the Zealous

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, when representing the customer. “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).

From Charles Silver, A Private Law Defense of Zealous Representation, U. of Texas Law, Public Law Research Paper No. 638 (2020):

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.

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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.

The case is Meta Platforms, Inc. v. Bright Data Ltd. (ND Cal 2024).

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.

Viktor Ovsyannikov has been practicing law as a public defender since 2018 with the Free Legal Aid Centre in Kyiv. He characterizes his career choice as "addicting," and one that causes his mother to occasionally "drink buckets of sedatives."

One of his first clients was the disgraced ex-president of Ukraine, Viktor Yanukovych, accused of treason in absentia. Yanukovych had retained five lawyers, but they left the session in protest. As a consequence, the criminal court asked the Free Legal Aid Center for a state-funded lawyer to protect the defendant’s rights.

Ovsyannikov was posted. He describes the experience: “The [Center] never gives the client's name first. They say you have an appointment for the defense tomorrow at 9 am. 'We'll send you the file and you'll see.' When I saw [that it was the Yanukovych case] my sleep vanished just like that." (Yanukovych was sentenced to a 13-year prison term for high treason, and is now living in exile in Russia.)

Like most Ukrainians, Ovsyannikov recalls with vivid detail the events of his life on February 24, 2022, the day Russia invaded Ukraine.

Many lawyers are. In fact, ours is the loneliest of professions.

Here's an explanation for why.

Personality may play a part. Lawyers are overwhelmingly introverts. Introverts often require more solitude for “recharging.” Add that to a heavy workload that values independence and perfection and there may be little time to build meaningful relationships. Also, lawyers rarely know how to practice self-care. Those serving at-risk and traumatized populations often don’t know how to deal with the emotions they hear of and often take on themselves. This vicarious trauma can lead some,  motivated by a concern about burdening others, to keep their struggles to themselves, thereby creating even more distance between them and their sources of support.

Employers have the specter of their lawyers not only in precarious health but also dispensing legal advice while in a debilitated state. Liability on a number of fronts raises its ugly head, as well as the costs and difficulty of replacing burnt-out workers.

On this day 102 years ago, Mohandas Karamchand Gandhi, a lawyer with serious mojo, was arrested and charged with sedition for leading a campaign of mass civil disobedience against the British in India. After years of frequent arrests and imprisonments in his campaign for independence from British rule, Gandhi, nicknamed "Mahatma," meaning, the "great-souled one," appeared without counsel in the Ahmedabad court before a British judge. He pled guilty to all charges and requested that he be given the maximum penalty. He was sentenced to six years in prison.

What if everyone could know every detail about any person? What if, Matrix-style, you could upload into your brain, on demand, every intimate life experience and detail about any person that you meet? Every weakness and insecurity, every sin and virtue, every insane thought and unrequited longing, every proclivity, kink and quirk, every scar and tattoo, naked and exposed? No fact about a person, in this thought experiment, could be kept private. Privacy simply does not exist.

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.

Lawyers occupy a unique and vital role in society, as guardians and champions of the oppressed and persecuted. The world has recognized this essential function by enshrining certain principles via proclamations of international law. For example, the United Nations has issued its Basic Principles on the Roles of Lawyers (1990) to "assist Member States in their task of ensuring and protecting the proper role of lawyers," and which "should be respected and taken into account by Governments within the framework of their national legislation and practice."

Among the more critical principles are the following:

16. Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.

17. Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities.

18. Lawyers shall not be identified with their clients or their clients' causes as a result of discharging their functions.

A consortium of international human rights organizations, bar associations, and advocacy groups has released its annual report coinciding with the International Day of the Endangered Lawyer, January 24. This year's focus is on Iran.

Enacted in 1872, section 16600 of the California Business & Professions Code proclaims that "every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void." Courts have "consistently affirmed that section 16600 evinces a settled legislative policy in favor of open competition and employee mobility." Edwards v. Arthur Anderson (Cal. S. Ct. 2008). Recent legislation has only strengthened the bite of the law, rendering non-compliance quite costly for businesses.

California and Massachusetts offer two contrasting lessons on the impact of non-competes in the technology industry. In contrast to California's policy of maximizing employee mobility, Massachusetts has long permitted non-competes, and even after reform legislation was passed in 2018, routinely enforces them.

This week marks the 75th anniversary of the Universal Declaration of Human Rights, adopted by the United Nations General Assembly in Paris on December 10, 1948. Promulgated in the darkness between the brutal horrors of World War II and the dawn of the Cold War, the power of its words has inspired numerous constitutions of nations and international human rights treaties. Above all, it stands as an exemplar of an international consensus of a kind that seems hopelessly unattainable today.

An oft-cited canon of statutory and contractual construction is the rule of last antecedent, which specifies that a qualifying or modifying clause operates to qualify or modify only the last, i.e. the immediately preceding, word or phrase.

This rule is implicated ubiquitously, with nearly every contract. It's a massive trap for many lawyers. 

Consider the following clause:

Subject to the termination provisions of this Agreement, this Agreement shall be effective from the date it is made and shall continue in force for a period of five years from the date it is made, and thereafter for successive five-year terms unless and until terminated by one year prior notice in writing by either party.

Does the "unless and until terminated" clause apply to the initial five year term and successive five year terms, or only to the latter?

"Title of dignity. Slightly above gentleman, below knight."
Roman J. Israel, Esq. [i]

On the origins of "Esquire" (or "Esq.") as an honorific for lawyers:

The word itself derives from Old French, and in turn from Latin, where it means something like “shield-holder.” In the 1200s and 1300s in England, a variety of languages were used, so such figures might be referred to as the … French escuier, which became “esquire.” These terms all refer to roughly similar people. This role was generally considered moderately prestigious for young men of some wealth, but at its core it was a service job. You carry a knight’s stuff, tend to his horses, that kind of thing. “Esquire” and “squire” were names for the same gig for a few hundred years.

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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?

Jackie Ruffin, First woman lawyer in California championed the idea of public defenders (review of Woman Lawyer – The Trials of Clara Foltz by Barbara Babcock), 98 Women Lawyers Journal 38 (2013):

The life of Clara Foltz, 19th-century trailblazing lawyer, women’s rights activist and social reformer, has few equals for drama, achievement and sheer chutzpah. In Woman Lawyer, Professor Emerita Barbara Babcock, herself a trailblazer as the first woman appointed to the regular faculty at Stanford Law School, has written a richly detailed account of Foltz’s bold and remarkable life, replete with "firsts," including first female lawyer in California, first woman to serve in a statewide California office and first female deputy prosecutor.

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