UNIVERSITY OF CALIFORNIA
SCHOOL OF LAW
Student Exam # _______
Copyright Law (Law 278.31)
Instructor in Charge: Eric
Time Allowed: 1 hour, 40
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.
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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
then made the following changes:
some paragraphs from the initial agreement that didn’t make sense
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
language required by statutes
some paragraphs from other agreements, some you authored and some you
found on the Internet
multiple paragraphs from scratch, including several clever contractual
solutions to thorny legal problems faced by Yabe
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
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:
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
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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:
robots that canvass the Web looking for content,
copies of desired content into a central database,
users run keyword queries against the central database,
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
banner and text ads that are specifically targeted to the searched
However, Toggle differs from Ditto.com in some key respects:
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.
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).
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
- 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
- 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
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