A Chapman University business assistant professor is suing students for posting portions of his midterm and final course exams on the website CourseHero. But we don’t know who those students are yet. That’s what this lawsuit is all about: By suing John Douce for copyright infringement, the professor, David Berkowitz, is trying to legally compel CourseHero to produce the students’ identities.
“We had no choice,” said Mark Hankin, Berkowitz’s attorney. “The only way to get a subpoena is to have a case pending.”
Before suing, Berkowitz contacted Chapman to say his exam questions were on CourseHero and ended up on the website itself, Hankin said. But neither party could say who uploaded the exam.
Chapman “has a very strong honor code, and they don’t support cheating, and obviously, they didn’t know who it was, and they couldn’t do anything about it,” Hankin continued. Meanwhile, Course Hero told Berkowitz, “We’ll give you the information if you give it to us with a subpoena.”
Professors automatically own the copyright to their original class materials, and CourseHero honors takedown requests alleging copyright violations. (It also says it encourages students to take charge of their own learning by asking for help and helping others, not cheating.)
CourseHero said Wednesday it received a takedown request from Berkowitz in February and complied with it.
“A member of our Education Partnerships team also assisted Berkowitz prior to the takedown request, where she helped him understand the Digital Millennium Copyright Act process and spoke to him about further support to prevent future uploads,” a spokesperson said. “We are always available to assist teachers in this process.”
Hankin said Berkowitz sent CourseHero a takedown request last month, but many of Berkowitz’s test questions were already on CourseHero earlier this week “for all to see.” (Hankin said he hasn’t sent a takedown notice since the lawsuit was filed this month to preserve evidence.)
Course Hero has not yet been subpoenaed, but said it always follows the law and will do so in this case.
Students sign up for CourseHero with a name and email address, and the subpoena website allows them to link suspect documents to a unique IP address, according to information from the company.
Surprising discovery and questions of blame
In January of this year, Berkowitz discovered that portions of midterm and final exams from his spring 2021 undergraduate business law course had been shared on CourseHero, which allows students and faculty members to share and search for information about specific courses and topics. It includes class notes, lectures and assignments, but exam questions have been known to make their way onto the site, giving Course Hero a reputation for enabling coping. Concerns about CourseHero and other student-driven websites have grown during the COVID-19 era, when online learning and testing has soared and pressure and isolation have made cheating more tempting. (Course Hero says much of this reputation is undeserved, as the website has its own honor code, but cannot police everything users upload.)
In February, Berkovitz filed expedited copyright applications with the US Copyright Office for both documents, and copyright registration was granted the next day. It is not necessary to prove ownership of the materials, but it is necessary to sue for copyright infringement.
Berkowitz’s lawsuit alleges “infringement of Berkowitz’s exclusive right to reproduce, make copies, distribute, and create derivative works by publishing the midterm exam and final exam on the CourseHero website without Berkowitz’s permission.”
The lawsuit also states that the defendants “knew or should have known that their actions constituted copyright infringement.”
Hankin said the exams in question included clear instructions not to seek outside help or share questions or answers. These were “closed-book tests. ‘Don’t use any outside sources. You shouldn’t use the Internet. Don’t ask anyone for help.’ And it literally says, ‘Do not copy exam questions or your exam answers.’ It says it right above.” Yet “one or more students violated that and posted the course’s exam to ask for help during the exam.”
Those students “must be disciplined by the university, no matter what the university decides to do,” he said, adding that “it’s unfair to other students who are on the curve with grades lowered through no fault of their own.”
While Berkowitz grades on a curve—a controversial practice that many professors have moved away from—Chapman’s Argyros School of Business and Economics doesn’t require him to do so.
Berkowitz seeks a permanent injunction preventing the defendants from directly or indirectly infringing the exams’ copyrights, and an order to confiscate all devices containing copies of the copyrighted material in the defendants’ possession and within their distribution channels.
The suit also says Berkowitz is seeking damages. Hankin said his client is “solely” interested in finding out who cheated.
Chapman’s honor code states that the university is “a community of scholars that emphasizes the mutual responsibility of all members to pursue knowledge honestly and in good faith.” Students are responsible for their own work, and any form of academic dishonesty is subject to instructor/administrator approval and referral to the university’s Academic Integrity Committee, which may impose additional sanctions, including expulsion.
Cerys Valenzuela Metzger, a university spokeswoman, said, “While we do not comment on specific situations with students, unauthorized posting of exam questions may be a violation of our academic integrity policy. In accordance with our policy, we will encourage the professor to report the incident and the students involved to the Academic Integrity Committee for adjudication.
Karen Costa, an independent faculty trainer who focuses on online pedagogy and trauma awareness, said the case raises more concerns about CourseHero—which is valued at $3.6 billion and has previously criticized it for not doing enough to protect student privacy. .
“The course hero literally presents himself as a hero to the students, doesn’t he?” Costa said. “Yes, a lot of students know it’s cheating, but at the same time, there’s this very professional website that I imagine has a multi-million dollar marketing budget that’s aimed at students and teachers—that’s it. It is a community that supports students and learning.
Beyond CourseHero, Costa questioned why Berkowitz would grade on a curve in the first place and take the unusual step of suing students—especially when a platform like CourseHero was so central to their infringement.
“You have a multi-billion dollar company whose business model is to give students access to citation-free ‘learning materials’ when they post their own writing, assignments and content from their courses,” she said. “This is an exploitative, predatory model that preys on students’ worst angels. Will the blame fall on a few disgruntled graduates or a multi-billion dollar company? I know where it falls in my book.
Course Hero is certainly not flawless or problem-free, Hankin said, but “if someone is artificially putting themselves at the top of the curve, they’re actually hurting other people.” He added, “It’s not just cheating on you—you’re actually hurting your classmates. That’s what the professor cares about.
Sean Michael Morris, a digital pedagogy expert who taught English at the University of Colorado in Denver and is CourseHero’s new vice president, said in an interview that the course is about empowering students to excel in their own education. Hero’s “DNA” and he disliked the idea of blaming specific institutions for why or how students cheated.
“As someone who really believes in students and wants to support students, I think what we really need to look at is something more systemic,” he said. “That means looking at grades, specifically grading on a curve—I think there are real issues involved. It puts undue pressure on students to succeed beyond the norm. They want to get more than an A—they want to get a great A.
He continued, “Oh, the students did it. Oh, of course Hero did it. Oh, the teacher did.’ What we need to look at instead is why students and teachers have such an adversarial relationship with each other, based on the fact that they are constantly being graded and evaluated in some way, putting more pressure on them than there should be.”