FALL 2009

Copyright Law

Course No. 9200 703 (and 803) 001 , Course IDs 79436, 79944
MW 4:45-6:15 p.m.
Room W-215
Professor Jay Dratler, Jr.
Room 231D (IP Alcove)
(330) 972-7972
Copyright © 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009   Jay Dratler, Jr.   For permission, see CMI.

Copyright, Fall 2009



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.  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.)
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 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.  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.)

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
(Seventy Minutes)


Pamela Peters (P) is a brilliant and highly successful writer of science fiction.  Her best-selling novels have sold 50 million copies worldwide.  Royalties on her writing have made her rich. 

P is also an intensely private recluse and a neurotic hypochondriac.  She lives in a sprawling mansion in the countryside outside a medium-sized city, Metropolis.  Rarely does she emerge from her home.  She publishes all her books under a pseudonym. 

P retains servants who attend to her shopping and domestic needs.  P selected her servants based in part on their good health.  She insists that all of them be vaccinated against every ailment for which vaccines are available, including every seasonal flu and H1N1. 


This fall, P made several rare journeys outside her home, all for a single purpose.  She was deathly afraid of H1N1 flu, so she tried to get vaccinated as early as possible.  She visited several public vaccination sites, but she found them all too crowded and noisy.  After she had stood in line for ten minutes or so, her reclusiveness overcame her hypochondria, and she left without getting vaccinated. 

After four such episodes, P read of a vaccination center in a dilapidated part of town, Site X.  She went there at 3 p. m.  and found the line marvelously short.  She got vaccinated in less than fifteen minutes.  As she did, the nurse told her that authorities expected Site X to continue to be the easiest place to get vaccinated without waiting in long lines. 

When P got home, she wrote a humorous account of her vaccination forays.  With self-deprecating wit, she wrote how she tried to stand in line while keeping her distance from others, constantly washing her hands with Purell.  She recounted her inner feelings of fear and insecurity, and she described in detail the conflict between her reclusiveness and hypochondria.  Finally, she described how relieved she had been to find a vaccination site with such short lines, and she recounted the nurse’s advice about Site X. 


With the aid of electronic telecommunication, P maintains a small circle of six close friends from her youth.  She e-mailed them the account of her vaccine forays, which runs about two pages.  P’s e-mail (the “E-Mail”) concludes with P’s real electronic signature and strict instructions to keep the entire account private. 


Anne Able (A) is one of P’s close friends who received the E-Mail.  She maintains a password-protected website for posting recipes for desserts.  Only about two dozen friends of A’s have passwords to the site.  In addition, the site is designed so that visitors (even those with passwords) can view but not copy the recipes and other postings on the site. 

Most of A’s friends with passwords have small children, who are at grave risk from H1N1.  Hoping to help them get their children vaccinated easily, A posts excerpts from the E-Mail on her website.  The excerpts (“A’s Post”) run about half a page.  They include P’s humorous description of her torment while waiting in line, repeatedly washing her hands with Purell.  They also include P’s retelling of her relief on getting vaccinated so quickly.  At the end A’s Post, A includes the location and hours of operation of Site X, which she copies from Metropolis’ official public-health website.  She does not include P’s signature or privacy warning. 


Bill Baker (B) is one of A’s friends with the password to A’s website.  He has four children.  After reading A’s post, he takes them all immediately to Site X to get vaccinated.  He then becomes concerned about other people with children.  So he copies A’s Post on his own website, laboriously retyping it verbatim by hand.  B’s website has no password or copy protection and is open to the whole world.  His hit meter for this re-posting shows over 10,000 hits per day for the next three days. 

Cathy Cozik (C) is a public health official in Metropolis.  She is neither a friend of P’s nor a member of A’s recipe-website circle.  But she is a skilled computer “hacker” and a great fan of P’s books. 

One day, while browsing the Web, C comes upon A’s recipe website.  Curious, she applies her hacking skills to discover the password by “brute force”—a computer program that tries millions of passwords in rapid succession to discover the right one.  After gaining access to A’s website in this manner, C discovers A’s Post on it. 

Concerned that a Site X is an underutilized public-health resource, C decides to republish A’s Post.  But she recognizes P’s uniquely humorous style and, as a fan of P, suspects that P is ultimately the author.  C also knows that P has brought suit several times to preserve her privacy and anonymity and to defend copyright in her books.  So C just posts a summary of A’s Post on Metropolis’ official public-health website, as follows:
    “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. ”
C followed this paragraph with directions and a map to Site X and its days and hours of operation.  C’s post on Metropolis’ official public-health website is available for all the world to read, copy and retransmit. 


A, B, and C have heard that P is furious about the release of her private e-mail and breach of her privacy.  Concerned about P’s reputation for litigiousness, they have come to you for legal advice.  Advise each on his/her exposure to copyright and copyright-related claims, including defenses and likely remedies.  Do not discuss claims in contract, privacy or other non-copyright-related torts. 

Question 2
(Seventy Minutes, Equally Divided)


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. 


P designs a humorous coat rack with five hangers.  Each hanger is a metal piece in the shape of a buzzard, with folded wings and head bent to hold a coat.  P mounts five such metal buzzards on a nicely finished wooden rail, with holes for screwing the whole assembly to a wall. 

P had a noted bird sculptor design the buzzard hangars by sculpting one in bronze.  The sculpture was correct in anatomical detail.  P then made a direct mould of the sculpture and used that mould to mass-produce the buzzard hangers from cheaper, silvery metal. 

Before mass-producing the assembled rack, P engraved the following legend into the mould for the buzzard hangers: “Copyright © P 2009.  All rights reserved. ”  This legend appears (in an inconspicuous place) on each metal buzzard in the finished coat rack.  P applies for copyright registration on the assembly, which issues.  He also applies for a design patent. 

P’s rack sells well, and D wants to make and sell a copy.  D proposes making a direct mould of one of P’s buzzard hangers, removing the copyright legend, and using that mould to duplicate the buzzard hangers in orange plastic.  The plastic that he proposes to use shrinks upon curing, so that D’s resulting buzzard hangers would be identical to P’s, except that D’s would be made of orange plastic and only 80% as large. 

D has come to you to analyze his legal exposure if he mass-produces and sells coat racks with orange-plastic buzzard hangers made in this way.  Analyze his exposure and make a recommendation for action. 

Question 3
(Forty Minutes)

    “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.” 
Write an essay analyzing and/or criticizing this passage.  Be sure to address all aspects of it, including: (1) its underlying assumptions about how our law works and the effects of its provisions and organization; and (2) its implicit judgments as to what is good policy and what is practically adaptable.  Your grade will depend not upon your point of view (or upon whether you agree with the passage), but upon how carefully and specifically you support and document your analysis, with reference to specific media and technologies that we have studied and specific statutory sections, cases and policies that govern them.  The more specific, detailed and focused your analysis, the better your grade will be. 



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 and your agreement to conduct this “transaction” by electronic means.)

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 “2009 Copyright Law Exam” and no other.  (If you use another file name, your anonymity may be compromised.)

5.  Save your file in Rich Text Format (.rtf).  Some word-processing formats have compatibility problems, so please save your answer file in Rich Text Format.  Use the “Save As” feature of your Word Processor; then click on the double arrow to the right of the “File Type” field in the “Save As” dialogue box and select “Rich Text Format (RTF).”  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 correct name and an “.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 RTF 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 “2009 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 or an assistant 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:

(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 typing errors; then double-check all addresses, delimiters, 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.)