VILLANOVA UNIVERSITY SCHOOL OF LAW

FINAL EXAMINATION IN ADMINISTRATIVE LAW 1995

INSTRUCTIONS

1. This examination consists of 5 pages. Please check to make certain you have the complete examination.

2. Read these instructions carefully and read each question carefully. Think each problem through before you write and treat every appropriate issue in each question. Be direct and concise.

3. Answers will be graded upon the reasons given as well as the conclusions drawn. If more than one reason is pertinent to an answer, state every reason.

4. Weight will be given according to the time allocation indicated for each question. Allocate your effort accordingly.

5. While you have been permitted to bring materials into the examination room, answering the questions appropriately will put time pressure on you. You should not do extensive research during the examination.

6. You may decide, in answering one or more questions, that a complete answer would require legal research. If this is so, you should identify the specific issue that you would research. If you have a mastery of the basic concepts, you will be able to frame research issues very narrowly and precisely.

7. It also may be that more factual information is required to answer a question. If this is the case, you should say what factual information is required and why you need it. A mastery of the underlying concepts will permit you to frame any factual inquiries very narrowly and link them precisely to the legal issue involved.

8. Organization and clarity are very important. A shorter answer that is well organized and evidences a clear understanding of basic concepts and their interrelationships is better than a long answer with disconnected fragments of information.

9. You are responsible for writing legibly. Illegible answers will not receive credit. Do not write outside the margins of your bluebook pages.

10. Write your examination number on your bluebook(s) and on each page of this examination. Do not use your name.

11. When you have finished the examination place it inside your bluebook(s) and deposit them in the appropriate box in the examination room.

MATERIALS WHICH MAY BE TAKEN INTO THE EXAMINATION ROOM

ANY MATERIAL INCLUDING ANY OUTLINES

WHETHER COMMERCIALLY PREPARED OR NOT

GOOD LUCK. HAVE A NICE HOLIDAY SEASON

 

FACTS

The Congress has become concerned about the protection of intellectual property in computer databases when the databases are created, managed, and used by persons in different countries. Traditional copyright, patent, and trade secret laws are strongly national, signifying that infringement is compensable only when it occurs within the country granting the copyright or patent. Moreover, it is not entirely clear that databases are protected against unauthorized copying and resale of their contents by either copyright or patent law. Reciting those factors in the preamble of a new statute, the congress legislates as follows:

"Section 1. The database protection tribunal recently established by the United Nations ("UN") shall have exclusive jurisdiction to decide claims of piracy, infringement, or other misappropriation of tangible and intangible property interests in computer databases.

"Section 2. The tribunal shall have such powers and use such procedures as are provided for in its organic authorization from the UN.

"Section 3. No decision of the Tribunal shall be reviewable in any state or federal court for any reason, constitutional or otherwise.

"Section 4. Decisions of the Tribunal shall be enforceable as though they were judgments of a state court, affirmed after exhaustion of all pertinent appeals."

Suppose the UN has established a database protection Tribunal composed of seven judges elected by the general assembly of the UN for staggered terms. The document setting up the Tribunal provides that a proceeding shall be commenced by filing a complaint by electronic mail with the Tribunal's Registrar in Hong Kong at an email address specified by the Tribunal on its World Wide Web home page on the Internet. The document further provides that all pleadings shall be filed by email. Service of any document filed with the Tribunal on other parties shall be effected by email to email addresses given by the addressees in their initial pleadings or entries of appearance. Members of the Tribunal deliberate via email. Documents are offered and served by posting them in an electronic space resembling a news group or an electronic study group. If a party believes that the credibility of a witness will be outcome determinative, that party may petition for a video tape deposition of that witness. If the senior member of the Tribunal finds that a video deposition is appropriate, he or she may order that such a deposition be taken. In the event of such a deposition, all parties may be represented and participate by submitting questions by email to be propounded by a member of the Tribunal conducting the deposition. The procedural document provides ordinarily that any depositions will be taken by video conference. Such video depositions are recorded, with the recording made available to all parties and all members of the Tribunal.

East Publishing Company electronically accesses a database of British judicial opinions and parliamentary acts established and maintained in England. In 1994, East established a regular practice of copying the raw text of these materials into its own database operated in the United States and called Eastlex. The British database proprietor has filed a claim with the Tribunal alleging that East has violated its intellectual property rights. East has answered, asserting that the British company has no rights in the raw text of judicial opinions and statutes and that even if such a right purportedly exists under English law, East has a privilege under the First Amendment to the United States constitution to publish the materials. Responding to an invitation for briefing the question of what legal standards should be applied by the Tribunal to this case, the British database provider urged application of a "code of good information practices" developed by the International Association of Information Services, a private international trade association. In particular, it urged application of the following Association standard:

"Practice Rule #15. No person shall copy or otherwise appropriate the contents of multiple database records for the purpose of resale."

East filed a petition to depose the chairperson of the association committee that developed the standard, but the Tribunal denied the petition on the grounds that the standard speaks for itself.

The Tribunal decided that East infringed the intellectual property interests of the British database provider and ordered that East turn over all revenues attributable to its resale of the contents of the British database. The British company has filed the Tribunal's decision in state court where East has its offices and computers and has commenced judgment execution procedures.

 

QUESTION A. (40 MINUTES)

Is there any way that East can challenge the decision of the Tribunal in Court? In your answer, be explicit about the Court, the nature of the "cause of action", the basis for jurisdiction, and arguments that East should make to avoid preclusion of judicial review. Do not, in your answer to this question, consider the merits of the arguments East might make against the Tribunal's decision.

QUESTION B. (10 MINUTES)

Suppose the British database company argues in response to East's attempt to attain judicial review that the decision of the Tribunal involves the President's foreign affairs function, and thus is immune from review under the Administrative Procedure Act. Evaluate this argument analytically.

QUESTION C. (70 MINUTES)

Suppose East is successful in obtaining a judicial forum to present its arguments against enforcement of the Tribunal's decision. What arguments should it make that the Tribunal's decision should not be enforced. In answering this question, be sure to consider all potentially persuasive arguments, but distinguish the strong arguments from the weak ones and evaluate the probability of success of each argument.

QUESTION D. (45 MINUTES)

Suppose, instead of giving authority to the Tribunal, both the Congress and the UN have declared that the United States Copyright Office, a federal agency, shall decide claims of violation involving U.S. database providers. You have been asked to draft the procedural rules for the Copyright Office. Start with the procedural rules for the Tribunal, described in earlier parts of this question. What changes in those initial procedural rules for the Tribunal are necessary when they are issued by and followed by the Copyright Office? Why? If no changes are necessary, explain how the Tribunalís procedures conform to U.S. administrative law.

QUESTION E. (15 MINUTES)

As in Question D, assume the U. S. Copyright Office instead of the Tribunal has been given responsibility. Suppose the Copyright Office has issued a subpoena compelling East to send it "all information relating to the origin of the contents of its database. Must East comply with this subpoena? Why or why not?