December 6, 2004

College Board C&Ds

The College Board, administrator of the SAT, sent a letter to its perennial gadfly the National Center for Fair and Open Testing asking them to remove a table showing vast disparities in SAT scores between students of varying ethnic backgrounds and income levels. The FairTest table takes its data from graphs like these in the College Board’s 2004 report on test-takers. The College Board letter claims that because it owns “all right, title, and interest in the featured works” and’s “misuse overtly bypasses our ownership and significantly impacts the perceptions of students, parents, and educators regarding the services we provide”, must “cease displaying any and all College Board copyrighted materials” until they receive permission.

In its response, argues that “[s]ince the raw data on SAT scores, from which this chart is derived, are widely available in the public domain, having previously been published by a variety of news media outlets and research journals, they are not subject to copyright protection.”


The facts contained in the chart are indeed in the public domain, but not because they were previously published. The facts about which groups received which scores are in the public domain because they are facts. It’s either true or false that African American test-takers, on average, scored 227 points lower than Asian American test-takers; there’s no copyrightable expression involved. And doesn’t present the data in the same order or the same graphical layout as in the College Board’s report, so they aren’t copying any original selection and arrangement.

Somewhat ludicrously, the College Board also appears to claim copyright in facts about its rival, the ACT; the letter demands that both the fact sheet on the SAT and the fact sheet on the ACT be taken down.

It will be interesting to see what, if anything, happens when the grownups at the College Board get involved. Why don’t I think the College Board’s higher-ups are involved? Because if you saw the sentence “You should not presume permission, it must be formally granted” on the SAT, you’d replace the comma with a semicolon.

UPDATE: The New York Times has this story on the matter.

Disclaimer Haiku:
West wind seems to say,
"This is not legal advice;
I'm not your lawyer."

(And if you're a client with whom I have a preexisting attorney-client relationship, this still isn't legal advice.)

In case you're wondering, this blog is also not intended as advertising, as a representation of anything but my personal opinion, or as an offer of representation.

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