UNIVERSITY OF CALIFORNIA SCHOOL OF LAW

COURSE EXAMINATION

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.

SPECIAL INSTRUCTIONS:

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.

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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:

• Deleted some paragraphs from the initial agreement that didn’t make sense
• Added some paragraphs from Yabe’s existing agreement, which was drafted by attorneys at a different law firm, and some language from Yabe marketing collateral, which was drafted by Yabe employees
• Added language required by statutes
• Added some paragraphs from other agreements, some you authored and some you found on the Internet
• Created multiple paragraphs from scratch, including several clever contractual solutions to thorny legal problems faced by Yabe
• Edited all of the above for style and consistency
• Made a large number of revisions suggested by Handy, your supervising partner and various other lawyers in the firm who advised you on specific issues

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:

• Assume that all copyrightable material is governed by US copyright law (do not discuss any International laws) and is within its initial copyright term (do not discuss any duration issues). Assume any infringements are taking place in the US.
• Do not address any issues related to copyright notices.
• Do not discuss contributory or vicarious infringement.

END OF QUESTION 1 Page 2 of 3

Question #2 (50 minutes)

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

• initiates robots that canvass the Web looking for content,
• places copies of desired content into a central database,
• lets users run keyword queries against the central database,
• displays search results listing web pages that contain the searched keyword (which search results display a portion of the page and a link to the website), and
• displays banner and text ads that are specifically targeted to the searched keywords.

However, Toggle differs from Ditto.com in some key respects:

• Instead of indexing photos, Toggle indexes PDF files. PDF is a file format that lets all readers see the file’s text and graphics exactly as the author sees them. Many PDF files are “locked” so that viewers cannot edit the file’s contents or copy any portion of the file.
• Each search result displayed to a user contains links to the original PDF file. If a Toggle user clicks on the link, it will cause the original indexed website to display the original PDF file directly to the user within the same browser window (so this does not cause pop up windows and is not in-line linking or framing).
• In order to index the text in the PDF files, Toggle converts each PDF file to HTML (the standard format for web pages) when the file is added to Toggle’s central database.
• When Toggle displays search results, in addition to linking to the original PDF file, Toggle also permits users to see the HTML file that Toggle has in its central database. The HTML file is served directly to users from Toggle’s central database. HTML files are fully editable, and users can copy portions of HTML files. In addition, although they contain the same substantive content, the HTML file has minor formatting differences from the PDF file’s formatting as published by the author. In the HTML version, Toggle also highlights the keywords the user was searching for (making it easier for the user to find those words).

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:

• Do not analyze any defenses potentially applicable to each violation. Your goal is simply to catalog all of the violations and describe why they might be violations.
• Do not discuss fair use other than as specifically indicated.
• This is an issue-spotting question. Therefore, you have extra thinking time and should need less time for writing.

END OF QUESTION 2

END OF EXAM Page 3 of 3