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EXAM NUMBER _________________

FINAL EXAMINATION

PROFESSOR RONALD W. STAUDT

MAY 9, 2000

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. Downloaded law review articles are permitted. You may bring your laptop computer into the exam with you and consult materials that you have prepared and stored on its hard disk. Your laptop computer, if you choose to bring it into the exam, may not be connected to a network, phone line or to the Internet. 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 communicate with other students 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 - 75 MINUTES

QUESTION 2 - 75 MINUTES

Write legibly. Credit will be given for clarity, conciseness and coherent organization.

GOOD LUCK!!!

QUESTION 1. (SUGGESTED TIME: 75 MINUTES.)

In 1998, Donald Trump hired Bob Builder to construct a new Trump Casino in Las Vegas. As is customary in the construction industry, Bob contacted Pam Photo, a commercial photographer, about taking aerial photos of the construction site to document his progress on this project. One important purpose of such construction photographs is to establish an evidentiary record of progress in the event that a dispute arises during or after construction.

Pam sent to Bob the following memorandum proposing terms for the photography job:

The cost to fly from my airport to Las Vegas, shoot the job site and return is $165.00. The photography fee for this flight is $145.00. This includes photographer, film, processing, proofs, photo album and delivery. The cost for 8 x 10 inch photographs is $10.50. Turn around time from date of order placement is one week. Delivery of proofs from date of photography is four days. I will be glad to quote you an exact price once you determine the frequency of flights needed and the number of prints needed per view. Other print sizes are available. Please call for a quote.

That same day, Bob returned this memo to Pam, with a handwritten note indicating his agreement to these terms and his desire to schedule the first series of aerial photos as soon as possible.

Over the next year, Pam flew over the construction site approximately 47 times to take construction photos. In all, Bob selected 305 images for printing from these aerial photography shoots of the construction site. Bob paid the fees as agreed for these flights and the 305 images.

In 1999, The Donald became dissatisfied with the progress of construction on the Trump Casino in Las Vegas and terminated Bob’s contract. On May 23, 1999, Bob filed an arbitration demand against The Donald, seeking damages in excess of $40 million. The Donald counterclaimed, alleging defective work and delays in construction.

In connection with these arbitration proceedings, Bob contacted Pam to request a quote for six sets of photocopies of the construction photos. These six sets, totaling approximately 1,830 copies, were intended for distribution to the three arbitrators, the witnesses, and each side's counsel. Pam initially responded with a price of over $18,000, reflecting the standard cost of $10.50 per print that Bob had paid throughout the parties' relationship. When Bob complained that this price was excessive, Pam offered to charge approximately $13,000 for the reprints. Alternatively, Pam suggested that the parties could negotiate an "image use fee" arrangement, under which Bob would pay a per-copy fee for the right to reproduce the photos himself.

Bob, believed that the quoted prices were prohibitively expensive. Bob decided that instead of Pam’s reprints, less expensive color photocopies would adequately serve his purposes in the arbitration proceedings. Thus, in late October of 1999, Bob contacted a local copying service, Copy Corps, and arranged to make 2,034 color photocopies of Pam’s photos, at a cost of $1.00 per copy. Bob obtained 10 copies each of a set of 203 photos, plus four enlarged 36-by-28.5-inch copies. These photocopies were admitted into evidence in Bob’s arbitration proceedings with The Donald, with additional sets of copies distributed to the arbitrators, to witnesses, and to counsel.

PAM HAS RETAINED YOU TO SEEK REDRESS AGAINST BOB. WRITE A MEMO EVALUATING HER COPYRIGHT CLAIM AGAINST BOB. IDENTIFY AND DISCUSS ALL IMPORTANT ISSUES AND DEFENSES. GIVE HER AN ESTIMATE OF HER LIKELIHOOD OF SUCCESS IN A LAWSUIT AGAINST BOB.

QUESTION 2. (SUGGESTED TIME: 75 MINUTES)

A fledgling Web site, called Jurisline, went on-line last year, making available an archive of court opinions from federal courts and those of 37 states, much of it admittedly compiled by copying material contained on CD-ROMs purchased from LEXIS.

Jurisline, which is supported by advertising and joint operating agreements, is making its database -- which goes back to the 1940s, and in some instances to 1900 -- available without charge to users. The databases are current for most states as of the end of last year, though LEXIS will no longer provide Jurisline with updates of its materials. Jurisline will continue to gather opinions from those courts that make them electronically available.

LEXIS filed a state lawsuit in New York Supreme Court in Manhattan seeking, among other things, $25 million in punitive damages, for Jurisline's fraud and breach of contract. LEXIS alleges that Jurisline obtained its CD-ROMs under false pretenses when it obtained them by representing that they would be used for the personal use of a lawyer. The agreements that Lee Eichen, one of the co-founders of Jurisline, signed when he purchased 60 CD-ROMs and more than 100 updates clearly stated that the CD-ROMs were for his use as a lawyer only, and that they could not be uploaded onto the Internet where they would be available to the general public. LEXIS asserts that the Jurisline founders have no legal right to "free-ride" off the "time, effort and money" LEXIS has expended in developing its database.

Jurisline does not dispute this description of the restrictive nature of LEXIS' licensing documents, but instead claims that it has an absolute right to copy public domain material written by judges and legislators. Jurisline has filed a declaratory judgment action in Federal District Court in New York seeking a declaration that its copying of judicial opinions from LEXIS' CD-ROMs was protected under federal copyright law.

WRITE A MEMORANDUM ANALYZING THE CLAIMS OF LEXIS AND JURISLINE