Due: In class, February 25th

For this assignment you’ll write a paper (1000-1500 words) on a real or hypothetical fair use case. You will be graded both on your description of the relevant facts and your analysis of the merits of the fair use claim. You don’t need to worry about proper legal writing form; your writing need only be clear, concise, and fully engaged with the legal, social, and cultural ramifications of the case.

Simply summarizing the case and the parties’ various claims will not be sufficient. You must analyze everyone’s position and explain why you find them compelling or not. If you do find a particular argument compelling you should explain why and reference a position (not necessarily legal) that offers a similar point of view from sources we’ve covered in class. The same goes for when you don’t find an argument compelling. For example, you could agree with a given defendant’s claim of fair use because it’s close enough to parody as described by Carroll in his “Fixing Fair Use” article. Since we’ve covered more topics than just fair use, you should also try to integrate general points from those to demonstrate that you’ve done the reading and understand the arguments we’ve been discussing in class. Feel free to use external sources when referencing points, but they must function either as a primary source (i.e., this person or group said this at this point in time showing that they believed this), or they must be reliable secondary sources. Ironically, Wikipedia, which is not an appropriate secondary source, has a good page which discusses how to determine whether a given source is reliable: http://en.wikipedia.org/wiki/Wikipedia:Reliable_sources#Overview

Ultimately, you should arrive at a conclusion about whether the particular use you’re examining is a fair one under U.S. copyright law. It’s perfectly alright if you don’t think the use is a fair one, and taking this position might actually take your paper in a very interesting direction.

Before finishing, you’ll want to anticipate any responses to your conclusions. These responses won’t merely be reiterating the opposing side’s position, but rather specific objections to the points you have articulated in your paper.  After laying some of these out, you should state whether you find these counter-arguments to be compelling or not.

While not required, I highly recommend that you let me know your proposed topic and case before you begin writing so I can offer assistance in the form of relevant articles or issues.

Real Fair Use Case

Here are some places to find Interesting Fair Use Cases:

http://www.ipwatchdog.com/copyright/fair-use-cases/

http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-c.html

For a majority of the cases referenced in those links, you should be able to look up the case name (”Wright v. Warner Books, Inc.,”) or citation (”510 U.S. 573″) on Google Scholar and find the opinion provided by the court. You’re welcome to find your own real fair use case outside of those links, but you may not choose one whose opinion you cannot locate.

You should read the court’s opinion at least two times to get a good understanding of the issues at play. You don’t have to synthesize everything about the case in your paper, but you shouldn’t miss the main points. If you’re having trouble understanding any of the issues at hand, or cannot find a particular opinion, feel free to e-mail me in a timely fashion and I’ll try to help you.

Hypothetical or Unlitigated Fair Use Case

You may also choose a real factual situation which hasn’t been litigated to a final decision, in which case there is most likely not be a judicial opinion to work from, or you may invent facts that present a potential fair use claim. In either of these situations, you will have to clearly articulate two positions in a copyright infringement claim. Invented facts must be plausible and you must clearly show the tension between the two parties’ positions. You’ll then use this conflict to lay out the respective arguments of the parties, and then you’ll decide the case as if you were the judge adjudicating it. While I won’t be expecting the kind of rigorous precedent lawyers and judges typically offer to justify their arguments and opinions, you should give established examples of why you feel the way you do about a given point, and reference to the opinions from analogous cases would be very helpful. Your decision as the judge shouldn’t be an easy or obvious one, but it also shouldn’t be so contrived as to be no decision at all in the end.

Again, you’ll be able to reference external sources that we haven’t specifically covered in class, but those sources must be reliable and referenced in a responsible way.

As stated above, you’ll also want to step back and analyze your decision from a critical standpoint. What are some potential criticisms you might have to face if your decision had pertained in the real world? How would you respond to them?

Consultation

I’m happy to discuss any thoughts or questions might have on your take home exam, and will be available for office hours and email to do so.