a.  Time-spent limitation: three hours.  You may work a total of no more than three hours on this examination (including any related research and thinking), from the time you begin to read the instructions until the time you send in your answers.  Except under extraordinary circumstances, such as an intervening work or family emergency, your work time should be continuous and uninterrupted.  Each question has a suggested time limit, and the weight of each question for grading is proportional to the suggested time for answering it.

b.  Elapsed-time limitation: 36 hours.  Your answers will be due by midnight after Tuesday, December 8, 2009, no more than thirty-six hours after the exam is made available to you on the Web or by e-mail.

c.  Word limit: 2,500 words.  Your answers for all questions together (i.e., for the entire examination) must total no more than 2,500 words.  If your answers exceed this limit, I will arbitrarily stop reading after the 2,500th word, and you will lose points for any and all material thereafter.

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.  During the entire examination interval (from the time you receive the examination until you submit your answers), you may not consult with anyone regarding the examination, this course, the subject matter of this course, or any related case, regulation, or statute.

e.  No “canned” answers.  These questions are designed to elicit specific answers in response to specific fact patterns and specific queries.  Nonresponsive material, no matter how correct, cogent, or even brilliant, will receive no credit whatsoever.  I will enforce this rule even more strictly than usual, in order to discourage anyone from using “canned” material prepared in anticipation of the questions to be asked.

f.  Honor system.  Please include the usual honor-system oath and your exam number at the end of your examination.  (Your exam number and your return e-mail address—which will be separated from your answer file before grading—will constitute your electronic signature under Ohio’s Uniform Electronic Transactions Act.)

a.  Outlines.  To the extent intelligible, outlines will receive partial credit, but you should have time to write complete answers.

b.   Additional facts.  Please do not assume or make up additional facts.  Although the stated facts may resemble real situations, all of the stated facts are fictitious (except as noted).  All facts needed to answer each question should appear in the question itself.  If you think you need additional information to answer a question fully, state what additional information you need, how you would use it, and how it would affect your conclusions, but please be brief.  Do not waste time answering questions or addressing issues not fairly presented by the given facts.

c.  Organization. Especially in view of the word limit, try to make every word count.  Well-organized answers will receive extra credit, and poor organization may result in a loss of points.

d.  Legal authority.  You will receive points for identifying specific and relevant legal authority, such as a particular statutory section, subsection, or decision.  You may use reasonable abbreviations, as long as they are clear.  For example, you may refer to Feist Publications, Inc. v. Rural Telephone Service Co. simply as “Feist” or “the white-pages case.”  Where the law is unclear, you may wish to make analogies to or distinctions from precedent, based on the fact pattern in the question.

e.  Fact pattern questions: using IRAC.  Most questions are typical law-school examination questions involving complex fact patterns.  You should answer them by identifying relevant issues and applying the IRAC formula (issue, rule, analysis, and conclusion).  Do not forget to state a conclusion, as well as your confidence in its certainty, for each issue and subissue.  You should be aware, however, that a correct conclusion with little analysis will garner you fewer points than an incorrect conclusion with thoughtful and thorough analysis.

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.”  Do not neglect to analyze all relevant branches of a logical tree, even if your analysis suggests that one branch should be cut off.  That is, try to cover all important issues, even if you think that the resolution of a single issue should control the result.  For example, you should discuss infringement—insofar as the facts permit—even if you conclude it is doubtful that the plaintiff has a valid copyright. (In other words, pretend that you are a district court, which might be reversed on any point, rather than a court of last resort.)

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.  Please discuss policy only where the question calls for a discussion of policy, or where discussion of policy is necessary to resolve a legal issue.  You should always discuss the “law” first, including black letter law, trends, and minority views, before turning to policy for confirmation or to resolve doubt.  Where the resolution of an issue is unclear, however, you should analyze how applicable policy affects your conclusion.  (The last question calls for discussion of policy and should be treated accordingly.)

“A famous reclusive author of science fiction—a notorious hypochondriac—has found an underutilized vaccination site for H1N1 in Metropolis.  It is Site X.  According to her account, she got vaccinated there in less than fifteen minutes, washing her hands repeatedly in Purell while she waited.  So Site X appears to be a good place to get your young children vaccinated quickly and without hassle. ”

A, B, C, and D are independent, freelance writers with experience in news and fiction.  They know each other from previous collaborations.  By e-mail, A proposes that they write a fictional short story together, which A will market to publishers for royalties.  A proposes to split the royalties equally among all four, after deducting any expenses.

A’s e-mail proposes that the four authors write the story “backwards” as a “chain e-mail.”  The idea is as follows.  A will write an ending to the story and sent it to B by e-mail.  Then B, C, and D—in that order—will write development sections “backwards”, i. e. , working backwards from the ending A has written, and send the story down the line.  The story will be finished by D writing the introductory sections.  By e-mail, all four agree to this plan.

At first all goes according to plan.  All write their parts to the story alone, at home, on their home computers.  No money changes hands.  A writes the ending and sends it to B by e-mail.  Then B, C and D work backward from A’s ending and (among other things) introduce and develop the characters and plot twists that lead to A’s ending. 

After all this is done, however, D decides to play a trick on A and B.  D rewrites A’s ending to give it a different outcome and a bizarre twist in both character and plot.  D then sends the resulting modified story to C with the challenge: “See what you can do with this!”

C sees that the modified story doesn’t “hang together” in its present form.  That is, the characters and plot are not coherent and believable.  So C rewrites her own earlier section to make the characters and plot coherent overall.  C also makes some changes to B’s work for the same purpose.  But the end remains just as A wrote and D rewrote it. 

Suppose C, without knowledge of or permission from A, B, or D, publishes the resulting modified story and tries to claim all royalties.  On suit by A, B, and D, what result and why?  Be sure to include all steps in your reasoning and explain any additional factual details on which the result might turn. 

“Many foreign copyright laws have separate parts or sections for each type of copyrighted work.  For example, they have separate parts that cover books and periodicals, public speeches, photographs, movies (called ‘cinematographic works’), and ‘phonograms’ (which we call ‘sound recordings’).  These sections describe the scope and limitations of copyright and the remedies for infringement separately for each type of copyrighted work.”

“Our copyright law is different.  Unlike foreign copyright laws, it is conceptually coherent—a ‘unified field theory’ of copyright.  Although Section 102 lists different types of copyrighted works, the preamble to subsection (a) applies to all of them, as does the key limitation of subsection (b).” 

“Our approach is superior to that of foreign laws in two respects.  First, because it is conceptually coherent and comprehensive, our law is easier to learn and apply.  Second, Section 102(a), as well as several of the definitions, makes our law technology independent.  Our law is therefore self-adapting to new technologies for recording and disseminating creative works, without the need for constant statutory amendment.  Unlike foreign laws, our law is therefore a rock that will stand unmoved for the ages.” 

jdratler@gmail.com

dratler@uakron.edu

abthong@yahoo.com

sfauppe@uakron.edu