There may only be one thing that most past and present lawyers and law students in Canada and the US have in common. We have all studied for and taken the Law School Admissions Test (LSAT). But have we broken the law while preparing for it?
The greatest burden for those brave enough to take on the LSAT may have been the cost of preparatory textbooks, past tests, and tutoring services required to achieve a competitive score. Luckily, the internet provides many avenues for those seeking other forms of assistance.
7Sage, a popular American-based online tutoring service for the LSAT, understood this need. One of its most admirable deeds was to post free, accessible tutoring videos for many past questions from the Logic Games section of old LSAT tests. The problem with free videos is, of course, copyright law.
Last November, the Law School Admissions Council (LSAC) requested that 7Sage remove all of these free videos offered online due to copyright infringement. After considering the high costs of litigation, 7Sage had no choice but to do as was told.
The LSAT is published by LSAC, a non-profit corporation that asserts its copyright in all past tests, including every question ever made (with very few exceptions). LSAC states the following on its products: “No part of this work, including information, […] may be reproduced or transmitted in any form or by any means… without permission of the publisher.” So, you cannot copy and paste a question and post it online without permission; this would be infringing their copyright.
For eight years, 7Sage has been posting these YouTube videos (like this one) of a blank screen with some sketches of what a particular question might be about, without outright posting the question verbatim. Then, the video proceeds to sketch how to use diagrams to help answer that question, and discusses some of the multiple-choice options, again, without displaying the question itself.
In Canada, and similarly in the US, a defence against copyright infringement is the doctrine of fair dealing, which states that people can infringe a copyright without permission as long as it is for education or private study, among other purposes. So, this raises a few questions, such as, is explaining a past LSAT question online a situation that falls under educational use or private study? If so, would it be “fair”, and if not, is it reasonable to limit online tutors from freely assisting test takers on particular LSAT questions?
In Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37, a split court held by majority that instructors who copied textbook questions for their students “are there to facilitate the students’ research and private study and to enable the students to have the material they need for the purpose of studying”. By this reasoning, it is likely that a video explaining a past LSAT question might be an exception to copyright infringement in Canada. Unfortunately, online LSAT tutors in Canada who freely explain LSAT questions through videos, blogs, or pictures to students may still be required to have special permission by LSAC to discuss LSAT material. Without this permission, they are probably not going to proceed with the high cost of litigation if LSAC delivers a similar letter asking for the material’s removal.
Written by Sebastian Romanutti, a second year JD Candidate at Osgoode Hall Law School.
