Part 1: The Important Details
If you follow my Twitter account very much, you already know that, in early January, I was really suffering. I was grading law exams for my Copyright course that I had taught at Vanderbilt University Law School. The problem wasn’t what the students had written. Many of the exam papers I received were excellent. The suffering was largely self-inflicted. I could have written a shorter, simpler or narrower exam, and spared myself a lot of grief. Had I known how hard the grading would be, I might have quailed when I was preparing the exam.
And, yet, I don’t regret how I structured the exam. It was structured to test the ability to analyze core copyright concepts (e.g., substantial similarity, originality, authorship, ownership, fair use, the exclusive rights, etc.) and the many small but important details (e.g., termination rights, duration, restoration, misuse, minor defenses, etc.), plus stuff in between (useful articles, statutory licenses, architectural works, etc.). By and large, I think it succeeded.
One can’t cover everything, and traditionally law professors have tended not to sweat the details. But I felt I had to. In copyright law, details matter. And I remember how frustrated I was as a junior associate that I didn’t know details not important enough to merit mention on the law school exam but very important to understanding your client’s legal position. There’s a certain amount of walking-around knowledge that even a first-year copyright lawyer should just have. Law school costs a lot of money: you might as well make it count.
I was also concerned that what was sufficient for a first-year associate to know in, say, 2000 (when I graduated), is no longer sufficient today. Back then, there was a shortage of law school graduates. Law school was supposed to teach you to “think like a lawyer”*, and you learned the substantive details when you got to your major law firm. Law firms weren’t, at the time, all that keen on specialized knowledge in law school, even as they complained about how they lost money on junior associates. They liked the flexibility of sticking their new associates where they were needed. Things have changed since 2008. There’s now an abundance of law school graduates, and firms are no longer tolerant about losing money on their junior associates, and they’ve gotten better about assessing their future needs. Logically, then, law schools should start producing better-rounded graduates. As a teaching practitioner, I saw an opportunity to do my part.
* No, this doesn’t mean…well, whatever you’re thinking it means. It means to apply law to facts dispassionately, while also passionately advocating one point of view. It’s a useful skill, really. It’s also about 10% of a successful lawyer’s total skillset.
In order to cover this “walking around knowledge,” the exam was broken into three parts: (I) short answer (for the really small details that don’t fit well in essay topics), (II) short essay (for important issues that don’t fit well in traditional spot-the-issue-type essay topics), and (III) traditional spot-the-issue long essays (which focused on the core concepts). Analysis is still more important than details, so the long essays accounted for about 50% of the score, with the other two parts splitting the remaining 50%. Because the students had only three hours*, I let them have the short essay topics in advance—only there were eight of them, but they’d be answering three (out of four that I chose). This also forced the students to prepare for a wider range of issues, so I think there was more pedagogical bang for the buck.
* I never seriously considered a take-home exam. I hated those when I was in law school because you never knew when you were “done.”
This blog post and the next two will set forth each of the three parts of the exam that I actually gave my copyright class, with comments from me about how I think the questions should have been answered or the topics addressed, and trends I saw in the answers.
If you’d like to see the exam without the comments (or for some reason want to take the exam!), you may access it here.
Vanderbilt University Law School
This exam has three parts. The first part consists of 24% of the total grade, the second part 27%, and the third part 49%. It is recommended that you spend no more than 45 minutes on Parts I and II, leaving at least 90 minutes for Part III.
Part I: Short Answer
24% of total grade.
Answer eight (8) of the following questions. Each answer is worth three (3) points. Try not to spend more than 45 minutes on this Part.
GENERAL COMMENT: Very occasionally, I actually awarded 3 ½ points for an answer. However, no student did better than 24 points (out of 24) in this section.
1. If Congress repealed 17 U.S.C. § 107, would fair use likewise disappear? Why or why not?
COMMENT: Unless you have something very persuasive to say, the correct answer really should be NO. There are two bases that you could use. The basis I was expecting was that Eldred and Golan fairly clearly held that the right to free speech was embedded into copyright law, in part through the doctrine of fair use. Thus, so long as there is a right to free speech, there will be a right to fairly use copyrighted materials (in some form). The other approach was to note that fair use predates section 107, having its origin in Folsom v. March, which is also the origin of the four factors. Thus, it is part of the fabric of common law. This approach surprised me somewhat because we didn’t cover Folsom in class, but several people took it, and it’s legitimate. (It’s not perfect, though, because statutes can override common law, but it works because my question only contemplated the repealing of section 107, not an Congressional abrogation of fair use.)
2. John and the Ram is an orchestral musical work composed in 1936 by the Russian composer Sergei Puriskov, who was then a resident of the Soviet Union. The work never received copyright protection in the United States because, under the Copyright Act at the time, residents of the Soviet Union were not among those eligible for copyright protection. It is currently protected by Russian copyright law. Ron and the Jam is a jazz-like work by the American composer George Schwinn, also composed in 1936. It was published without notice in 1937, placing it immediately into the public domain. Are either of these works now protected by U.S. copyright? Why or why not?
COMMENT: This question tests your knowledge of copyright restoration. John and the Ram is protected under the Uruguay Round because it was not copyrighted on technical grounds (nationality). Ron and the Jam is not protected because its failure to be copyrighted isn’t due to a technicality.
COMMENT ABOUT QUESTIONS 3 & 4: I accepted as correct any year within one (1) year of my calculations. This is because I didn’t provide exact dates, so you could legitimately be “off” by a year. Also, it’s not a math exam.
3. A work was created and published with notice in 1975. The author transferred the copyright in the work to BigCo in 1979. The author is still alive. When must the author give BigCo notice of his intent to exercise his termination rights? Briefly explain how you arrived at your answer.
COMMENT: There were a couple of ways to approach this. The most popular way was to give the whole range, i.e., the very earliest you could give notice, if you terminated as soon as you could and gave notice as soon as you could, and if you terminated as late as you could and gave notice as late as you could. This would make the final answer: 2004 to 2017. Another approach was to pick one date within the termination period, and base the notice period off of that. In any event, you needed to show that the termination right had to be exercised between 2014 and 2019, and notice had to be exercised any time between two and ten years before the date selected for termination. The most common mistake was to key the termination period off the duration of the copyright, rather than off of the transfer/grant date.
4. A work was created and published with notice in 1975. In 1976, the author transferred the copyright in the work to SmallCo. The author is still alive. When must the author give SmallCo notice of her intent to exercise her termination rights? Briefly explain how you arrived at your answer.
COMMENT: Same comment as for no. 3 above as far as the two approaches. The most common mistake was to key the termination period off the transfer/grant date, rather than the quasi-duration of the copyright. Also, I gave a bonus ½ point for people who mentioned the “Sonny Bono second bite.”
5. John bangs out some awesome computer code for his employer NimbleCo in 2007. NimbleCo promptly and properly registers the copyright in the code. Under current law, when does the copyright in the code expire?
COMMENT: I didn’t provide any information about publication, which meant you had to analyze this assuming publication and assuming no publication. If we assume no publication, we add 120 years to the creation date—thus, the copyright doesn’t expire until 2127 (assuming no further extensions by Congress!). But that date could change if the code is published in the next 35 years. If so, then the date is 95 years from publication (again, assuming no further extension by Congress!).
6. LegacyCo sells computerized assembly units (sometimes known as “robots”) that help build cars. It owns the copyright in the software that controls the units. CarCo has purchased a number of these units. The sales documents make clear that LegacyCo is licensing the software to CarCo. The sales documents provide that only persons authorized by LegacyCo may service the units, and it specifically conditions the copyright license on this provision (i.e., the license terminates if CarCo violates this provision). Is this provision enforceable? Why or why not?
COMMENT: This question is about copyright misuse. Whether your answer was ultimately “yes” or “no,” you really had to recognize and discuss misuse. In those jurisdictions the recognize copyright misuse, this is a classic case: an attempt to tie the maintenance to the copyright license would be an improper extension of the copyright monopoly.
7. Same fact pattern as No. 6 above. Sales documents forbid transfer of the license but do not otherwise restrict how CarCo may use the units or the operating software. May CarCo re-sell the units without LegacyCo’s permission?
COMMENT: This question requires you to analyze the sale under Vernor and its three factors: the First-Sale Doctrine applies unless there are (1) explicit license, (2) significant use restrictions, AND (3) significant transfer restrictions. I really expected the answer to be “YES” because the question specifically said that there were not restrictions on use of the software. Many people simply missed that. Others mistakenly thought only one of the Vernor factors was required to defeat the First-Sale Doctrine. It helped to actually mention the First-Sale Doctrine and/or section 109.
8. You own the copyright in a published novel that is properly in its second (renewal) term as of 1978 and would have expired in 1982 under the old 1909 Copyright Act. When did/does the copyright expire? Briefly explain your reasoning.
COMMENT: This question involved a lot of math! The way I approached it was to figure out when the renewal term started (1954, which is 28 years before 1982), then adding 67 years (which gives us 2021). Another popular way was to figure out when the work was first under copyright (1982 – 28 years – another 28 years = 1926) then adding 95 years to that. By far the most common mistake was to miss that the work was in its renewal term.
9. You purchase a painting by a local artist. May you display it in your home? May you display it at a shopping mall? May you take a digital photograph of it and upload it to Facebook for your friends to see (“Look at this awesome painting I just bought!”)? Briefly explain your answer.
COMMENT: Under the First-Sale Doctrine, you may display the painting at home or at the shopping mall. Many people had a hard time believing in the right to display at the shopping mall and came up with imaginative reasons why that’s an infringement. You may NOT display on Facebook because you necessarily have to make a digital copy of the painting, and the reproduction right isn’t covered by the First-Sale Doctrine, unless it’s a fair use. More than one VERY sharp-eyed student noticed that section 109(c) has a relevant built-in limitation: the viewers of the copy must be “present at the place where the copy is located,” which arguably doesn’t apply to Facebook. I’ll admit I hadn’t considered that possibility, because we didn’t get into that level of detail in class, and it was worth a bonus ½ point.
10. You are preparing a complaint for copyright infringement. The copyright in question was timely registered. In addition to facts you allege constitute infringement, what jurisdictional and factual elements must you sufficiently allege to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6)? What if the copyright in question had not been timely registered?
COMMENT: The key here is to remember that a work registered within five years of publication is prima facie evidence of all kinds of elements you would normally need to allege in your complaint. Since the copyright was timely registered, you can just attach the work and plead the identity of the work, the chain of title, subject-matter jurisdiction under § 1338(a) and venus under § 1400(a). If the work were registered after five years of publication, you’re stuck having also to allege copyrightability, authorship, citizenship and compliance with formalities.
11. Which of the following has standing to enforce a properly and timely registered copyright, where the alleged infringement consists of illegal distribution of digital copies of the work over the internet to every state in the United States? Assume London-Sire v. Doe 1 governs. (a) one with a perpetual, world-wide non-exclusive license; (b) one with a one-year exclusive right to distribute copies of the work in Tennessee; (c) one who receives royalties from sale of the work; (d) a 10% owner of the right to distribute copies of the work; (e) one who has purchased the right to sue from that 10% owner. Briefly explain your choice or choices.
COMMENT: Only legal, beneficial and equitable owners have standing to sue. (a) no standing: non-exclusive licenses don’t provide equitable ownership, even if perpetual; (b) yes, standing: exclusive licenses provide equitable ownership, even if temporary; (c) yes, standing, under Cortner (the Monday Night Football case), right to royalties confers beneficial ownership; (d) yes, standing: any portion of ownership of any exclusive right is legal ownership; (e) no standing under Wolf v. Righthaven.
12. What is the Essential-Step Defense, and on what key legal issue are courts split?
COMMENT: The Essential-Step Defense gives the owner of a copy of a computer program the right to make copies (a) necessary to use the software and (b) to make an archival back-up copy. Courts on split on what constitutes an “owner of a copy,” especially whether that includes licensees.
Next time: Part II of the exam and commentary.
Thanks for reading!