Ass'n of American Medical Colleges v. Mikaelian

• Decision Date: 08 August 1983
• Docket Number: Civ. A. No. 83-2745.
• Citation: 571 F. Supp. 144
• Parties: ASSOCIATION OF AMERICAN MEDICAL COLLEGES v. Viken MIKAELIAN et al. d/b/a Multiprep.
• Court: U.S. District Court — Eastern District of Pennsylvania

571 F. Supp. 144

ASSOCIATION OF AMERICAN MEDICAL COLLEGES v. Viken MIKAELIAN et al. d/b/a Multiprep.

Civ. A. No. 83-2745.

United States District Court, E.D. Pennsylvania.

August 8, 1983.

Bancroft D. Haviland, Carl W. Vogt, Joyce Reback, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for plaintiff.

John Mattioni, Philadelphia, Pa., for defendants.

MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

Plaintiff Association of American Medical Colleges ("AAMC") seeks a preliminary injunction pursuant to Fed.R.Civ.P. 65 preventing defendant Viken Mikaelian ("Mikaelian") and Multiprep, Inc., Mikaelian's wholly owned and operated test preparation business, from using test preparation materials alleged by AAMC to infringe AAMC's own copyrighted test questions used in the administration of the Medical College Admission Test ("MCAT"). AAMC filed this suit on June 9, 1983 and sought a temporary restraining order and a writ of seizure to impound the allegedly infringing Multiprep test preparation materials. Based on the plaintiff's averments and accompanying affidavits, which entitled the plaintiffs to such temporary relief pursuant to 17 U.S.C. §§ 501-503, the federal copyright statute, this Court granted plaintiff's request for a temporary restraining order and a writ of seizure, set a date for a hearing on plaintiff's motion for a preliminary injunction, and ordered expedited discovery in connection with the hearing. The hearing was continued and the temporary restraining order extended by stipulation of the parties. On June 29 and 30, this Court held a hearing on plaintiff's motion for a preliminary injunction and then permitted the parties additional time to brief the legal and factual issues presented. Based on the facts presented at the hearing, this Court finds that AAMC is entitled to a preliminary injunction pending trial on the merits. The Court makes the following findings of fact in connection with the preliminary injunction hearing.

AAMC is a non-profit education association composed of medical teaching institutions. Member institutions include 127 of the 128 medical schools in the United States, 425 teaching hospitals, and 71 academic societies. (N.T. 76). Among its functions, AAMC sponsors and supervises testing procedures for medical school applicants for the purpose of aiding member medical schools in evaluating applicants for admission. The lynchpin of this AAMC-run testing program is the MCAT. Virtually every American college student seeking admission to medical school takes the MCAT and his or her score on this test significantly affects the applicant's chances of being admitted to medical school and becoming a physician. The plaintiff has contracted with the American Institutes for Research in the Behavioral Sciences (the "Research Institute") in Stanford, California to devise and field test potential questions for use on the MCAT and has also contracted with the American College Testing Service ("ACT") in Iowa City, Iowa to administer the MCAT, particularly the security which surrounds the giving of an MCAT test.

The MCAT is given twice yearly, once in the Spring and in the Fall. The test consumes an entire day and is given on Saturday and Sunday at various testing centers throughout the country. Prior to arriving at the test center, the test taker (a prospective medical school applicant) has registered for the test, paid $45 to take the test, and been given an identification number and card by ACT acting for AAMC. When arriving at the test center, the applicant must present this identification card and other identification to show that the person arriving at the test center and taking the test is in fact the person who registered to take the test and whose subsequent score will be transmitted to medical schools reviewing his application for admission. AAMC, in registering test takers, has reserved the right to void test scores where a registrant arranges for someone else to take the test.

After identification, the test taker receives a test form composed of four separate test booklets. The test form contains questions seeking to test the taker's knowledge in the areas of biology, chemistry, physics, science problems, reading skills analysis, and quantitative skills analysis. When the test is graded, a separate score is determined for each set of questions. In 1977, AAMC adopted the current version of the MCAT with the above-noted categories of questions. Prior versions of the MCAT contained questions on other subject areas. Since the advent of the post-1977 MCAT, AAMC has developed 25 test forms, several of which were introduced as evidence at the hearing concerning the motion for a preliminary injunction.

Each of the test forms contains approximately 300 questions which, as heretofore noted, are developed by the Research Institute for AAMC. To produce these questions, the Research Institute selects question writers by reviewing their qualifications and then asks the writers to submit potential test questions. After the proposed questions are received, the Research Institute edits the items, tests each question for accuracy, clarity, and fairness, produces any art work or other graphics necessary to illustrate the question, and employs statistical analysis to evaluate the relative difficulty of the questions. Questions are field tested through use as non-scored questions in the MCAT, thereby allowing the Research Institute to ascertain the performance of typical MCAT test takers on the potential question. If a proposed test question is fair, accurate, and neither too difficult nor too easy, it is approved for use in an MCAT test form. After approval, the Research Institute continues to check to make sure the question is current and accurate.

In each MCAT, AAMC usually includes questions which have been used on previously given MCAT's. The percentage of repeated questions may be as high as fifty percent on a given MCAT test form. (N.T. 70, 106). The percentage of repeated questions is usually at least 20% of any given test form. AAMC repeats some questions in order to provide a basis for comparing one test group (e.g., April, 1983) with another test group (e.g., all those who took the test in the Fall of 1982), so that AAMC can determine the relative comparability of test groups and test questions. This is done so that member medical schools will be able to use the MCAT score of applicants as a consistent benchmark of the applicant's knowledge when evaluating applicants who have attended different undergraduate institutions at different times.

AAMC also repeats test questions for another reason. It is their position that it is difficult to draft a large number of fair and useful questions in the basic science subjects of biology, inorganic chemistry, organic chemistry, and physics. If the MCAT asks highly sophisticated questions in these areas, test takers with extensive education in these areas would have a substantial advantage over test takers (and medical school applicants) who have taken only basic science courses in preparation for medical school. Once limited to basic science course knowledge, the potential field of good MCAT questions becomes sufficiently narrow that repetition of questions is necessary and cost-effective for AAMC so long as the MCAT is given under tight security so that these reusable questions are not available to the applicants prior to the test session. The recycled MCAT questions are used periodically and in a random fashion to further minimize the potential for "leaks" of the old test questions to future test takers. Among the other security measures used by AAMC are the numbering of test booklets given to test takers. At the end of the testing session, these books are recollected and stored under lock and key. No test taker is permitted to leave the testing center with a test booklet. Test takers are also prohibited from bringing paper with them to the test so that they cannot copy test questions during the administration of the test.

AAMC has never published an MCAT test nor has it published any of the old MCAT test questions. AAMC does, however, publish a student manual which contains "sample" MCAT questions that have also been developed by the Research Institute for use solely in the student manual. AAMC has never distributed or otherwise made available any of the old MCAT questions, nor has it given anyone permission to reproduce, distribute, or display an MCAT test or question or portion of a question.

Defendant Viken Mikaelian is a 28-year-old graduate of the University of Pennsylvania. In 1979, he began a test preparation course under the business name of Multiprep. Multiprep offers organized preparation courses designed to better equip students for the MCAT. Mikaelian and Multiprep have offered this course since 1979. Currently, Multiprep charges $485 as tuition for the 14-week prep course. Multiprep has offices both in Philadelphia, near the University of Pennsylvania, and in Ardmore. Mikaelian is the sole shareholder, director, and executive officer of Multiprep.

Mikaelian has been more than a test preparer. He has been a frequent test taker as well. Since 1978, he has taken the MCAT on eight separate occasions. Mikaelian took the MCAT in: (1) Spring, 1978 at the University of Pennsylvania test center; (2) Fall, 1978 at the University of Delaware; (3) Spring, 1979 at the University of Delaware; (4) Spring, 1980 at Wilkes College; (5) Fall, 1980 at the University of Delaware; (6) Fall, 1981 at the University of Delaware; (7) Fall, 1982 at the University of Delaware; and (8) Spring, 1983 at Franklin and Marshall University. At these testing sessions, Mikaelian was given and took the MCAT using MCAT test forms 4, 2, 8, 11, 13, 16, 20, and 23, respectively. (See N.T. at 36-37).

Multiprep, as part of the prep course curriculum, distributes practice questions for its students to use in preparing for the MCAT. These questions, referred to...