Legal Risks for High-Stakes Assessment Programs Transitioning to Test at Home Solutions in the Era of Coronavirus. Part 3.1.

The Solution to the Copyright Registration Problem

This is Part 3.1 of my multi-part article highlighting some of the legal issues that high-stakes assessment programs should be thinking about as they pivot from in-person assessment administration to test at home options for test takers.  All of the lawyerly caveats provided in the first part of the article still apply. 

You may recall that the unfortunate takeaway from Part 3 of this article was that assessment content administered to test takers in their homes is not eligible for copyright registration under the regulations that govern the procedures for the registration of copyrights in secure tests. Since I wrote Part 3, it has really been gnawing at me that I left readers believing that there is nothing that they can do about this copyright problem other than lobby for changes to the copyright regulation. I basically gave readers a literary shrug of the shoulders when I wrote: "I wish a had a better answer for this one.” I recognize that nobody has time now to lobby the Copyright Office. Assessment programs are striving to adapt at warp-speed to their new reality and need practical solutions that they can implement immediately. The fact that I failed to propose a practical solution for the copyright problem didn’t sit well with me and I have been pondering the issue obsessively since I finished writing Part 3.

One activity that has helped me to maintain my sanity during the pandemic is running outside, often with my dog, Luke. We usually run around three miles on a path through a beautiful state park situated along the Neshaminy Creek, which is a short drive from my house. I have found over the years that some of my better ideas come to me while I am running. On a recent morning, about 15 minutes into my run with Luke, the solution to the copyright registration problem hit me — forget copyright registration!  There are other practical ways to protect assessment content that don’t require government approvals! I only hoped I wouldn’t forget the idea before I got back to my house to write it down! 

Here is the idea, in a nutshell – assessment programs can use the powerful tag-team of federal trade secret law plus confidentiality agreements to obtain the same basic protections that would otherwise be available through copyright registration. I hope that when you are finished reading Part 3.1 of this article, you will agree that what I have proposed is an effective strategy to work around the copyright registration problem and provide assessment programs with the legal tools to protect and enforce their rights in assessment content.

Why do we care so much about copyright registration, anyway? Because registration gives the owners of secure assessment content a set of powerful legal tools to protect and enforce their rights in the content. Those benefits include:

(1)    A standardized method to notify the world that they own the content;

(2)   The right to sue for infringement in federal court;

(3)   Injunctive relief in the form of a preliminary and permanent injunction;

(4)   The ability under compelling circumstances to obtain an ex parte seizure order;

(5)   Statutory damages if the copyright is registered quickly enough; and

(6)   The ability to recover attorney’s fees and costs for willful infringement. 

With the exception of number 5 – statutory damages – federal trade secret law can be leveraged to provide nearly all of the same benefits as copyright registration to high-stakes assessment programs, so long as programs religiously use confidentiality agreements and employ a robust communications and notice strategy, as suggested in greater detail below.

The United States Defend Trade Secrets Act (“DTSA”), which became law in 2016, offers assessment programs the most important 5 out of 6 benefits of copyright registration without ever having to register a copyright. The DTSA provides owners of a trade secret related to a product or service used in, or intended for use in, interstate or foreign commerce with a civil cause of action against anyone who misappropriates it. 18 U.S. Code § 1836.

Under the DTSA, a trade secret is generally any commercially valuable information that is not publicly known where reasonable effort is taken to preserve its confidentiality. The DTSA’s definition of trade secret is broad, allowing a wide range of proprietary information to fall under its protection. The definition under 18 U.S.C. § 1839(3) includes:

All forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if:

(A) The owner thereof has taken reasonable measures to keep such information secret.

(B) The information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information.

So, a foundational concept of assessment programs invoking the DTSA is that high-stakes assessments administered over the Internet (via interstate commerce) are trade secrets that qualify for protection under the DTSA. Although there could be room for some scholarly debate on this issue, there is a strong basis to argue that assessment content used in high-stakes assessment programs, including secondary and higher education admissions, certification, licensure, credentialing, employment selection and promotion, qualifies as a trade secret under the DTSA so long as the programs take “reasonable measures to keep such information secret.” There is little doubt that the contents of high-stakes assessments used to make important decisions about a person’s education, certification, licensure, credentialing or employment derive independent economic value from not being generally known. Indeed, as soon as assessment content is generally known, it is completely stripped of its value.

Courts that have recently considered the issue have held that where a high-stakes assessment program employs reasonable measures to keep assessment content a secret, including the comprehensive use of confidentiality agreements, the contents of the assessments are in fact trade secrets. See for example, Assessment Techs. Inst. v. Parkes, No. 2:19-CV-2514-JAR-KGG (D. Kan. Dec. 9, 2019) (“ATI derives independent economic value from the security of these exam questions because its clients—nursing schools—license exams from ATI to accurately assess its students and prepare them for the NCLEX. Such assessment requires that exam answers are not readily ascertainable. Although the general nursing information used to develop ATI's exam questions is readily ascertainable, it does not follow that the arrangement of that material into a particular format of question and answer is also readily ascertainable.”); Am. Registry of Radiologic Technologists v. Bennett, 939 F. Supp. 2d 695 (W.D. Tex. 2013) (“Although the knowledge tested on Plaintiff's Examinations may be widely available, Defendant has provided the Court with no reason to believe that the precise questions Plaintiff has expended money to formulate are in the public domain. The Court concludes that Plaintiff's Examination questions constitute trade secrets.”).

I would be remiss if I did not point out that courts in Arizona and Ohio have held that the contents of state K-12 public education accountability assessments were not trade secrets exempt from disclosure under their respective state public records laws. See Phoenix Newspapers v. Keegan, 201 Ariz. 344 (Ariz. Ct. App. 2001); State ex rel. Rea v. Ohio Department of Education, 81 Ohio St. 3d 527 (Ohio 1998). However, the Arizona and Ohio court decisions are simply not applicable to the kinds of high-stakes assessments I am writing about in this article because they did not address assessment programs that require every person who creates, views or has access to the assessment content to sign a non-disclosure agreement. Moreover, the courts in these decisions, made many years before the passage of the DTSA, interpreted their own unique state public records laws that are quite distinct from the DTSA. Accordingly, these prior state court decisions are not likely to undermine the application of the DTSA to the kinds of high-stakes assessment programs I am writing about in this article.

Now, on the question of what constitutes reasonable measures to keep assessment content secret, I could write a book. There are many things a program can and should do to ensure the security of its assessment content, both on its own and through the use of third party vendors. Caveon offers numerous valuable resources on test security that can provide many useful suggestions to programs seeking technical guidance in that regard. However, in addition to all of the technical security measures programs can put in place, an absolutely essential ingredient to trade secret protection is to enter into a binding non-disclosure agreement with every single person who creates, modifies, views, uses or has access to the assessment content. The non-disclosure agreements must clearly provide that the assessment content and all of its component parts are trade secrets and the sole and exclusive property of the program. These agreements must be in place with every program employee, independent contractor, item writer, item reviewer, subject matter expert, vendor, test taker and anyone else who might have access to the content at any time. If any person can view or access your test without first entering into such an agreement, kiss your trade secret protection goodbye.

Okay, so we have established that high-stakes assessment content is a trade secret so long as programs treat it as such. Now, what is misappropriation? Misappropriation under 18 U.S.C. § 1839(5) is defined in detail under the DTSA as:

(A) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or

(B) Disclosure or use of a trade secret of another without express or implied consent by a person who:

(i) Used improper means to acquire knowledge of the trade secret

(ii) At the time of disclosure or use, knew or had reason to know that the knowledge of the trade secret was

(I) Derived from or through a person who had used improper means to acquire the trade secret;

(II) Acquired under circumstances giving rise to a duty to maintain the secrecy of the trade secret or limit the use of the trade secret; or

(III) Derived from or through a person who owed a duty to the person seeking relief to maintain the secrecy of the trade secret or limit the use of the trade secret; or

(iii) Before a material change of the position of the person, knew or had reason to know that

(I) The trade secret was a trade secret.

(II) Knowledge of the trade secret had been acquired by accident or mistake.

This legal stuff is starting to get pretty dry, I know. But here is the important takeaway – to establish misappropriation of a trade secret, the key ingredient that a trade secret owner must establish is KNOWLEDGE. The person misappropriating, taking or obtaining a trade secret without permission has to KNOW it is a trade secret, KNOW that either they or the person they got it from was legally obligated not to disclose it, and know that they should not have taken it, received it or used it.

So, how does a high-stakes assessment program ensure that anyone who might try to take, copy or share its assessment content KNOWS that it is a trade secret? A few very important ways:

(1)   Agreements, agreements, agreements – did I say agreements?

(2)   Include a written “TRADE SECRET” designation on all assessment content, just like a copyright notice.

(3)   Tell all program stakeholders clearly and repeatedly in all communications that the assessment content is a trade secret.

(4)   Broadcast the trade secret status of your assessment content all over your website and throughout program collateral.

As already mentioned above, the assessment program must have written non-disclosure agreements with every single person who creates, modifies, views, uses or has access to the content and those agreements must clearly provide that the contents of the assessment are trade secrets and the sole and exclusive property of the program. I really cannot overstate the importance of these agreements in both establishing the legal obligation to keep assessment content secret and in establishing the knowledge of the person entering the agreement that the assessment content is in fact a trade secret. Beyond test takers, ensuring that everyone in the assessment program’s stakeholder community and pretty much everyone in the world understands that your assessment content is a trade secret is one of the most important things you can do. That way, you will make it very difficult for a person or test prep operator accused of misappropriation to credibly argue that they didn’t know your assessment content was a trade secret.

One of the really powerful parts of the DTSA is the opportunity for a trade secret owner to file an ex parte motion with a court for civil seizure in extreme circumstances. This feature of the DTSA is similar to copyright law. Civil seizure is a preventative tool employed prior to a finding of misappropriation by which a court may issue an order providing for the seizure of materials necessary to prevent the further disclosure and distribution of the trade secret that is the subject of the lawsuit. Ex parte means that the party seeking relief from the court is not obligated to tell the defendant that is the subject of the lawsuit in advance that it is asking the court to issue a seizure order, and the court can issue the order without hearing arguments from the defendant. Using this tool, an assessment program aware of test prep operator in possession of stolen trade secret assessment content may quickly prevent further dissemination of that content during the pendency of a formal DTSA case. 18 U.S.C. § 1836(b)(2)(A)(ii).

Pulling this all together, let’s revisit the list of benefits of copyright registration that can be achieved just as effectively under the DTSA when used in conjunction with effective trade secret notices and non-disclosure agreements in accordance with the suggestions provided above.

(1)    A standardized method to notify the world that they own the content.

• Although there is, thankfully, no registration required of owners to obtain trade secret protection under the DTSA and no standardized form of notice that something is a trade secret, programs can and should clearly designate assessment content as a trade secret on every screen that the content appears. A notice at the bottom of the screen may look something like this: “The contents of this test are trade secrets owned exclusively by the program and protected by the Federal Defend Trade Secrets Act, 18 U.S. Code § 1836.” Or, for those that prefer fewer words, something like: “Trade Secrets Protected Under 18 U.S. Code § 1836.”

(2)   The right to sue for infringement in federal court;

• Check; right to sue for misappropriation in federal court.

(3)   Injunctive relief in the form of a preliminary and permanent injunction;

• Check; identical relief available under the DTSA.

(4)   The ability under compelling circumstances to obtain an ex parte seizure order;

• Check; see explanation above.

(5)   Statutory damages if the copyright is registered quickly enough; and

• Although statutory damages are not available under DTSA, the owner of a trade secret may recover two times exemplary damages, plus reasonable attorney’s fees upon establishing willful and malicious misappropriation.

(6)   The ability to recover attorney’s fees and costs for willful infringement. 

• Check; see above.

Accordingly, high-stakes assessment programs transitioning to test-at-home assessment platforms can take advantage of the DTSA to ensure that they are not left vulnerable simply because they are not able to register copyrights in remotely-administered assessment content. Indeed, the DTSA can provide high-stakes assessment programs with a powerful alternative to copyright registration to protect assessment content when used in conjunction with effective notices and non-disclosure agreements. 

After I wrote Part 3, I said that the next installment of this article would cover privacy concerns. However, at this point there is a little less pressure for me to write about that topic because the International Privacy Subcommittee of the Association of Test Publishers (ATP) Security Committee published a fantastic article on April 7, 2020, entitled “Moving High-Stakes Testing Programs Online Calls for Privacy Measures,” which you can read here. The ATP article fairly covers the ground that I intended to cover in the privacy concerns section of my article, and I don’t have much to add.  I have not forgotten that I committed to writing about other important topics of concern to assessment programs transitioning to test-at-home platforms and I intend to get to those in the coming weeks, as soon as I can.

In the meantime, stay well and stay tuned.

? 2020 Marc J. Weinstein PLLC. All rights reserved.