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EXAM NUMBER _________________ FINAL EXAMINATION INTELLECTUAL PROPERTY II: COPYRIGHT PROFESSOR RONALD W. STAUDT MAY 12, 1994 GENERAL INSTRUCTIONS This is a three hour open notes, open book examination. With the following exceptions, you may bring any books or other materials into the examination and any materials personally prepared by you or prepared jointly with other students in the class, as long as they are typed or hand written on regular paper. Downloaded law review articles are permitted. You may not bring in treatises on copyright law, i.e. Nimmer on Copyright, or law reviews in bound volumes because of unequal access to those volumes. You may not share materials during the exam. You may not tear pages out of the bluebooks. You are not to identify yourself in any manner, other than exam number, on your bluebooks, question sheets or anything else turned in that will be submitted to the professor. The three hours are divided into two parts:
first, 30 minutes for reading, thinking, outlining and planning your answers; and, second, 2-1/2 hours to write your exam. During the first 30 minutes you may make notes or outlines but you may not begin to write your answers until the 30 minutes have expired. Write your examination number on each page of this exam. When bluebooks are distributed, write your examination number on each page of your bluebooks. Your answers will be weighed according to the following suggested time limits: QUESTION 1 - 45 MINUTES QUESTION 2 - 45 MINUTES QUESTION 3 - 60 MINUTES Write legibly. Credit will be given for clarity, conciseness and coherent organization. GOOD LUCK!!! QUESTION 1. (SUGGESTED TIME: 45 MINUTES.) Wildlife is an Indiana corporation that manufactures and sells children's duffle bags with soft sculpture animal heads and tails on the ends of cylindrical bags called "roll bags." The plush heads and tails were made to resemble bears, pandas, ducks and elephants. Wildlife named its bags "Critters in a Carrier" and obtained registered copyrights of the soft sculptures on the bags. Carol Wright, a Delaware corporation, is a mail-order retailer that purchases products from domestic and foreign suppliers and offers them for sale through catalog mailings. It marketed four duffle bags with plush heads and tails, in the forms of a bear, panda, duck and elephant, under the name "Precious Pet Duffle Bags." Wildlife exhibited its Critters in a Carrier at the 1990 American International Toy Fair in New York City. An exhibitor from Taiwan, Jackson Lin, carefully examined the bags for approximately fifteen minutes, to the concern of Wildlife. In fact, after Mr. Lin offered to manufacture the Critters, Wildlife's president, Stephen Janney, escorted Mr. Lin away from his booth. Months later, in the fall of that year, Carol Wright's chief executive officer, Robert Ginsberg, visited Mr. Lin's showroom in Taiwan. Following that visit, Carol Wright's senior buyer made arrangements to market Precious Pet Duffles, which were made by Dior Merchandising, one of Mr. Lin's companies. Carol Wright offered the Precious Pet Duffles for sale in 1991. Wildlife became aware of the duffles in May 1991, when the company received the Carol Wright catalog. You are retained by Wildlife to enforce the copyright to its "Critters in a Carrier." Your client tells you that Carol Wright has copied the four most popular "Critters." Assume that your efforts to seek an amicable resolution of your client's interests have failed. Write a memorandum to the client explaining copyright infringement litigation. Describe each stage of the proceeding and the arguments that you expect to make and the strategy that you expect to see from the defendant. Advise the client of the likelihood of success. QUESTION 2. (SUGGESTED TIME: 45 MINUTES)
The NRA is a New York-based non-profit corporation that lobbies officials and educates the public in support of the ownership of firearms. HCF is also a non-profit organization and engages in similar activities, but toward a goal opposing that of the NRA. On May 5, 1994, the NRA sent a short letter to its members urging opposition to two gun control bills pending before the Ohio legislature that provided for the ban of certain assault rifles and for waiting periods before gun purchases. Attached to each newsletter was a three‑page listing of Ohio state legislators. One page lists the thirty‑three members of the Ohio Senate along with their district numbers, their home cities, and their phone numbers both in their districts and in Columbus. An asterisk was placed before each of the eight members of the Senate Judiciary Committee. The other two pages contain the same information for a list of the ninety‑nine members of the Ohio House of Representatives, with asterisks placed before the nineteen members of the House Judiciary and Criminal Justice Committee. Below the list of representatives was one paragraph of text, reading: Those 19 State Representatives marked with an asterisk (*) serve on the House Judiciary and Criminal Justice Committee to which H.B. 372/H.B. 483 has been referred. It is extremely important, especially if you are one of their constituents, to contact their office opposing H.B.372/H.B.483. Address letters to your State Representative as follows: The Honorable_____Ohio House of Representatives; State House; Columbus, Ohio 43266‑0603. J.A. at 280. A similar paragraph on the senate page explained the asterisks by the senators and urged members to contact them. The NRA registered its newsletter with the Registrar of Copyright. HCF has prepared a ten-page newsletter to distribute to about 200 of its members, attempting to arouse support for the same House bill the NRA opposed. The newsletter begins with a page briefly explaining the pending bill and urging the writing of letters to several major Ohio newspapers, whose addresses are provided. Seven other pages provide detailed information about types of guns, the effect of gun control legislation, and other states' related gun laws. Pages eight and nine of the newsletter contain a two-page list of Ohio representatives, which HCF admits was photocopied from the NRA mailings, which HCF received. The block of text at the bottom of the list was also copied, except that a few words, including the word "opposing," were blocked out. NRA has obtained a copy of the HFC newsletter prior to its publication and threatens to sue for copyright infringement if HFC distributes the newsletter to its own members. HFC retains your law firm to review the latest newsletter and advise it of its exposure on the copyright claim if HFC proceeds to distribute the newsletter. Prepare a draft of the opinion letter to HFC. QUESTION 3. (SUGGESTED TIME: 60 MINUTES) In Lotus . Borland, Judge Keeton described his method for determining the copyrightability of computer software as follows: FIRST, in making the determination of "copyrightability," the decision maker must focus upon alternatives that counsel may suggest, or the court may conceive, along the scale from the most generalized conception to the most particularized, and choose some formulation, some conception of the "idea," "system," "process," "procedure," or "method" ‑‑ for the purpose of distinguishing between the idea, system, process, procedure, or method and its expression. SECOND, the decision maker must focus upon whether an alleged expression of the idea, system, process, procedure, or method is limited to elements essential to expression of that idea, system, process, procedure, or method (or is one of only a few ways of expressing the idea, system, process, procedure, or method) or instead includes identifiable elements of expression not essential to every expression of that idea, system, process, procedure, or method. THIRD, having identified elements of expression not essential to every expression of the idea, system, process, procedure, or method, the decision maker must focus on whether those expressive elements, taken together, are a substantial part of the allegedly copyrightable "work." Applying this test, I determined that the "idea," "system," "process," "procedure," or "method" of the Lotus 1-2-3 program is a menu‑driven electronic spreadsheet whose user interface involves a system of menus, each menu consisting of less than a dozen commands, arranged hierarchically, forming a tree in which the main menu is the root/trunk of the tree and submenus branch off from higher menus, each submenu being linked to a higher menu by operation of a command, so that all the specific spreadsheet operations available in Lotus 1-2-3 are accessible through the paths of the menu command hierarchy. I concluded also that as a matter of law, Borland's Quattro products infringe the Lotus 1-2-3 copyright because of (1) the extent of copying of the "menu commands" and "menu structure" that is not genuinely disputed in this case, (2) the extent to which the copied elements of the "menu commands" and "menu structure" contain expressive aspects separable from the functions of the "menu commands" and "menu structure," and (3) the scope of those copied expressive aspects as an integral part of Lotus 1-2-3. LOTUS DEVELOPMENT CORPORATION v. BORLAND INTERNATIONAL, INC. 831 F. Supp. 202; 1993 U.S. Dist. LEXIS 11688 (June 30, 1993, As Amended August 19, 1993.)
Borland International has appealed this decision in favor of Lotus. You are a judicial clerk in the United States Court of Appeals for the First Circuit. Your judge asks you to prepare an overview of the tests for copyrightability of computer software from other circuits and to compare those approaches to the process that Judge Keeton employed in the opinion quoted here. PAGE OF 7 PAGES. |