There is nothing new about students obtaining copies of professors’ old exams. Fraternities, sororities and unethical individuals have been writing down test questions, hijacking midterms and finals, and keeping them in files for years. What is new is their easy online availability, due to companies that profit from the exchange. One professor who found his materials on a popular website is now suing five of his guilty but unknown students for copyright infringement.

Professor David Berkowitz, an assistant professor at Chapman University’s George I. Argyros School of Business and Economics in Orange, California, found parts of his spring 2021 undergraduate Business Law midterm and final on a popular website named Course Hero. It welcomes students to its pages with the motto “Make every study hour count.” Those who click can find “course-specific study documents for all your classes” if they subscribe for $9.95 per month.

Students can also earn free access, according to the company website, if they “upload your study documents for free access to other documents in our library.” Course Hero is not a defendant in the case.

Berkowitz is seeking a jury trial, a permanent injunction for the students that will stop them from infringing on copyrights, as well as an “order of impoundment of all their devices that contain copies of the copyrighted material.” He also asks for actual and statutory damages, attorneys’ fees, and “any and all additional relief that the court may deem just and proper.”

He does not know which students posted his exam, so he decided to sue to find out. His lawsuit calls the unnamed students John and Jane “Does” One through Five. Berkowitz’s lawyer Marc Hankin, who filed the lawsuit in the U. S. District Court for the Southern District of California on March 18, told the Los Angeles Times that it is aimed at “partly punishing the wrongdoers, but more importantly, it’s protecting the other students who are being hurt by this behavior.” This type of cheating, he said, is worse when the exam is graded on a curve like his client’s class.

Although professors automatically own the copyright to their original work according to Inside Higher Ed, Berkowitz’s suit alleges copyright infringement based on his “formal” application and grant from the U.S. Copyright Office in February. A valid copyright is necessary for an infringement suit.

Since he does not yet know the identity of the offending students, he tried to obtain it from Course Hero but was not successful. Now, he plans to subpoena both the web company and his former students to find out. Hankin explained that Berkowitz had to file a suit because it “was the only way to get a subpoena to learn the names of his students.” Inside Higher Ed quotes an unnamed source that told them that Course Hero had said, “We’ll give you the information if you serve us with a subpoena.” The company clearly has information about the defendants’ identities because a name and email address must be provided to them before it is possible to use the site.

Inside Higher Ed states that Course Hero’s current value is $3.6 billion. Its website offers a variety of “study resources…24/7 homework help, textbooks & solutions.” Students wishing to take advantage of these aids can sign in by identifying their school and the name of their course. Several courses, such as Arizona State’s Finance 300 and New York University’s Econ 105, are easily accessible with a single click. After the click, students receive sample exam questions, which “contain questions related to (a specific textbook).” Some are free.

Their website also provides direct links to the academic integrity policies of hundreds of schools, including Harvard, Yale and Chapman University. A click on Chapman takes students directly to a page entitled “Academic Integrity Violations,” which details forbidden activities such as “cheating,” “fabrication,” plagiarism,” “misrepresentation of academic records,” and “facilitating academic dishonesty,” which is defined as “Knowingly helping or attempting to help another to violate any provision of this policy.”

Although these policies do not have a date of adoption, Chapman’s now specifically warns, “If you upload your homework/exams/answers to a website, you may be facilitating academic dishonesty. Students should consult with their professor before posting such material online.“ The “Does” in the Berkowitz case obviously ignored that policy.

Course Hero issued a statement which the Times shared that explained that their site is a “user-generated content platform, meaning that they “host content but do not review it.” But they said that they use “automated copyright filters to scan uploaded content.” They said users “must agree to terms of use that prohibit the uploading of content they don’t have the rights to.”

According to the Times, the company spokesman went on to say, “Course Hero does not tolerate copyright infringement of any kind and employs a range of preventative measures, investigation and enormous policies,” in what seems to be an effort to shield their liability.

Course Hero, as previously stated, is not a defendant in the Berkowitz case, but the article in Inside Higher Ed wonders whether it should be. Clearly, Berkowitz tried to protect his test questions. His lawsuit explained that his tests were “closed-book exams” that instructed students: “Do not use any outside sources. You may not use the internet. Do not ask anyone for help” and “Do not copy any of the exam questions or your exam answers.”

The company’s new Vice President of Academics, a “digital pedagogy expert,” perhaps recited the new party line that will help protect its profits when he told Inside Higher Ed that “empowering students to excel in their own education is Course Hero’s “DNA.” He also did not like the idea of assigning blame to specific entities as to who or how students cheat. He said, “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.”

One can’t help but wonder whether, aside from the absurdity and difficulty of removing grades and pressure from academia, is there another way to stop this new digital form of cheating? After teaching and being an administrator at a University for nearly 30 years, this writer learned firsthand about the futility of warnings and the availability of questionable study aids.

A better solution might be to make professors create brand new exams with totally original questions each semester. Professors who copy from themselves perhaps share in some of the blame for the existence of this problem in the first place.