[cc-licenses] Lawyers aren't humans

Jim Sowers jim at spincycle.org
Wed Nov 22 16:03:36 EST 2006


Hi Terry,

You give good examples #1 and #2.  However, your examples involve people in
a particular discipline talking to each other, e.g. computer scientists (of
which I am also one), astronomers, etc.  Example #3 is a straw man in my
opinion--it is not a legal definition, just another of the many definitions
for that word, and you have demonstrated that you don't need to be a lawyer
to understand the concept.

These Creative Commons licenses are going to be between, in most situations,
two non-lawyers.  This is a major difference from the examples you give.
You could have a store owner entering a CC license with a musician; a
graphic artist entering a CC license with a car dealer, etc.  The parties
involved have "plain English" as their lingua franca.

This is the very point of the plain English movement in this country and
elsewhere in the legal context -- that most of the language in contracts
should be readable by non-lawyers; that words take on their normal meaning,
and if they don't, that can be explained clearly (just as you did in
explaining the special uses below).

The point is not that there are never special terms in the law, but rather
that contracts can be written with much less jargon than they currently
are.  A reasonably intelligent person should be able to read well-written
contract and be able to the bulk of it.  You could not say the same about
someone reading a treatise on astronomy, or a medical procedure, or a sort
routine for a doubly-linked list.

Thus, most of the language in the promotional material for CC talks about
people being able to license things without needing a lawyer.

Again, I'm not suggesting that everyone can will be able to read a CC
license and understand all of it.  But I am a big advocate of openness: open
source, no-DRM, and open access to legal contracts that are becoming
pervasive and non-optional for many.  Thus, making the actual contract as
"plain" and jargon-free should be a goal.  Unlike science writers, who use
an economy of words to be precise (I used to work for the Jet Propulsion
Laboratory), lawyers use an excess of words, many of which are superfluous.
This was the very reason that Prof. Wydick was compelled to write his
article/book.  http://www.law.ucdavis.edu/faculty/wydick.shtml

CC takes the extraordinary step of writing a summary, for which I commend
it.  Remember, however, all the websites to which you are bound by a Privacy
Policy; or all the Terms of Service and User Agreements that you have
checked off without reading.  Do you think you think those agreements are
binding on you, even though you are not a lawyer?  The answer is yes, so, I
argue that it is in your best interest to support the "plain English" effort
so that these contracts will be as readable/accessible as possible to the
rare non-lawyer who wants to read them.

All the best,

Jim


On 11/22/06, Terry Hancock <hancock at anansispaceworks.com> wrote:
>
> Jim Sowers wrote:
> > 2. The "language lawyers write in" as you put it, is very often
> > different because they choose to write that way, not because it makes
> > a legal difference. Most contracts are between non-lawyers -- thus,
> > the language is expected to be plain and clear. Of course, certain
> > things, like indemnification, will always be more legally technical.
> > [... and similar ideas snipped...]
>
> I disagree. I think jargon is inevitable whenever precision is required.
>
> Consider, for example, three different meanings of the word "object":
>
> 1) In *computer science* an "object" most likely refers to "an aggregate
> data type, representing both finer data elements and associated code to
> manipulate them"
>
> 2) In *astronomy* an "object" is "a physical entity, usually a star or
> planet that appears in a predictable place in the sky for observation" /
> "the thing you are trying to observe"
>
> 3) In *law* an "object" is probably "a goal or purpose of an agreement"
>
> 4) In "plain English", the word "object" most likely means "a tangible
> thing"
>
> and so on.
>
> And that's a simple, fairly loosely defined jargon word, which happens
> to correspond to an even more general word in "plain English".
>
> In the interest of "speaking in plain English", I once told a fellow
> astronomer that a particular star in our observation list was "faster"
> than another one.  I've since forgotten which particular meaning I had
> intended, but I realized after registering his confusion that it
> could've been any one of the following:
>
> 1) "this star has a higher absolute radial velocity"
> 2) "this star has a higher rate of rotation"
> 3) "this star has a shorter period of radial velocity variability"
> 4) "this star has a higher amplitude of radial velocity variability"
>
> and there are still more possibilities, had we not both known from
> context that we were talking about absorption spectroscopy
> measurements.  Clarity would've been much better served by me using
> correct astronomical jargon, instead of "plain English".
>
> Now, I am not a lawyer, but I feel pretty confident that the same sort
> of situation exists in legal terminology.
>
> Surely it is impossible to be precise about what you mean in a legal
> agreement without using legal jargon?
>
> Sometimes, "plain English" isn't plain enough.  ;-)
>
> OTOH, I agree that calling the "deed" the "human readable" version is
> unnecessary and potentially insulting. The truth is that this term was
> lifted from computer science, and refers to an analogy between "source"
> and "binary" (the source being "human readable", and the binary being
> "machine readable").  Of course, the real "machine readable" version of
> the CC licenses is the RDF version.  However, while this makes sense to
> programmers, they aren't really the principle target audience of CC
> licenses.
>
> A better practice would probably be to call it a "summary" or a
> "non-technical summary".
>
> Cheers,
> Terry
>
> --
> Terry Hancock (hancock at AnansiSpaceworks.com)
> Anansi Spaceworks http://www.AnansiSpaceworks.com
>
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