Words

[liadnan]

The 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...

Comments

[babysimon]

I presume "literal code" has some technical meaning

Nope.

Congratulations! You just found the 8,347th most absurd thing about the SCO case!