American Board of Internal Medicine v. Jaime Salas Rushford, M.d.

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 24-3012
______________
AMERICAN BOARD OF INTERNAL MEDICINE,
Appellant
v.
JAIME SALAS RUSHFORD, M.D.
______________
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 2:14-cv-06428)
District Judge: Honorable Katharine S. Hayden
______________
Submitted under Third Circuit L.A.R. 34.1(a)
November 13, 2025
______________
Before: SHWARTZ, MATEY, and MONTGOMERY-REEVES, Circuit Judges.
(Filed: January 16, 2026)
______________
OPINION∗
______________
MONTGOMERY-REEVES, Circuit Judge.
∗ This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7, is not
binding precedent.

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The American Board of Internal Medicine (“ABIM”) sued Dr. Jaime Salas Rushford
for copyright infringement, alleging that Rushford unlawfully emailed ABIM’s
copyrighted test material to a test-preparation company. The District Court granted
Rushford’s motion for summary judgment on ABIM’s copyright infringement claims.
Because ABIM failed to show there is a genuine dispute of material fact that Rushford
actually copied ABIM’s copyrighted test materials, we will affirm the District Court’s
judgment.
I. BACKGROUND
ABIM is a physician-led non-profit organization that certifies doctors practicing
internal medicine and related subspecialties. A doctor designated “board certified” by
ABIM “has met certain educational, training, and professionalism requirements, and
passed a secure, proctored, computer-based examination in internal medicine.” Joint
Appendix (hereinafter “App. __”) 440.
ABIM exams are single-day, multiple-choice tests that are administered several
days every year. ABIM develops and regularly updates potential exam questions designed
to reflect current scientific developments in the field of internal medicine. ABIM also
registers its potential exam questions with the United States Copyright Office. The
registrations relating to the 2007, 2008, and 2009 exam questions are relevant here (the
“Registrations”).1
1 The relevant details of the Registrations are as follows.

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3
The potential exam questions contained in the Registrations are organized “into the
modules that appear on a particular examination.” App. 444. As they appear in the record,
the deposit copies of the 2007, 2008, and 2009 modules registered with the Copyright
Office are each thousands of pages long and almost fully redacted, with a smattering of
unredacted pages scattered throughout.2 These unredacted pages,3 each of which appears
to contain a single exam question, are the basis of ABIM’s infringement claim.
The 2007 Registration: The 2007 exam questions were registered under registration
numbers TX 6-871-423, reflecting a first publication date of May 1, 2007, and TX 6-871-
490, reflecting a first publication date of August 1, 2007. For both registrations, the listed
effective date is November 8, 2007.
The 2008 Registration: The 2008 exam questions were registered under registration
numbers TX 7-116-687, reflecting a first publication date of August 1, 2008, and TX 7-
116-718, reflecting a first publication date of May 1, 2008. For both registrations, the listed
effective date is January 15, 2009.
The 2009 Registration: The 2009 exam questions were registered under registration
numbers TX 7-116-588, reflecting a first publication date of May 1, 2009, and TX 7-116-
625, reflecting a first publication date of August 1, 2008. ABIM later obtained a corrected
registration, TX 6-775-170, as a supplement to TX 7-116-625, “which was submitted with
an incorrect administrative year (2008).” App. 446. For both registrations, the listed
effective date is September 17, 2009.
2 For example, as the District Court observed, of the 4,571 pages in Exhibit 7 to ABIM’s
motion for summary judgment—which is the deposit copy of the 2007 exam modules—
“all but 100 pages scattered throughout, plus the module cover pages, [are] redacted.” App.
22.
3 In its summary judgment briefing below, ABIM noted that “some questions appeared in
multiple modules of an ABIM exam . . . .” App. 426 n.1. It is unclear from the record how
many duplicate questions there are within a given Registration.

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4
The record reflects that only a subset of exam questions from the Registrations
appears on a particular student’s exam. Some questions appear in more than one
Registration. Relevant here, certain questions in the 2009 Registration may also appear in
the 2007 Registration, the 2008 Registration, or both.
Given the purpose of ABIM exams, ABIM employs measures to protect the secrecy
and security of its exam questions. ABIM notifies candidates that the ABIM exam contains
copyrighted work that may not be reproduced. And ABIM conducts Internet searches to
uncover the disclosure of its exam questions.
Consistent with its typical practices, ABIM reviewed sample test questions posted
on Arora Board Review’s (“ABR”) website and concluded that ABR infringed its
copyrighted exam questions. Through litigation against ABR, ABIM obtained documents
that included a series of emails between Rushford and Dr. Rajender K. Arora, owner of
ABR. It became apparent that Rushford had registered to sit for an August 2009 exam and
attended ABR’s course from May 18, 2009 through May 23, 2009. After attending the
course, but before sitting for his exam, Rushford and Arora exchanged numerous emails.4
According to ABIM, four of these emails5 included contents from exam questions
protected by the Registrations.
4 It is undisputed that Rushford did not share the contents of his own exam with anyone,
including Arora.
5 ABIM points to six emails. The District Court noted that only four of these emails are
alleged by ABIM to contain infringing content; the other two emails provide context for

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5
We divide these four emails into two groups. The first group of emails, which
Rushford sent Arora on August 12, 2009, contained attachments comprising multiple pages
of handwritten notes. ABIM asserts that these attachments “contained detailed content
from the ABIM Examination given that same day.” App. 449. According to ABIM,
Rushford obtained this content from his residency colleague, Dr. Geraldine Luna, who had
taken the exam earlier that day. Luna testified that after her exam, she spoke to Rushford
over the phone and shared her exam questions. She testified that the handwritten notes
Rushford attached in his August 12 emails were his notes from Luna and Rushford’s phone
conversation, and that Rushford later sent Luna those notes—at her request—so that she
could confirm that the notes accurately reflected their discussion. Rushford disputes that
the notes came from Luna and instead suggests that they came from review sources. The
second group of emails, which Rushford sent Arora on August 13 and August 16, 2009,
included typewritten notes that ABIM claims contained ABIM exam content, based on
certain notations in the documents. ABIM does not point to any evidence in the record as
to the origin of these notes.6
the inferences ABIM seeks to draw with respect to copying. As ABIM does not contest
the District Court’s characterization on appeal, we adopt that characterization here.
6 ABIM characterizes the notes in one email as “specific testing points and ABIM exam
questions that Dr. Salas Rushford had received by email from a residency colleague earlier
that day.” App. 457. But ABIM offers no factual support for that assertion beyond the
email itself, which does not reflect where Rushford obtained the material he forwarded to
Arora.

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6
On October 17, 2014, ABIM sued Rushford for copyright infringement in the U.S.
District Court for the District of New Jersey.7 The parties filed cross-motions for summary
judgment and, on September 30, 2024, the District Court entered an order granting
Rushford’s motion for summary judgment and denying ABIM’s motion.8 ABIM appealed.
II. DISCUSSION9
ABIM contends that Rushford infringed 46 exam questions protected by the 2007
and 2008 Registrations, in violation of the Copyright Act.10
7 ABIM’s complaint requested compensatory damages, statutory damages, the costs of this
action, an award of reasonable attorneys’ fees, and “[s]uch other relief as the [c]ourt deems
just and proper.” App. 91. ABIM later elected to pursue statutory damages in lieu of actual
damages.
8 The procedural history of this case is long and somewhat complex. We recite only the
parts relevant to this appeal.
9 The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under
28 U.S.C. § 1291. We exercise plenary review of a district court’s order granting a motion
for summary judgment. See Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877
F.3d 136, 141 (3d Cir. 2017). To prevail, Rushford, as the moving party, must show “that
there is no genuine dispute as to any material fact” and that he is “entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). We view all evidence and consider all reasonable
inferences in a light most favorable to ABIM, the non-moving party. See Kay Berry, Inc.
v. Taylor Gifts, Inc., 421 F.3d 199, 203 (3d Cir. 2005) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986)). With respect to an issue on which ABIM bears the burden
of proof, ABIM must set forth facts “sufficient to establish the existence of an element
essential to [its] case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
10 ABIM cannot pursue claims relating to the 2009 Registration. The effective date of the
2009 Registration, September 17, 2009, comes after Rushford’s alleged acts of
infringement in August 2009. This timing poses a problem for ABIM’s recovery of
statutory damages, as such damages are only available to copyright owners who registered
their works before the infringement. 17 U.S.C. § 412. The District Court found that

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7
The Copyright Act grants to a copyright owner “a bundle of exclusive rights.”
Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 546 (1985); see U.S.
CONST., art. I, § 8, cl. 8 (“The Congress shall have Power . . . To promote the Progress of
Science and useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries.”). That bundle includes the
rights to reproduce the copyrighted work, to prepare derivative works, and to distribute
copies of it “to the public by sale or other transfer of ownership, or by rental, lease, or
lending.” 17 U.S.C. § 106. Other provisions of the Copyright Act limit the scope of those
exclusive rights. The Copyright Act, for example, provides for the “fair use” defense, id.
§ 107, and makes ideas uncopyrightable, id. § 102.
To succeed on a claim for copyright infringement, a plaintiff must prove two
elements: “(1) ownership of a valid copyright; and (2) unauthorized copying of original
statutory damages are the only damages ABIM sought with respect to the 2009
Registration. Accordingly, the District Court held that Rushford was entitled to summary
judgment on any infringement claims based on that Registration.
On appeal, ABIM contends it also sought injunctive relief and nominal damages, saving
its claims relating to the 2009 Registration. But that argument was not preserved. ABIM
made no mention of nominal damages or injunctive relief at the summary judgment stage
before the District Court, though it had ample opportunity to do so. ABIM has therefore
forfeited its argument that the foreclosure of statutory damages did not undo its copyright
claims relating to the 2009 Registration. See Tri-M Group, LLC v. Sharp, 638 F.3d 406,
416 (3d Cir. 2011) (“It is axiomatic that arguments asserted for the first time on appeal are
deemed to be [forfeited] and consequently are not susceptible to review in this Court absent
exceptional circumstances.”) (internal quotation marks and citations omitted). And
because ABIM fails to provide exceptional circumstances to justify forgiving forfeiture,
see Barna, 877 F.3d at 147 (quoting Brown v. Philip Morris Inc., 250 F.3d 789, 799 (3d
Cir. 2001)), the District Court’s 2009 Registration conclusions will be left undisturbed.

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8
elements of the plaintiff’s work.” Dun & Bradstreet Software Servs., Inc. v. Grace
Consulting, Inc., 307 F.3d 197, 206 (3d Cir. 2002). The District Court held that Rushford
was entitled to summary judgment as a matter of law because ABIM failed to raise a
genuine factual dispute as to the second element: unauthorized copying.11 Unauthorized
copying “comprises two . . . components: actual copying and material appropriation of the
copyrighted work.” Tanksley v. Daniels, 902 F.3d 165, 173 (3d Cir. 2018). For purposes
of this appeal, we only address “[a]ctual copying,” which “focuses on whether the
defendant did, in fact, use the copyrighted work in creating his own.” Id.
Courts have generally allowed plaintiffs to prove actual copying in three ways: (1)
direct evidence of copying; (2) proof of access to the copyrighted work and probative
similarity between the works12; and (3) proof that the works are strikingly similar. See
Gaste v. Kaiserman, 863 F.2d 1061, 1066–68 (2d Cir. 1988); Bouchat v. Baltimore Ravens,
Inc., 241 F.3d 350, 353–55 (4th Cir. 2001); Ty, Inc. v. GMA Accessories, Inc., 132 F.3d
1167, 1169–70 (7th Cir. 1997); Ferguson v. Nat’l Broad. Co., 584 F.2d 111, 113 (5th Cir.
1978); Peter Letterese & Assocs., Inc. v. World Inst. of Scientology Enters., 533 F.3d 1287,
11 Rushford points to the first element as an alternative ground for affirmance, arguing that
ABIM never satisfied the assignment requirement for “work-for-hire” copyright
ownership. We need not reach this argument, as we agree with the District Court that
ABIM’s claim fails at the second element. For the same reason, we need not reach
Rushford’s argument that this lawsuit is time-barred.
12 Although some courts use the term “substantial similarity” for the similarity analyses
applied in both the actual copying and material appropriation inquiries, those analyses
differ, and we therefore prefer the term “probative similarity” in the actual copying context.
Tanksley, 902 F.3d at 173.

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9
1300–01 (11th Cir. 2008); La Resolana Architects, PA v. Reno, Inc., 555 F.3d 1171, 1178–
79 (10th Cir. 2009).
We address each avenue in turn.
A. ABIM Has Not Shown Direct Evidence of Copying
Direct evidence of copying may be established through “evidence such as party
admissions, witness accounts of the physical act of copying, and common errors in the
works of plaintiffs and the defendants.” Rottlund Co. v. Pinnacle Corp., 452 F.3d 726, 732
(8th Cir. 2006). Such evidence is unavailable in the great majority of copyright cases. Id.;
Tanksley, 902 F.3d at 173. So too here. Although ABIM characterizes Luna’s testimony
as direct evidence of copying, the evidence here falls short of the kind of direct evidence
found in the authority ABIM relies upon for this point. See, e.g., Nat’l Conf. of Bar
Exam’rs v. Multistate Legal Stud., Inc., 458 F. Supp. 2d 252, 256 (E.D. Pa. 2006) (finding
direct evidence where defendant’s employees “regularly wr[o]te down information about
the fact patterns, prompts, and answer choices appearing on [copyrighted] examinations
that they have taken” and took the notes from the exam site, and one employee “admitted
that he uses these notes” when writing questions for a simulated exam). And as explained
in more detail below, because we do not have Luna’s exam—or adequate information about
what was on it—we do not know if it contained questions from the 2007 and 2008
Registration.

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B. ABIM Has Not Shown Evidence of Access and Probative Similarity
When direct evidence of copying is unavailable, copying may be shown through
circumstantial evidence of access and probative similarity between the works. Tanksley,
902 F.3d at 173. To demonstrate access, plaintiffs need not prove by direct evidence that
defendants gained access to plaintiff’s work; rather, access can be inferred by indirect
evidence showing a “reasonable possibility of access.” Gaste, 863 F.2d at 1066. But
“[a]ccess must be more than a bare possibility and may not be inferred through speculation
or conjecture.” Id. To demonstrate probative similarity, a plaintiff must provide evidence
that the plaintiff’s work and the defendant’s work share similarities probative of copying.
See id.
ABIM argues that it proffered indirect evidence of copying with respect to all four
allegedly infringing emails. As discussed, these emails can be divided into two groups.
We address each group in turn.
1. The August 12, 2009 emails
We first consider the August 12, 2009 emails, which attached the handwritten notes
allegedly memorializing Rushford’s conversations with Luna.
ABIM seeks to show that those emails prove Rushford’s access to copyrighted
material through third-party access. A plaintiff may prove access through third parties
“connected to both a plaintiff and a defendant.” Id. at 1067. Such a connection may be
established, for example, by showing that the “third party had possession of plaintiff’s work
and had concurrent dealings with both plaintiff and defendant.” Walker v. Kemp, 587 F.

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11
Supp. 3d 232, 241 (E.D. Pa. 2022) (quoting Cottrill v. Spears, No. 02-3646, 2003 WL
21223846, at *5 (E.D. Pa. May 22, 2003)); see, e.g., Gaste, 863 F.2d at 1066 –67 (declining
to overturn jury verdict finding access where plaintiff’s witness testified he had given a
copy of the copyrighted work to the owner of one of the defendant corporations). What
matters is that the third party had a reasonable opportunity to view the protected work; such
an opportunity is sufficient to prove access. Bouchat, 241 F.3d at 354 –55; see also 4 M.
& D. Nimmer, Nimmer on Copyright § 13D.05 (2025).
ABIM contends it has shown Rushford had third-party access to its protected 2007
and 2008 works through Luna. Luna, recall, took the August 12, 2009 exam and discussed
her exam with Rushford. So, to survive summary judgment, there must be more than a
“bare possibility” that the material Luna conveyed from that exam was protected by the
2007 and 2008 Registrations. Gaste, 863 F.2d at 1066. More specifically, ABIM must
demonstrate: (a) that Luna had a reasonable opportunity to view questions from the 2007
or 2008 Registrations on the exam that she took on August 12, 2009; and (b) that Luna
conveyed the content of those questions to Rushford. See Bouchat, 241 F.3d at 354 –55.
ABIM has not met that burden. While Luna’s testimony creates a genuine dispute
that she conveyed to Rushford some content from her August 12, 2009 exam, there is not
enough evidence that the particular content she conveyed was protected by the 2007 and
2008 Registrations.
Consider what is absent from the record. ABIM has not produced a copy of Luna’s
exam. Neither has ABIM provided any evidence (aside from Ward’s report, discussed

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below) as to the likelihood that the exam questions covered by the 2007 and 2008
Registrations appeared on Luna’s exam. And the existence of overlap is far from self-
evident. The exam questions at issue—that is, those that appeared on any exam given in
2009 and were covered by the 2007 and 2008 Registrations—amount to a total of only 46
questions,13 according to ABIM. By contrast, the deposit copy of the 2009 exam modules
appears to contain thousands of questions. And the record reflects that, at least in 2009,
only a subset of these thousands of questions appeared on a particular student’s exam,
which comprised no more than a few hundred questions. Without Luna’s exam, and with
no other evidence regarding how individual exams are constructed—such as information
on how often certain questions appear across particular exams—the likelihood that Luna’s
exam contained those 46 questions amounts to no more than a “bare possibility.” See
Gaste, 863 F.2d at 1066. In other words, this is not sufficient evidence for a factfinder to
conclude that Luna had a reasonable opportunity to view those particular questions on her
exam.14
13 We note that nothing in the record clearly shows the exact number of questions on the
2009 Registration that are covered by the 2007 and 2008 Registrations. ABIM appears to
derive the number 46 only from its summary of its expert’s similarity report.
14 Despite ABIM’s assertions to the contrary, Bouchat is inapposite; there, the plaintiff
presented evidence that a third-party intermediary actually received a copy of the protected
work. 241 F.3d at 354 (inferring such receipt based on both plaintiff’s testimony that he
sent a fax of the work, addressed to the intermediary, to an office, as well as evidence that
it was that office’s practice to forward faxes for the intermediary to the intermediary’s law
office). Here, as discussed, ABIM presents no evidence as to the likelihood that Luna had
an opportunity to view the exam questions at issue.

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13
To close this evidentiary gap, ABIM points to the expert report of Dr. Lawrence D.
Ward. In that report, Ward opines that excerpts from Rushford’s emails were copied or
derived from ABIM exam questions, and provides a table reflecting, for each excerpt,
which exam question he believes it copied and why. Ward’s matching of excerpts to exam
questions is based on his expert analysis of the similarities between them. ABIM contends
that these similarities satisfy the access requirement.
Not so. To prove factual copying through indirect evidence, a plaintiff must show
both access and probative similarity. See Tanksley, 902 F.3d at 173. We will not use proof
of one element to infer the existence of the other. To do so would collapse a two-prong
test into a one-prong test.15
2. The August 13 & 16, 2009 emails
We can address the other two emails more briefly. With respect to both direct and
indirect evidence of copying, ABIM’s claims based on these emails fail for the same
15 While not dispositive to our ultimate affirmance, Judge Shwartz is of the view that
ABIM’s evidence is sufficient to create a dispute of material fact as to third-party access
because there is some evidence that questions covered by the 2007 and 2008 registrations
were also on the 2009 ABIM Examination that Luna took. Specifically, Ward’s expert
report includes a chart of similarity comparisons indicating that Luna’s 2009 ABIM
Examination included questions covered by the 2007 and/or 2008 copyright registrations.
Furthermore, Judge Shwartz is of the view that this evidence is also relevant to the issue of
probative similarity, relying on it to infer the existence of access would not collapse a two-
prong test into a one-prong test as the same facts may be relied upon to support multiple
elements of a claim. Cf. Doe ex rel. Doe v. Lower Merion Sch. Dist., 665 F.3d 524, 542
(3d Cir. 2011) (explaining that proof of both racially discriminatory intent and impact is
required to sustain a claim for violation of the Equal Protection clause, and that proof of a
“racially discriminatory impact” is one factor that may support a finding of discriminatory
intent).

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reason: ABIM cites no evidence about the provenance of the material from those emails
that it alleges to be infringing. ABIM speculates that the content came from actual ABIM
exams, given certain references in the attachments (e.g., “Board Questions 2007”). But
without support in the record showing that Rushford received that material from someone
who had a reasonable opportunity to view the exam questions at issue, ABIM cannot
establish access.
C. ABIM Has Waived Striking Similarity
Although similarity evidence cannot substitute for proof of access under the indirect
copying framework, there is a narrow exception to that rule. The striking similarity
doctrine, as expressed in Gaste, permits an inference of access in cases where the two
works in question are so similar as to create a high probability of copying and negate the
reasonable possibility of independent creation. See 863 F.2d at 1067–68. Several of our
sister circuits have adopted this doctrine in agreement with Gaste. E.g., Bouchat, 241 F.3d
at 355–56; Ty, Inc., 132 F.3d at 1170; La Resolana Architects, PA, 555 F.3d at 1179. Other
circuits that have adopted this doctrine have held, by contrast, that where striking similarity
precludes the possibility of independent creation, copying may be proved without a
showing of access. See, e.g., Ferguson, 132 F.3d at 113. This Circuit has neither accepted
nor rejected the striking similarity doctrine, nor have we expressed any views as to which
approach we prefer.
While a reader might naturally expect this case to require that we address this issue,
given ABIM’s reliance on similarity as proof of access, we need not do so. That is because

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ABIM does not argue that the works at issue here are strikingly similar. Indeed, ABIM
states in its Opening Brief that striking similarity is “not at issue in this case,” that ABIM
“did not offer Dr. Ward’s report for that purpose,” and that “Dr. Ward did not opine” that
the works at issue were strikingly similar. Opening Br. 36 n.3. Accordingly, ABIM has
waived any such arguments on appeal, and we may not determine whether there exists a
striking similarity between the 46 questions and the allegedly infringing emails. See Barna
v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 146–47.
III. CONCLUSION
For the reasons discussed above, we will affirm the judgment of the District Court.16
16 Judge Shwartz concurs in the judgment affirming the District Court’s order granting
Rushford summary judgment, though she is of the view that the record provides a basis to
infer that Luna was a third-party intermediary with access to the copyrighted works,
because there is some evidence that questions covered by the 2007 and 2008 registrations
were also on the 2009 ABIM Examination that Luna took. More specifically, Ward’s
expert report includes a chart indicating that Luna’s 2009 ABIM Examination included
questions covered by the 2007 and/or 2008 copyright registrations. Viewing the facts and
making all reasonable inferences in ABIM’s favor, Hugh v. Butler Cty. Family YMCA, 418
F.3d 265, 267 (3d Cir. 2005)), ABIM has proffered sufficient evidence to, at a minimum,
demonstrate a “reasonable possibility of access” by a third-party intermediary, Gaste, 863
F.2d at 1066—at least to one 2009 ABIM Examination that included questions covered by
ABIM’s 2007 and 2008 copyright registrations.
That said, Judge Shwartz is also of the view that ABIM failed to show a substantial
similarity between the copyrighted works and the allegedly infringing works. “If copying
is proven (or conceded), the defendant is only liable for infringement if his work is
substantially similar to the protected elements of the copyrighted work.” Tanksley, 902
F.3d at 174. “[S]ubstantial similarity asks whether ‘a “lay-observer” would believe that
the copying was of protectible aspects of the copyrighted work.’” Tanksley, 902 F.3d at
174 (quoting Dam Things from Denmark, a/k/a Troll Co. ApS, v. Russ Berrie & Co., Inc.,
290 F.3d 548, 562 (3d Cir. 2002)). “To answer this question, the trier of fact performs a

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side-by-side comparison of the works and, excluding any unprotectable elements, assesses
whether the two works are substantially similar.” Id. ABIM failed to demonstrate
substantial similarity because an ordinary observer would see the differences between the
questions covered by the 2007 and 2008 registrations and the notes attached to the emails
that Rushford sent on August 12, 2009. While ABIM’s copyrighted multiple-choice
questions include “piece[s] of medical knowledge that . . . a Board Certified physician
should know,” App. 443, the questions—not the non-protectible concepts that they test—
are the protectible expression at issue. See Educ. Testing Servs. v. Katzman, 793 F.2d 533,
540 (3d Cir. 1986) (explaining that test maker can “devise questions designed to test
[certain] concepts and secure valid copyrights on these questions” but may not secure a
copyright in the concepts themselves). Because the notes attached to the August 12, 2009
email do not take the form of multiple-choice questions, they are not substantially similar
to the expression protected by ABIM’s copyright registrations. Simply put, while ABIM
may have proffered evidence that test takers were sharing information about the tests, it
has not shown that there is disputed issue of material fact related to the creation of a
substantially similar copy of ABIM’s copyrighted examination questions.

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