Someone e-mailed me about the This Song Is My Song controversy, pointing to this as the latest example of unethical lawyers undermining American creativity (and, more broadly, economic development) through excessive litigation.
I don’t think that’s so. As I mentioned in my original post, the This Land Is My Land copyright owners have a decent case against the JibJab people — in fact, I think they probably have the better legal argument, though it’s hard to tell for sure. There’s nothing unethical about a property owner asserting his property rights, or the property owner’s lawyer advising the owner to do so. There are certainly some lawyers who do some genuinely unethical things; this just isn’t it.
If you want someone to blame, blame the law, not the lawyer. The law may be too broad; or it may be so vague that it ends up effectively quite broad, since lots of speakers can be plausibly threatened with litigation. But it’s not the copyright owner’s fault, or the copyright owner’s lawyers’ fault.
Ah, some say, but the law is so broad because the lawyers made it that way. And, yes, it’s true that the law is generally made by lawyers — by judges, by legislators (who are disproportionately lawyers), by legislators’ assistants (who are probably lawyers), and by lawyer-lobbyists. Yes, and what of it?
First, this is a tiny fraction of all lawyers, so don’t blame the whole profession for what some of them do. Second, these people are also just doing the jobs they’re assigned to do in our legal system, and often doing them quite honorably. Lobbyists may quite ethically urge their proposed legal rules to legislators. The legislators’ assistants are probably following their bosses’ instructions, and to the extent they have some flexibility, they’re likely using it to implement what they think is sound public policy. Likewise, judges are either interpreting the statute, or creating what they think are good rules. (It is indeed often judges’ job to create what they think are good rules, either as a matter of developing the common law, or of interpreting a vague statute — the fair use doctrine was largely developed by judges, and the current statutory fair use provision, 17 U.S.C. sec. 107, specifically authorizes judges to develop fair use law further.)
Now I do think that this particular subset of lawyers often get things wrong. In particular, I think they often reject bright-line rules because those rules are overinclusive in some situations and underinclusive in others; but in their quest for theoretically perfect justice, they end up enacting or adopting vague rules that leave people with little practical guidance about what is or is not safe to do.
But at most what we have here is a few special lawyers-by-training — many of whom are no longer even lawyers in private service, but are lawmakers of one sort or another — making unsound decisions. We do not have some general ethical failing on the part of the legal profession as a whole.
And the remedy to the problem isn’t to try to make lawyers more ethical — it’s to try to make the laws better (hard as that may be).