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
jdratler@gmail.com
Copyright © 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009   Jay Dratler, Jr.   For permission, see CMI.
 

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 2008

FINAL EXAMINATION

Instructions

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 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.)
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
(Ninety Minutes)


A

The "Kinder" is a so-called "electronic book," a hardware device offered and sold for $250 by Kinder.com.   About the size of a large paperback, it has a capacious electronic memory, a display screen, a pointing device, a few buttons, and a powerful battery.  With the aid of wireless technology, a user can download whole books into it, including text, pictures and audiovisual material—all in digitized electronic format.  Kinder offers book downloads for sale from its Kinder.com Website at any wireless access point.

The Kinder.com Website offers over 200,000 titles at various prices.  Once the user wirelessly connects the Kinder to Kinder.com's Website, he or she can download a whole book in less than thirty seconds.  Once downloaded, books appear on command, page by page, on the Kinder's screen.  Each Kinder can hold up to 25 books, depending on their size.  With a single battery charge, the user can read for an entire day.

The Kinder has an electronic search feature and copy-and-paste feature.  To copy and paste into a word-processing document, the user can connect the Kinder to any personal computer with wireless technology or a simple cable.  Software on the Kinder implementing this feature, however, prevents any user from cutting and pasting more than half a page at a time.  The same software prevents cutting and pasting more than twelve pages in toto from any single book.

The Kinder.com Website does not require the user to sign any agreement.  The user simply pays for downloaded books on line, using a credit card or other on-line means of payment.  The downloading begins once payment is verified.  The Website advertises, "Instead of owning dead trees, own a digital book that you can read at will and search and copy electronically.  Once you try the convenience of a Kinder, you'll never go back to killing trees."

B

Doris and David are political activists with degrees in economics.  They believe that political support for mistaken government policies derives from what they view as a "serious misunderstanding" of economics.  They also believe that the Kinder is a principal means by which misconceptions about economics are propagated.  So they resolve to fight back.

Doris and David believe that a popular college economics textbook (the "Textbook") is the source of the "misinformation" they deplore.  They also believe that most college students download and read the Textbook on Kinders.  So they resolve to offer a refutation of the Textbook and to allow anyone to download it onto a Kinder for free.


C

To realize this goal, Doris and David buy a Kinder and a download of the Textbook from Kinder.com's official Website.  Then Doris, an experienced computer "hacker," modifies the cut-and-paste limitation of the Kinder's software to allow them to upload the entire Textbook from the Kinder to David's personal computer.  Then they do just that.

Using the uploaded copy of the Textbook, Doris and David prepare a point-by-point refutation.  For each chapter of the Textbook, David writes a summary of its content, and Doris selects illustrative passages from the Textbook, typically a paragraph at a time.  For each chapter, Doris selects one or two paragraphs of the Textbook's economic conclusions and its most persuasive paragraph of reasoning—at most three paragraphs in all.  Then David organizes the paragraphs that Doris selected, in logical order (but not necessarily the order in which they appeared in the Textbook), interspersed with David's summaries and transition material.  The result is an exposition of each chapter of the Textbook, presenting its economic conclusions and reasoning roughly as the Textbook's author did, but more succinctly, and with the slant that Doris and David prefer.

Next Doris and David work together to write a detailed refutation of the textbook's substance, interspersed among David's summaries and transitions and the borrowed paragraphs.  The result looks like a gigantic responsive e-mail, with David's and Doris' refutations in italics interspersed among David's summaries and transitions and the borrowed paragraphs, all of which appear in Roman type.  

With this done, David posts their work so far on a Website.  The Website invites users to comment on each chapter.  Users' comments are posted at the end of each chapter, after the text of David's summaries and transitions, the paragraphs borrowed from the textbook, and Doris' and David's point-by-point refutation.  Doris and David edit and sometimes shorten the comments to maintain high standards of grammar, expression, and economic sophistication.

Some of the comments come from notable economists, including Noble Prize winners.  As more and more edited comments accrue, the work become longer and more sophisticated.  Doris and David call it, including all the current comments, their "Refutation."

Doris' and David's Website invites anyone to download the Refutation, complete with all the current edited comments, to a Kinder or any personal computer for free.  A banner headline on their Website advertises, "The most popular college economics textbook contains grievous errors and tells lies.  Download our detailed Refutation for yourself and see the truth!"

Doris and David are surprised at the their venture's success.  In its first year of its operation, their Website downloads their Refutation over 100,000 times.  The Kinder.com Website, which maintains running sales figures for the books it sells, reports that current downloads of the Textbook itself amount to only 150,000 annually, down from 250,000 annually before Doris' and David's Website went on line.


D

Doris and David only recently became aware of copyright.  That happened when they received a cease-and-desist letter signed by an executive of Powell Books, which claims to own the copyright in the Textbook and to have licensed it to Kinder for electronic distribution.  Doris and David have hired you as special copyright counsel to analyze their legal exposure.  Write them a memo (1) analyzing all copyright-related claims against them, (2) discussing all reasonable defenses, (3) and suggesting practical ways for them to reduce their potential legal liability.


E

As a courtesy in the litigation, Doris and David provided Powell Books with a complete electronic copy of the Refutation (including current comments).  Powell has offered to settle its claims against Doris and David, and even pay them a small royalty, in exchange for an assignment of their interests in the Refutation.  But the offer is contingent on Powell getting clear copyright title to the Refutation.  Analyze: (1) who now owns copyright in the Refutation, and (2) what exposure Powell would have if it offered downloading of the Refutation from its copy for sale on Kinder.com's website (a) without Doris' and David's consent and (b) with the consent of both.  Could the deal go through if one of Doris and David refused to sign?  Do you foresee Powell having any other difficulty in getting the "clear copyright title" that it desires?



Question 2
(Sixty Minutes)

A


Playdoll Company manufactures plastic dolls for children.  One of its most popular products is a set of dinosaur dolls.

Playdoll advertises the dolls as highly realistic and therefore educational.  Each doll is in proportion to the size of the species of dinosaur it represents, and each comes with a durable plastic card naming the dinosaur's species and explaining how and when it lived, what it ate, and its place in the predator-prey chain.  Playdoll maintains a distinguished paleontologist on staff as a consultant to provide this information and advertises that fact.

Since children use its products, Playdoll has been very careful about safety.  Although (like most toy manufacturers) it has its products made in China, it has been careful to avoid any dangerous ingredients, such as lead paint or toxic solvents.   

Although Playdoll tries to keep the identity of its Chinese manufacturers secret, it is afraid that American competitors will discover them and produce competing lines of dolls.  So it wants to explore the possibility of legal protection for its dolls in the United States.  Write Playdoll a memo analyzing the availability and strength of legal protection of the kinds that we have discussed in this course.  Try to write the memo in simple terms that business people without legal training can understand, while remaining as faithful as possible to the substance of the law. What practical advice would you give Playdoll about legal protection generally?


B

You are a member of a private investment club with about 200 members.  The club maintains no Website.  Instead, communication among members is by e-mail.  Each member has the e-mail list for the entire club and agrees to keep it confidential.  The club has been very active during the recent stock-market meltdown, with each member buying and selling publicly traded securities.

You recently received a long e-mail (the equivalent of about five pages) from an old friend who is not a member of the club.  Your friend works in the corporate headquarters of a large public company that has been much in the news lately, and whose stock price has gyrated with great volatility.  The e-mail describes, in much greater detail than in the news media have done, the company's recent and proposed deals and its prospects for success.

You would like to send the e-mail to the members of your investment club to help them make decisions about investing in the company's stock.  You have considered summarizing it, but the e-mail contains so much detail and nuance that you don't think a summary would do it justice.

Analyze your copyright exposure if you forward the e-mail to the entire club.  Do not discuss non-copyright-related claims, such as those under securities or privacy law.

Question 3
(Thirty Minutes)


    “Copyright law in the digital age has become a nightmare.  What once was a simple matter of suppressing unauthorized publication of books has become an exercise in chasing bits and bytes through complex computer systems, about which lawyers and judges know little or nothing.  Furthermore, copyright now contravenes social norms (at least among our youth) and thwarts the introduction of new technologies for the dissemination of creative expression.  As a result, copyright makes scofflaws out of young people merely because of their natural interest in education, entertainment and popular culture, and it has stopped performing its function as a "promote[r of] Science," which our Constitution commands.  So Congress should abolish copyright and seek some other means of compensating authors, artists and other creative people for their work.”
Write an essay analyzing and/or criticizing this passage.  Be sure to address all aspects of it, including: (1) its underlying assumptions about the law’s effect and consequences, (2) its implicit and explicit judgments on what is good policy and what is practicable, and (3) its implicit judgment on what Constitution allows and encourages Congress to do.  Be sure to explain in detail why you agree or disagree with the recommendation that Congress abolish the law of copyright.  If you agree in part, specify what part(s) and why, and outline with what you would replace copyright.   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 relevant statutes, cases and constitutional material that we have studied and the underlying policies 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 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:

      jdratler@gmail.com
      dratler@uakron.edu
      abthong@yahoo.com
      sfauppe@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 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.)


HAVE A GOOD WINTER BREAK!