Moral philosophers object to the ethic of zeal, also known as the fiduciary duty and the principle of partisanship, because it requires lawyers to ignore any adverse effects that lawful actions beneficial for clients may have on third parties. For example, when representing a landlord, a lawyer may not refrain from evicting a tenant family that is behind on the rent for fear that the children will wind up on the street. Because harms inflicted on third parties normally bear on moral assessments, philosophers contend that lawyers who ignore them are amoral, immoral, or morally stunted.
Critics of zealous representation have won important battles. Where the Model Code of Professional Responsibility once canonized the requirement “to represent [a] client zealously within the bounds of the law,” the Model Rules of Professional Conduct now addresses zeal in a brief comment on diligence which emphasizes that a lawyer need not press for every advantage. Zealous representation has acquired a bad name.
This article offers a defense of zealous representation that is grounded in the common law of agency. The central points are, first, that the requirement to promote clients’ interests exclusively disciplines the common law by ensuring that principals’ rights and obligations are changed only with their consent; and, second, that the requirement facilitates the division and specialization of labor by shoring up principals’ confidence in agents who possess specialized knowledge and skills. Critics of the ethic of zeal have neither recognized these functions nor taken proper account of them when encouraging lawyers to give non-clients’ interests greater weight. … The many lawyers and law professors who have written about the ethic of zeal bear more responsibility for the persistence of the debate than the philosophers who have criticized the profession from the outside. One cannot reasonably expect non-lawyers to have explored the ethic of zeal’s roots in agency law when lawyers and law professors, who should have known better, ignored them.
But philosophers do bear some responsibility for the widespread belief that a life spent helping people with legal problems cannot be fulfilling or morally justified. Scorn for lawyers comes through most clearly [by those] who accuse them of living in a simplified world, of refusing to grapple with moral dilemmas, or of being morally stunted. In fact, the fiduciary duty is the most morally demanding duty imposed by the common law. It requires lawyers to be altruistic. They must act solely for the benefit of clients, even to their own detriment if the need arises. Law is a helping profession, and the practice of law can be as worthwhile, fulfilling, and moral as any other line of endeavor which has the primary consequence of making people better off. It is by design, not by accident, that the virtues of agency—loyalty, obedience, diligence, and trustworthiness—are moral ones. To be a good lawyer, one must commit oneself to a code and be strong enough to do what the code requires, even when one would much rather do anything but.
Many lawyers take a belt-and-suspenders approach to clauses that are intended to transfer copyright ownership from the developer-vendor to the customer with respect to the customer’s deliverables it is paying for. “Let’s call it an assignment,” they say, and “let’s also call it a work for hire, just in case.”
The problem here is that in certain circumstances, it can be crucial to know with objective certainty whether copyright has been assigned, or whether ownership of it passed automatically via work-for-hire doctrine under applicable copyright law (such as the US Copyright Act’s definition of work made for hire in section 101).
If the former, post-termination rights may apply, giving the party assigning copyright the right to rescind the assignment and take it back for free (albeit only after a considerably long period of time). If the latter, the transfer of ownership is automatic and cannot be rescinded.
That said, it’s not always clear whether work for hire rules will apply. The key is preserving the transfer of title in a way that best protects the customer.
Solutions to this problem can be found here at Redline.
A recent US district court decision in a lawsuit brought by Facebook and Instagram carries important lessons for counsel in the drafting and negotiation of survival clauses—clauses that purport to extend the operative effect of contractual obligations beyond the termination or expiration of the relationship.
Meta Platforms, the owner of both sites, brought a breach of contract action against Bright Data, alleging that Bright Data violated online terms of service and use by scraping (anonymized) user data and selling access to analysis of it. The terms of both sites prohibit the collection of user data via automated means and the selling of such data.
In adjudicating cross motions for summary judgment, the district court held that the Facebook and Instagram terms do not prohibit logged off public data scraping even during periods when the scraper has an account. More importantly, scraping after termination of such accounts, the court ruled, was likewise not prohibited—despite the existence of a survival clause that purported to extend the applicability of the anti-scraping clauses beyond termination of the user’s accounts.
The survival clause in question stated, “If you delete or we disable or delete your account, these Terms shall terminate as an agreement between you and us, but the following provisions will remain in place …,” listing sections among which included provisions prohibiting the automated collection and sale of user data.
The court cited caselaw for the proposition that perpetual obligations are disfavored. The court moreover accepted Bright Data’s characterization of the clause as being ambiguous. The survival clause operated to preserve breach claims brought post-termination for actions that violated the terms prior to termination, the court held, but did not with sufficient clarity operate to impose prohibitions on otherwise permissible conduct post-termination. Absent terms to the contrary, the purpose of the survival clause is to “address enforcement of claims arising from pre-termination conduct, not to create lifetime bans for conduct unrelated to parties’ contractual relationship.”
The lawyers of Redline have posed strategies and clauses to further the objective that Facebook and Instragram were pursuing. Engage the debate here.
If your client is in the business of providing value in exchange for payment, whether the consideration offered is goods, services, licenses to IP, data, expertise, or anything else, there are certain must-have clauses that your client’s agreement should carry in order to maximize payment leverage and enforceability.
In many cases, customers fail to pay, not because of a legitimate good faith dispute with the vendor or the value exchanged, but because they are insolvent, or suffering poor cash flow, or are prioritizing some vendors over others, or have simply regretted the deal made (ie classic buyer’s remorse) — or worse yet, are in the habit of routinely chiseling or slow-paying vendors.
The lawyers of Redline have put together checklists of clauses aimed squarely at such customers–provisions that will serve your client well in the scenario in which your client is not getting paid for no good reason.
Often one party to a contract is allowed to act only with the consent of the other party, “not to be unreasonably withheld.”
A common context in this regard is the right to assign an agreement. The language used is typically, “[Party A] may not assign this Agreement without the consent of [Party B], such consent not to be unreasonably withheld.”
So what happens if Party B unreasonably withholds consent? Does the refusal then automagically become consent, such that Party A is free to assign away?
In other words, is the “such consent” proviso a condition to the right to assign? Or is the refusal of consent a breach of contract on the part of Party B but otherwise provides no meaningful remedy for Party A? After all, what would the damages be for breach of the reasonableness obligation?
Redline is a dynamic collaboration environment for a select cadre of lawyers worldwide, and a powerful knowledge management platform.Watch the trailer Lawyers with Mojo or click here to learn more.
_____________
The intended audience for this post is licensed and practicing lawyers, not laypersons seeking legal advice for their situation. If you are not a lawyer, hire one before using or relying on any information contained here. This post is: (1) informational only and not intended as advertising or as solicitation for legal services, (2) not intended to render legal advice to you, and (3) not a substitute for obtaining legal advice from a qualified attorney to assess your exact situation. The information here is subject to change and may not be applicable or correct in your jurisdiction.
Genius crowdsources song lyrics by soliciting individual contributors to post their interpretations of the words they hear in songs. Google rather blatantly copied Genius’ crowdsourced lyrics for display at the top of Google search results, as proven by Google’s replication of Genius-coded digital watermarks. Genius alleges violation of the Genius Terms of Service which plainly forbid that which Google did. Genuis claims a massive drop in ad revenue caused by a plummeting of the numbers of users visiting the Genius sites as a result of Google’s actions.
Genius brought breach of contract and unfair competition claims against Google in New York state court. Google sought removal to federal court, claiming that Genius’ claims are redressable only via copyright, and only US district courts have jurisdiction for copyright claims. The US District Court for the Eastern District of New York granted the motion to remove the case from state court, refused remand, and promptly dismissed the claims with prejudice, on grounds of copyright preemption.
The Second Circuit Court of Appeals, in an unpublished opinion (ML Genius Holdings LLC v Google LLC, 2022), affirmed the ruling, and in the process called into question the enforceability of any contract governing the supply or exchange of data or information.
The appellate court did so on the basis of US Copyright Act statutory preemption, citing section 301 of the US Copyright Act. This statute mandates that any state law claim or cause of action which is “equivalent to any of the exclusive rights” of copyright is preempted and abolished. The appellate court held that the prohibition in the Genius ToS on the copying of song lyrics isn’t “qualitatively different” from a copyright claim, thus rendering the ToS completely unenforceable.
Under this reasoning, a claim for breach of a non-disclosure agreement would not be qualitatively different from a copyright claim, either. And if the information at issue is not copyrightable, there’s nothing that can be done to prevent or remedy the misuse of that information. In the words of Professor Rub: “It would be absurd for a court to say that a corporate nondisclosure agreement about sensitive financial data is void because the contract prevents the copying or reproduction of that data.”
Five other US circuit courts of appeal had held that a breach of contract claim is not preempted, due to the “extra element” of mutual consideration upholding the promised exchange. This required element of any breach of contract claim renders the claim not “equivalent” to a copyright claim.
Genius has petitioned the US Supreme Court to hear an appeal. Because of the circuit split, chances are decent that the Court will hear it.
In the meantime, avoid designating New York (or Connecticut or Vermont) law or courts in your confidentiality agreements. If the claim is based on the unauthorized use, reproduction or distribution of information, data, or works, the claim rises or falls exclusively as a matter of copyright. Contract law ceases to matter if the subject matter of the contract is content.
Further strategies and workaround clauses in this context can be found here at Redline.
Redline is a dynamic collaboration environment for a select cadre of lawyers worldwide, and a powerful knowledge management platform.Watch the trailer Lawyers with Mojo or click here to learn more.
The intended audience for this post is licensed and practicing lawyers, not laypersons seeking legal advice for their situation. If you are not a lawyer, hire one before using or relying on any information contained here. This post is: (1) informational only and not intended as advertising or as solicitation for legal services, (2) not intended to render legal advice to you, and (3) not a substitute for obtaining legal advice from a qualified attorney to assess your exact situation. The information here is subject to change and may not be applicable or correct in your jurisdiction.
