The Function of a Code of Legal Ethics

The traditional view that the function of a code of legal ethics is to define the duties of lawyers and the rights of clients is based on the perception of the lawyer-client relationship as one of simple agency in which the lawyer has the utmost duty of loyalty to the client. The author suggests, however, that this perception is a fallacy that, by overlooking the fact that clients also have duties and lawyers also have rights, can result in antilegal rules of ethics. This result can be escaped, the author proposes, by integrating rules of ethics and rules of positive law, and by recognizing that both lawyers and clients have correlative and corresponding rights and duties. The author concludes first that the function of a code of legal ethics necessarily is to define the rights and duties of both lawyers and clients, and second that the legal profession should fashion such a code before the courts intervene and invalidate antilegal rules of ethics, relying on the duties of clients, just as they have relied on the rights of clients to invalidate anticompetitive rules of ethics

Folsom v. Marsh and Its Legacy

The fair use doctrine has become so important in American copyright law that it is somewhat surprising to learn that the case credited with creating it, Folsom v. Marsh, was so poorly reasoned that it may be entitled to first place in the category of bad copyright decisions. The case was a bill in equity for copyright piracy, the style of which comes from plaintiff, Folsom, Wells and Thurston, printers and publishers, and defendants, Marsh, Capen and Lyon, booksellers. If one of the characteristics of a bad legal decision is that it gives rise to a myth as to what the court in fact ruled, Folsom is at the top of the list. The myth is twofold. The first myth is that Folsom created fair use, when in fact it merely redefined infringement. The second myth is that Folsom diminished, and therefore fair use diminishes, the rights of the copyright owner. In fact, the case enlarged those rights beyond what arguably Congress could do in light of the limitations on its copyright power [FN3] and, indeed, fair use today continues to be an engine for expanding the copyright monopoly. This is a large charge in light of the modern culture to the contrary, but analysis bears it out, and one begins the analysis with Folsom. The major factor in understanding Folsom is the scope of copyright when the case was decided, because whether fair use enlarged or diminished the rights of the copyright owner depends upon what those rights were before the fair use doctrine developed. In 1840, the rights of copyright were available only for a book as it was published; another author could abridge or translate the book without infringing the copyright. Story, aware of both doctrines, acknowledged the abridgment doctrine in Folsom, and held that the defendant\u27s work was not an abridgment. He then proceeded to redefine infringement, which in his hands became any copying, duplicative or imitative, in whole or in part of the copyrighted work. This redefinition of infringement enlarged the copyright monopoly and became the basis for what was to become fair use. There would be, of course, an anomaly in being concerned with a poorly reasoned judicial decision over a hundred years old, except that its impact continues today in unsuspected ways. Prior to Folsom, copyright could best be understood as a subset of public domain law in the form of a limited statutory monopoly; Folsom laid the groundwork for transforming copyright into a subset of property law as a natural law right. Since the law of which copyright is a subset is the source of copyright rules, the choice has important consequences. Whether copyright is a statutory monopoly or a proprietary right is significant for both copyright owners and users of copyrighted material. The former concept provides greater, the latter less, leeway for use by others, and this issue has assumed a new importance in light of communications technology by reason of which copyright holders may be able to control all access to copyrighted material, for example, in a computer database. Before proceeding with the nature of copyright, however, it will be useful to discuss the Folsom decision itself since it is better known for its supposed holding than its content

Eldred v. Reno: An Example of the Law of Unintended Consequences

In Eldred v. Reno the U.S. Court of Appeals for the D.C. Circuit held that the Copyright Term Extension Act (CTEA), which extends the copyright term for present and future works for twenty years, was a constitutional exercise of Congress\u27s copyright power. The CTEA thus puts an end (at least for two decades) to a policy in effect for more than two centuries, since the Copyright Act of 1790, that the copyright of a work expires at the end of a stated term defined at the time the copyright was granted. Since works were copyrighted annually, the policy meant that each year a certain number of copyrighted works entered the public domain, as the copyright terms ended seriatim. The mandate of the CTEA is that no copyrighted work in the United States will go into the public domain before year 2018. The Eldred case thus constitutes judicial approval of the legislative moratorium of the constitutional mandate that copyright protect the public domain, a policy in partial fulfillment of the fact that copyright, as the U.S. Supreme Court has repeatedly stated, is primarily to benefit the public, only secondarily to benefit the author (as copyright holder). Arguably, the CTEA serves the interest of no one except that of publishers (and other copyright holders) and their heirs

What\u27s Wrong with Eldred? An Essay on Copyright Jurisprudence

With few exceptions, the U.S. Supreme Court has rendered wise copyright decisions consistent with the Copyright Clause. Unfortunately, Eldred v. Ashcroft adds to the exceptions. The difference is that the former are positive law, and the latter natural law, decisions