Spring 2002

Student Exam # _______


Copyright Law (Law 278.31)


Instructor in Charge: Eric Goldman

Time Allowed: 1 hour, 40 minutes

Open Book


WRITERS:  Place your exam label or clearly print your exam number on the cover of all bluebooks.  Write the course name and instructor’s name on each bluebook.  Number your bluebooks to indicate their order, and state the total number of bluebooks that you are submitting (1 of 4, 2 of 4, etc.).


TYPISTS: Type your exam number, course name, and instructor’s name and page number on each page of your typed answers.  Typed answers should be double-spaced.




1.         This is an open book exam.  You may use any materials permitted by University rules.


2.         There are 2 questions on 3 pages.  Be sure your copy of the exam contains all 3 pages.  Each question is worth 50% of the total grade.  You should allocate your time accordingly.


3.         I have the following tips and recommendations for you:


·        Please outline your answers carefully and deliberately. I recommend that you spend approximately 1/3 of your allocated time reading the question and outlining a response.

·        Follow the call of the question.  Target your response to your audience.

·        While generally your answers should be based on legal principles, it is always appropriate to address business issues.

·        Keep separate legally-distinct parties and their respective rights & responsibilities.

·        Additional information may be useful in your analysis.  Please indicate what additional information would be helpful, and then state your assumptions in order to proceed with your analysis.




You will be given a 10-minute and a 1-minute warning.  When time is called, please stop writing promptly and turn in your copy of this exam and your answers.  Please do NOT leave your exam or bluebook (or typed answers) on the desk.  All copies of this exam and bluebooks must be turned in to the person in charge, or if you finish early, must be taken to the Registrar’s Office, 270 Simon Hall.

Page 1 of 3

Question #1 (50 minutes)


You work for a law firm.  You never signed an employment agreement of any sort with the firm.


One of your clients is Yabe, a consumer-oriented services company.  A few months ago, Handy, Yabe’s in-house counsel, asked you to draft a new version of the Yabe user agreement and privacy policy (collectively, the “Agreement”).  When you drafted the Agreement, you started with a user agreement and privacy policy you prepared for another client and then made the following changes:



The resulting Agreement is a complex document of roughly 7,000 words, including many paragraphs that are uniquely applicable to Yabe because they describe Yabe’s business or marketing practices.


Your law firm’s engagement letters with clients never address intellectual property issues.


Today Handy calls you in a fit of anger.  Since Yabe published your version of the Agreement in its marketing collateral, dozens of Yabe’s US competitors copied the Agreement, simply did a global search and replace to change the name, and then published the slightly revised versions of the Agreement as their own user agreement and privacy policy.  Handy is cranky because Yabe spent thousands of dollars on your firm’s legal bills for the Agreement to create a state-of-the-art document, and his competitors are free-riding on these investments.


Handy wants to sue the competitors for copyright violations.  Advise him.


Eric’s Tips and Hints:


END OF QUESTION 1                                                                                                    Page 2 of 3

Question #2 (50 minutes)


Toggle is a search engine that functions similarly to the search engine from Kelly v. Arriba in that it:



However, Toggle differs from in some key respects:



Please identify each possible violation of the US Copyright Act committed by Toggle and BRIEFLY describe why you think there could be a prima facie violation (including identifying the strongest facts that would support the violation).  Also, do you think Toggle’s conversion of PDF files to HTML constitutes a “transformative use” under a fair use defense?


Eric’s Tips and Hints:



END OF EXAM                                                                                                                Page 3 of 3