When you come to law school as a bright-eyed student excited about changing the world with your law degree, every course you take seems incredibly intellectually stimulating. As a 3L, it can be difficult to be truly enthused about delving into new course material (with “difficult” being an understatement for some). Nonetheless, knowing it may be the last year you are ever in school can be a driving force for you to explore new fields of law without that 1L fear of failure. As a 3L, after all, the worst thing that can happen is that you actually learn something.
My adventurous course selection for this semester landed me in an unpredictable yet ever so convenient situation. I plan to focus my career on litigation, so I have taken many opportunities to improve my legal research, writing and oral advocacy skills while in law school. One of these opportunities at NYU Law is the Orison S. Marden Moot Court Competition. The fact pattern for the competition changes each year, and the area of law greatly varies. This is the point at which the stars decided to align in my favor.
Two course selections I made for this semester include Copyright and Antitrust law courses. The record for Marden this year revolved around the Digital Millennium Copyright Act (DMCA). The relevant section at issue of the DMCA criminalizes the use or trafficking of devices that circumvent measures that control access to copyrighted works. Congress enacted the DMCA to address the growing threat of copyright infringement in the world of digital technology. The issue of the competition was whether a plaintiff must prove a reasonable relationship between the circumvention device and an exclusive right granted to copyright owners in the Copyright Act to establish liability under the DMCA, an issue on which the Federal Circuit and Ninth Circuit have split.
In the Marden Competition, participants are assigned one side to brief for the writing component, but then have to argue both sides for the oral component. I was assigned the petitioner’s side, which seemed to have the weaker legal argument, but stronger public policy argument. While the legal issue in the Marden Competition is real, the facts are fictitious. In the factual world of this competition, the petitioner was a computer engineer who designed a circumvention device to enable her and others to bypass an access-control generated by the respondent, a famous developer of Internet-enabled portable media players that shall remain unnamed.
This company had created computer code to block users from watching previously purchased SD content on an external screen through the use of the video output port on their newly purchased players, effectively forcing users to buy HD versions of the same content they already owned to be able to enjoy it on an external screen. The petitioner had not engaged in any actual copyright infringement, nor enabled others to do so. Should the petitioner then be liable, nevertheless, under the plain language of the DMCA, for simply trafficking this circumvention device? Or should the respondent be required to demonstrate a nexus between the circumvention and a right protected by the Copyright Act? It may seem easy in your mind to argue for or against liability based simply on the facts and your sense of logic, especially if you are a media player user yourself. But that is not what appellate advocacy (or law school) entails. The legal task (should you choose to accept it) is to engage in statutory interpretation to form your argument (which you will learn how to do as a 1L at NYU Law in your required Legislation and Regulatory State course).
To argue either side of this case, all Marden participants had to become well-versed on the statute itself and the broader concepts of copyright law. Both sides essentially try to interpret the text, purpose, and legislative history of the DMCA, along with providing policy arguments, in their client’s favor. Because I am taking Copyright Law, I had significantly less background research to do than most. Additionally, since the panels of judges (who are actually busy practitioners who graciously volunteer their time to this competition) were not necessarily well-versed in this area of law themselves, I could grab the opportunity to demonstrate my authoritativeness or stray from the record to make creative arguments. When a judge asked me about the exclusive rights of a copyright holder, I could recite them without referencing my notes. I could discuss the formation of copyright law with its goal of balancing the rights of copyright owners and the public, with the overall purpose to “promote the Progress of Science and useful Arts.” I could explain the history of one of the international treaties the DMCA was meant to implement, and our nation’s (not so perfect) record in complying with international standards for copyright law. I could argue for a fair use exception based on the non-infringing use of the circumvention device, and cite to antitrust concerns for granting to the respondent what could be construed as a monopoly.
Ultimately, I have learned from this year’s Marden experience that there is hope for me as a 3L to enjoy the rest of my legal education. As for you, if you have read this far without falling asleep or closing your browser, there is also hope for you in becoming a successful law student who can change the world with your law degree.