Memorandum Assignment Number Three

Memo Assignment Number Three, in MS Word format

Google Book Search lawsuit No. 1

Google Book Search lawsuit No. 2

Memo Assignment Number Three Instructions, in MS Word format

Memorandum

To:      Assistant General Counsel, Book Publishers of America
From:   General Counsel, Book Publishers of Americam
Date:    April 17, 2008 (corrected April 21, 2008)
Re:       New Client: Situation Management Systems

As I’m sure you know, Book Publishers of America (BPA) is a plaintiff in the ongoing copyright litigation against Google over Google’s “Book Search” program.  BPA is representing the interests of hundreds of independent publishers and the authors under contract to them.  Our lawsuit and other, similar lawsuits against Google were filed in the Fall of 2005, around the time that Google announced this project.  Litigation has been ongoing since then.  With this memo, I’m asking for your advice regarding how to implement a new strategic directive from my boss, the company’s Chief Financial Officer.  Our CFO and the leaders of the other plaintiffs have concluded that we have to settle this case.

The background

Google has partnered with libraries around the world in order to make wholesale digital copies of millions of books, and then to make the text of those books publicly available on the Internet.  With respect to books in the public domain, there is little copyright problem (though figuring out which books are in the public domain is sometimes a challenge).  Also, some book publishers have entered into deals with Google that grant express permission to copy and distribute copyrighted material as part of this project.  Those deals are not problematic. 

Our lawsuit centers on what Google has been doing with copyrighted books where the copyright owners (including our members) have not given permission to reproduce or distribute the works:  Google scans the whole book, then makes the full text of the book searchable via the Google Book Search interface (http://books.google.com/).  Users who search this database receive results limited to what Google calls “snippets” of text.  They are not supposed to be given access to the full text.  I’ve attached copies of two of the several Complaints that were filed against Google concerning what used to be called Google Print and is now called Google Book Search.  Basically, we contend that Google is engaging in copyright infringement on a massive scale.

Obviously, our legal claim is centered on what Google’s project means to our businesses and to the livelihoods of our authors.  As you well know, we can’t compete with free.  We’d love to develop a searchable database of our material, but there’s no way to do that profitably so long as Google is literally giving away our content.

However, as every lawyer knows, no lawsuit is a certain winner, and the longer this case drags on, the more expensive it gets.  And public sympathy for Google seems to be growing.  Google says that if it can’t make this material available as a matter of fair use, then there’s nothing to stop owners of copyrights in all kinds of Internet content from objecting to all of Google’s other search functions on copyright grounds.  No publisher wants to be pegged as the killjoy that took search functionality away from the Internet. 

The task

The CFO and our fellow plaintiffs want to devise a strategy to settle the case.  I need a four-page outline that contains your best recommendation for a settlement strategy and proposal.  The end result of a settlement may not include everything that we want, and not everything that Google wants, but it has to include enough of both that we can stop this war and start doing more productive things.  Here are the basic assumptions that you should work with:

• Protect the integrity of our copyrights;

• Protect the integrity of the copyright system as an engine of new creativity;

• Protect our business going forward;

• Protect the Internet (in other words, enable Google and other search engines to offer essentially the same functionality that they offer today);

• Enable readers and users to have access to copyrighted material;

• Ensure that Google’s business plans for the future are not unreasonably interfered with.  (Ordinarily, I’m not concerned with this, but we have to recognize that Google won’t settle if it thinks that we’re trying to hamstring their business.);

• Some of the lawsuits against Google are class actions.  For now, ignore procedural questions associated with class actions and Rule 23.  The hard questions here have to do with the copyright system; and

• Resolve all copyright questions and all copyright theories associated with online archives of published books, so that the lawsuits can be dismissed entirely and won’t need to be revisited later on.

Those are the ground rules.   Everything else needs to come from the most creative side of your Pitt education.  You don’t need to run all of the fine details to ground right now; in fact, in four pages, that’s impossible.  Instead, I need a structure for dealing with the major issues to negotiate, in other words, something that I can recommend to my boss and to the other plaintiffs.  I need something that has a decent short at working.

I need your analysis by noon on Tuesday, May 6.

Memorandum Assignment Number Two

Memo Assignment Number Two, in MS Word format

Situation Management Systems v. ASP Consulting Group

Memo Assignment Number Two Instructions, in MS Word format

Memorandum

To:      Junior Associate, Dewey Cheatham
From:   Junior Partner, Dewey Cheatham
Date:    March 18, 2008
Re:       New Client: Situation Management Systems

Situation Management Systems (SMS) is a new client of the firm. We’re under the gun to come up with a winning strategy in a major case that the company just lost.

Here’s the background: SMS produces training manuals and related material. After a restructuring, the company let go two of its former employees, who took some of those manuals and set up a competing company. SMS hired the Jones Day firm and went after the former employees for copyright infringement. After a trial on stipulated facts, Judge Young just entered an order finding for the defendants, basically on the ground that our client’s materials aren’t copyrightable. I’ve attached a copy of the opinion, without a bunch of footnotes that aren’t relevant to the analysis, so that you can read precisely what the judge held.

Needless to say, SMS was outraged, and as soon as they read the opinion, they fired Jones Day and hired Dewey Cheatham.

We need to analyze this opinion closely and carefully and give SMS some advice. Is the court really as off-base as SMS believes? Is there ground for an appeal here, and if so, what are the strengths and weaknesses of SMS’s position? Bottom line – what should we tell our newest client?

I need your analysis of these questions by 4:30 p.m. on Friday, March 28.

The Rules and Guidelines for Assignment Two are identical to those provided for Assignment One.

Memorandum Assignment Number One

Memo Assignment Number One, in MS Word format

Memo Assignment Number One Instructions, in MS Word format

Memorandum

To:       Assistant General Counsel, Engulf & Devour Films, Inc.
From:    General Counsel, Engulf & Devour Films, Inc.
Date:     February 5, 2008
Re:        Clearance Problem

I need you to do some research into our favorite copyright topic: fair use. Apparently someone out in Pittsburgh, PA sent in a copyright clearance request for a film series there, and we have to figure out whether to charge these people a fee.

The quick facts are these. Something called "Family Hospice and Palliative Care"—a not-for-profit community agency—is a partner with the University of Pittsburgh in Pitt's "Institute to Enhance Palliative Care." The Institute and the Family Hospice want to put on a film series for the community, where they would show Hollywood movies out on DVD that include themes related to death and dying ("Terms of Endearment," for example, even though that's not one of ours). They would accompany the movies with some facilitated discussion, panels of relevant experts, etc. They claim that it's a way to promote community discussion of some serious issues in a non-threatening way, and also to make use of a public meeting space at the Family Hospice facility. They wouldn't charge anything for showing the films, but they're planning to advertise the series in church bulletins, local newspapers, and so forth.

Several of the films in the series -- five out of the seven altogether -- are part of our catalog. All five are relatively recent pictures, and all five still sell well on DVD. We rent prints of the films themselves, and when we do that, we usually charge a flat fee per performance ($2,500 to $10,000, depending on the film), plus a percentage of ticket sales. These Hospice people have done the right thing by asking us for permission to show our films, but they don't want to pay for the rights, and their letter implies that they intend to go ahead and show the films anyway even if we don't clear the rights. Of course, that would be obvious copyright infringement under Section 106(4) (public performance).

My question is what would happen if they go ahead with the film series, we file suit, and they raise a fair use claim. What's the risk that this really is fair use? And given that risk, whatever it is, how should we respond to the request to let them go ahead?  I don't want the company to get caught up in litigation that it won't win, but I don't want to set a precedent that would let every Tom, Dick or Harry get away with using our content without paying for it.

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.

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.)  Do not rely on your computer's or printer's settings to manage the spacing and the margins.  I'll check, and so should you.  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.  Nonetheless, you should follow the standard format for a legal research memo.  No footnotes are permitted.  The following font must be used:  Twelve [12] point Times New Roman. 

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

Due date  One hard copy of the work product prepared for this assignment must be turned in not later than Friday, February 15, 2008, at 4:30 p.m.  Memos may be turned in either to the Registrar’s Window or to my secretary, Ms. Melissa Shimko, in Room 314.  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.  Memos that do not conform to the format instructions above, or that are turned in late, are subject to grade reductions.