Intellectual Property Class

Essay Question

Point Value: 40 Points

Our client (DEFENDSTER, INC.) has invented a new software program, DEFENDSTER. The program allows a user to capture up to six, 30-second sections of music and then allows the user to splice them together end-to-end to create a new musical work. The software works on its own, but is also has a special module that allows it to integrate with iTunes. In order for a user to use the product as an integrated feature of iTunes, the user must click a check box and agree that the "User agrees not to utilize DEFENDSTER for any purpose that might constitute copyright infringement."

Carl, a student at U.C. Berkeley, used DEFENDSTER to capture several 30-second blocks of copyrighted (registered) songs from iTunes and create a "mix" that has become extremely popular. David, a DJ on a Public Commercial Radio Station, heard the "mix" and loved it. David knew the "mix" had been created using the DEFENDSTER software and knew that the underlying works were copyright protected. Over the past 3 months, David has played the "mix" over 500 times during his show and the "mix" has become so popular that Capitol Records (the owner of one of the songs in the "mix") has sent our client a Cease and Desist Letter.

Discuss and identify the potential legal liabilities (causes of action and potential damages) and possible defenses associated with:

1) Carl, the U.C. Student that created the "mix"; and

2) David, the DJ for the Commercial Radio Station; and

3) Our Client, the maker and distributor of DEFENDSTER.

Some words/terms you might want to consider:

Literal Infringer; fair use; license; contributory infringer