for portions of work, not the entire work).

The copyright doesn’t prevent you from randomly coming up with the same answers for a different test, but if you’re saying “These are the SAT answers,” then you are taking a copyrighted document and distributing it without permission, which is a violation.

[RealityChuck]

Oh, and as far as the randomness is concerned, the book A Million Random Digits with 100,000 Normal Deviates is copyrighted (see “Look inside the book”). The SAT answer key has considerably fewer random characters than that.

[Una_Persson]

@uznuS

I read a statement on the internal part (paid access) of a Kaplan standardized test preparation website that suggested that it would be illegal to reproduce the letter combinations (Kaplan pays a licensing fee for each historic test) corresponding to the correct answers for previously-administered standardized tests like the SAT or LSAT. So the implication would be that if in this thread I said, “hey dopers, the complete answers for 1997’s SAT were 1-D 2-C 3-A” etc I would be violating the copyright.

I think Chronos has a good point - there is no creative content involved. Copyright protects creativity, not slavish effort. However, I don’t know what the right answer is.

Note that the US Copyright Office seems to give some incomplete information on this on their official site: http://www.copyright.gov/circs/circ1.html

In the case of works made for hire, the employer and not the employee is considered to be the author. Section 101 of the copyright law defines a “work made for hire” as:

     1. work prepared by an employee within the scope of his or her employment; or
     2. work specially ordered or commissioned for use as:
            + a contribution to a collective work
            + a part of a motion picture or other audiovisual work
            + a translation
            + a supplementary work
            + a compilation
            + an instructional text
            + a test
            + **answer material for a test**
            + an atlas

if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

(emphasis added)

I believe, but am not asserting, that the above is referring to answer material for a test which has substantive creative content. If the answer material has no creative content, then according to the same site it appears it would not be copyrighted: http://www.copyright.gov/circs/circ1.html#wwp

What Is Not Protected by Copyright?

Several categories of material are generally not eligible for federal copyright protection. These include among others:

* Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)
* Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents
* Ideas, **procedures, methods, systems, processes,** concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration
* Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)

(emphasis added)

This implies that since they are mentioned as not being worth depositing with the Copyright Office, tests and answer keys are at least considered of being capable of such, and thus copyrightable: Copyright Law: A Practitioner's Guide - Bruce P. Keller - Google Books

Legal Eagle Gfactor probably knows.

[WF_Tomba]

@Chronos

I don’t see how the answer key could be copyrighted, since it isn’t creative. I could take an SAT and completely randomly scramble all of the answers, but the creative content of the test would remain exactly the same. If I can destroy all of the information in the answer key without changing the creative content of the test, that implies that there is no information in the answer key. In fact, the answer key probably is generated randomly, to begin with, and no court would support the notion that a random number generator can produce creative output.

But if you publish the answer key to an existing test, what you have published does contain information, as long as it can be identified and matched to the right test. The generation of the answer key may be random, but the publication of a test with that specific key makes the key meaningful.

RealityChuck: the placement of a copyright notice in a book only means that the creator claims to have created it. Whether that particular work’s copyright would be upheld in court is presumably unknown.

[Chronos]

Yes, the key contains information, assuming that the test exists. But it doesn’t contain creative information. Not all information is copyrightable.

The test company probably could protect the answer key via contract law, though. Require everyone with access to the test or its answer key to agree not to disseminate it, and then, if anyone does, you can go after them for breach of contract.

[ftg]

The use of randomization is a red herring.

The original list of answers is definitely a creative work. Running the test/key thru a randomizer is just an extra step.

Note that translations are protected as well as the original. So if you ran a Harry Potter book thru Babelfish, Rowling is still protected. The lack of creativity in the translation doesn’t matter.

The interesting question is how short can an answer key and still be protected? E.g., 4 questions whose answers are ABBA? Could someone scrape web pages thru Google and send DMCA takedown notices to a million fans of bland music?

(For those not in the know about creativity and lists: Courts have ruled that uncreative lists like phone book listings can’t be copyrighted. There have been reports on Slashdot about proposed changes to laws to allow copyrighting of databases which would overturn that. I don’t know how far these proposals have gotten.)

[Acsenray]

@RealityChuck

Copyright has to do with making copies, not creating.

Wrong. It has to do with the copying of a creative work.

@ftg

The original list of answers is definitely a creative work.

If the “answers” in question is merely a series of letters ABCD that express no creative content on their own, then they do not constitute a creative work.

Note that translations are protected as well as the original. So if you ran a Harry Potter book thru Babelfish, Rowling is still protected. The lack of creativity in the translation doesn’t matter.

Yes it does. A translation of a novel is a creative work, because it can be perceived on its own as creative expression. An answer key that is merely a series of letters cannot be so perceived.

(For those not in the know about creativity and lists: Courts have ruled that uncreative lists like phone book listings can’t be copyrighted. There have been reports on Slashdot about proposed changes to laws to allow copyrighting of databases which would overturn that. I don’t know how far these proposals have gotten.)

“Sweat of the brow” collections (that is, mere compilations of facts) are not protected under U.S. copyright law. Databases are usually protected through unauthorized access laws and such.

[RealityChuck]

@WF_Tomba

RealityChuck: the placement of a copyright notice in a book only means that the creator claims to have created it. Whether that particular work’s copyright would be upheld in court is presumably unknown.

Un, no. In the case of a book, it usually means the copyright has been registered. And even if it hasn’t been registered, the notice alone is considered good enough to enforce limited rights in the US and full rights nearly everywhere else. You do not have to prove you created anything (and even a list of random number is “created,” even if it isn’t creative), just that you claim the copyright.

Also, there a things like compilation copyrights that are merely lists of information – e.g., the phone book. The information in them is freely available, but if you copy it from a particular book, it’s a violation. Thus random numbers or letters are also freely available, but if you copy a particular list of them, you are violating copyright. If it could be shown that you took them from a printed source, you’re in violation; if you can show you got them elsewhere, you are OK.

When a copyright notice is on a work, the burden of disproving it is on the person being sued, not the person who owns the copyright. Calling it “unknown” would mean that copyright would be unenforceable until a court rules on it. Yet most copyright cases never even get to court simply because the copyright notice is presumption of copyright ownership. A lawyer who told his client that a copyright notice proves nothing is guilty of legal malpractice; he should be advising them that there is a remote chance he might be able to argue that position and the court would agree, but it’s not likely.

[WF_Tomba]

@RealityChuck

When a copyright notice is on a work, the burden of disproving it is on the person being sued, not the person who owns the copyright. Calling it “unknown” would mean that copyright would be unenforceable until a court rules on it. Yet most copyright cases never even get to court simply because the copyright notice is presumption of copyright ownership. A lawyer who told his client that a copyright notice proves nothing is guilty of legal malpractice; he should be advising them that there is a remote chance he might be able to argue that position and the court would agree, but it’s not likely.

I understand that, but in this case we are talking about whether something by its nature is uncopyrightable. It’s not a question of whether someone owns the copyright, so we can assume that our hypothetical client does have the opportunity to argue the matter before a court.

Am I correct that the publisher can place a copyright notice in a book even if the book contains nothing that can be protected by copyright?

[Acsenray]

@RealityChuck

Un, no. In the case of a book, it usually means the copyright has been registered.

No, it merely means that someone is claiming that the work is subject to protection under copyright law.

And even if it hasn’t been registered, the notice alone is considered good enough to enforce limited rights in the US and full rights nearly everywhere else.

No, it merely serves as notice to potential infringers that someone is claiming rights in the work.

You do not have to prove you created anything (and even a list of random number is “created,” even if it isn’t creative), just that you claim the copyright.

Wrong. Wrong, wrong, wrong, wrong, wrong. If you try to pursue a claim for copyright infringement, the defendant definitely has an option of saying that the work in which the plaintiff is claiming rights is not sufficiently creative to deserve protection. It happens every damn day in court.

And a list of random numbers is not automatically subject to protection. In fact, if it’s truly random, it’s very likely that it will be found uncopyrightable.

Also, there a things like compilation copyrights that are merely lists of information – e.g., the phone book.

Wrong. Wrong, wrong, wrong, wrong, wrong. Compilations are protected as compilations of works that individually are creative works. Mere compilations of facts are not creative.

The information in them is freely available, but if you copy it from a particular book, it’s a violation.

No, it’s not, damn it. It is not infringement to copy the information from a phone book. It’s only infringement if you copy the creative expression, which in the case of a phone books is its visual formatting.

[Gfactor]

Here is a previous thread we did on copyright and psychometric tests (which are a bit different, but I quote a case that cites other cases . . . ) Are psychometric tests protected by copyright or patent? - Factual Questions - Straight Dope Message Board

[RealityChuck]

@acsenray

Wrong. It has to do with the copying of a creative work.

It has to do with copying any work.

The copyright office says:

@Copyright Office

Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works.

Note there is no mention that the work is creative (except in the sense of “coming into existence in printed form”) – just original. The answer key is original.

But let’s get this clear. The law says, “The copyright in the work of authorship
immediately becomes the property of the author who created the work.” But “created” here does not mean creativity as you mean it. Printing out a list of presidents of the US means that you created that list, and that the actual paper falls under copyright protection. Other people can print lists of the presidents, but they can’t take your list and make copies (Of course, in this example, no one is going to bother with a copyright case over it).

And even granting your point, producing an answer key requires creative input. If the questions are copyrightable (as you agree), then the answer must be too. If the SATs had a written document with all answers listed, I think you’d agree that that would be copyrightable. Showing just the letters is the same thing.

If the “answers” in question is merely a series of letters ABCD that express no creative content on their own, then they do not constitute a creative work.

The series of letters isn’t what’s being copyrighted. It’s the answer key, which happens to be a series of letters. That’s an important distinction. If you randomly generate the same series of letters and publish it without reference to the SATs, then it’s not a violation. But once you identify it with the SATs, it is using their copyrighted material.

A translation of a novel is a creative work, because it can be perceived on its own as creative expression. An answer key that is merely a series of letters cannot be so perceived.

Irrelevant, since “creativity” as you’re using it is not a criteria for copyright. In the law, “creating” means “making an original.”

“Sweat of the brow” collections (that is, mere compilations of facts) are not protected under U.S. copyright law. Databases are usually protected through unauthorized access laws and such.

The data in those collections is not, but if you photocopy them and distribute them – instead of compiling the data yourself from a common source – it is. The format and style of the printed material is copyrightable.

And you’re comparing apples with pogo sticks. In the collections, the base data is not copyrightable. In the SATs, the base data IS copyrightable. So you’re taking it from a copyrighted work. It could even be construed that the answer key is a derivative work from the test and thus copyrightable on that basis (on reflection, that may even be the ETS’s justification).

[Acsenray]

RealityChuck, I have to ask what the basis is of your knowledge in U.S. copyright law. You statements display fundamental misunderstandings of basic concepts.

@RealityChuck

It has to do with copying any work.

No, copyright law protects only works that are defined as protectable.

The Copyright Act extends protection to works that are creative, original, and fixed in a perceptible medium. They must be all three things.

[WF_Tomba]

@RealityChuck

Printing out a list of presidents of the US means that you created that list, and that the actual paper falls under copyright protection. Other people can print lists of the presidents, but they can’t take your list and make copies (Of course, in this example, no one is going to bother with a copyright case over it).

To be clear, are you talking about composing such a list oneself (based on one’s own knowledge of U.S. Presidents) and then printing it, or just printing out a list composed by someone else? I claim no expertise, but I would be very surprised to find out that the latter were protected by copyright.

[Chronos]

The use of randomization is a red herring.

The original list of answers is definitely a creative work. Running the test/key thru a randomizer is just an extra step.

If the answer key were something like

1: Paraguy
2: Antidisestablishmentarianism
3: 273.4

then you would have a point. But what we’re talking about is more like

1: C
2: A
3: B

In practice, this list of letters would be generated completely randomly and completely independently of the process of writing the questions and answers themselves, and then the right answer for each question is assigned to the appropriate randomly-selected letter. The testing company could produce the list of letters without even knowing whether it was going to end up being a math test or a French test. Trying to copyright the answer key is like encoding a book with a one-time pad, and then trying to copyright the pad.