EM: Hank Gutman HLS ’75, 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 his spring reading group at HLS, “Anatomy of a Copyright Case.” Over the course of a semester, the reading group traced Lotus v. Borland from problem to complaint to the Supreme Court. For six two-hour sessions, students pored over case files, pleadings, and briefs to understand what happened and why, and to craft winning strategies and arguments.
Today, Gutman shares with us the challenges and opportunities presented by teaching a single, semester-long case study:
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. For 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. Fair use is a critically important copyright issue today – you could teach an entire course about it – but how much time did it deserve in discussing a case where it was just an afterthought?
The case also offered the opportunity to pursue issues law students don’t normally encounter. For instance, the lengthy and scholarly decisions written by the District Judge—Robert Keeton, a distinguished member of the HLS faculty—presented 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. There was even an issue at the outset over whether the case should proceed in front of Judge Keeton (who had just decided Lotus’s case against another alleged infringer), or in San Francisco, where Borland had filed its own declaratory judgment action a few days earlier. As counsel, how would you address that problem? 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.
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 an amicus brief and, if so, on which side. On one side, the Patent and Trademark Office, the Copyright Office, and the US Trade Representative wanted Lotus to prevail. At the DOJ, the Antitrust Division sided with Borland, and the Solicitor General’s office seemed to agree. The White House Counsel’s office had to referee the dispute and the assignment fell to then-Associate White House Counsel Elena Kagan. We reviewed in class a number of the key memos and even a draft brief prepared, but never filed, by the Solicitor General’s office. This is a side of legal practice law students don’t often see.