Legal Research Paper

For this paper you are a legal assistant reviewing a legal case. The case involves a student named Alice Brown, who has set up a website called FreeAndOpen.com. The legal aspect is that Alice has made copies of various books and software programs commonly used by students, and has posted them in downloadable file form in a password-protected area of her site. The books are published by John Wiley, the University of Chicago Press, Elsevier, McGraw-Hill, and Pearson. Elsevier is a Dutch company, and Pearson is a British company. The software was published primarily by Microsoft and Adobe Systems.

Individual students can get a unique, un-shareable password linked to their IP address in one of two ways: (1) by uploading a new book, article, or program to the site, or (2) providing proof of a $10 donation to Creative Commons, an organization dedicated to open access. FreeAndOpen.com’s operating expenses are supported by advertising sales, primarily to local restaurants and stores that serve students. The site is a registered nonprofit organization, and all revenue is used to run and expand the site’s operations. Students who download materials e-sign a pledge not to sell the program or books, or to share the materials with non-students.

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Brown runs FreeAndOpen.com from her dorm room, on her personal laptop and two small servers she purchased with advertising proceeds. The approximate market value of the software and textbooks on FreeAndOpen.com is $62,387, and 114 students have downloaded content with an average value of $2,627 per student. The site has received $6,500 in advertising revenue to date.

“FreeAndOpen” is also the trademarked name of a line of unisex smocks that have been sold and marketed by Froofi LaFroof (FLF), an international fashion company with a 30-year reputation for high-quality apparel. FreeAndOpen has been trademarked since 1974, and has been marketed actively through the present time. The line is worth more than $3.75 million annually to the company, which also operates an online catalog for the product at www.flf.com/freeandopen. “FreeAndOpen” is a well-known mark, so much so that the mark and the product is represents is frequently mocked on satirical television programs. Your attorney’s contact at the Patent & Trademark Office is concerned that Alice Brown’s activity is causing confusion in the market, and threatens FLF’s revenue. You should address any relevant issues with regard to this subject as well.

The US Attorney you work for has asked for your opinion regarding whether or not a criminal case should be opened and pursued against Brown.

Prepare a paper in which you discuss AT LEAST the following points
1. The legal issues involved
2. the relevant statutes and precedents
3. how this case differs from (or resembles) LaMacchia (I can provide this case for you)
4. any legal theory or academic research that might be helpful
5. the potential criminal penalties that could be pursued against Brown (and what defenses she might offer).
6. If the government declines to pursue criminal charges against her, what civil remedies might be available, and to whom? How would a civil action differ from a criminal one? Is there an advantage to either from a public policy standpoint?
7. Also: the attorney understands and is sympathetic with how much students struggle financially, and has also asked for your view on the site’s mission: is it a good thing and the way of the future, or not, and what might that mean for students, universities, publishers, and the government?

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