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liadnanThe more computer-geeky among you almost certainly know a great deal more about the ongoing SCO v. IBM litigation on alleged IP infringements in linux than I do. Personally, given I know next to nothing about computers and not a great deal about English IP law, let alone that of the US and specifically the state of Utah, I have nothing worth saying about that itself, though I do find myself raising my eyebrows when I learn that SCO have taken two and a half years from issue to file what they say is their full particularisation of what IBM actually did, and then done so under court seal. I'd hate to have to defend that one on a wet Wednesday afternoon interim application in the commercial court or the TCC. As is often the case with legal stories (and also history) I'm in that comfortable position of knowing enough to know I know nothing...
What struck me about the story when reading about the latest developments yesterday was a separate point: 'SCO said, "The numerosity and substantiality of the disclosures reflects the pervasive extent and sustained degree as to which IBM disclosed methods, concepts, and in many places, literal code"'.
I presume "literal code" has some technical meaning and isn't just the usual wanton abuse of the word literal when they mean something along the lines of "actual". But "numerosity and substantiality"?
People often come out with some variant on the assertion that 90% of all communication is non-verbal. For all I know this is, in some senses, a fair statement. But assuming by verbal they (correctly) mean "by words", rather than "by spoken words" I do find myself wondering how well most communication would get on without the other 10%. Not to mention the vast number of communications that rely entirely on that 10%. Which is why I'm often irritated by people dismissing an argument as "mere semantics". Why is semantics -the art of interpreting what words actually mean- mere when words are so fundamental to how we relate to one another?
As a lawyer and as a would-be author I spend a vast amount of my time wondering what words actually mean, and almost as much time trying to say exactly what I mean, particularly when doing non-contentious drafting. There are, of course, instances when drafting formal particulars in litigation when there's a tactical advantage to leaving something open: if you plead something in vague hand-waving terms to put something in and hope that by the time someone asks for further and better particulars you'll have an answer (last time I tried this it backfired...). Or on a really good day, if you've made it to trial without anyone catching you out, you have wider options as to the case you're going to run. But more often than not you will indeed end up having to put some substance to your initial vagueness and run the additional risk of being told off by a cranky Master and penalised in costs for pissing about as well. So usually I plead cases quite tightly. That isn't the same as the neo-puritanism of the Plain English Campaign though: not only do their arguments seem in general to take all the life out of words but, frankly, what we do doesn't always fit their straitjacket. The terminology of a wide discretionary trust does not lend itself to little words, and if it's well drafted every word is there for a reason.
I have slightly lost sight of my point in my rambling, and it's a fairly short one. Not once, in all the essays, theses, short stories, particulars of claim, defences, case summaries, skeleton arguments, contracts, wills, and trusts for use in three different jurisdictions I have so far written have I felt the need to use the words numerosity and substantiality, or wonder what they mean.
ETA: In the meantime, another litigation juggernaut keels over and dies before reaching the finishing post...
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no subject
Date: 2005-11-02 02:39 pm (UTC)Nope.
Congratulations! You just found the 8,347th most absurd thing about the SCO case!
no subject
Date: 2005-11-02 02:52 pm (UTC)As a civil servant and fanfic writer, I probably spend about the same amount of time you do doing this! Quite a lot of it will be trying to tell lawyers as simply as possible what we want legislation to say.
no subject
Date: 2005-11-02 03:11 pm (UTC)As someone living in a country that uses a language I struggle in on a good day, I can weigh in here. And it is absolutely true, only 10% of communication is verbal. But, that 10% is the most important part, which is often over-looked when people talk about this.
Similarly, the brain may account for only 10% (or whatever, I have no idea) of your body mass, but it is an essential part - okay, you *can* communicate a lot without using words, I do it all the time, but eventually you need to be more precise and for that you need to speak.
When you talk about communicating by writing, things are different. I don't want to go there.
no subject
Date: 2005-11-02 03:12 pm (UTC)The Plain English Campaign really is a lowest-common-denominator force for "good", IMO. One of the most enjoyable things about the English language is its capacity for subtlety. In order to appreciate subtle English you need to have some idea where the words came from and what their original meanings were. These days few people have that advantage because people get such a drab education - it's more of a production line that turns out "product", rather than a system for nurturing a passion for knowledge. The result is people who are perfectly capable of answering questions, but who have never been educated to ask any.
There's no point in using subtle language where plain English would serve better - I mean, nobody wants an instruction panel on a bottle of aspirin that is in any way ambiguous (although this point is rendered moot by the fact that it's physically impossible to get into a bottle of aspirin these days); but the law in particular - provided it is written to be ultimately interpreted by judges - is not just suited to flexible wording, it's essential that it is worded flexibly, IMO. Otherwise we don't need judges.
And that possibility frightens me, and should frighten everybody.
The problem is that while a subtle language whose nuances require a certain type of education AND the ability to think in an open-ended way (a way which allows more than one meaning to a word, a phrase, a whole work; and many simultaneous meanings in combination) protects us all - like any system it is open to abuse and is - increasingly so - a class issue.1 It means there is one stratum of the populace who have power over the others. It means that those who can interpret that language most beneficially will benefit, while the stupid or uneducated will remain powerless. As such I can understand why people have an issue with the elegant use of English, and indeed why some people are outright suspicious of it. The point applies ever more as the population of Britons for whom English is a second language increases.
But the answer, of course, is to raise the standards of education (both for native and non-native speakers), not to somehow truncate English.
1 One need only look at the comments in that "Have Your Say" article I linked the other day to see the end result of a poor - a truncated or simple - understanding of English. All those idiots who think they can be British OR English OR European may be native English speakers, and jolly proud of it. But they're not native English-thinkers, because English is a language uniquely suited to shades of grey.
no subject
Date: 2005-11-03 04:42 pm (UTC)I take your point that "it is written to be ultimately interpreted by judges", but there's a danger that - using jargon and nuance for those in-the-know - it becomes wilfully obfuscating. Especially to outsiders. "Elegant use of English" (your term), to me at least, means without adornment: getting the nuance of meaning across in the most simple, direct way. Programmers talk of "elegant code" where they mean the simplest, least effort solution to a problem.
As for it being "dangerous" to write simply, I'd recommend Orwell's "Politics and the English language" - http://www.k-1.com/Orwell/index.cgi/work/essays/language.html
Why semantics is "mere" (as Liadnan originally asked) is an interesting one. Stephen Fry speaking at Birkbeck last week (to hawk "An Ode Less Travelled"), said that other art forms have specific tools: painters have paints and canvases, musicians their instruments. But writers (he was specifically talking about poets) must use the vulgar, everyday words that everyone uses - however educated, however much thought they put into them.
Oh, and Liadnan claims to be a "would-be author". There's no "would-be" about it, man. Hard evidence of this fact at the printers right now.
0tralala
no subject
Date: 2005-11-04 02:14 pm (UTC)Some judgments, incidentally, are a joy to read, and their clarity is a large part of why they're still the leading case more than a hundred years later. Others are so tedious you want to chew your arm off.
no subject
Date: 2005-11-02 03:16 pm (UTC)no subject
Date: 2005-11-02 04:13 pm (UTC)My understanding is that it has veered between the two according to what SCO thinks it can get away with on any given day. I think it originally started as copyright.
not to put any Unix code ... who owns Unix
My understanding is that all that's about SVR4, not Unix in general.
no subject
Date: 2005-11-02 04:14 pm (UTC)no subject
Date: 2005-11-02 05:34 pm (UTC)no subject
Date: 2005-11-02 05:21 pm (UTC)no subject
Date: 2005-11-02 07:18 pm (UTC)They're not, really. They're making a version of the stage musical, not remaking the film. Of course, it may well not be any good...