Development of Creative Commons licenses

["Jim Sowers" <jim AT spincycle.org>]

Hi Charles,

I hear you, but please re-read my post.  I was making two specific points:

1. Making a lawyer v. human distinction is silly at best, offensive at worst. 

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.

Governments typically get involved when it comes to drafting legislation, which is a different setting than entering a contract.  And most legislation is written by law firms that work for lobbying groups, and it is horribly written--which is why there is often a lot of litigation around the meaning of legislation after the fact.

As to your last sentence, I argue that "legalese" is (or should be) English!  You may read a medical journal article -- you won't know all the terminology, but you'll know what you don't know. It is written in English.  (Although some doctors may like the human v. doctor distinction :-)

Just as CC is trying to free more content that people want to have less restrictive licenses on, I and others want make law, and the language of it, more accessible to non-lawyers.  A good example of a business built around this is Nolo Press (
www.nolo.com)

All the best,

jim

On 11/21/06, Charles Iliya Krempeaux <supercanadian AT gmail.com> wrote:

Hello Jim,

I'm a "human"... and not a lawyer :-) ... one thing I've noticed... and feel free to correct me... is that the language lawyers write in and talk in is different from English because words have different definitions for words.

The law redefines words all the times.  Yet just because a government redefines a word does NOT mean that that changes the definition of the word in normal people's heads.

And many words, from the legal world, seem to be just homonyms with their English counter parts.

Because of this, to me, it seems very important to mark legalese from English so that there is no confusion.


See ya

On 11/21/06, Jim Sowers <jim AT spincycle.org > wrote:

When I was in law school, back in 1986 ;-(  I took a contract writing class.  It had a lasting effect on me.  We practiced writing in plain English -- the teacher worked for Bank of America, and because they had lost some cases because courts had found their contracts to be unintelligible to the average consumer (the other party to the contract), BofA found religion and started re-writing their contracts.

We studied a law review article by Richard Wydick, Plain English for Lawyers, which is now in its 3rd edition as a book, and which I mentioned in an earlier post to this list.  The SEC has also imposed a "plain English" requirement on filings.  I think CC has done a pretty good job on this front (with the notable exception of the excessive, and I would argue improper, use of the word "such" as a definite article, see my earlier post).

Nevertheless, I think the line at the bottom of the deed that reads "This is a human-readable summary ..." is unfortunate.  Obviously, CC intends to say that it is a simple summary for non-lawyers.  Some will think that I'm being too sensitive here, however, I believe that using the term "human-readable", aside from reinforcing some of the nastier stereotypes about lawyers, also reinforces the idea that lawyers use a different, incomprehensible language.  I find that two types of lawyers tend to do so: those not confident enough to make things simple -- e.g., afraid to replace "any and all" with just "any", and those who are pompous and throw in every heretofore and therewith to add to the cloak of mystery around what it is to practice law.  Finally, some of the worst examples come from non-lawyers trying to "write like lawyers".

Thus, I would change the terminology to reflect "summary" v. "detailed"  rather than "human" v. "lawyer" -- as even the detailed documents should be eminently readable by humans; those are the kinds of documents really good lawyers write.

Jim Sowers
Lawyer :-)  (DJ, Dance Teacher, Motorcycle Adventurer)

On 11/21/06, Andres Guadamuz <a.guadamuz AT ed.ac.uk> wrote:

Luis,

While I don't know if there was any sort of doctrinal consideration with
the creation of the Commons Deed, I can tell you that at least in
Scotland we drafted the licences under the requirement of writing form
contracts in "plain intelligible language" contained in section 6 of the
the UK's Unfair Terms in Consumer Contracts Regulations 1999:
http://www.opsi.gov.uk/si/si1999/19992083.htm

Regards,

Andres

Luis Villa wrote:
> Hey, all (but really primarily to the lawyers on the list :)-
>
> As I was stumbling through Contracts this morning (specifically, a
> lecture on interpretation of contracts) I was reminded of the human
> readable versions of CC contracts/licenses. The question that came to
> mind: were those inspired by any particular strain of academic thought
> on license legibility/usability? Or did they just come out of a
> general ease-of-use impulse? If there was a strain of academic thought
> on the issue that was inspirational or otherwise important, any
> pointers to where I could start reading?
>
> Thanks in advance- let me know if my question itself is incomprehensible :)
> Luis
> _______________________________________________
> cc-licenses mailing list
> cc-licenses AT lists.ibiblio.org
> http://lists.ibiblio.org/mailman/listinfo/cc-licenses
>

--
Andres Guadamuz
AHRC Research Centre for Studies in
Intellectual Property and Technology Law
Old College, South Bridge
Edinburgh, EH8 9YL

Tel: 44 (0)131 6509699
Fax: 44 (0)131 6506317
a.guadamuz AT ed.ac.uk
http://www.law.ed.ac.uk/ahrb/

IP/IT/Medical Law LLM by Distance Learning
http://www.law.ed.ac.uk/distancelearning/

--
    Charles Iliya Krempeaux, B.Sc.

    charles @ reptile.ca
    supercanadian @ gmail.com

    developer weblog: http://ChangeLog.ca/


_______________________________________________
cc-licenses mailing list
cc-licenses AT lists.ibiblio.org
http://lists.ibiblio.org/mailman/listinfo/cc-licenses