Microsoft Ruins The Bar Exam (UPDATED)

Most of America's computers run on Windows 10. That's bad news if you're planning to take the California bar exam.

There was a day when you would go down to your local software merchant and buy the latest edition of whatever operating system you wanted to run. Until you made your next venture to Software Etc., the version in your hand was the version you’d use. Of course, this meant that you could look up one day and find yourself woefully out of date, but it also meant that every other program you might hope to run would have a consistent and predictable platform to work with.

Then came the automatic updates. The data involved had to be small given the data infrastructure of the time, but no one could complain about minor patches and security fixes.

Now data comes in tidal waves and tech companies see their opportunity to make an end run around the first sale doctrine — selling a service. Instead of buying an operating system, for example, customers can watch their wallet constantly drained by a “service” that keeps updating the system — in ways both minor and major — in perpetuity.

And this is how Microsoft is ruining the bar exam. Or, perhaps more precisely, this is how Microsoft is causing ExamSoft to ruin the bar exam.

Examinees in California planning to take the July exam were recently informed that ExamSoft just can’t handle Windows 10, and those taking the test need to either take it by hand or get themselves a new computer that doesn’t run Windows 10. Sorry about that brand-new laptop you got for graduation!

There’s a temptation to place the blame solely on ExamSoft because, well, this happened. And, make no mistake, ExamSoft’s inability to deal with predictable operating system updates deserves a great deal of scorn. But according to the alert available on the State Bar of California’s website, the real culprit is Microsoft’s April Windows 10 update:

Microsoft recently released “Windows 10 Creators,” a new version of Microsoft’s operating system (OS) which will impact people taking the July California Bar Exam. ExamSoft currently does not support the Windows 10 Creators OS, as it does not meet its minimum system requirements. As a result, applicants intending to use their laptop computers that have the Windows 10 Creators OS loaded may experience problems during administration of the July 2017 California Bar Examination.

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That’s… not good. Because it’s not like users can easily avoid these updates or even realize that while they’re sleeping, their shiny new computer is spending the evening turning itself into a bar exam brick. Some schools predicted the problem and tried to let people know to turn off their updates — probably because ExamSoft has always been unable to keep up with Windows 10, so why would this update be any different? — but many folks remained in the dark until the last couple of weeks, when bar examiners started alerting test-takers.

And it’s not just California. North Carolina has this issue. Massachusetts isn’t letting Windows 10 Creators machines into the exam. Tennessee is ejecting people using the operating system from the exam. Because ExamSoft provides testing software all over the country and can’t provide working software, this is a nationwide crisis. And the words “ExamSoft” and “nationwide crisis” appear in the same sentence for roughly the 8 millionth time here at Above the Law.

But, to come back to the fundamental intellectual-property issue, this ultimately all comes back to Microsoft’s move to a continually updating software service to squeeze cash out of their users for the “right” to have their software surreptitiously upgraded with features they’ll never use that will only crash the features that matter. It’s not fair to single out Microsoft for taking advantage of the gap between the IP regime and technology — they’re not the only digital players adopting this model — but it’s times like these that drive home how much mischief a near global monopoly can unintentionally cause.

Good luck on the July exam!

And if you are taking the exam, be sure to verify that your computer will be able to take the test. You don’t want to be stuck taking it by hand like some old person who remembers software sold in boxes.

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UPDATE (7/7/17): New York is also on the list of states using ExamSoft, and we’ve heard an anecdote from a test taker that highlights the problem of the states’ patchwork responses. It turns out ExamSoft created a workaround to allow students to use Windows 10 Creators on their finals, and even though that got people through the end of the school year, the New York examiners aren’t letting people use the workaround and are mandating students use other computers.

But the happy ending here shows how Microsoft’s business model may be creating mischief, but they are more than happy to help ameliorate the problems they’ve created:

I called the NY Board, and they basically told me that my only option was to use a computer that met the basic requirements, meaning I had to either use a new computer or figure a way to get my own computer to work (pretty much along the same lines of what the Examsoft rep told me).

Fortunately, I was able to get my version of Windows rolled back to the previous version thanks to a trip to the Microsoft Store in midtown. And Examsoft did allow me to re-download for free due to my issue (otherwise I would have had to pay a fee).

Earlier: The Biggest Bar Exam Disaster Ever? ExamSoft Makes Everyone’s Life Hard


HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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