THOMAS, THOMAS, AND THOMAS
A Pretend Limited Liability Partnership
|From:||Ira Steven Nathenson, “Managing Partner,” T3 PLLP|
|To:||Fall 2016 “Associates”|
|Date:||Oct. 28, 2016|
|Re:||Copyright enforcement & litigation project|
Note to public: this assignment is created for teaching purposes. This project uses real-world materials in order to provide a meaningful learning experience. However, no actual affiliation with any person or entity exists.
You are fictional associates in a fictional law firm: Thomas, Thomas, and Thomas, PLLP, or “Pretend Limited Liability Partnership.” (Also known as T-Cubed.) There are no real clients and no real adverse parties. You will enforce the copyright you obtained for your client in project # 1.
Short description of project.
Thank you for your great work in securing copyright and registration for your client in project 1. Unfortunately, an unknown miscreant appears to be infringing your client’s hard-obtained copyright online. I don’t have all the details yet, but it appears that this bad, bad person (!) may be doing things such as streaming your client’s movie, or offering downloads of a book, or posting excerpts of the materials, or making fun of it, or more.
Looks like you’ll have to do some enforcement work now. We’ll start off by researching the offending website, determining its ownership, and sending a cease-and-desist letter to our opponent. If that doesn’t work (and I fear it may not!), then I’ll need you to draft a DMCA takedown notice to the relevant internet service provider. As a backup, I’ll ask you to draft a complaint for filing in federal court with exhibits. You should also write a memo explaining: 1) what you’ve done and why; and 2) our client’s likelihood of prevailing on the merits.
Due date and time.
Task # 1 – Cease-and-desist letter.
By no later than Mon., Nov. 14, 2016,
Fri., Nov. 11, 2016, you must draft and transmit a cease-and-desist letter to the infringer. Obviously, I don’t want you to write anyone on the outside world. Instead, you will be writing me in the role as “infringer.” You may not transmit a cease-and-desist letter to any email address except for any address(es) I expressly pre-approve in writing.
Task # 2 – Partner/Associate Meeting
- You will meet with me on or about the week of Nov. 14 to discuss your enforcement efforts for project 2. This meeting will take place in my office or online depending on the status of my rehabilitation.
- This is your opportunity to get help and feedback directly from me.
Sign-up information will be posted.
- Note 11/9: I will pass around a sign-up sheet during class. I will also send out an email later in the day for anyone who misses class.
- Be prepared for your meeting. This includes having already worked towards building your case file. By the time of your meeting, you will also be engaged in C&D work with the opponent. You should also be drafting your DMCA takedown by this point.
Task # 3 – Project case file.
The project file is due at the beginning of class on Monday, Nov. 21, 2016, 4PM EST. As you may recognize, this is the date and time of our last group meeting, and the last day of the semester. Unlike project 1, this deadline will not change. Your casefile must be printed out and well-organized. You may either bring it to class, or you may turn it in prior to the due date and time by delivering it to Mariela Torres or Diana Barroso (faculty administrative assistants) or Suzanne Gelin (faculty receptionist).
Contents of case file. It should be in paper (no electronic submissions). The project file must include the following items. Further details are provided in the subsection below.
- Correspondence. This would be your cease-and-desist letter along with any subsequent communications with the infringer.
- Draft DMCA takedown notice. This is your draft DMCA takedown notice. This is not to be transmitted or communicated. Instead, you should include the draft in your casefile.
- Civil complaint. This includes the complaint and exhibits.
- Memorandum. This memo should address 1) what you’ve done and why; and 2) the client’s likelihood of succeeding on the merits.
- Factual documentation. Include any factual research or documentation, such as printouts of the infringer’s website, research into website hosts, DMCA agents, etc.
- Attribution/Certification. As with project 1, sign and include the certification form regarding the originality of your work and disclosing any and all assistance provided. Consider the form to be a broad disclosure requirement (much broader than FRCP 26(a)). You should include any materials that you relied upon that aren’t included elsewhere in the file.
- Pre-existing materials. Part of your duty to provide attribution & certification includes provision of third-party materials you used or relief upon. If you use any third-party materials as guidance, such as forms, pre-existing complaints, cease-and-desist letters, or DMCA takedowns, you must provide copies of the materials.
- Other information. If you believe it would be useful to provide other information, please include it in the file.
Scoring for each component will be done on a 4.0 scale.
|C&D and correspondence||20%|
|Draft DMCA takedown||10%|
|Civil complaint & exhibits||30%|
|Attribution & certification||0%*|
Further details, expectations:
No outside contact. As noted below, you can talk within the class but cannot engage in any outside communication of any sort. You can talk to me and your classmates, and that is it. No communicating with other law students, with lawyers, with people working at internet companies, or with anyone else. No writing or emailing or other communication of any type is allowed. This is to avoid you getting impermissible help and to avoid the danger of unauthorized practice of law, which may have adverse real-world effects on you. The one and only exception to this rule is that you will be expected to draft and send a cease-and-desist letter; however, that letter will be sent only to an email address we determine as a group and which I approve expressly in writing. In reality, emails sent to the “infringer” email address will be sent directly to me and I will respond in role as the infringer.
C&D and correspondence. As noted, this would be your cease-and-desist letter along with any subsequent communications with the infringer. Correspondence in your case file should be complete and in chronological order. Any attachments should be included with the corresponding email. Each email (and each response) must be printed out individually. You cannot simply “expand” a bunch of Gmails and print them all out at once. That is lazy and will lead to loss of headers and important information. The scoring here looks to the quality of your C&D (strategy, law, facts, writing) along with the quality of your subsequent correspondence.
Draft DMCA takedown notice. As noted, this is a draft DMCA takedown notice. It is not to be transmitted or communicated. Instead, you should include the draft in your casefile. As noted above (“no outside contact”), you may not actually send it out because if you send a DMCA takedown to my webhost or my internet service provider, you will: 1) engage in the unauthorized practice of law; 2) cause my website to be taken down for real; 3) piss me off immensely; and 4) adversely affect your grade!!! Additionally, I would note that you might find “fill-in-the-blank” DMCA forms on an ISP/OSP site. You may not use such forms for two reasons. First, I want you to write your own DMCA letter (though you may start from existing examples). Second, if you use an online form, you run the risk of accidentally submitting a real DMCA takedown notice that may lead to my website being taken down. Again, that would not be permitted for the reasons noted above. The scoring here looks to the quality of your DMCA (strategy, law, facts, writing).
Civil complaint. As noted, this includes the complaint and exhibits. For details on fonts and typography, see below. Assuming that the infringer does not comply with your demands (and he most assuredly will not), we now need to consider litigation. Consider which court system and district in which we should file, who we should sue, where we should sue, what claims and allegations to make, and what relief we should request. Your complaint should include exhibits, and your allegations should make reference to those exhibits. The complaint does not have a page limit, but you should keep in mind that Rule 8(a)(2) looks for a “short and plain” statement of the claim, subject for the need for the claim(s) to have sufficient factual heft to be “plausible” under Iqbal and Twombly. The scoring here looks to the quality of your complaint and exhibits (use of procedure, law, facts, pleading, exhibits, writing).
Memorandum. As noted, you will draft a memorandum to your client on her or his likelihood of success on the merits. For details on fonts and typography, see below. The memo should be 5-10 pages (no more than 10). The memo should address, at a minimum: 1) what you’ve done and why (regarding enforcement and procedural choices); and 2) the client’s likelihood of succeeding on the merits. The scoring here looks to the quality of your memo (law, facts, writing, organization).
Organization. This looks to how prepared you are for your meeting with me. It also looks at the organization of your casefile.
Factual documentation. Include any factual research or documentation, such as printouts of the infringer’s website, research into website hosts, DMCA agents, etc. You should take care that your printouts/screencaps accurately capture the contents of the materials to be preserved. This may require you considering: 1) regular printouts; 2) screencaps; 3) captures of HTML code of a website. Your documentation should capture important information such as URLs and dates/times of printout. The scoring here looks to whether you have compiled information that documents your work product and justifies your choices (such as where to send C&D, DMCA, and the factual allegations of the complaint).
Attribution/Certification. As with project 1, sign and include the certification form regarding the originality of your work and disclosing any and all assistance provided. Consider the form to be a broad disclosure requirement (much broader than FRCP 26(a)). You should include any materials that you relied upon that aren’t included elsewhere in the file. Remember that part of your duty to provide attribution & certification includes provision of third-party materials you used or relief upon. If you use any third-party materials as guidance, such as forms, pre-existing complaints, cease-and-desist letters, or DMCA takedowns, you must provide copies of the materials. Include them in a separate part of the file. This is unscored except that a file without a certification form will receive a score of “0.”
Other information. If you believe it would be useful to provide other information, please include it in the file. Such information may enhance your score, but only if it is pertinent. Do not “pad” your file; it will not impress me or help your score.
Format for letters, memo, and complaint
Choose one of the two following formats:
- Single-spaced with extra space between paragraphs
- 1″ margins
- 12-point Times New Roman
Garamond (much better typography, template to be posted):
- Single-spaced with extra space between paragraphs
- 1.5″ margins
- 10.5-point Garamond
Ethics, confidentiality, attribution.
As with project 1, you may discuss the project with other St. Thomas Law students so long as they are current members of this class. As noted above, if you use any third-party materials as guidance, such as forms or complaints, you must provide copies of the materials to me. Your work must be your own. You may not contact any outside parties for legal or factual assistance. These rules are to be construed broadly. You must also fill out, sign, and submit the attribution form.
Important project-related information links.
To keep this page simple, other important project information can be found on other pages. In addition to the cases and statutes assigned, discussed in the class, or found in the book, be sure that you have carefully reviewed all of these materials:
- Memo template
- Handout on copyright infringement analysis
- Copyright litigation procedural resources
- 17 U.S.C. 512
- Ninth Circuit opinion in Lenz v. Universal Studios
- Ira S. Nathenson, Civil Procedures for a World of Shared and User-Generated Content, available on SSRN at http://ssrn.com/abstract=1699429
- Ira S. Nathenson, Looking for Fair Use in the DMCA’s Safety Dance, available at http://ssrn.com/abstract=1347429
- The Elements of a Cease and Desist Letter
- Two Easy Steps for using the DMCA Takedown Notice to Battle Copyright Infringement
- New (added 11/2): Sample DMCA takedowns and C&D letters
- Other law you should consider:
- Materials in CB pp. 619-22, 628-32
- Statutes and caselaw on subject matter jurisdiction (such as 28 USC 1331, 1332, 1338, 1391, 1400)
- Rules and caselaw on personal jurisdiction (due process, minimum contacts, relevant state long-arm statute)
- Rules and caselaw on pleading (Twombly/Iqbal)
- Local area rules for the district you select
Revised Oct. 29, 2016 (typos, CB info; DMCA form info)
Revised Oct. 31, 2016 (adding info on meeting, organization)
Revised Nov. 2, 2016 (finalized, minor edits; clarifying that typography is for all written work product including letters; also added link to sample C&D/DMCAs).
Revised Nov. 9, 2016 (changing due date for C&D; adding info on meeting sign-ups).