In the 22 years David Berkovitz has taught at Chapman University’s Argyros School of Business and Economics, thousands of students have passed through his classroom in Beckman Hall. Some have even been kind enough to leave an affectionate five- or four-star review on Rate My Professors at the semester’s end.

But in the last month, Berkovitz’ page received a flurry of one-star reviews and scathing comments as the associate professor of business law made national headlines after suing a group of his own students for copyright infringement. 

“Suing his students to compensate for his severely outdated exams is wholly inappropriate and shows a lack of both planning and forethought in (Berkovitz’) syllabus and a total inability to take responsibility for his own actions,” an anonymous, one-star review on Rate My Professors from March 21 read. “Don't take this professor if you want to be taught by a reasonable adult.”

Earlier this year, the Chapman faculty member was appalled to find his midterm and final exam materials from the spring 2021 semester uploaded to the website Course Hero under pseudonymous usernames, which Berkovitz believes are the aliases of former students. 

As a result, he sought legal action against the unnamed users to find out their identities, which he ultimately received April 6.

On each exam that Berkovitz distributes, a header labeled “Quiz Instructions” is followed by a thorough explanation of prohibited conduct while taking the test. Many of the test materials uploaded to Course Hero still had these headers intact, which served to bolster the allegation in Berkovitz’ complaint that “defendants knew or should have known that their acts constituted copyright Infringement.”

“This is a closed book exam, and you are forbidden to use any course materials, notes, electronic resources, the Internet, etc. to assist you with taking the exam,” an excerpt from the header at the top of Berkovitz’ BUS 215 final exam reads. “Moreover, you are prohibited from copying any part of the exam or your exam answers.”

Berkovitz first discovered his tests online in January 2022, at which point he submitted takedown notices to Course Hero and contacted Chapman’s Academic Integrity Committee (AIC). According to Berkovitz’ attorney Mark E. Hankin — an intellectual property lawyer who has previously worked with the Chapman professor — the AIC explained they would be incapable of taking action until provided with the identities of the students who published the testing materials.

“I don’t think Chapman has done anything to drive this or worsen this,” Hankin said in a March 28 interview with The Panther. “Once Professor Berkovitz turns over (the names) to Chapman … they’re going to dismiss the lawsuit, and he’ll move on with his life. And it’s up to Chapman to choose what they want to do to enforce their own honor code.”

The inability for the university to intervene prompted Berkovitz to reach back out to Course Hero directly, requesting identifying information about the users who published questions and answers from his course. Though he was disheartened to be met with a Feb. 1 email response from Terry Park, Course Hero’s head of compliance, asserting that providing user information would be a violation of the site’s privacy policy.

“We cannot provide user information due to our privacy policy,” Park wrote to Berkovitz in an email provided to The Panther by Hankin. “We need to comply with the provisions of the (Digital Millennium Copyright Act), a procedure for obtaining a subpoena to identify an alleged infringer, in response to which we would be happy to share such identifying information with you.”

Meanwhile, the same privacy policy outlines the third parties with whom Course Hero does provide this information. Personal data of the site’s users such as contact information and IP address are shared with other service providers, advertising partners and analytics partners.

Berkovitz, on the other hand, would need to obtain copyright registration for his exams through the U.S. Copyright Office and file a lawsuit in federal court in order to issue a subpoena and receive the names of the users in question. He emphasized that the lawsuit (David A. Berkovitz v. Does) was a response to Course Hero’s request for a subpoena rather than an attempt to inflict shame or financial consequence on the students who published the copyright materials.

“I fully intend to dismiss the lawsuit once Course Hero appropriately responds to the subpoena and turns over the information requested in my legal claim,” Berkovitz wrote in a March 30 statement to The Panther. “I intend to turn that information over to Chapman University, but at no time will I make public the names of students who cheated. I simply want those responsible to stop hurting students who maintain Chapman University’s high ethical standards by going about their studies in the right way.”

However, Berkovitz’ March 11 complaint alleges that Berkovitz is entitled to financial compensation in the form of “an award of actual damages and profits, an award of statutory damages for willful infringement, an award of attorney’s fees, prejudgment interest, costs of the suit and any and all additional relief that the Court may deem just and proper.” 

While Hankin declined to disclose the sum of Berkovitz’ legal fees, he revealed that it is well into the thousands — all of which is coming out of Berkovitz’ own pocket.

“This lawsuit is costing him a lot more than he’s ever going to see,” Hankin said. “He’s never getting money back from the students; that’s not the purpose. 

The purpose, according to Hankin, was not only to pass along the names of students involved in academic misconduct to the AIC, but also out of fairness for the innocent students who were harmed as a result. Hankin explained that Berkovitz’ class, like many others in the business school, operates off of a grading curve — meaning that a student who gets an artificially high score sets an unrealistic standard for all other students.

For Tom W. Bell, a professor in the Dale E. Fowler School of Law, the case was resonant on multiple levels: the lawyer has a breadth of knowledge in intellectual property and internet law, publishing a book on the subject in 2014 called “Intellectual Privilege: Copyright, Common Law, and the Common Good,” and his class also operates off of a grading curve similar to Berkovitz’.

“We do have a mandatory grading curve at the law school; it’s quite stringent,” Bell told The Panther. “Our students don’t like it. Many faculty, myself included, find it sometimes has harsh effects.”

Executive Vice President, Provost and Chief Academic Officer Norma Bouchard said she was unaware some classes utilized grading curves until recently, but conceded that faculty are granted a significant amount of latitude in the schematics of how they choose to assess students.

“My sense is that some colleges have the curve and some do not,” Bouchard said. “I could see advantages to the curve … (and) I’m not sure that a single incident, as serious as it is, would warrant a revision of practices and procedures.”

The subpoena was issued to Course Hero March 18 — about three months after the discovery of the copyright materials — requesting all documents to be submitted by March 28. Hankin received a response March 22 from Joseph Gratz, a litigator representing Course Hero in Berkovitz v. Does, asking for a 14-day extension to April 4.

“This extension is not likely to prejudice your ability to ascertain the identities of the Doe defendants, because Course Hero has preserved the email and IP addresses associated with the accounts that posted the questions at the URLs listed,” Gratz wrote in the email, which was forwarded to The Panther.

Hankin argues that, if Course Hero admitted they had all the requested information, why would they not comply with the subpoena sooner rather than later?

In part, because in accordance with Course Hero’s Copyright Infringement Notification Requirements, the company reserves the right to notify the users accused of infringement that the material they uploaded has been removed or disabled. Similarly, when the subpoena was filed, Course Hero notified the student infringers that their identifying information is being requested.

Some of these infringers came forward to Berkovitz after receiving the email from Course Hero, which CC’d Gratz, for fear of legal ramifications. In addition to providing a copy of the subpoena, the email also states that the company intends to seek an extension to give time for the students to determine if they wish to quash the subpoena.

“We cannot advise you regarding the law or an appropriate response to the subpoena,” the forwarded email reads. “If you want to resist or otherwise seek to limit the subpoena, you should seek the advice of an attorney. We understand that a number of nonprofit organizations represent individuals whose identities are sought as a result of their online postings.”

The email proceeds by offering names and contact information for legal counsel, with one of the recommendations being for the Electronic Frontier Foundation — where Gratz works on the advisory board. The other recommendation was for students to consult Paul Alan Levy, an attorney at Public Citizen, who contacted Hankin and Berkovitz via email March 17, a day before the subpoena was filed, but did not disclose his relationship to Course Hero.

For the students who voluntarily confessed to utilizing Course Hero to cheat in Berkovitz’ class, Hankin said he believes the consequences will be far less severe. He pointed to a male student currently enrolled in Berkovitz’ class this semester as an example: the student explained he never posted anything on Course Hero but admitted that he had seen content from BUS 215 posted there.

“I think Professor Berkovitz is a forgiving man,” Hankin said. “The students who have come forward, I applaud. I wish more students would come forward and say, ‘Hey, this is what I did.’”

In contrast, some students heeded Course Hero’s warning and hastily sought legal representation. Hankin said that another student had their lawyer contact him, claiming that although the unidentified student posted at least two of the exam questions on Course Hero, they did so before spring 2021.

Two days past the extension date, Berkovitz succeeded in obtaining the names of the students who published his exam questions April 6  — though he still does not know the identities of the students who published the answers. Course Hero was supposed to pass along the requested materials by April 4 but negotiated with Hankin to reduce the information provided to just the names and email addresses of users who published on the site in spring 2021.

“The lawsuit accomplished its purpose, which was to get Course Hero to give us some information,” Hankin told The Panther April 6. “(Course Hero) is basically an entity that is protecting people who are infringing copyright … They’re doing everything they can to protect the cheaters and to protect the copyright infringers at the expense of people like Professor Berkovitz.”

Self-proclaimed educational internet service-providers like Course Hero are largely safe-guarded from claims of copyright infringement as a company under Title 17 Section 512 of the U.S. Code, which places the burden of fault on Internet consumers who violate copyright terms on platforms where content is primarily user-generated.

“I will observe that Course Hero would benefit if these students incurred the legal cost of defending themselves and put up a big fight that would perhaps embolden other students to use Course Hero,” Bell said.

In a sense, crowd-sourcing platforms like Course Hero are fairly invincible. Despite bearing an honor code and academic integrity policy that state cheating is prohibited, the cloak of pseudonymity offered to the site’s paying users is alluring for students seeking to take advantage of a seemingly limitless knowledge base.

Proponents of Course Hero argue that cheating is endemic and faculty should take proactive rather than punitive measures by diversifying their course materials regularly. But faculty and staff alike from the university told The Panther that recycling course materials is not uncommon, and in fact, often encouraged.

“Expecting — particularly certain fields of — faculty to completely rewrite their (course materials) all the time would be an excessive demand, and I’m not even sure it would lead to great pedagogical outcomes,” Bouchard said. “Because you teach a course once … you might drop something, you might refine something else, but that’s how you improve upon the course. Just changing because people are cheating — that doesn’t seem very productive to me.”

Bell added that reusing exam questions over time can be beneficial for professors to gain data about how to better test their students. For example, if the majority of the class performs poorly on a question, the professor knows it’s a concept that needs to be explored more heavily.

“This is one of those rare cares where, for me, I’m pretty sympathetic to the copyright holder, because I feel like, ‘That could be me,’” Bell said. “Professors usually have to work hard to come up with good exam materials — which is not easy — and once you find good exam materials, which I can’t speak for Berkovitz, but in my case I often reuse the exams and then I get feedback of a statistical nature.”

Now that Berkovitz is in possession of the names of the individuals who published his exam questions, Hankin said the professor intends to consult the AIC, at which point he will pass along the responsibility of determining what punitive measures may be taken against the students. The lawsuit has been dismissed, but the identities of students who published copyright material from Berkovitz’ course before or after spring 2021 remain unknown.

“I am profoundly grateful to all of the students — past and present — and my fellow professors, both here and around the country, for their notes of support and appreciation for my efforts to protect those students who did not cheat,” Berkovitz wrote to The Panther in an email statement. 

In spite of Berkovitz’ extensive communication with Course Hero, some of the professor’s course materials can still be located on the website to this day.

This is a developing story. Follow The Panther on social media and at www.thepanthernewspaper.org for updates.