THOMAS, THOMAS, AND THOMAS
A Pretend Limited Liability Partnership
FROM: Ira Steven Nathenson, “Managing Partner,” T3 PLLP
TO: Spring 2015 “Associate” Class
RE: Copyright project
DATE: March 4, 2015
Note to public: this assignment is created for teaching purposes. No actual affiliation with Apple, Disney/ABC, or other entities exists beyond the fact that the professor is a frequent and enthusiastic consumer of Apple and Disney products.
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 investigate, document, build a case file, and draft cease-and-desist and memorandum letters.
Wednesday, April 1, 5PM EST, either handed in or emailed.
CLIENT: Apple, Inc.
ADVERSE PARTY: ABC/Disney. Determine the actual corporate name of the appropriate entity. I leave this to you to determine.
SUBJECT: Broadcast of Feb. 25, 2015 episode of ABC television Modern Family entitled Connection Lost that uses Apple IP without authorization.
- Investigate. Watch the episode and investigate other relevant facts. Get supporting screen caps, review the ABC Modern Family website, and see what else you can find. Also find other parties against whom our client might assert a claim for either direct or secondary infringement of copyright or trademark.
- Work product. Build organized case file that includes:
- Documentation. Documentation of claimed infringement. Screen caps, whatever you find. It need not be exhaustive but it must show thoughtful and useful investigation. It should also support the assertions in your letter and memo. Because you will be documenting electronic information, consider whether you should do regular printouts, screen captures, or other forms of documentation.
- Cease-and-desist letter. Draft a cease-and-desist letter (C&D) from Apple to ABC/Disney. You may use preexisting letters as a template so long as you reveal your sources to me in your case file. One helpful resource for C&D letters is the Chilling Effects Clearinghouse. In your letter, assert any viable copyright and trademark claims.
- Memorandum. Draft it for Tim Cook, Apple CEO, with copy to me. That way we can claim privilege and work product. See below for details on the memorandum.
- Sources used. If you use any preexisting sources for your cease-and-desist letter, then include the letters (or links to the letters) in your case file.
Regarding the case file, be sure that it is organized. Keep in mind that your supervising partner (me) and the client will have to look through the file. Organize in a way that makes sense. If sending electronic files, use organizational techniques such as naming conventions (“A_screencapMF.jpg,” “B_screencapMF.jpg,” “C_nameofwebpage.pdf,” etc.) that make review easier. Also, if providing an electronic file, use common file formats (PDF, ZIP). Do not assume that the partner or client is aware of less-common file formats. You don’t want to send something to a client and have them scratch their heads on how to open the file.
Regarding the memorandum, here are the components you ought to include at a minimum. The legal analysis should only address copyright issues. The memorandum should be no more than twelve (12) pages single-spaced, and in letter/memo form. Citations can either be to our casebook or to outside resources. The memo/letter should include:
- Facts. Relevant factual background.
- Subject matter. Whether Apple’s claimed IP merits copyright protection (see section 102 and the cases we are reading on subject matter).
- Rights implicated. Which of the exclusive rights may be infringed through the broadcast (see section 106 and the cases we will read on infringement).
- Potential defenses. Does the defendant have any viable defenses, including but not limited to the fair use doctrine (see section 107, other applicable sections, and the cases we will read).
- Your bottom-line conclusion. How strong are Apple’s copyright claims and what should Apple do?
- Addendum: other potential defendants. For our future consideration, list any other parties against whom Apple might consider asserting a claim related to the Modern Family episode, whether based in copyright or trademark. You need not provide analysis, but please do include a very brief description of the potential claim. Ex.: Google/YouTube for providing videos with excerpts of the episode, claims for contributory copyright infringement.
Updated Mar. 25, 2015 (changing due date)