The Case Studies Blog | Harvard Law School

In today’s 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 continue to debate how copyright law should apply to computer programs.

“Lotus v. Borland: A Case Study in Software Copyright,” a Harvard Law School case study by Ben Sobel under supervision of Jonathan Zittrain, discusses this contemporary issue of copyright law and digital property by a deep dive into one of the legal cases that started it all. Lotus v. Borland explored uncharted territory, as it was amongst the first cases that raised questions specifically on copyright law as it pertained to the protection of computer programs. The ultimate decision reached in the Lotus v. Borland case colored how the U.S. software industry evolved and continues to affect it. By holding that the menu structure and command names of a computer program were not copyrightable, the case may have contributed to the development of the millions of applications available today.

In 1990 the personal computing revolution was underway, and early movers in this largely unregulated space stood to gain millions from creating programs that the average user could master.  Lotus Software, a software company later acquired by IBM, filed a copyright infringement lawsuit against competitor Borland International, alleging that Borland’s spreadsheet program used an identical set of menu commands as Lotus’s own spreadsheet program, which held market dominance at the time. The District Court under Judge Robert Keeton initially issued a judgment holding that Borland did, indeed, infringe Lotus’s copyright, and Borland eliminated the contentious user interface from its software.

Eventually, faced with an appeal by Borland and the extension of the case to the First Circuit under the United States Court of Appeals, the case moved onto the First Circuit. Here, the First Circuit expressed that Lotus’s menus were not copyrightable because they were essential to the method of operation. The case eventually reached the Supreme Court while media coverage and industry followers eagerly awaited the outcome. The government never took an official position on the case because the different parts remained so divided; the Clinton White House supported Borland while the Copyright Office and the Department of Commerce favored the Lotus side. This case ascertains the different departments’ positions by looking at documents released as part of Elena Kagan’s Supreme Court confirmation hearings, and thereby gives behind-the-scenes insights into the legal process.

Eventually, the Supreme Court decision ended in a 4-4 tie—which means that it does not create a SCOTUS-level precedent—and the First Circuit’s previous judgement against Lotus stood. Today, almost twenty years later, software copyright remains clouded. Last year, Oracle v. Google, in which Oracle sued Google over alleged copyright violations of its user interface, was denied review by the Supreme Court.

Studying this case offers readers a practical immersion in legal doctrine, litigation procedure and tactics, policymaking, and business strategy. Students study court and government documents that give insight into the rarely seen debates that shape the official positions on pending litigation. By providing important legal and historical context, this case study challenges students to examine Lotus v. Borland’s influence on the contemporary software ecosystem. 

This case study is based on the syllabus and pedagogy of “Anatomy of a Copyright Case,” a course taught at HLS in Spring 2015 by Henry Gutman, who argued Lotus’s side before the Supreme Court.

Women have outnumbered men at U.S. colleges since the 1990s; unfortunately they also outnumber men in another unsettling statistic. An astonishing one in four undergraduate college women are sexually assaulted during their college career, as reported by the latest survey on sexual assault conducted at 27 university campuses, including Harvard and its peer institutions. At Harvard, the reported number of women who were sexually assaulted by force was even higher: a staggering 29.2 percent.

The expectation that institutions of higher education protect against sexual assault was set in 1972 with Title IX of the Education Amendments Act, which mandated that no individual should be discriminated on the basis of gender. That mandate, though, did little to alleviate rampant campus sexual assault, and educational institutions also complained of having little guidance for whether their sexual assault policies complied with Title IX. In response to rising complaints, in 2011 the Department of Education’s Office of Civil Rights (OCR) issued clarifications and suggestions for higher level educational institutions to deal with sexual assault policy. Most recently, President Obama created the Task Force to Protect Students from Sexual Assault in 2014, which focused on assessing the extent of the problem.

“Sexual Assault Policy in Higher Education: An Introduction,” a Harvard Law School case study by Elizabeth Moroney under the supervision of Philip B. Heymann, recounts Tufts University’s response to a Title IX complaint directed towards its sexual assault policies. Defending their own revised policies as adequate to ensure an even-handed approach to sexual assault complaints, the university resisted compliance with Title IX’s guidelines and became the first university to revoke an agreement with OCR.

The issue of sexual assault has recently been hotly discussed on Harvard’s campus, from students’ personal stories in the university daily newspaper to responses to recent policies by Harvard Law School professors. Harvard University unveiled the results of its own university-wide survey with a tone of dismay. President Drew Faust issued a recent statement in which she strongly encourages the community towards open dialogue and conversation in order to end sexual assault on Harvard’s campus.
This case is therefore very relevant today in light of the troubling sexual assault climate at many universities across the nation. The case reviews the Department of Education’s “Dear Colleague” guidelines, the common policy options for dealing with sexual assault on college campuses (including “preponderance of the evidence,” “unwelcome conduct,” and “affirmative consent”), and the circumstances surrounding Tufts’ Title IX complaint, noncompliance, and resolution. Participants consider the ethical and legal ambiguities of national sexual assault policy on college campuses, as well as the future of university sexual assault policy. 

“Golden Gate Symphony Orchestra,” a newly released, multi-party role play case by Scott K. Dasovitch under the direction of Professor Robert C. Bordone, explores the various challenges that a renowned symphony orchestra faces during a complex time of negotiations.

Although the orchestra has operated in a deficit for several years, a donor has just offered a $20 million gift to the endowment under the condition that the orchestra must balance its budget in the upcoming negotiation. In light of this donation, the musicians now call for an increase in wages, while management hopes to keep expenses at bay. As the possibility of a strike looms in the background, the negotiators of the case must come to agreement on a range of issues, from salary and pension to a controversial “smile” policy that would govern musicians’ demeanor onstage. The greatly opposed “smile” policy is particularly intriguing: instituted by the management, it asks the musicians to maintain eye contact with audience members and smile a few times during each concert. The musicians, though, remain unanimously dissatisfied with this policy, claiming that it is an insulting form of micromanagement to their serious art.

An engaging exercise in conflict resolution, “Golden Gate” provides a challenging opportunity for participants to engage in a complex negotiation involving multiple stages and multiple issues. The case is designed as a three-on-three negotiation, though it could also be run as a one-on-one exercise. Because of the complexity of the issues and background, participants should plan to invest time in preparation:  at least 1 to 1.5 hours to read the General and Confidential Information, and an additional hour for the teams of three to meet on their own prior to the main negotiation.  The negotiation between the teams should take place within a four-hour time block.

The case offers a multitude of potential directions for an instructor’s debrief:  the instructor could cover how the groups of three negotiated a process, roles, and their intra-team dynamic; how the teams of three negotiated together to arrive at a substantive resolution (or not); and the challenges of negotiating in a group.

What do you get when you cross a brainstorming meeting with Reddit?

The Berkman Center for Internet & Society has taken the best of online forums and crowdsourcing to offer a simple web tool for online or blended discussion. The Berkman Question Tool is a free, open-source discussion tool in which participants can respond anonymously, with a pseudonym, or by name. It can be used for asynchronous online discussion or as a backchannel for in-person discussions. Gene Koo, Fellow at the Berkman Center, said, “It’s an effective way to keep feedback focused, direct speakers to audience interests, and potentially prevent the mic from being hijacked by that weirdo.”

Discussion leaders can create their own “instance” with a short description that frames the discussion. This frame can solicit questions or answers. For example:

• Add a question you have about the today’s course material.
• Please post a question you would like to discuss.
• How can we accomplish X?
• What opportunities does X provide? What risks?

Participants can go to the unique URL and enter their ideas, no log-in required. Then, they can vote up the suggestions of their peers.

The Question Tool is well-suited for a variety of discussion settings, including conferences, classes, and public debate. By inviting everyone to participate without certain people dominating the conversation, the Question Tool can break the ice and generate buy-in from various stakeholders. By crowdsourcing discussion topics, discussion leaders ensure that they aren’t cherry-picking or leading the conversation too much. The Question Tool provides transparency in the discussion process and a broader perspective for facilitators in service of a larger group. Participants can ask questions without worrying about sounding “dumb” or being judged based on who they are. It strips the conversation of context and bias, approaching the “veil of ignorance” on which John Rawls based his theory of justice.

Professor Charles Nesson used the Question Tool in his online case-based course called JuryX: Deliberations for Social Change. Using video chat and the Question Tool, participants deliberated emotionally charged social issues with empathy and curiosity. To learn more, see the teaching manuals for the JuryX cases: The Snowden Effect; Thinking Big; The Decriminalization of Marijuana; and The Color of Police Action in these United States.

A sleek, mobile-friendly 3.0 with social sharing is in the works. We’ll be sure to announce when the new version launches!

Some case discussion groups have the luxury of preexisting rapport, having already achieved affiliation and understanding. But for ad hoc or online case discussion, case-based learners may find it difficult to share honest opinions, making it hard to reach collective understanding on sensitive issues.

Professor Charles Nesson has developed an exercise to tackle the Elephant in the Room. This activity, designed for Nesson’s JuryX MOOC but replicable in other in-person and online settings, plays with the spectrum of privacy to broach sensitive and deeply personal issues at a supportive pace.

Anonymity

The exercise begins with an acknowledge of affinity—the group has something in common, some reason for convening that is ripe with the potential of community. This perspective can give participants the sense that rifts can be overcome. It rules out the notion that a change in dynamic is impossible.

Participants are asked to suggest anonymously what the Elephant in the Room is. Participants can the Berkman Question Tool, a web tool that collects responses with the option of anonymity, to enter their idea and vote up (affirm) the suggestions of their peers. (Of course, this exercise is possible using other online or low-tech ways of collecting anonymous responses.)

Together, but without the trappings of identity that can skew actions and judgments, the group identifies the thorny issue. But it is still too dangerous to touch.

Anonymously, participants then share their fears about the Elephant in the Room—why it is hard to talk about, what might come of discussing it. On the Question Tool, participants see the thoughts of their peers, without the judgment that identity invites. They may be surprised by the commonalities that emerge or the perspectives they had not considered. These seeds of conversation and what follows may be difficult, messy, unsuccessful even, but it leaves participants wanting clarity and closure. It makes them participate and struggle through.

Pseudonymity

Next, students move toward self-identification. Participants choose a pseudonym to complete the next portion of the Question Tool. Here, participants get to play with identity: how much to divulge, what context to cast on their comments, how they might be perceived. They share their hopes for talking about the Elephant in the Room. The anticipation builds. Indirectly, the group is talking about the Elephant and the ways to move forward.

“Nymity”

Finally, participants convene to discuss the Elephant in the Room. They have imagined this moment, established common ground, aired worries and objectives that open channels of discussion. Now, they participate by name, and share a personal story about the Elephant in the Room. The stories not only provide a point of entry, but set a non-confrontational tone to the discussion. It can be easy to question someone’s logic, but harder to question how someone feels. At this point, identity has more meaning; participants are more aware of the context behind the discussion.

This exercise has been helpful in building rapport among online discussion groups, but it could also be used to begin negotiations or mediation between unfriendly parties, build community amid deep-rooted bias, or solve problems collectively. Instructors can access the full instructions for the Elephant in the Room module in the teaching manuals of Professor Nesson’s case studies from JuryX: The Snowden Effect; Thinking Big; The Decriminalization of Marijuana; and The Color of Police Action in these United States.

by E. Scott Fruehwald, Contributing Editor at Legal Skills Prof Blog

While legal scholars have written a great deal on improving legal education by adding experiential classes to the second and third years of law school, it is equally as important that law professors make changes in how they teach first-year doctrinal classes. The Langdellian approach to teaching was developed in the nineteenth century, and we have learned a great deal about effective teaching since then. Moreover, law students today are vastly different than the ones Langdell faced in his classroom.

First, professors should not abandon the Socratic Method; it remains a very effective method of teaching students doctrine and “how to think like a lawyer.” However, professors should add active teaching approaches to their repertoire. One active approach is to sometimes use a flipped classroom, in which students learn the material from lectures posted online, and class time is devoted to doing problem solving exercises.

Professors need to add problem solving exercises to all first-year classes. Students need to not only know the law; they must be able to apply the law to facts. I would suggest that professors give a major problem at the end of each unit, with a problem at least once a week. Alternatives could include several short problems in each class, or short analytical papers every couple of weeks. Professors should also do mini skills exercises in class to develop techniques like rule-based reasoning (deductive reasoning), analogical reasoning, distinguishing cases, synthesis, and policy-based reasoning. For example, studies have shown that second- and third-year students are generally weak at synthesizing cases. Legal publishers have recently started publishing textbooks that law professors can use as sources for exercises. Also, professors could have students identify the types of reasoning a judge is using when they discuss cases in class.

Professors should assign short drafting assignments in first-year classes. For example, students could draft complaints, written discovery, and other pleadings in Civil Procedure. Similarly, students could write contract clauses in Contracts. Students will understand contracts principles much better if they have experience drafting contracts clauses.

First-year professors also need to help law students develop their metacognitive skills—thinking about thinking. Professors can use metacognitive questions to help students be conscious about how they reason, think about their problem solving strategies, and even improve their study habits. Examples of metacognitive questions include: 1) how do you read a case?, 2) is your case reading method the most effective it can be?, 3) will the strategy you used to solve this problem work for the other problem?, and 4) will the study methods you used in undergraduate school be effective in law school?.

Finally, law students need detailed formative assessment. Students need to know as soon as possible what they are doing wrong so that they don’t continue the same mistakes. Also, studies have shown that students retain more with frequent formative assessment. Such assessment can include pop quizzes, short papers, problem solving exercises, and self-formative assessment from texts.

Here is suggestion for teaching a first-year torts class: Have the students read several cases on false imprisonment. Before class, they should synthesize a test for false imprisonment in writing. In class, professors should help the students learn false-imprisonment doctrine, using the Socratic Method or lecture. Then, work through several problems in class. Finally, have the students do a short paper in which they must solve a false-imprisonment problem.

Education researchers have uncovered a new world of effective educational approaches. First-year professors need to use these techniques to better prepare students for the second and third years of law school and to turn out better lawyers.

Ask almost any case teacher, and they’ll tell you that guided discussion makes or breaks a case study experience. Well, anyone but Charlie Nesson.

Professor Nesson unveiled a new case discussion method in his residential and online courses on the American Jury (taught at Harvard Law School, Harvard Extension School, and HarvardX): participants read the case, receive a stimulus question, and convene in unfacilitated “jury” deliberation groups, with the task of reaching a unanimous verdict. There is no right answer, no right process. Only the urgency to make headway and break impasses—or the spontaneous leadership of a participant—will move the conversation forward. In some sense, it is the simplest of role plays: be yourself, as citizen.

In the traditional classroom case discussion scenario, the instructor asks open-ended yet targeted questions, steering participants toward realizations while encouraging debate and problem solving. Without facilitation, those takeaways might never be unearthed. But too much facilitation, and the peer-to-peer conversation never gets off the ground.

Unfacilitated case discussion removes the possibility of a heavy-handed facilitator, and values the lessons of trial and error. Participants must find a way of relating to the case, using what they have; for instance, one student considered how each issue at hand applied to her work at the Department of Homeland Security. The case studies are group-edited by the teaching team to correct for bias and leading information, so that the takeaways are not handed down from an authority figure.  Participants received an introductory note on The Art of Deliberation as well as post-deliberation surveys each week to reflect on the group dynamics and each student’s reaction to the case. These materials primed participants to be more self-aware and analytical.

Yes, groupthink, steamrollers, and impasses can prevail in these peer deliberations, but insights about democracy, the political process, and self-governance are gleaned. The popular verdict seems to most often render the correct verdict, just as the institution of American jury would have it.

New Products: The Art of Deliberation; The Snowden Effect; Thinking Big: Bringing Big Sport’s Energy and Innovation to Education; The Decriminalization of Marijuana in Jamaica: A Key Step toward International Legalization?; The Color of Police Action in these United States

A new suite of free workshop-based case studies convenes participants in juries to deliberate important social issues of our time. Designed for Professor Charles Nesson’s HarvardX online course, JuryX: Deliberations for Social Change, these multimedia case studies include first-hand footage of current events, interviews with key players in the cases, and commentary from Professor Nesson. Participants are challenged to examine and rethink the concept of jury, as well as to be active participants in the deliberative process.

The course began with an introductory note, The Art of Deliberation, surveying elegant approaches for deliberating without rancor. Participants were introduced to historical legal cases (Vosberg v. Putney, Palsgraf v. LIRR, Commonwealth v. Hebert), deliberating alone or in pairs before entering the small group jury. Then, in each new module, the juries convened to reach verdicts on issues that increased in emotional tenor:

• The Snowden Effect considers individual identity and anonymity through the lens of Edward Snowden’s NSA leak. This case study provides background on the state’s view of privacy, in order to approach privacy from the citizen’s point of view: in relation to others, through stages of anonymity, pseudonymity, and nymity. Participants must consider: “Who are we, the people of and on the net?” Participants deliberate whether Snowden is a hero or a traitor as well as how to feel about the actions of Snowden and the State.
• Thinking Big: Bringing Big Sport’s Energy and Innovation to Education considers the possibilities for international sporting events to advance society. The case reviews the experiences of Brazil preparing for the World Cup and the Summer Olympics as well as Boston’s recent (now unsuccessful) bid to host the 2024 Olympic Games. Participants convene a jury and use Socratic questioning for cross-examination, with the aim of reaching a verdict on the opportunities and challenges that face host cities.
• The Decriminalization of Marijuana in Jamaica: A Key Step toward International Legalization? surveys the legal and social history of marijuana in Jamaica, following for comparison the international trends in legalization. Participants negotiate an agreement between Rastafarian marijuana growers and the Jamaican Minister of Justice regarding the Cannabis Cup, a competition and celebration of the skill of growing marijuana. Through Socratic questioning and the objective of jury unanimity, participants find common ground.
• The Color of Police Action in these United States brings the deliberative process to bear on one of the most difficult and divisive controversies of late, a true crisis of humanity: the killing of unarmed black men at the hands of law enforcement across the country. The case examines the deaths of two African Americans, Michael Brown and Eric Garner, at the hands of police officers in Ferguson, Missouri, and Staten Island, New York, respectively. By reviewing the grand jury decisions, the nationwide protests in response, and the ideologically tinged interpretations of these events, participants are prepared to constitute themselves as a grand jury and decide the cases themselves.

Though the cases themselves are rich with detail, information transfer is not the goal. JuryX seeks to teach students to become better citizens and deliberators. The jury pedagogy illustrates the power of consensus in solving multistakeholder issues, and the creativity that comes from collaboration, anonymity, and the power of the people. Over the next few weeks, we’ll feature technology tools and course exercises that made JuryX an open, honest cyberspace.

JuryX case studies are available free of charge from the Case Studies website.

by Amanda Reilly

Working in teams is an important part of being an effective learner and employee, yet students from high school through professional schools tend to groan when teachers assign a team project.  How can teachers foster positive attitudes before, during and after group experiences?

“It’s not about loving the group work; it’s about developing the skills,” said Dr. Maryellen Weimer, professor emerita at Penn State Berks and the keynote speaker at the 2015 spring seminar of Simmons College’s Center for Excellence in Teaching. Dr. Weimer, a renowned authority on effective college teaching, presented on successful methods for encouraging effective student group work. She said that although professors typically encourage their students to be “self-directed learners” (rather than “groupies,” who depend on others to learn), educators still must cultivate rewarding group experiences so that students can be productive in a variety of educational and professional scenarios.

Dr. Weimer detailed several ways in which teachers can facilitate student group work:

• Focus on the details. Early in their work together, group members must delineate expectations, clarify roles, understand each other’s work styles, and commit to how they will work together. When group members establish their own group norms, they lay a solid foundation for their work, such as a group member “bill of rights” – what the group has a right to expect from each member.

• Maintain an ideal size. What group size is most effective? Dr. Weimer argues that the ideal group is small enough for all members to share their opinions and large enough for diversity of views. A group with three members often does not possess enough diversity of thought and resources; in a group of six or seven members, some members may remain silent during discussions, and work may be divided inequitably. A group of five members is often ideal, eliminating the concerns associated with both smaller and larger groups.

• Thoughtfully construct the group. With diversity in mind, teachers should assemble groups according to a common interest. If you allow students to self-select, it is important to help them build diverse teams. Self-selection, however, can cause introverted students undue stress and social anxiety. Weimer has found that students who don’t know each other before they do group work often create the most outstanding work, whereas students who already know each other tend to socialize more and make less progress during group work, thereby not producing exceptional results.

• Don’t underestimate peer pressure. Students who don’t carry their own weight (e.g., “social loafers,” “freeloaders”) or who dominate and exclude (e.g., “alpha lone wolves”) have to acclimate to the group dynamic. Group conflict can be a valuable opportunity for personal growth. Dr. Weimer asks that groups share techniques for effective communication and team member accountability with the class, ensuring that each student brings something to the experience.

• Discuss and share best practices to help groups process problems. Facilitate group work by empowering groups to solve their own problems. This helps group members understand that they are responsible for their problems and that overcoming obstacles is part of the group work process. Collaboration is a valuable part of learning how to work effectively in groups, so it is essential for teachers to provide vehicles for students to communicate and share, such as online wikis or Google Docs. Urge groups to observe how other groups communicate, or assign groups the task of making study guides for other groups.

• Use peer formative feedback and provide summative feedback. Students are more accountable to each other when they understand that a portion of their grade is based on peer formative feedback. Formative assessment can help students identify not only their strengths but also opportunities for improvement. This type of process feedback can help groups with the parsing of duties, and assessment of their group needs. Also, remember that students place the most value on the teacher’s summative feedback, typically conveyed through a final evaluation of a group’s process and end product.

Group collaboration is an essential skill for students to learn before they enter the professional world, and the collaborative classroom is an ideal place in which students can develop this skill. With a foundation with which to build better groups, students not only learn teamwork accountability and commitment, but also enhance their ability to master course content.

Dr. Maryellen Weimer has a loyal following of educators from law, medicine, and business programs at colleges and universities across the country. More than 15,000 educators subscribe to her newsletter and read her weekly blog, The Teaching Professor Blog. If you are curious about how to incorporate learner-centered policies, practices, techniques, and approaches in your classroom, check out Dr. Weimer’s teaching resources and strategies at www.facultyfocus.com.

Amanda Reilly is the Program Associate for HLS Case Studies.

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:

Hank Gutman

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.