Copyright Cease & Desist: Scoring Criteria

Scoring for each component will be done on a 4.0 scale. Below is a brief explanation of what I look for in each category.

Investigation (20%). This looks to the documentation of your investigation. Is sufficient documentation provided to reflect a meaningful investigation into potential claims our client may have against the assigned opponent? Does the documentation support your cease-and-desist? Does it support your client memo? Does the documentation include other potential opponents as well? Does it support both copyright and trademark claims?

C&D letter (25%). Probably no more than two pages single-spaced using 12 point Times New Roman and normal margins. Does the letter correctly identify the sender, client, recipient, and claims? Are the demands supported by the law and facts? Are representative documents included as exhibits? Is the tone professional or polemic? Does the letter assert both copyright and trademark claims? If the C&D is based on a template or form, has the student provided the template/form or a link to it elsewhere in the case file?

Client memorandum (40%). In letter/memorandum format. No more than twelve (12) pages single-spaced using 12 point Times New Roman and normal margins. Remember that the memo should only focus on copyright issues. (But the listing of other potential defendants can include potentially additional opponents under either copyright or trademark theories.)

Writing: Is the memo well-written? Is it written with the audience in mind? If you don’t know the background of the client’s CEO, perhaps you should investigate it.

Discussion: Does the memo focus on key issues or does it waste space on minor or irrelevant issues? Have you addressed: 1) relevant facts; 2) whether our client has valid copyrights (subject matter, think section 102 and relevant cases); 3) whether the opponent has potentially violated one or more of the exclusive copyright rights (think section 106); 4) whether the defendant has any meritorious defenses (think, for example, of section 107); and 5) a bottom-line recommendation (see next section below)?

Listing of other potential defendants: Remember that the memo should include an addendum of no more than one page with potential additional defendants for either trademark or copyright. See the project 2 assignment memo for further details. This listing does not count against the 12-page limit.

Bottom line recommendation (5%). In your client memorandum, what do you recommend? Are those recommendations supported by the law, facts, and your analysis?

Organization (10%). This looks to the organization of your case file, investigation documentation, and your written work product (C&D letter and memo). Can the senior partner and client work through these in a meaningful and efficient way? Note that well-written work product is much more likely to be well-organized, and that well-organized work product is much more likely to be well-written. Considerations include:

Organization of case file: Is the case file organized in a logical and easy-to-follow way? Can the partner and client work through it without wasting time or getting confused? If separate electronic files are transmitted, do they have names that allows the recipient to easily review them? Are electronic files in common formats such as PDF, Word, or ZIP, or instead in uncommon formats that are hard to view, unzip, or print, or which the recipients may not be familiar with?

Organization of Investigation: Is the documentation well-organized? Are exhibits/documentation provided in multiple files or in a single PDF file? Are labels used? Are dates included on exhibits? Is the documentation in a form or forms that makes sense for the type of information documented, such as printouts, screen captures, or other means of documentation?

Organization of C&D and Client Memo: If exhibits are attached to either the C&D or the memo, are they well-organized and labeled? Are the C&D and the memo well-structured? Does the memo include appropriate privilege/work product legends? Does it use subheadings for separate issues and sub-issues? Does it provide citations as appropriate?

Posted Mar. 6, 2015 (v 1.0)