A federal judge said two University pharmacy professors still are liable for copyright infringement but dismissed the suit against the Board of Regents and College of Pharmacy administrators.

U.S. District Judge Clay Land dismissed Friday charges of trade secret misappropriation – an accusation of stealing and disseminating test questions – and breach of contract against Flynn Warren Jr., part-time clinical professor, and a charge of trade secret misappropriation against Henry Cobb III, clinical associate professor.

The National Association of Boards of Pharmacy brought the case against Warren, Cobb, the Board of Regents and the College of Pharmacy administrators in August, claiming the two professors “copied its copyrighted pharmacy board exam questions and used them in materials for their pharmacy review course,” according to court records.

The NABP creates questions for the North American Pharmacist Licensure Examination, which is used by state boards of pharmacy to hire graduating pharmacy students. The NABP argues the exam questions are subject to copyright protections and that the professors compromised the questions by distributing them as practice questions.

The NABP suspended all administrations of the NAPLEX in August and did not administer the test nationwide for several months while it created a new test with questions not in Warren’s practice packet.

In the newest move of the ongoing case, Land ruled Warren and Cobb can be “sued in their individual capacities” and are not entitled to sovereign immunity under the umbrella of the University for acting in official capacities.

Warren and Cobb “focus on the fact that their allegedly infringing activities were done in the scope of their employment,” court documents state.

However, Land said, the two only can claim immunity if the case would operate “against the state” and be paid with state funds.

“Warren and Cobb baldly assert that relief sought against them would come directly from the State of Georgia, but they do not explain how,” Land wrote in court documents. “Warren and Cobb are both subject to the federal copyright laws.”

The Red & Black’s efforts to reach Warren and Cobb were unsuccessful as of Tuesday night.

NABP would hold the two “individually liable for their conduct in violation of the copyright law,” so they would pay out of their personal funds, he wrote.

Land denied Warren and Cobb’s qualified immunity defense, which protects government officials “so long as their conduct does not violate clearly established law,” according to the documents.

“Warren and Cobb copied a large number of NAPLEX questions, and the purpose of Warren and Cobb’s use of the exam questions was not to serve the public interest in the free dissemination of information – they sold the questions for $100 per set,” Land wrote.

“Even if Warren and Cobb’s alleged activities could properly be considered the fair use activity of ‘teaching,’ their alleged copying, sale and distribution of the NAPLEX questions can hardly be considered fair use.”

“Because it was clear at the time of Warren and Cobb’s alleged activities that their use of the NAPLEX questions constituted copyright infringement and was not fair use, the Court denies their motions to dismiss based on qualified immunity,” he wrote.

Also in Friday’s decision, Land dropped copyright infringement charges against the Board of Regents and College of Pharmacy administrators because they did not intentionally deprive property.

NABP said the college should have stopped Warren from producing review materials after he was investigated in 1995 and agreed to stop copying questions, but Land said the agreement “explicitly states that its prohibitions ‘shall not prevent Warren from educational responsibilities associated with his teaching position.’”

Warren and Cobb have until May 8 to reply to the amended complaint by NABP that they can be sued for copyright infringement.

“We’re pleased to prevail in this preliminary motion but can’t comment further because it’s still a pending investigation,” Tom Jackson, vice president for public affairs, said Tuesday in a telephone interview.

Latest court orders:
Document 132 – Order from District Court Judge
Document 133 – Order from District Court Judge

See all the pharmacy lawsuit documents here