Where's the beef (again)?

Reposted from the Motor Law blog, because it's just too good not to share here too:


America is a difficult place to understand sometimes. Well, most of the time. An extraordinary degree of importance is attached to TV ads showing during the Super Bowl, and this year a General Motors ad has caused a furore. Bear with me - it does have a legal aspect.
The commercial plays on the Mayan calendar's prediction that the end of the world will come in 2012. According to the GM ad, surviving the end of the world (which, when you think about it, is a pretty pointless thing to do) depends on driving a Chevrolet Silverado.

Ford took exception, because the guy who didn't make it to the meeting place after the apocolypse drove the Ford competitor, the F-150.  The F-150? Isn't that the Formula One car? Or am I confusing it with the Ferrari pick-up? Either way, Ford seems to have suffered another corporate sense-of-humour failure: according to GM, the ad is an over-the-top spoof with "the devastation and destruction predicted to occur this year by the Mayan calendar [including] giant attack robots, meteors and frogs falling from the sky." GM's Global Chief Marketing Officer Joel Ewanick said:

We stand by our claims in the commercial, that the Silverado is the most dependable, longest-lasting full-size pickup on the road. The ad is a fun way of putting this claim in the context of the apocalypse.

The ad implies that the Silverado is more durable than the F-Series pickups, with Ford countering that there are more of its trucks on the road with at least 250,000 miles on them. Ford's lawyer has written to GM demanding that they "immediately cease and desist from making any unsubstantiated and disparaging claims regarding Ford's pickup trucks."
GM, still in the spirit of the ad, claim "we can wait until the world ends, and if we need to, we will apologize," continuing (probably not believing their good fortune at the additional publicity being generated by their rival):

In the meantime, people who are really worried about the Mayan calendar coming true should buy a Silverado right away.

Now (to pick up the legal theme in this story again), different countries have different approaches to comparative advertising. It almost invariably involves the use of a competitor's trade mark: in the Silverado ad, the F-word is used - and I don't mean Ferrari's parent ... So there is a prima facie trade mark infringement, except that most laws allow you to use your rival's trade mark to indicate its products. In the UK, it would have to be in accordance with honest practices in industrial and commercial matters and not take unfair advantage or be otherwise detrimental - broadly speaking it would have to be fair. You don't have to study American advertising practice for long to spot that they are rather more liberal over there: which makes it even odder that Ford should have reached for its lawyers over something like this - giving GM the oxygen of publicity even though it seems they had no intention of going further.
In a rational world, Ford's remedy would be to take the corresponding advertising slot next year and come up with something as amusing and memorable. If, that is, there is a next year.

So, what's the big deal about 9 November?

The same correspondent as I quoted earlier also writes:

And what does 7/8 mean to you? 7th August or 8th July ? This was one where, back in the 1990s and the days of contracts to develop computer or video games, some thought went into whether to "spell out": if the contract was US-driven and delivery of code was required (as it often was) early-October, then there could well be oral agreement for a date of 12th October - so 10/12 was tucked into a Schedule (no "spelling out") and then, if code wasn't on track for delivery, a reasonable argument arose over working to 10th December because that's what the US-driven contract meant by 10/12 ...

I don't recall ever encountering this in a contract, but it is certainly ripe with ambiguity, as I was reminded last year at the première of Richard Blackford's oratorio, Not In Our Time. On 11 September, not 9 November.

The Oxford Style Manual naturally tells us to use day-month-year, and notes that in America the order month-day-year is used. Surely it is much more logical to proceed from the smallest unit to the largest rather than jumping around? Or going from largest to smallest would also make sense, which is what we do with hours, minutes and seconds - an approach promoted by the International Standards Organisation, but not one that would help very much in legal drafting, where the only workable solution seems to me to write out the month in full.

Next: billions.

More irritating writing habits ("Irritating Things")

A long-standing friend dropped me a line yesterday, having read my posting, to reminisce about teaching Wills - something that I'd probably want to forget, had I ever done it: I certainly want to forget about teaching conveyancing, as the students did immediately -  and reinforcing numerals with the numbers spelt out in full. That way round, definitely.

[The] primary reason was to add certainty to the will which was only likely to be read after someone died and avoid "He definitely said he was going to leave me £100,000 - £10,000 cannot be right!" and [the] secondary reason was to draw attention to numbers when someone (usually emotionally) was checking through a will prior to signing. I kept the habit in commercial life because when prices were being changed from draft to draft over (sometimes) months - the words really helped keep track of totals payable.

Yesterday I was reading through a contract, drafted by one party and apparently approved by another, and evidently satisfactory as far as my client was concerned. I was however the first lawyer ever to come anywhere near it ... It purported to deal with the paternity right of a corporate body, and also protected the personal data of the three parties none of which are natural persons; it required none of the parties to do more than use reasonable endeavours to discharge the key obligations it imposed; and, the real reason for this digression, it contained many words and phrases given capital initials in the manner of defined terms, but not a single definition. Which reminded me how much I hate unnecessary defined terms.

Don't get me wrong, I love the way playing with defined terms in a legal document can have a huge effect on its meaning, and how a long and impenetrable contract can be made so much more terse and comprehensible by judicious use of defined terms. If I were minded to improve the one I read yesterday the first thing I would be would be to introduce a set of defined terms. I don't, however, feel that defined terms add anything except pomposity to client briefings and newsletters of the sort mass-produced by what I suppose we can now properly call "law firms", those professional organisations formerly known as firms of solicitors. Here's a doubly appalling example (no names, no packdrill) which I found after about 15 seconds' research on the Net:

The Bribery Act 2010 (the Act) 
The Bribery Act 2010 (the Act) came into force on 1 July ...

Classic! Just in case, in an article about the Bribery Act 2010, the reader would have trouble understanding what the author (who was not identified) meant by the expression "the Act". This is what  Robert St Ivo might call the Statement of the Bleeding Obvious school of drafting. I wonder whether it was a fee earner or someone in the firm's marketing department (they definitely have one) who created that abomination?

Even when used in legal documents, the irritation value of defined terms is greatly enhanced when bold type is used for them. I fail to see what additional value this has, unless the document is being written for the benefit of someone who is too dim to understand how these things work. The same goes for defined terms in block capitals, which are less often encountered but which seem to me to be equally unnecessary.

Next: date formats. I can hardly wait to let off steam!

Three (3) things that really irritate me ...

I already aired my views about the bastard conjunction (pace Viscount Simon LC) "and/or", and I just encountered another piece of drafting nonsense that always gets my goat. I entered a competition online, and the rules state -

Two (2) prizes are available. Prize A consists of two (2) economy return flights from Heathrow to Rome and three (3) nights accommodation in a four (4) star hotel in a double/twin room on a bed and breakfast basis. Prize B consists of two (2) economy return flights from Glasgow to Rome via Heathrow and three (3) nights accommodation in a four (4) star hotel in a double/twin room on a bed and breakfast basis.

You don't need to know whose competition it is - anyway, I don't want everyone entering and lengthening the already considerable odds against my winning. What is it with this "number (numeral)" thing? And why that way round? I recall seeing it first, many years ago, where the number was spelt out in words to avoid ambiguity. That was probably back in the dark ages when people wrote using pen and ink (as I was reminded when I wrote a rare cheque yesterday), or typed on sometimes-not-very-legible typewriters, but there is not the slightest possibility of ambiguity arising in clearly presented type on a computer screen. Why do it? There are rules - somewhat variable ones - about when to spell out and when to use numerals: the Oxford Style manual tells me that at OUP the change is at 100, which seems very high; the Economist Pocket Style Manual sets it at 11. The author of the competition rules doesn't seem to agree with either. Would Viscount Simon have called these "bastard numbers", I wonder?

My third bugbear - might as well get them all off my chest at once - is the common use of 23:59 as closing time for competitions and other matters that require precision in this regard. Fine, the promoters are at liberty to set whatever closing time they like, and if they wish to have the competition close at such an odd time of day that's their privilege. If they are potentially giving something to me for nothing, I won't quibble about the qualifying terms. If, however, they have chosen to use one minute to midnight because they cannot grasp, or fear that entrants will not be able to grasp, that the day ends at 24:00, I have no sympathy. It is not a difficult concept. It is not even difficult to grasp that 24:00 one day is exactly the same instant as 00:00 the next. To carve out a minute here and there is nothing but laziness, and a lack of intellectual rigour.

And if I were to enumerate a fourth, it would be the unbalanced parallel construction, but let's leave that for now.

Back on the road again

You might have noticed, gentle reader, that I haven't been podcasting lately. There are several reasons. My sponsorship from Olcott International ran out, too many subscribers did not renew, the SRA needed another pound of flesh, and I had taken on a part-time job at the RIBA in addition to continuing to practice law and running a legal publishing company. Something had to give, at least temporarily. At least I could draw encouragement from the fact that the non-renewals liked the product, just didn't get a chance to listen. As one of them wrote:

It's not like listening to a lecture at all, more like sitting having a conversation with a very knowledgeable (and funny) friend ... You have a very clear way of putting things and a very reassuring voice, and I like the way you maintain your enthusiasm throughout.

Now I am ready to get started again. Having a publishing company to assume responsibility for it is a big help (although it makes no difference to who is doing the work - it's still me, with help from the same group of assistants, depending on their other commitments, plus a new one I hope). On the other hand, I have also taken on some tutorial work, at the Russian Academy of Justice in Moscow. In Cheryomushki, to be precise, though it's far removed now from what Shostakovich depicted in his opera set there.

So, the hiatus is over, and I will even try to work back to where I left off - last July. Five missing programmes, if I can manage to reverse-engineer them, but I'll concentrate on getting the new ones recorded and published. I will get January done when I get back from Moscow ...

Revived copyright suddenly becomes less of a problem

Every New Year's Day, copyright stops protecting works whose author died during the year seventy years earlier. This year, one of those authors affected by the rule - whose works (the published ones, at least) now fall into what is loosely called the public domain, is James Joyce, and this brings to an end a particularly unfortunate episode in the history of literary copyright. This article in the New Yorker by Mark O'Connell explains, and it's well worth the time of anyone interested in copyright to read it.

The coming war on general-purpose computing

That's the title of a great piece, originally a speech to the Chaos Computing Conference in Berlin last December, by Cory Doctorow. It's not as long as it looks at first glance: there are a lot of comments on it.

Bahamas remiss in making copyright payments

I'm astonished by this story from The Tribune (no, not the one with the Group, if it even exists any more) about how a fund to pay rights owners for the use of their copyright material in The Bahamas has paid out nothing in the eleven years of its existence. Not a matter of earth-shattering importance, though significant to many of those waiting for their money I dare say: but I thought it was worth passing on.

It's a long-running saga, on the theme of small country being beaten up to make it do what the US film industry wants: see this blog entry from a few years ago. Thanks to Cathy Gellis for pointing out to me this additional (predictable) dimension to the story. Still hard to see why all that money has been sitting there with no mechanism to pay it out, though!

Patent wars heating up

Nowhere is intellectual property taking on the characteristics of an end in itself rather than a means to an end than in the mobile phone world. Enforcing patents must be taking as much time and effort as making the phones in the first place. Last week The Guardian reported another development, with IPCom (frequently cast as perhaps the biggest villain of the piece) taking action against retailers selling HTC smartphones in Germany. The report is impressively coherent for a newspaper: the author (Charles Arthur, the paper's technology editor) clearly knows more than a little about patent law. Most journalists would have made this into a story about copyright and trade marks too.

HTC said it knew nothing about any complaints against retailers and that the patent it is alleged to be infringing is in fact invalid. One good reason for having infringement and validity dealt with in the same court? Not in this case, it seems (though the principal remains) because the challenge to the patent takes the form of an opposition in the EPO, the outcome of which is expected on 24 April 2012. By which time an awful lot of HTC handsets will have been sold, or not.

Tougher data protection laws on the way

The European Commission has long been concerned about how Internet businesses treat personal data. Its proposals for a new data protection regulation (to replace the present directive and overcome the problems that arise from the need to transpose the rules into national law) are due to be published on 25 January. The Commission aims to give consumers the power to control the way their personal data are processed by companies, and to impose a bit more discipline on data controllers by introducing fines of 5% of global turnover for businesses who are found to be in breach of data protection laws.

The draft also proposes to introduce obligatory data protection officers for all public sector bodies and private sector bodies with more than 250 employees. The directive made that something that Member States could choose to have: Germany already had it when the directive came into force, hence its inclusion, but the UK government always said it would not be taking up the option. Now it seems it will have no choice - but what organisation of that size doesn't already have a data protection officer, even if they have a load of other responsibilities too?

Fair dealing as a user's right

In this fascinating post on his blog, Ariel Katz of the University of Toronto explains a number of facts about the fair dealing "exception" which have been lost to sight in the century since the Copyright Act 1911 received Royal Assent - on 16 December, a milestone that I was too preoccupied with other stuff to notice. I'll have to be more alert for the centenary of the 1956 Act.

I have been musing on intellectual property rights and corresponding obligations since at least yesterday, after something the IPKat said, and Ariel Katz's piece fits very neatly with that. Fair dealing as a user's right, not a mere exception to the owner's rights. This is how US and UK copyright laws came to diverge, then: this is the difference, exiguous as it might be, between fair dealing and fair use.

And what an excellent title for the piece.