{"id":992,"date":"2015-07-07T09:00:09","date_gmt":"2015-07-07T13:00:09","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/hlscasestudies\/?p=992"},"modified":"2015-06-22T13:14:39","modified_gmt":"2015-06-22T17:14:39","slug":"anatomy-of-a-copyright-case-the-challenges-and-opportunities-of-a-semester-long-case-study","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/2015\/07\/07\/anatomy-of-a-copyright-case-the-challenges-and-opportunities-of-a-semester-long-case-study\/","title":{"rendered":"Anatomy of a Copyright Case: The Challenges and Opportunities of a Semester-Long Case Study"},"content":{"rendered":"

EM: Hank Gutman HLS \u201975, Lecturer on Law at HLS, was counsel for the plaintiff in <\/em>Lotus Development Corporation v. Borland International, Inc. (516 U.S. 233), a landmark case in software copyright. Last week on our blog, Gutman reflected on his spring reading group at HLS, “Anatomy of a Copyright Case.” Over the course of a semester, the reading group\u00a0traced\u00a0<\/em>Lotus\u00a0v. Borland from problem to complaint to the Supreme Court. For\u00a0six two-hour sessions, students pored over case files, pleadings, and briefs to understand what happened and why, and to craft winning strategies and arguments.<\/em><\/p>\n

Today, Gutman shares with us the challenges and opportunities presented by\u00a0teaching a single, semester-long\u00a0case study:<\/em><\/p>\n

\"Hank<\/a>

Hank Gutman<\/p><\/div>\n

HG: From a teaching perspective, the principal challenge and opportunity was deciding which of the numerous issues presented were worth pursuing in the limited time available. \u00a0For example, Borland raised a fair use defense very late in the case, and there were interesting procedural questions about the way in which that happened.\u00a0 Fair use is a critically important copyright issue today \u2013 you could teach an entire course about it \u2013 but how much time did it deserve in discussing a case where it was just an afterthought?<\/p>\n

The case also offered the opportunity to pursue issues law students don\u2019t normally encounter. For instance, the lengthy and scholarly decisions written by the District Judge\u2014Robert Keeton, a distinguished member of the HLS faculty\u2014presented a wide array of procedural questions, including whether copyrightability is for the judge or a jury to decide, what is a genuine issue of fact for summary judgment purposes, when is a decision ripe to be certified for interlocutory appeal, etc.\u00a0 There was even an issue at the outset over whether the case should proceed in front of Judge Keeton (who had just decided Lotus\u2019s case against another alleged infringer), or in San Francisco, where Borland had filed its own declaratory judgment action a few days earlier.\u00a0 As counsel, how would you address that problem?\u00a0 Are you better off asking one judge to enjoin proceedings in the court of the other, or should you ask one of the judges to stand aside and defer? This is a very delicate, real-life issue the students were asked to decide.<\/p>\n

Another example: when the case went to the Supreme Court, there was a huge fight within the US government over whether the government would take a position by filing \u00a0an amicus brief and, if so, on which side.\u00a0 On one side, the Patent and Trademark Office, the Copyright Office, and the US Trade Representative wanted Lotus to prevail. \u00a0At the DOJ, the Antitrust Division sided with Borland, and the Solicitor General\u2019s office seemed to agree.\u00a0 The White House Counsel\u2019s office had to referee the dispute and the assignment fell to then-Associate White House Counsel Elena Kagan.\u00a0\u00a0 We reviewed in class a number of the key memos and even a draft brief prepared, but never filed, by the Solicitor General\u2019s office.\u00a0 This is a side of legal practice law students don\u2019t often see.<\/p>\n","protected":false},"excerpt":{"rendered":"

EM: Hank Gutman HLS \u201975, Lecturer on Law at HLS, was counsel for the plaintiff in Lotus Development Corporation v. Borland International, Inc. (516 U.S. 233), a landmark case in software copyright. Last week on our blog, Gutman reflected on … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":5482,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[1],"tags":[],"class_list":["post-992","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p4CR8M-g0","jetpack-related-posts":[{"id":991,"url":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/2015\/06\/30\/991\/","url_meta":{"origin":992,"position":0},"title":"Anatomy of a Copyright Case: How to Spend a Semester Dissecting a Case Study","author":"Elizabeth Moroney","date":"June 30, 2015","format":false,"excerpt":"Hank Gutman HLS \u201975, Lecturer on Law at HLS, was counsel for the plaintiff in Lotus Development Corporation v. Borland International, Inc. (516 U.S. 233), a landmark case in software copyright. \u00a0Lotus sued Borland for copyright infringement of Lotus 1-2-3, a popular spreadsheet application in the years before Microsoft Excel.\u2026","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"Hank Gutman","src":"https:\/\/i0.wp.com\/blogs.law.harvard.edu\/hlscasestudies\/files\/2015\/06\/11444-363x500.jpg?resize=350%2C200&ssl=1","width":350,"height":200},"classes":[]},{"id":1043,"url":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/2015\/11\/03\/the-future-of-digital-intellectual-property\/","url_meta":{"origin":992,"position":1},"title":"The Future of Digital Intellectual Property","author":"","date":"November 3, 2015","format":false,"excerpt":"In today\u2019s highly digitized world, tens of thousands of new mobile apps, websites, and softwares are released daily. While we enjoy an almost incomprehensible amount of creative and innovative material in the digital space, this proliferation perpetuates questions of the appropriate scope of intellectual property. Regulators and legal minds alike\u2026","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":495,"url":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/2013\/07\/23\/summer-reading-legal-educations-9-big-ideas-part-3\/","url_meta":{"origin":992,"position":2},"title":"Summer Reading: Legal Education\u2019s 9 Big Ideas, Part 3","author":"Elizabeth Moroney","date":"July 23, 2013","format":false,"excerpt":"It All Started With the Case Study Last week we shared with you \u201cThe Four Cs,\u201d proposed solutions to the crisis in legal education. We have one more to consider: the Case Study Method. Let\u2019s call it the Fifth C. Law schools have been teaching the case method for well\u2026","rel":"","context":"In "Legal News and Debate"","block_context":{"text":"Legal News and Debate","link":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/category\/legal-news-and-debate\/"},"img":{"alt_text":"","src":"https:\/\/i0.wp.com\/blogs.law.harvard.edu\/hlscasestudies\/files\/2013\/07\/Langdell.jpg?resize=350%2C200","width":350,"height":200},"classes":[]},{"id":603,"url":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/2013\/09\/10\/new-beginnings-for-cdi-exec-ed-leadership\/","url_meta":{"origin":992,"position":3},"title":"New Beginnings for CDI, Exec Ed Leadership","author":"Elizabeth Moroney","date":"September 10, 2013","format":false,"excerpt":"HLS Professor Ashish Nanda\u2014who founded the Case Development Initiative, a leading contributor to the Case Studies portal\u2014was recently appointed Director of his alma mater, the Indian Institute of Management\u2013Ahmedabad. Nanda held three appointments at Harvard Law School\u2014Robert Braucher Professor of Practice, Faculty Director of Executive Education, and Research Director at\u2026","rel":"","context":"In "Case Development Initiative Blog Posts"","block_context":{"text":"Case Development Initiative Blog Posts","link":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/category\/case-development-initiative-blog-posts\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":1090,"url":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/2016\/03\/23\/new-product-the-allergan-board-under-fire-a-and-b\/","url_meta":{"origin":992,"position":4},"title":"NEW PRODUCT: The Allergan Board Under Fire (A) and (B)","author":"Amanda Reilly","date":"March 23, 2016","format":false,"excerpt":"The Case Development Initiative (CDI) at Harvard Law School recently debuted a new case study on the HLS Case Studies website. CDI develops role plays and case studies based on strategic and organizational issues faced by legal organizations. These cases focus on real life situations and are suitable for law\u2026","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"Coates (5)","src":"https:\/\/i0.wp.com\/blogs.harvard.edu\/hlscasestudies\/files\/2016\/03\/Coates-5-1024x683.jpg?resize=350%2C200","width":350,"height":200,"srcset":"https:\/\/i0.wp.com\/blogs.harvard.edu\/hlscasestudies\/files\/2016\/03\/Coates-5-1024x683.jpg?resize=350%2C200 1x, https:\/\/i0.wp.com\/blogs.harvard.edu\/hlscasestudies\/files\/2016\/03\/Coates-5-1024x683.jpg?resize=525%2C300 1.5x"},"classes":[]},{"id":729,"url":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/2014\/03\/25\/check-out-our-menu-makeover\/","url_meta":{"origin":992,"position":5},"title":"Check Out Our Menu Makeover!","author":"Elizabeth Moroney","date":"March 25, 2014","format":false,"excerpt":"Better Browsing and Ready-to-Teach Units on HLS Case Studies Site The Case Studies Program is piloting new website features to help customers explore our offerings. Now, visitors can browse by product type: discussion-based case study, workshop-based case study, role play, DVD, international materials, and free materials. Workshop-based case studies generally\u2026","rel":"","context":"In "Case Study Program Blog Posts"","block_context":{"text":"Case Study Program Blog Posts","link":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/category\/case-study-program-blog-posts\/"},"img":{"alt_text":"","src":"https:\/\/i0.wp.com\/blogs.law.harvard.edu\/hlscasestudies\/files\/2014\/03\/New-menu-500x345.png?resize=350%2C200","width":350,"height":200},"classes":[]}],"jetpack_likes_enabled":true,"_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/wp-json\/wp\/v2\/posts\/992","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/wp-json\/wp\/v2\/users\/5482"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/wp-json\/wp\/v2\/comments?post=992"}],"version-history":[{"count":1,"href":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/wp-json\/wp\/v2\/posts\/992\/revisions"}],"predecessor-version":[{"id":994,"href":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/wp-json\/wp\/v2\/posts\/992\/revisions\/994"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/wp-json\/wp\/v2\/media?parent=992"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/wp-json\/wp\/v2\/categories?post=992"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/hlscasestudies\/wp-json\/wp\/v2\/tags?post=992"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}