COPYRIGHT LAW MEMO ASSIGNMENTS – SPRING 2017

Each memo assignment for Copyright Law – Spring 2017 will be posted here approximately two weeks before the memo is due. Time in class will be set aside to discuss questions relating to each assignment.

For students who want to know more about the writing assignments for this course, this is a link to the memo assignments from Spring 2010. That link includes links to the best memos written in response to the first assignment from that version of the course.

You SHOULD also review this “How to Memo” document, which summarizes my advice for writing a great memo in my Trademark Law and Copyright Law courses.

The rubric used to mark the memos is available here.

Assignment Three

To: General Counsel, ACME Impossible Products Corp.
From: VP, Product Development, ACME Impossible Products Corp.
Date: April 19, 2017
Re: Product Idea

My team has come up with a prototype of what we think will be a revolutionary new technology. Before investing a full research & development budget to complete a finished asset and approaching possible corporate partners for funding, distribution, and/or acquisition possibilities, I’d like to get your input.

The team calls the technology the “Personal Copy Manager,” or PCM. The “elevator pitch” concept is this: It’s cloud storage in your body.

Background

As my engineers pointed out, cloud storage services like Dropbox and Amazon Web Services have revolutionized electronic commerce, because they offer incredibly cheap online digital storage for customers without requiring that the customers maintain complex and sophisticated computer hardware or software. In addition, cloud computing takes advantage of so-called “distributed” computing concepts that we first saw in the original Napster: “distributing” computer processes across lots and lots of Internet-connected computers increased the scale of the work that could get done and reduced its cost, in effect, to the very low cost of the software and the equally low cost of the relevant computer chips. For most practical purposes, large mainframe computers are things of the past. Even IBM’s “Watson” artificial intelligence technology is moving away from implementation in giant IBM machines and toward implementation via apps on the smartphone.

According to my engineers, at least one large, continuing problem with the “distributed computing” concept remains: copyright. They read the Grokster and Aereo cases in the Supreme Court, and their reading suggested that so long as the tech remains in control of third parties (like the defendants in Grokster and Aereo), then big entertainment will still be able to throw up roadblocks to development of innovative new technologies and startups – like ours. Admittedly, they are not lawyers, nor am I. But that sounds right to me.

In the language of tech folk, what if we could “hack” copyright?

The technology

Those insights led us to the PCM. Half of the system is a computer chip – roughly the size of a dime, but thinner and perhaps smaller – that the customer would implant just under his or her skin, probably on the upper arm, just below the shoulder. That’s more or less where nicotine patches get worn, but the PCM chip would be much smaller than a patch, and would be inserted just under the skin rather than worn on top of the skin.

The chip would act as a controller: a device that could be programmed with computer software transmitted wirelessly from an external source – presumably ACME, at least to start. But the chip itself would have no “permanent” storage (equivalent to what we still sometimes refer to as a “hard” drive or “flash” memory, as on a memory stick or USB key). It would have only enough processing power and temporary storage to run the relatively small amount of computer software that’s needed to run the rest of the PCM system.

The rest of the PCM system – the other half — is this: Software that turns the individual consumer’s brain and nerve system into a 21st century “neural network,” meaning that the software would enable the user’s brain to do three things: (1) the system uses the user’s own senses to capture content that the user want to save; (2) the system saves the content in the user’s brain and neural system, for instant recall for the user’s own benefit; and (3) the system allows the user to share the user’s personal stored content with other PCM users via one-to-one physical contact (handshakes, kisses, etc.).

The key to using any of (1) to (3) is this: The software that ACME delivers through the chip interacts with the user’s brain. The user activates the PCM via a menu of “brain instructions” provided by the software. The menu includes different modes of thinking about the relevant activity. If the user sees a YouTube video that the user wants to store, the user simply needs to watch the video and think to herself, “I’d like to save this.” If the user hears a song that the user wants to store, the user simply needs to listen to the song and think the “save” thought. Sharing content simply requires activating the “share” thought. Recalling content to watch or listen to simply requires thinking, “I’d like to watch [x]” or “listen to [y].” At that point, the content plays back in the user’s brain, and the relevant sensation consists of believing that the user is actually watching or listening to that content. This means that external screens and speakers are unnecessary, because the user is actually having the relevant experience inside her head. There are no limits on the amount of content that can be stored or shared via the PCM, because the system is designed to access both conscious and subsconscious memory functions in the user. PCM users could delete stored content by thinking “delete [x],” but deleting would never be complete or permanent, because the material would always be stored in the user’s subconscious and available for recall later – sort of like a song that you heard once, decades ago, but forget about until you hear it in a new setting, much more recently.

The future

Looking forward, we imagine that we might approach Amazon and Uber as possible business partners for PCM. Amazon might build this technology into their shopping services. Right now, you can order Amazon items via the “Alexa” automated attendant, but using Alexa requires that you speak out loud to Alexa. What if you could order things from Amazon simply by thinking about what you want? Uber is another obvious candidate. You could order an Uber from your head, rather than from an app on your smartphone.

The request

But Amazon and Uber are beyond the scope of my question right now. Currently, the question is this: My engineers think that PCM is a copyright killer, because it relies entirely on private activity rather than the “public” features that got other internet technologies into trouble. What do you think? We’re still in the brainstorming and design stage, so my question isn’t “will we win the court case?” Instead, what I need to know is what to tell the engineers. Where are the copyright land mines, and how can we avoid them?

I need a brief, not-to-exceed-four-pages summary of your advice by Tuesday, May 9, at 12 noon.

Rules and Guidelines for Assignment Three

The rules and guidelines for this assignment are the same as those for Assignment One *except that* memos prepared for this Assignment need not adhere to all standard requirements for a traditional legal research memo. Clarity of expression and clarity of organization will continued be prioritized in the grading, as they always are, along with substantive analysis and other elements of a well-composed professional work product.

One copy of the work product prepared for this assignment must be turned in via the TWEN “Drop Box” for Assignment Three for this course not later than Tuesday, May 9, 2017, at 12 noon.

Assignment Two

To: Junior Lawyer
From: Senior Lawyer
Date: March 24, 2017
Re: Photo Matter

I just got off the phone with our new client, Happy Photo. The owner, Sam Happy, is a well-known and successful commercial photographer here in town. Happy is grumpy with one of his business partners, and he’d like some advice. I need you to write up a short (4 pp max) memo outlining his options, including strengths and weaknesses and areas where we may need more information.

Sam sent me an email with the key language from the license at issue. It was signed back in 2012. Basically, Happy Photo has a deal with Summertime Apparel that grants Summertime the irrevocable nonexclusive right to reproduce on t-shirts, tank tops, and the like a series of photos produced by Sam – a portfolio of hi-resolution digital images of the three rivers area of Pittsburgh that he shot from the Point (where the Monongahela and Allegheny Rivers converge).

The specific language of the license allows Summertime the use of the photos as “guides, models, and examples for illustrations to be used on T-shirts and/or other sportswear,” which Summertime can sell however and wherever it wishes. Our firm didn’t draft the license. Sam told me over the phone that the point of the language was and is to prevent Summertime from printing photographic images on its shirts. He has a different business partner for that market, and of course he licenses the original photos for use on all kinds of other products.

Sam is agitated because he recently saw a collection of Summertime-branded t-shirts, polo shirts, and tank tops for sale in shops around Pittsburgh, featuring silkscreened color and black-and-white versions of Happy Photo’s color images. I pressed him for some details regarding the t-shirts; he admitted that the images on the shirts have been digitally modified (some of the images are cropped, for example), but that they are recognizable versions of Happy Photo’s originals. Up to this point, since 2012, Summertime has produced t-shirts and other things under the license that took Happy Photo’s images as starting points but modified them more dramatically, basically taking the photographic images and processing them to create images that look more or less like watercolor paintings.

Sam wants to know what his options are. The existing license with Summertime is open-ended, but he doesn’t have any plans to work with them again in the future.

I need your work product not later than Friday afternoon, April 7.

Rules and Guidelines for Assignment Two

The rules and guidelines for this assignment are the same as those for Assignment One.

One copy of the work product prepared for this assignment must be turned in via the TWEN “Drop Box” for Assignment Two for this course not later than Friday, April 7, 2017, at 3 p.m.

Assignment One

To: Junior Lawyer
From: Senior Lawyer
Date: February 3, 2017
Re: Fair Use Guidelines

Our client WeMakeIt, a well-known producer of short parody films posted online, has asked for our review and opinion regarding the “fan film guidelines” recently posted by CBS and Paramount at http://www.startrek.com/fan-films. WeMakeIt was not a party to the “Axanar” litigation that those guidelines arose out of. Nonetheless, WeMakeIt regularly engages in adaptations and re-use of well-known pieces of popular media, including “Star Trek” and “Star Wars” films, among others. Some of those adaptations are comic parodies; some are political or satiric, or both. WeMakeIt distributes its short films on its own site (WeMakeIt.com) and also on third-party sites. In both settings, the sites distribute paid advertising; that’s how WeMakeIt supports itself.

WeMakeIt has, up to this point, relied heavily on our firm’s advice regarding scope of copyright’s fair use doctrine. (In general, in the past we have advised that fair use applies to its works so long as WeMakeIt hews to the standards outlined in the Supreme Court’s Campbell opinion.) The question that the client has raised is whether our advice regarding fair use should be updated in light of these new “fan fiction” guidelines. If so, how; if not, why not?

Can you please take a close look at the guidelines and relevant fair use caselaw and give me a brief, not-to-exceed-four-pages summary of what I should tell the client?

I need your work product not later than Friday afternoon, February 17.

Rules and Guidelines for Assignment One

To the extent that these rules may appear to conflict with general advice regarding memos that appears in course-related webpages, these rules take precedence.

This is an “open” problem, meaning that there are no limits on the resources that you may bring to bear on your work. Among other things, you may consult with your classmates and other human beings. If you discuss the merits of the assignment with anyone, however, you must disclose that person’s identity on or in your memo. Write the names of any of these “consultants” at the top of the first page of the memo.

Use your own name in the “From” field. The memos are not anonymous.

Format

Memos must be typed or printed using a computer. Each memo, including any attachments, must be not longer than four [4] typewritten or printed pages, double-spaced, with 1″ minimum margins on all sides. (“To,” “From,” “Re,” and “Date” headings may be single spaced.) You do not need to include a comprehensive statement of the facts; instead, you may refer to the factual background in my memo to you. A factual summary may be helpful, however, in framing and presenting the analysis of the memo. No footnotes are permitted. The following font must be used: Twelve [12] point Times New Roman.

So that the memos can be uploaded to the TWEN system in Westlaw (see below), and graded electronically, you must use Microsoft WORD for the final version of the memo.

Grading

Memoranda will be graded based on form, format, and writing quality as well as on content. The assignments are designed so as not to have any single correct or even best solution. Each problem may present a range of issues that the memorandum should identify, analyze, and solve in a creative way.

Due date

One copy of the work product prepared for this assignment must be turned in not later than Friday, February 17, 2017, at 3 p.m.

Memos must be turned in via the course TWEN page (on Westlaw), by depositing an electronic copy in the TWEN “Drop Box” for Assignment One for this course. Electronic (e-mailed) copies are not acceptable. Memos slipped under anyone’s door are not acceptable.

There were be no extensions or exceptions to this deadline. Memoranda that do not conform to the format instructions above, or that are turned in late, are subject to grade reductions.