`
`NOT PRECEDENTIAL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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`
`
`
`
`2
`
`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, w e 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 professional ism 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
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`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
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`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 pos ted
`on Arora Board Review ’s (“ABR”) website and concluded that ABR infringed its
`copyright ed 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
`attend ed 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 emails 5 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
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`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 contain ed 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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`
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`6
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`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 D istrict 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 i n 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 works 12; 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
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`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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`10
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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 email s
`
`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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`12
`
`below) as to the likelihood that the exam questions covered by the 2007 and 2008
`Registration s 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, t he 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, t his is not sufficient evidence for a factfinder to
`conclude that Luna had a reasonable opportunity to view those particular questi ons 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 up on 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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`14
`
`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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`
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`15
`
`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 include d
`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 evidenc e 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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