DT13 Fair Use DoctrineReproduction of copyrighted works is

DT13: Fair Use DoctrineReproduction of copyrighted works is permitted without payment of royalties under the fair use doc­trine. The factors used in determining whether a use qualifies as fair are (1) the purpose and character of the use, in­cluding whether it is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copy­righted work; (3) the amount and substantiality of the portion used in relation to the work as a whole; and (4) the effect of the use on the potential market for or value of the copyrighted work. In light of the broad availability of the Internet, should the Fair Use Doctrine be changed? What impact do you think such would have on the willingness of potential copyright owners to seek copyright protection?DT14: Contract formationChapter 9 covers the formation of contracts, including the function of contracts, types of contracts, and requirements of a contract. Considering its basic elements, a contract is a very simple concept. In general, it may be written or oral, unilateral or bilateral, executory or executed, etc. It cannot be illusory. Only four elements are necessary to the formation of a contract. What are the elements? If one of the elements is missing but the parties intended to form a contract, should a court hold the parties to their ‘agreement’? That is, should the courts take a strict constructionist approach to contract formation or should they try to enforce the intent of the parties. Why or why not?DT15: Construction woesLet’s look at construction projects. At some point in your career, you will be engaged in a construction project, possibly several. Construction contracts have their own unique problems. Below is a fact set from a case involving the construction of a new assembly plant. Assume that you are in charge of the project for your company. How would you handle the problem?Your company is having a new assembly plant built. The plans do not call for a drain down the middle of the floor but the general contractor installs one anyway because, in his opinion, a drain will make the area easier to keep clean and the increase in cost is nominal. Your CEO is livid, feeling that the drain ruins the appearance of the floor and will cause problems as workers move equipment back and forth across the drain. She wants you to see that the contractor takes out the drain and doesn’t charge the company for the cost. Based on what you know from Unit 2, what is the likely outcome and why?DT16: UCC Art. 2Unfortunately, we don’t spend much time with the Uniform Commercial Code in BL 240. Most of the UCC material is covered in BL 480. However, you do need to have a bit of a working knowledge of UCC Article 2 (sale and lease of goods). The UCC, Article 2, intentionally modifies part of the common law of contracts. Specifically, Art. 2, Sales, covers the sale of goods but does not cover the purchase of services. A question arises when a “sale” included both goods and services; that is, in those situations, is a contract for the sale of goods really a contract for the sale of a service? For example, if you hire someone to retile your bathroom, is this a contract for the sale of tile (covered by Art 2) or a contract for the installation of the tile (a service, not covered by the UCC but by common law contracts)? Is the distinction realistic? That is, why does the distinction between sale of goods and purchase of services exist in the UCC, Art 2, and what determines if a contract is a contract for the sale of a good or the purchase of a service?DT17: Strict product liabilityOur textbook in chapter 12 (page 340, et seq.) presents the legal theory of strict product liability, which has not been without controversy. Some States do not recognize this theory. Consumer advocates would argue that strict product liability is necessary to protect the small consumer from big business; while pro-business interests counter that the strict product liability shifts the burden of proof to business to show that the product was not defective and raises the cost of doing business, which is passed along to the consumer. What do you see as valid public policy reasons for applying and for not applying a theory of strict product liability? Do you agree with these reasons? Should strict product liability be applied only in consumer product situations? Why or why not? DT18:Driving and texting caseThe Durkee v. Geologic Solutions case is noted in your text on page 351 (Business Scenarios 12-8). A critical analysis component seems particularly relevant in today’s society, ‘Should a manufacturer be required to design a product that is incapable of distracting a driver?’ That’s not just a rhetorical question for business women and men. You may find yourself having to answer this question at some point in your business career. Where should the line between product liability vs. self-responsibility be drawn?DT19: GarnishmentGarnishment (see page 350) is a collection remedy directed at a debtor’s property or rights held by a third person (typically, an employer or a bank). Garnishment occurs when a creditor obtains a court order to collect a debt by seizing property of the debtor held by a third party (such as a paycheck held by an employer in child support matters or a checking account held by a bank to satisfy an outstanding judgment). In brief, gar­nishment is used in cases in which debts are not paid. Question: If an employer is served with a garnishment order, should the employer be required to tender the employee’s wages to satisfy that garnishment?DT20: Limited Liability CompanyFor once you’ve got a straight forward DT! What are the advantages of doing business as a limited liability company? That is, if you want to open a small business, you have several options—sole proprietorship, partnership, LLC, etc. Why might you select a LLC over the other options?DT21: Promoter liabilityThere are several necessary steps in the creation of a corporation, partly because States consider corporations as ‘beings’. If the steps are not followed correctly, the corporation does not come into existence. Promoters take the preliminary steps of organizing a corporation: issuing a prospectus and se­curing a charter. A promoter is personally liable on preincorporation contracts, even after incorporation unless the third party releases the promoter or the corporation as­sumes the contract by novation (Chapter 10). How does the board of directors of a corporation absolve the promoter of liability? A technical question bDT22: Agent or Independent ContractorAn argument can be made that any employee is an agent. In other words, when you hire someone to work for you, that person is either an agent or an independent contractor and that the concept of ’employee’ is merely a cloudy descriptor of someone who, in reality, is either an agent or an independent contractor. The issue is not just an academic question. Your liability will be different depending on the classification of the person hired. What is (or should be) the distinction between ’employee’, agent’, and ‘independent contractor’? Is there a difference between the duty of loyalty that will be owed to you depending on how someone you hire is classified?ut an answer worth knowing.

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