FALL 2008

Copyright Law

Course No. 9200 703 (and 803) 801	TuW 6:30-7:55 p.m.	Room L-134
Professor Jay Dratler, Jr.	Room 231D (IP Alcove)	(330) 972-7972	dratler@uakron.edu

PRACTICE FINAL EXAMINATION

The following examination was given last year. Please be aware that course content and emphasis vary from year to year.

The instructions for taking and submitting the examination have been updated. You may wish to prepare an e-mail list for submitting your answers in accordance with the instructions at the end of the examination.

Copyright, Fall 2006

FINAL EXAMINATION

Instructions

University of Akron School of Law

1. E-mail at-home examination. This is an e-mail, at-home examination. Subject to the limitations stated below, you are free to take it at any time and place of your choosing.

2. Limitations. Your completion of this examination is subject to the following limitations:

a. Time-spent limitation: three hours.

b. Elapsed-time limitation: 36 hours.

midnight Friday, December 7, 2007,

c. Word limit: 2,500 words.

If you inadvertently exceed the word limit, it will be to your advantage to delete less important material and to keep more important material that is likely to garner you more points. (Most word-processing programs count words automatically; check “Properties” under “File” or consult your program’s “Help” screens.)

d. No Consultation.

e. No “canned” answers.

f. Honor system.

end

3. Materials. Because this is an at-home exam, you may use any written materials that you have on hand, provided they are: (1) published or (2) prepared by you. You may also use your computer to browse the Web, including the material posted for this course on the Law School’s Website. However, the questions have been designed so that the following materials should be sufficient: (1) the casebook, case supplement, and Website for this class (including any materials from it that you have downloaded, printed out and annotated), (2) any statutory supplement that you have used for this class (including your own, but no one else’s, annotations); and (3) an outline that you have prepared. I encourage you to make your outline short, both so it will be usable and so you will have an “overview” of the course.

4. Strategy for Answering the Questions.

a. Outlines.

b. Additional facts.

c. Organization.

d. Legal authority.

Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.

Grokster

e. Fact pattern questions: using IRAC.

Try to weave as many specific facts as possible into your analysis, make and evaluate arguments for both sides, and determine the relative importance of issues and arguments. Where alternative legal rules exist, you should state them and indicate which is the majority view, the current trend, or otherwise the better rule, and why. (Stating why one variant rule is better than another often involves policy.)

You will not have enough time or space to cover all issues or arguments in exhaustive detail. Therefore you should focus your discussion on the issues, rules, and arguments that are most important. Grading will be based in part on your judgments of relative importance and how specifically you address the stated facts. Analogies to and distinctions from precedent, if useful and relevant, will receive extra points.

f. Logical “Trees.”

If an issue clearly raised by the facts is easy to resolve, you may say so without extensive discussion, as long as you say why. You should not waste time and space elaborating “giveaway” issues. Where the issues are close or not clearly resolved, however, you should analyze them completely.

g. Policy.

5. Call of the Question. BE SURE TO READ THE CALL OF EACH QUESTION CAREFULLY AND TO ANSWER ONLY THE QUESTION(S) ASKED.

6. Submitting your Answers. Detailed instructions for submitting your answers appear at the end of the examination. Please follow them carefully.

Good luck!

QUESTION 1
(Eighty Minutes)
A
Pamela is an entrepreneur and amateur sculptor. Although not talented as an artist, she loves to try her hand at sculpting various items from nature, such as trees, flowers and wildlife.

Pamela’s main source of income is her roadside shop. She owns a large plot of land with a big barn-like building just outside a small town in rural Ohio. From that location, she sells souvenirs, novelty items, antiques, outdoor statuary, small items of furniture (such as lamps and stools), cameras and film. In good weather, the merchandise arrayed in her large front yard lets tourists spot her shop from a distance.

B
Pamela has a fascination with the bald eagle, our national symbol. She sculpts several statutes of bald eagles and offers them for sale.

All of Pamela’s statutes are made of solid bronze. Although heavy, they are in resting pose and reduced in size, so that the eagle appears about the size of an ordinary crow. Pamela puts the statues up for sale in her yard, but no one buys them.

Pamela asks her friend Adam, a local farmer, what he thinks of them and why they don’t sell. Adam replies that the statues look unrealistic and “wimpy.” Aggressiveness, he says, is “a large part of the eagle’s character and beauty,” and no one will buy a wimpy eagle in a resting pose.

Adam also suggests that farmers and gardeners might use a more realistic, fearsome statue, showing a bald eagle in predatory flight, to scare birds away from fruits and vegetables. But, he tells Pamela, a statute for that purpose would have to be larger, lighter, and less “wimpy.”

C
A few days later, Pamela e-mails Ben, and old friend who is a professional wildlife photographer. Ben now lives in Alaska, where bald eagles are plentiful. Pamela’s e-mail asks Ben whether he has any photos of bald eagles that he could share with her. She notes that she would particularly like photos of bald eagles in “attack mode.”

About a week later, Ben e-mails Pamela fifteen high-resolution images of bald eagles. Several of them show bald eagles in predatory flight. One image in particular, which Pamela labels “Image A,” shows a bald eagle just about to grab a running rabbit with its talons. The image is magnificent: the eagle’s wings are fully spread, with colored feathers showing, the talons are stretched forward and spread for attack, and the beak is open and ready to strike.

D
Several times, Pamela tries to capture Image A in sculpture, but she finds her work unsatisfactory. Somehow, the sculpted eagle still looks “wimpy.”

As it happens, however, another old friend of Pamela’s is about to visit for an extended stay. Carol is a sculptress of recognized stature, who teaches art at a college in Pennsylvania. Although Pamela has always been a bit jealous of Carol’s artistic talent, the two have been close friends since high school. Last year, long before Pamela began the bald eagle project, the two agreed that Carol would spend her summer vacation visiting Pamela.

As her visit begins, Carol reports that she is working on a new sculpting technique that she has just learned. This technique uses a new, malleable plastic material, called Plastic X, which is easy to cut and shape. Once the sculpture is made in Plastic X, a plaster mold is made from the Plastic X, and a special casting process uses the plaster mold and air pressure to create hollow metal replicates. Because each replicate is metal, it has all the durability of a bronze sculpture. But because it is hollow, it has only a small fraction of the weight of solid bronze.

Carol wants to practice this new technique during her summer with Pamela. Eager to accommodate her old friend and perhaps learn the technique, Pamela allows Carol to use a back room of the old barn as Carol’s personal studio.

E
During the midpoint of her visit, Carol asks about the unsold eagle sculptures sitting in Pamela’s warehouse. Pamela tells Carol the whole story and shows Carol Ben’s fifteen images. Pamela points out Image A as the most impressively aggressive, and Carol agrees.

Half-jokingly, Pamela says, “If you can sculpt a more fearsome eagle than my wimpy one, and if it works as a scarecrow, I’ll sell it and give you ten percent of my profits.” Carol says, “OK. I’ll see what I can do.”

Carol has several projects under way in “her” studio in Pamela’s barn, but she soon starts a new one: the bald eagle. Pamela gives Carol copies of Ben’s images, including Image A, to look at while she works.

Carol works on her own, and Pamela gives Carol creative privacy. After a few days of work, Carol is satisfied with her work and calls Pamela in to take a look.

The Plastic X sculpture that Carol sees looks like Ben’s Image A come to life. Full size, with an impressive wing span, the sculpted eagle has its wings spread fully and tilted back, its talons spread, and its beak open. It looks the picture of predation.

Pamela praises Carol sincerely for her work. Then, in a conspiratorial voice, Pamela asks, “Let’s see if we can make it even more fearsome looking.”

Not wanting to hurt her friend’s feelings, Carol agrees. Using a hair dryer, Carol softens the Plastic X just a bit, so its parts can be moved and bent without distortion. She then allows Pamela to make a few adjustments. Pamela moves the legs and talons forward, spreads the talons even more, and tilts the head downward toward the invisible prey. The result looks a bit unnatural but even more fearsome. The two friends allow the Plastic X to harden again and go out for dinner.

F
When Carol departs at the end of the summer, she leaves the Plastic X sculpture as a gift for Pamela. She also leaves instructions on how to perform the hollow-casting process. After a few tries, Pamela masters the process and is able to produce a half-dozen hollow bronze copies of the Plastic X sculpture for sale.

The half-dozen copies sell in only a few days. Adam, the local farmer, buys one. He soon tests its effectiveness as a scarecrow and reports back to Pamela. When suspended from a fruit tree by a length of rope or wire, so that it moves in the wind, the hollow bronze sculpture is very effective, Adam says, in scaring away real birds.

After hearing this report, Pamela sends her plaster cast to a local foundry and begins to produce the hollow-bronze copies in volume. They sell very well. A month later Pamela sends Carol a note of thanks, along with a fat check.

G
David Director is principal of a charter school in Cleveland. Like many charter schools, his has a theme, in this case foreign policy and international relations, including the military, national security and counter-terrorism policy. The school styles itself as a “feeder” school for West Point, Annapolis, other military academies, and the Foreign Service.

Using a special grant from the Cleveland City Council, David has just completed a new building for his school. The new building is magnificent, but it lacks an artistic flair or emblem suggesting its mission.

One day, an assistant brings in one of Pamela’s hollow-bronze bald-eagle sculptures and puts it on David’s desk. David thinks it would make the perfect emblem for his new charter school and building.

David hires Darrell, a local sculptor, to copy the eagle, but on a much larger scale. He gives Darrell Pamela’s hollow bronze bald eagle to use as a model. However, he also instructs Darrell to make bird a bit less fearsome and to have it looking up, not down, as if it were taking flight.

Using the Web, Darrell locates several pictures of eagles taking flight, prints them out, and hangs them in his studio, next to the hollow-bronze copy of Pamela’s eagle. He then gets to work.

The result appears just in time for the grand opening of David’s new charter school. On either size of the school’s stairway entrance, on two massive pedestals, sit two huge bald-eagle sculptures. Each has a fifteen-foot wingspan, is made of solid bronze, and weighs two tons. Each looks very much like a huge rendition of Pamela’s hollow-bronze statue, except for three things: (1) the wings are rotated forward, not back; (2) the talons, although still open, lean backward, not forward; and (3) although the beak is till open, the head is raised up.
H
You work as general counsel for David’s school district. You are asked to assess whether the foregoing facts create any exposure to copyright infringement liability. Please write David a memo addressing: (1) who owns the copyright in the hollow-bronze sculpture that Pamela is selling; and (2) whether Darrell, David, or both has infringed that copyright. Be sure to consider all reasonable defenses to a claim of copyright infringement. Can you suggest any strategy (besides putting up a good defense) that might aid the defendants, if sued, in forcing a favorable settlement?

QUESTION 2
(Sixty Minutes)
Most cell phones have memory storage for such things as personal phone books and personal settings. Today, however, the available memory in many cell phones has vastly increased, in part to accommodate such things as personal ring tones, nonstandard (add-on) programming, songs, Web pages, photographs and other video content. Many cell phones also come with plugs and/or cables that can connect them with personal computers.

Darlene, a skilled programmer, has created a new sort of computer program to exploit the extended memory and “PC connectability” of many modern cell phones. Her main program works on any personal computer running a Windows operating system.

Properly installed, Darlene’s program allows such a computer, when connected to a compatible cell phone, to do all of the following: (1) download a smaller program to the cell phone, which allows the cell phone to store, play and transmit musical files in standard MP3 format; (2) “rip” files for individual songs from commercial CDs (compact disks), convert them to MP3 format, and download them into the cell phone’s memory, to be stored, played and retransmitted by the cell phone user at will; and (3) download song files in MP3 format stored on the computer—whatever their source—for the same purposes. Darlene has several different versions of her program, which are compatible with the best-selling cell phones among younger users.

Darlene believes that now is the best time to exploit her new program commercially. She wants to set up a Website from which anyone can download her program over the Internet for a price of $25. She envisions her Website as having a list of the most popular models of cell phones, with each listed model linking to a page from which users can download the compatible version of her program, along with instructions for its use. She also envisions having demonstration pages showing users how to “rip” and download to cell phones popular song files from music CD’s, how to download and store in cell phones MP3 files stored on a computer’s hard drive, and how to share popular music files over the cell phone network —all using her software and compatible cell phones.

Darlene knows that most popular music is copyrighted, and she has heard that some companies have gotten in “legal trouble” for providing users with ways to download and share copyrighted musical files without permission from copyright owners. She has therefore come to you for advice.

Write Darlene a reasoned memo, addressed to a layperson but legally accurate and practically useful, advising her whether to embark on her project and, if so, how to reduce her exposure to copyright liability. You may include citations to important authority where relevant, but try to write the memo so that any intelligent business person, without training in the law, could understand and appreciate its content. At the end of your memo, advise Darlene briefly how best to preserve, protect and exploit copyright protection for her program in its proposed application and use.

QUESTION 3
(Forty Minutes)

“Copyright law needs an overhaul. As its very name suggests, it was designed to protect and encourage creativity by limiting the right to copy. That concept worked well at the dawn of copyright law, in the early eighteenth century, when the only “technology” for preserving expressive works was writing, and the only means for mass-producing them the printing press. Today, however, we have so many different ways of for creating and disseminating expressive works that the law simply cannot keep track of them, let alone address them intelligently in any way that rewards creators without blocking commerce.”

“With the advance of technology, a simple prohibition against copying is no longer commercially viable or good policy. There are three reasons for this conclusion.”

“First, technology has changed the very nature of creativity. From the Baroque era to present-day rap, musicians and other creative people have always borrowed from their predecessors. Today’s technology has made that borrowing so much simpler and easier that it has become an intergral part of the creative process. The Internet makes a huge portion of humanity’s creative output, both historical and current, available for perusal and borrowing at the click of a mouse. That facility, in turn, allows creative culture to evolve and develop at warp speed, in part feeding on itself. For example, the popular video Website YouTube allows “amateur” creators to use and combine snippets of news, TV programs, movies and songs in creative ways that would have been impossible without the Internet and digital technology. If we apply existing copyright law rigidly and require each of these creators to track down the owners of their multiple source and get permission for every use, creative development of common culture like this will wither and perhaps die.”

“The second way in which technology has rendered traditional copyright irrelevant is by changing the nature of protected works. When the vast majority of protected works were “writings” literally, it was easy to view copyright as protecting an author’s creativity or personality, since the focus of creativity was his or her own unique words. Today, however, copyright protects sounds and video images as much as writing, and the recorded matter therefore reflects the real world. When copyright protects depictions of real people, things, and events, as in news photographs and multimedia news reports, it is much harder to justify legal protection for the ‘author’s’ creativity.”

“Early courts struggled with this very question, trying to decide whether the recording of a slice of real life deserved the same protection as a novel, sonnet, or song. Perhaps it is time to revisit the question whether reality—whether captured by dictaphones, cameras, or camcorders—deserves the same protection as indisputably creative works, or indeed any special protection at all.”

“The third way in which technology makes nonsense of traditional copyright law is by changing how creative works are disseminated. It was easy to understand and enforce copyright law when the only machines that could make copies were big, expensive, and immobile printing presses. But development of media beyond books for individual reading changed all that. Copyright law had trouble accommodating works such as songs, plays, and fine art, whose most important commercial exploitation might be through performances or displays, rather than copying or distribution of copies. Now the advance of technology and the “convergence of media” have made irrelevant all the 1976 Act’s careful distinctions among copying, distribution, performance and display. For every one of those acts can be (and often is) performed simultaneously or by a single machine (a digital computer) using a single means of dissemination (the Internet). Therefore all the 1976 Act’s careful distinctions among infringing acts make no more sense. At least they make no more sense than it does to hold every Internet service provider who passively sends an infringing digital file on its way liable for direct infringement of copyright.”

“Now there is only one form of creative work—a digital file. Each file, regardless of content, is subject to the full panoply of means of commercial exploitation contemplated by Section 106 of the Copyright Act. The nature of the medium in which the work was first created, or by which it was originally (or is primarily) disseminated, no longer matters. What matters is the nature of creativity that went into the work, a point that fair use doctrine recognizes.”

“Maybe we should recognize this point by treating different levels of creativity differently, perhaps with different copyright terms. With currernt individual longevity, copyright terms for works of individual authorship can reach 150 years or more. If we continue to provide every digital file with protection of the same strength and the same long term, the Internet’s potential to unlock human creativity may languish for a long time to come. We therefore should reconceptualize and rebuild copyright, from the ground up, before it clogs the arteries of our creative corpus.” Write an essay analyzing and/or criticizing this passage. Be sure to address all aspects of it, including: (1) its underlying assumptions (including technology’s past, present, and likely future effect on copyright); (2) its implicit prediction of the effect of current copyright law on creativity, the Internet and cultural evolution; and (3) its implicit judgments as to what is good policy and what is practically doable. If you agree that copyright law requires major revision, specify briefly, as specifically as possible, what aspects of it require revision and why. Your grade will depend not upon your point of view (or upon whether your agree with the passage), but upon how carefully and specifically you support and document your analysis, with reference to the statutes, cases and statutory and constitutional policies that we have studied and the underlying factual trends that they reveal. The more specific and focused your analysis, the better your grade will be.

END OF EXAMINATION
INSTRUCTIONS FOR SUBMITTING YOUR ANSWERS APPEAR BELOW

INSTRUCTIONS FOR SUBMITTING YOUR ANSWERS
Please take all of the following steps in submitting your answers, before the deadline for submission:

1. Include honor-code statement. Make sure that your honor-code statement appears at the end of your answer file. (Your examination number and e-mail header will constitute your signature under Ohio’s Uniform Electronic Transactions Act.)

2. Include your examination ID number. Type your examination ID number at the end of your answer file and double-check it. To avoid accidental breach of anonymity, make sure that your answer file contains no other identifying information.

3. Spell-check and finalize. Spell-check your answer file and make any necessary changes. Check the total number of words and modify as necessary.

4. Save your answer file with the anonymous ID. Save your answer file on your hard drive, with your honor-code statement and examination ID number at the end of the file. When you save your file, use the file name “2007 Copyright Exam” and no other. (If you use another file name, your anonymity may be compromised.)

5. Save your file in a commonly used, compatible format. Some word-processing formats have compatibility problems. If you have experienced problems exchanging files with others in the past, please use a file format that you know is common and widely compatible. If necessary, save your answer file in Rich Text Format. (Use the “Save As” feature of your Word Processor; then click on the down arrow to the right of the “File Type” field in the “Save As” dialogue box and select “Rich Text Format (RTF)” or another widely compatible option. Be sure to verify that this option appears in the “File Type” field before you click the “Save” button. Then check to see that a file with the name “2007 Copyright Exam” and a “.doc” or “.rtf” file extension appears in your file folder. You may have to click on “View” : “Details” to see the file extension.)

6. Attach your answer file to an e-mail message. Send your answer file, in a compatible format, as an e-mail attachment to your message, not as part of the message itself. The “Subject” line for your e-mail message should be “2007 Copyright Exam,” and the text of the message should read “Attached are my answers.” Please double-check that your answers appear as an attached file, not embedded in your e-mail message.

(I will use your e-mail cover messages only to check that everyone has submitted answers. I will not grade any exam until an assistant has “anonymized” the answers by separating the attached files from the e-mail messages and sending the attachments to me with no identifying information other than the examination ID number included in each file at the end.)

7. Submit your answers by e-mail. Send your cover message, with your answer file attached, to all of the following addresses:

dratler@neo.rr.com

dratler@uakron.edu

abthong@yahoo.com

mrh5@uakron.edu

(If you have not already prepared an address list in response to the test message, please cut and paste each address from this list into your e-mail program’s “address” or “TO” field to avoid tying errors; then double-check all addresses and punctuation.)

8. Print and retain a paper copy of your answer file. Immediately after sending your e-mail message, print out a copy of your answers and staple the pages together. Then sign and date your answers and record the exact time of your printout on the title page. (If there is an e-mail mixup, this paper copy will serve to demonstrate what you wrote and when, in accordance with the honor system.)
HAVE A GOOD WINTER BREAK!