It’s a short license. Here are notes from my first couple reads through.
OCVSAL license only covers non-production use. It explicitly mentions separate “commercial” production licenses.
OCVSAL includes a built-in contributor license agreement. While we’ve seen that before in licenses like Apache 2, it’s not clear whether, when, or how those could really work. This one is particularly broad.
OCVSAL says that if your local law doesn’t allow disclaiming all warranties, you don’t get any license. That could affect more states and countries than folks might guess.
Open Core Ventures Source Available License (OCVSAL) version 1.0
Acronym is a bit of a mouthful. Versioning is good!
Using software and associated documentation files (the “Software”) in production requires a valid commercial agreement from the copyright holder.
Three cheers for putting the defining feature of the license up top. This is a non-production license. Expect to pay for production use.
I’m not aware of any definition of “production” that the law would impose. Under American contract laws, courts generally try to figure out what the two sides to a set of terms like this meant and would have understood at the time they made their deal. There is also a concept of “usage of trade”: identifying terms with special technical and business meanings and using evidence of what participants in those fields mean by them to interpret contracts.
Long story short, I’d expect a legal argument about whether a particular use of software under this license was “production” use to end up shaped like a battle of evidence about what “production” means among those in the US-based, English-speaking software business. That’s not quite as helpful or efficient as a fully fleshed-out definition in the terms, but probably pretty clear in many potential situations. It’s also a framing that points to what software people say and do, rather than empowering lawyers as the experts.
A small nit on the way this is drafted: vendors may also license through intermediaries like resellers. I’d probably say something broader than “from the copyright holder”, though I suppose that could be stretched to cover sublicensing, too.
The licensor grants you the right to modify the Software, test it, and share modifications to the Software, for non-production use.
Legally speaking, this is the operative crux, the “grant” where the titular “license” is actually given. It’s very, very short.
No mention of patents. Not a fatal law—see how far MIT and BSD got us—but a bit of a regression from the clarity of newer forms like Apache 2 and Blue Oak.
It’s an interesting choice that it does give the right to make changes, and even to share them. More about how those changes might be licensed coming below.
I’m struck that this grant does not mention copying, or “reproduction in copies” as the Copyright Act says. Of course, that will arguably go without saying, especially as a necessary step for “test[ing]” and “use”.
Neither does this grant mention sharing—“distribution of copies”—without modifications. Yet I’d assume that most adopters of this kind of license would be glad to see verbatim copies traded about like shareware, and not just provide downloads themselves.
You must retain this license on any copies of the Software you share with others.
Short notice-attribution requirement. Normal open-license stuff.
If you provide suggestions, contributions, or other feedback about the Software, you grant the licensor an irrevocable, royalty-free, unlimited license to use that feedback without restriction.
A built-in CLA, and a very broad one. This is mixing terminology that we’d typically see in the “feedback” sections of commercial license of SaaS terms with the kind of explicit license-grant language we’d see in a CLA.
The “Submission of Contributions” section of Apache 2 has long stood as an example of writing terms for licensing back from contributors into terms for licensing on to users. Enforcing that kind of term would be a new move at law, as far as I’m aware. I suspect it would depend very heavily on establishing license terms as the terms of a contract, rather than just a one-way license grant. There’s ongoing legal action around those rules now.
The license-grant language here starts to follow the orthodox drafting approach of listing out a bunch of adjectives for various properties of the license: “irrevocable”, “royalty-free”, “unlimited”. Some of the usual “flags” left out have defaults that I think suit the use case here. But I’d probably add “sub-licensable” explicitly, to make the thing that the project steward will want to do—incorporate the contributions as part of their project and continue licensing that project overall however it wants—explicitly clear.
THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
Typical all-warranties disclaimer.
IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
Typical open-style damages exclusion.
IF THE FOREGOING WARRANTY DISCLAIMER IS UNENFORCEABLE UNDER APPLICABLE LAW, THIS LICENSE IS VOID AND YOU HAVE NO RIGHT TO USE THE SOFTWARE.
Very important. This potentially makes the whole license a no-op in many meaningful jurisdictions. This includes US states that adopted the Uniform Computer Information Transactions Act—Maryland and Virginia—which imposes mandatory warranties, with an exception for “free software” that I would read to clearly not apply to software offered under commercial license for production use.
This isn’t completely new. I’d argue the EUPL does the same.
I’m not sure whether this kill-switch is meant to apply just if the warranty disclaimers aren’t enforceable, or also if the damages exclusions aren’t. I’d clarify that, if only to throw light on which jurisdictions the license doesn’t work in.
]]>In the real world, there was no enhance button. Sometimes a photo just wouldn’t show you what you needed to see. So you had to search around for a better image and wait for it to download. Or you had to go back to the source.
Something similar is happening with advice to some of my clients. Instead of reading what I write for them, they’re pasting it into chatbots for summaries, then reading those summaries instead. It’s fast. It’s cheap. It’s at least notionally private. They don’t have to tell me they’re doing it.
More often than they might hope, I can tell.
When I give advice, I am nearly always summarizing something from the get-go. Unless we are really in the weeds of some specific risk assessment or legal theory, I rarely copy-paste statutes, regulations, or court opinions at my clients. Rather, it’s my job to give the shortest, cleanest generalizations of the rules that work for the decision they need to make—abstractions of the law that leak off into irrelevant space, not all over their dreams and plans.
I pick the level of each abstraction. That is often one of the most important decisions I make in service of a client on a problem. How high-level can we talk? Where do we need to drill down from there?
LLMs give my clients a silent veto over these decisions. Prevailing trends toward ever sparser chat- and text-style writing, plus the ever crushing weight of time pressure, push them in one direction: fewer words, fewer details, terser summaries. In other words, lossier pictures of the law, more riven with smudge-blobby background, corrupted lines, and arbitrary aberrations. Cheap automatic summaries of expensive professional précis of complex, often unsynthesized source material.
Based on prior, pre-LLM experience with expertise, I suspect using a chatbot to do this looks and intuitively feels different from using an LLM to flesh a subject out. Few remain surprised now when prompting an LLM too hard summons out inscrutable gobbledygook littered with allusions or even citations to nonexistent authorities, thanks to the headline-grabbing lawyers who’ve fallen in this hole by the pageful. But I’m not aware of any similar click-grabbing parables for the dangers of chatbot summarization, unless you squint and count the poor souls who’ve convinced themselves they’re geniuses or prophets. Given the abstractness involved—we’re talking about a general pattern with the process of generalization here—I wonder if there could be such a story.
Having made that rather lofty generalization-of-generalities point, I feel a sudden urge to touch ground again. Perhaps that’s the kind of instinct that’s helping keep some of us sane these days.
Take the basic rule of copyright ownership that authors own the rights in their works. That’s a fair general statement of the law on the books. It’s also a dangerous thing to tell a client involved in working business. In business, the “rule”—the normal thing that usually happens—is that legal rights end up with employers and clients. Sometimes the law itself gives them over. Sometimes they get there through contracts most everyone signs.
Even that more practical heuristic lays traps for unwary clients when exceptions matter. Is the client dealing with contracts doing one of the kinds of jobs that can be “work made for hire” under the statutory definition? Is telling the client about “ownership” without mentioning some creators’ rights to terminate old deals after 35 years heaping on irrelevant trivia or pointing out a critical wrinkle? Do we need to talk exceptions just under current law, for new work, or do we need to consider old rules for older works, as well?
Not every legal question points to a decision tree as knotted as this one. But this one’s not an especially crooked specimen, either. The law can do far worse, then flock a few branches with uncertainty, besides.
It is a totally normal part of a functioning lawyer’s day to mentally scale levels of abstraction like this, picking and choosing where to stand the client, what to point at, and what wave past. After all, every irrelevant nuance, variation, and aberration costs money to write up, eats client time, and drags the convo closer to their limit, where there’s just too much new information, they’re overwhelmed, we all fall down, and we have to double back again.
Getting good at neither coddling nor firehosing clients is a significant part of the difference between being a good law student and being a good lawyer. If you learn all the rules, exceptions, and citations and stop there, you are at best fully equipped to waste a lot of client time. Practicing law is often partly teaching law, but unless the job is law professor, we’re rarely called on to teach anybody everything on any particular point. Hiring a lawyer is not attending law school secondhand in installments. We pay lawyers to think, not just remember.
Still, we’ve all seen the kind of run-on, over-inclusive, largely unhelpful advice that comes from counsel who “dump” the law as they learned it, or in the raw form they recently dug it out of the books, without any tailoring to their reader or the problem. This is what a lot of law-student and new-lawyer writing looks like.
Overshooting on detail is apparently a natural tendency for competent, aspiring minds learning the field. Now we’ve given clients the tools to overcompensate by undershooting. We’ve automated it, hyped it, and subsidized it.
I have also seen a second, related danger. I’m less confident I can spot this when it’s happening, but I’m developing a hunch that’s more often than I first thought.
To summarize a summary is not just to compress an already compressed explanation, but also, often, to reword it. Choice of words can be important in what I do. Not inevitably in the cartoonish way those with little experience of the law tend to suppose, where failing to say exactly the right thing makes no magic. In a more serious way affecting how much advice my clients need, longer-term.
Many of my clients, maybe most, have heard me say that it’s my job to learn their language, not their job to learn mine. I’ve found this to be an effective way of signaling that it’s on me to write and speak so my clients understand, and on them to complain when they don’t and not feel sheepish about it. It’s a framing tool like the flipped form concept, but for correspondence, not just drafted operative terms.
Still, there are occasionally tidbits of jargon that just make sense to teach and to learn. To help clients communicate with others besides me. To help them search out supplementary materials. To make them seem savvy in more experienced company.
Sometimes these are words or phrases directly from primary sources, like “derivative work” in the Copyright Act. Sometimes they’re live concepts in law or business practice, like “right of first refusal”. And sometimes they’re well distributed technical terms, like “forking” in software. It’s important to be able to explain each of these in Real English. But there’s separate, identifiable value in knowing which shorthands get said and heard.
When a client uses a chatbot to effectively rewrite my guidance, I lose control of how worthwhile terms get introduced. I lose control of how they’re sprinkled through the text later, to develop fluency. Both content and presentation end up on invisible autopilot. There is no bright line between those in the law.
I’ve seen this bite in particular where a client takes a summary without telling me, advances the conversation, and then misunderstands a later message. All of a sudden, it turns out they weren’t following along on all the levels I’d assumed. They weren’t getting everything they paid for, either.
If I was going deeper or longer than suited their needs, that should have been said, and I should have adjusted, potentially reducing their bill. As they fell deeper behind on the lingo then anticipated, I can only expect they hit their limit sooner, potentially inducing yet more summarization on the sly.
None of this is to say it’s all bad. There is a pressure coming here that I feel I ought to welcome.
I blog in sections. My e-mails often come with bold-faced headings. I do a lot of outlining. Increasingly chat-, text-, and tweet-driven workstyles are veering ever further away from my preferred dose and concentration of prose. And yes, I’m getting older.
I see some strong if somewhat hand-wavy arguments that slower, longer, and careful writing better suit at least some of the kinds of work clients pay me to do. But in the same way it’s on me to write so clients understand, there’s a strong case it should be on me to write more like what they’d prefer to read, as well.
Fortunately, while the dramas of this new lawyer-client dynamic interest me well enough, I don’t think they point to any kind of newfangled remedy. I need to keep pushing myself, and setting clients up to push me, toward plainer, shorter, better organized writing. We also need to stay on the level. If clients are in positions that drive them to interpose chatbots between us, whether out of verve for the tech or simply under time crunch, I should be making it clear that’s something they should tell me they’re doing. I should be prompting them to say so.
]]>]]>PolyForm Noncommercial License 2.0.0-pre.2
https://polyformproject.org/licenses/noncommercial/2.0.0-pre.2
Noncommercial Use
This license gives you free permission for this software, but only for noncommercial uses. The next two sections give examples of noncommercial uses, but do not rule out others.
Personal Uses
Research, experiment, and testing for the benefit of public knowledge, education, private entertainment, hobby projects, amateur pursuits, and religious observance are all noncommercial uses.
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Work on behalf of any charitable organization, educational institution, public research organization, public safety or health organization, environmental protection organization, or government institution are all noncommercial uses.
Copyrights
The licensor gives you permission under its copyrights in this software to run, make copies of, make changes to, and share copies of and changes to this software, but only for noncommercial uses.
Patents
The licensor gives you permission under any patent claims it can license, or becomes able to license, that you would infringe by running, copying, changing, or sharing this software, but only for noncommercial uses.
Notices
Make sure anyone who gets a copy of this software from you also gets a copy of this license or the URL for it above, as well as copies of any plain-text lines beginning with
Required Notice:that the licensor provided with this software.Fair Use
This license does not limit “fair use” under copyright law.
No Other Rights
You may not sublicense or transfer your license for the software to anyone else. The terms of this license do not imply any other
licensespermission.Patent Defense
If you claim in writing that this software infringes or contributes to infringement of any patent, your patent permission under this license ends immediately. If your company claims in writing that this software infringes or contributes to infringement of any patent, your patent permission ends immediately for work on behalf of your company.
Violations
The first time the licensor warns you in writing that you have violated any term of this license, or done anything with the software not permitted by this license, your copyright and patent permission under this license can nonetheless continue if you come into full compliance with this license, and take practical steps to correct past violations, within 30 days. Otherwise, your copyright and patent permission under this license ends immediately.
No Liability
As far as the law allows, this software comes as is, without any warranty or condition. As far as the law allows the licensor will not be liable to you for any legal damages related to this license or this software, under any kind of legal claim.
You and Your Company
Throughout this license, you refers to the individual or legal entity agreeing to these terms, and your company refers to any legal entity, sole proprietorship, or other kind of organization that you work for, plus all organizations that have control over, are under the control of, or are under common control with that organization. Control means ownership of substantially all the assets of an organization or the power to direct its management and policies by vote, contract, or otherwise.
If you have a chance to read through, do share any thoughts to [email protected]. We give these licenses away for free, and put a ton of extra work in to try and make them approachable. Every fresh pair of eyes and fresh perspective makes the terms better for all involved.
]]>PolyForm Noncommercial License 2.0.0-pre.1
https://polyformproject.org/licenses/noncommercial/2.0.0-pre.1
Noncommercial Use
This license gives you free permission for this software, but only for noncommercial uses. The next two sections give examples of noncommercial uses, but do not rule out others.
Personal Uses
Research, experiment, and testing for the benefit of public knowledge, education, private entertainment, hobby projects, amateur pursuits, and religious observance are all noncommercial uses.
Noncommercial Organizations
Work on behalf of any charitable organization, educational institution, public research organization, public safety or health organization, environmental protection organization, or government institution are all noncommercial uses.
Copyrights
The licensor gives you permission under its copyrights in this software to run, make changes to, and share copies of and changes to this software, but only for noncommercial uses.
Patents
The licensor gives you permission under any patent claims it can license, or becomes able to license, that you would infringe by running, changing, or sharing this software, but only for noncommercial uses.
Notices
Make sure anyone who gets a copy of this software from you also gets a copy of this license or the URL for it above, as well as copies of any plain-text lines beginning with
Required Notice:that the licensor provided with this software.Fair Use
This license does not limit “fair use” under copyright law.
No Other Rights
You may not sublicense or transfer your license for the software to anyone else. The terms of this license do not imply any other licenses.
Patent Defense
If you claim in writing that this software infringes or contributes to infringement of any patent, your patent permission under this license ends immediately. If your company claims in writing that this software infringes or contributes to infringement of any patent, your patent permission ends immediately for work on behalf of your company.
Violations
The first time the licensor warns you in writing that you have violated any term of this license, or done anything with the software not permitted by this license, your license can nonetheless continue if you come into full compliance with this license, and take practical steps to correct past violations, within 30 days. Otherwise, your copyright and patent permission under this license ends immediately.
No Liability
As far as the law allows, this software comes as is, without any warranty or condition. As far as the law allows the licensor will not be liable to you for any legal damages related to this license or this software, under any kind of legal claim.
You and Your Company
Throughout this license, you refers to the individual or legal entity agreeing to these terms, and your company refers to any legal entity, sole proprietorship, or other kind of organization that you work for, plus all organizations that have control over, are under the control of, or are under common control with that organization. Control means ownership of substantially all the assets of an organization or the power to direct its management and policies by vote, contract, or otherwise.
Fine points on Latinate terms like “association” become weaknesses as soon as answering up requires more than a united front of your own. Heaping on nominalizations like “correlation” and “causation” won’t reach the people who don’t hear “association” like you do in the first place. For any willful distortion especially, they are the audience. It actually hurts that the go-to zinger rhymes. It makes it so fun and easy for insiders to repeat that it edges out any other, perhaps plainer expressions.
I could offer “refutation does not entail comprehension” here, and perhaps that would stick. It would still miss the point. That’s not common English, either.
Responding effectively means speaking to be understood by a lot more people, without any hint that you expect to impress them. A ready stock of relatable metaphors. A cheat sheet of lived examples. Parables for the present day.
I’m sure the art of the telling has advanced since “ice cream does not cause drownings” back when I was in school. Yet despite seeing no little coverage of this new autism line, I couldn’t tell you the go-to case of a medical treatment wrongly ditched before the data actually condemned it. That talking point is simply missing in action.
I write about this not to score inter-specialty rivalry points. I’ve never seen the booth where we can trade those in for prizes. I write because law’s been on the ropes, too, tripping in a tangle of it own untied bootlaces.
Lawyer talk also has Magic Latin Disease. Big time. Plus Bunk French and a penchant for hijacking actual English. I’ve no better hope for dusty constitutional clunkers like “habeas corpus”, “attainder”, and “ex post facto” in the line of modern rhetorical fire.
So little of “English Liberty” wound up in actual English in our constitution. We could find that shocking if we didn’t know full well how this happens to speech. The obscure lingo and dusty decorum that make students feel like admitted wizards in law school, then shield them from muggle meddling in practice, have their price. Scrambling for competence and acceptance, then achieving them by wielding the new language, we get no systematic practice making plain to others, or even to ourselves, what our cryptic incantations have to do with important stories and lessons of the past. Without the voice to speak right back down to that grounding, our fancy warbling comes to seem rootless, the weird, constructed language of some long-inherited mass-consensual fairy land of lawyers.
The rhetorical pressure on the details blows out the other end of the language. Ever more often, glittering generalities like “freedom” and “liberty” don’t summon the magic like they used to, because they’ve served too long as mere call-outs to a vague collective will to keep things calmly carrying on. As terms, they may have been defined somewhere, but they weren’t renewed by usage in frank, informal conversations. If they don’t stand for specific stories, they can mean nearly anything. Once openly contested, they do.
We’re seeing lower-court judges mash the panic button now, trying to write directly for the public. But they’re doing it pages deep into twelve-point, double-spaced, Times New Roman PDFs, hidden behind boilerplate for we-can-decide-this and here’s-how-we-do-our-job, minced with cryptic Bluebook citations, then buried on one of hundreds of bad .gov websites or locked behind a shameful publicly funded paywall. This grim gauntlet for human attention ensures that only scant quotes picked by the gaunt carrion birds of the headline-driven media make it out to broader circulation. The judges don’t even get to choose which ones.
Meanwhile, the Supreme Court pauses court order after order against executive action, often without a word of explanation. The “emergency” animating the suddenly lively emergency docket seems more and more like great haste to rewrite the rule that says the legislature can limit who the president can fire, on the way to a more “unitary executive”. Such a rush, indeed, that they want the game played by the new rules right now, even before they get around to rewriting them, much less explaining why.
These are tense times, but there is opportunity here, as well. The political moment makes it suddenly expedient to do what has too long been put off. Test our understandings of the foundations of our fields by proving we can put them in plain terms other people understand. Revisit the styles and habits of work that have grown so insular, strange, self-referential, and estranging over time. Work on legitimacy, rather than simply expect it.
It’s no great joy to know the costs as well as the benefits of the way we specialists get things done. But there is dignity in facing them.
]]>Trade places with me now. You’re the lawyer. You want to encourage more people who aren’t lawyers to do their own legal drafting and get away with it. Perhaps you could publish some boilerplate they could copy into their homebrew terms, to help them work more reliably with judges. What do you put in there about writing style?
The common crux is legalese, our collective shorthand for all the ways legal writing differs from regular writing for the worse. A big letdown in learning legal drafting is learning how little legalese the law itself requires.
Competently drafted legal terms grate even literate people who willingly read for fun, mostly because lawyers keep choosing to write badly. They grate judges, too, who fill their bar journal articles, books, and even legal opinions with threats and pleas for better prose. Some legal subjects are complex, but writing on complex topics can itself be easy or hard to read. Too often, lawyers just make it hard.
This being law—and life—there are, of course, exceptions. Some legal principles do encourage legal writing to be bad writing. To reduce legalese among lawyers, or to secure better handling of terms written without them, we have to get specific about those standards.
I’m tackling one, my prime culprit, today: the rule to read legal writing consistently.
Reading legal terms consistently means two things in practice:
Read repeated words and phrases the same.
Read different words used together distinctly.
If “property” clearly includes intellectual property in a section granting licenses, read “property” to include intellectual property in the warranties section, too. If “publish” and “distribute” both appear in one long list, read “publish” to mean something more or different from “distribute” there.
Reading Law: The Interpretation of Legal Texts, a systematic if controversial guide to interpreting legal language by Bryan Garner and the late Antonin Scalia, calls these principles the “Presumption of Consistent Usage”. Their book tries to list all the “canons” and other rules of legal interpretation, so they include it. But they frankly admit that it’s flawed and unrealistic. The rule often misfires across different contexts. It clearly doesn’t apply across the law as a whole. And it flouts the general point of prose style: that smooth, varied description makes writing clearer and easier to read.
Still, the advice we see to drafters, in Reading Law, Making Your Case: The Art of Persuading Judges by the same authors, A Manual of Style for Contract Drafting by Ken Adams, and other manuals for lawyers is basically to suck it up, try your best, and accept humility when you fail. Garner and Scalia are direct about the trade-off in Making Your Case:
the same word should be used to refer to a particular key concept, even if elegance of style would avoid such repetition in favor of various synonyms
As in Reading Law:
[M]ore than most other canons, this one assumes a perfection of drafting that, as an empirical matter, is not often achieved. Though one might wish it were otherwise, drafters more than rarely use the same word to denote difference concepts, and often (out of a misplaced pursuit of stylistic elegance) use different words to denote the same concept.
The rule is a gem. We are unworthy.
I don’t see any tragedy here. I see folly. If even attentive and talented lawyers—the Major Leaguers Scalia tended to read as Supreme Court justice, for example—reliably fail to live up to the rule, and even when they do, they’re writing’s only worse for it, then the rule is not in the service of man. It’s another bad choice we lawyers keep making.
For lawyers’ sake, for DIY-ers’, and even for judges’, what can we do?
We could try to jar readers less, imposing less brain pain, by adjusting their reader expectations downward. Put each sentence on its own line, semantic line break style, or write bullet points, or stick each sentence in its own numbered section.
Drawing sentences as discrete blocks on the page, separated by white space, cues on sight that the language comes in chunks readers will need to bite off and chew one by one. It also reduces the chance that reading eyes will get unstuck from the page, crash land again on the same word droned verbatim in some different nearby sentence, and lose a few seconds to déjà vu or dawning discontinuity. Another consequence of the inhumanity of regimented repetition.
If we’re firmly committed to forever strive toward unattainable, inhuman consistency, like hopeful sinners planning to need confession, this could make sense. Don’t just write differently from usual, but format differently, too. But we know better—nobody’s perfect, Utopia was satire, and this rule isn’t a reliable friend to the best us—this isn’t being careful, it’s being meek. As drafters, we’re given far greater power to affect reading and meaning. We can do more than split lines and twiddle margins.
At least for the second aspect of the rule—when they see two different words, courts will try to make up a distinction—we can simply tell the court to knock it off. Define the terms as synonyms.
We see this in orthodox American legal drafting already, especially in party names:
This is an agreement between ACME, Inc. (“ACME” or “Seller“)…
In the wild, this is often down to laziness or haste. If you copy-and-paste bits written using different defined terms together into one draft, it can be faster to add a name to a definition than find-and-replace to conform. But the definition mechanic doesn’t rely on any substantive trait of the words bound together. It’s perfectly possible to do this with other terms. Nearly any terms.
Alas, this is really no better than pretending we’ll write like automaton lexicographers in the first place. We’re no more infallible at defining terms than at using them. Even if we succeed in compiling comprehensive synonyms lists of every term we define, the bloated parentheticals or spillway-accident definitions sections where we stick them will only make our drafts long, redundant, and stultifying. A thesaurus isn’t good reading, either.
So much for the shriveled fruits of incrementalism. With frank boldness now: We can simply tell courts to drop the quixotic consistency fiction altogether.
There is no rule against saying in our terms how those terms themselves should be read. Orthodox drafters do this all the time, usually at the backs of contracts, in the boilerplate. Don’t read “including” to mean “just like these”. Don’t read gender into male pronouns. When we mention a law, assume we mean with any future amendments. If two parts of our deal packet don’t agree, this one trumps the other. Don’t follow the fallback rule that says if a section isn’t clear, read it against the side that chose the wording.
A new rule would be new, but not terribly different. Here’s a first stab:
These terms use synonyms and varied wordings in natural style to make reading easier and flesh out meanings. These terms should not be read under the much-criticized rules of legal interpretation that say every use of the same word or phrase should be read the same across contexts, or that different words and phrases should always be read distinctly.
There are limits to what private drafters can tell judges to do. We can’t expect them to acquire fluent Klingon or play Opposite Day on demand, just because we pay court fees to file suits. But this new interpretive rule is hardly calling for acrobatics. It’s frank permission to read like most people do, most of the time. Even, I suspect, like most trial court judges.
This is not a case for humanist legal drafting as populist pandering, conceding to limp attention spans, or enabling dull lawyers to nurse delusions of prose-stylist grandeur. This isn’t the argument for sugar coatings on bitter pills or cracked pepper on boiled potatoes. Variation in writing form is also substance. Describing a thing two different ways is a very normal technique we depend on to make our meaning clearer, without pretending we can understand or describe the world in one shot with an equals sign, as in math.
There’s no better evidence that drafters make infallible definers of terms than infallible users of them. The implied idea that only a definition should give meaning to a term, with all the “operative” bits of usage anchored offshore like quarantined ships, defies our common experience as readers. It defies what we see in legal opinions when courts hear fights about disputed meanings.
We learn the overwhelming majority of our vocabulary by seeing and hearing words used, not looking them up in a dictionary. It’s easy enough to name toy examples of short drafting gains, like defining “dollars” to mean “United States dollars”. But even definitions that seem analytically complete are known to flop in practice by failing to anticipate exceptions or interactions with other terms. Do “United States dollars” include USD-denominated deposits at newfangled institutions, backed by so-called “stablecoins”? When inflation runs rampant, does a definition like that bear on the timing of payments, or who bears the currency risk?
If both definition and usage build meaning, why do we lawyers, as professional writers, take definition to grim excess and pretend to eschew usage? Why aren’t accurate, non-frivolous, overlapping descriptions or uses of a concept embraced as clarifying, just as they are in speech and other styles of writing, even at oral argument?
In contract law in particular, a court’s prime directive is to decide what both sides intended, based on what they wrote. The basic approach is plain meaning, not Black’s Law Dictionary, not any secret lawyer code. An awful lot of other contract law these days is either dealing with predictable bugs in sprawling, Big-Corporate agreements, or else slyly avoiding doing injustice upon individuals who can’t afford lawyers and can’t read or write lawyerish word-garble for themselves, despite possessing competent command of the common English.
Both sides could use better writing. Where legal tradition says writing should be bad, we should let it go.
]]>For those following along by RSS, the feed for the latest from Blackacre Labs is https://blackacrelabs.com/feed.xml. You can also opt into e-mails about new publications by logging in and visiting https://blackacrelabs.com/publications.
So what’s the plan? In short:
Publish more primers, practical guides, forms, line-by-line reviews, and reference works that deserve to be improved and updated over time.
Offer more software features for readers, beyond just a static blog.
Better organize how I stay in touch with people who benefit from my work, so I can learn how to be of better service.
It’s time to put two beliefs into action:
Considerate, reading people could, as a rule, do way more so-called legal work for themselves than they’re currently empowered to, if only they were given the right information, basis of confidence, and encouragement. For a lot of what people need, literacy really is the better part of legal competence. Not everyone will take the time to learn the law for any particular need, but requiring that a lawyer do it for every legal need isn’t working.
Second, traditional “lawyer belongs_to client” is a hard limit on how much good I can do. To really serve as I’m able, I need to do more broadcast, “has_and_belongs_to_many readers” kind of delivery. It’s not just “scaling up”. It’s a subtly different kind of work. In many ways, it’s harder.
Many clients clients have said kind things about how pleased or even relieved they’ve been with my somewhat unorthodox take on the style and substance of legal help. It’s time I took that spirit into the way I structure working relationships, too. It’s deeper than just billable hours versus “alternative fee arrangements”. The way lawyers work, and the way I’ve mostly worked so far, just isn’t how a lot of people need a lot of legal guidance delivered these days.
So it’s time I followed the advice of so many clients, colleagues, mentors, and friends to double down on my writing. There are clearly a bunch of useful resources that should exist somewhere online, but don’t, that I’d enjoy creating. To pick a few off my list, just to give a sense:
I’ve launched Blackacre Labs with three examples to start:
an update to my longstanding short intro to intellectual property law, available to any visitor, without logging in
my intro to and cheat sheet on open source software package licensing metadata, free if you register and log in
a comprehensive guide to versioning legal forms, terms, and disclosures, available for sale
Several more are already in some stage of planning or writing progress.
Of course, one of the big takeaways here is that I’ll be charging for some of the new published work. That’s nothing terribly new there from my point of view. I make a living charging clients for forms, contract drafts, e-mail advice, and other writing. But I understand it will mark a change for those of you who’ve followed me only on this blog.
Some publications will cost money to access. These will work a bit like e-books, with online Web versions plus EPUBs and other formats to download. But the plan is for each purchase to include all later updates. I’m excited to bring more practices from software into legal publishing, like rigorous versioning, changelogs, automatic diffs, and content-aware algorithms for marking unchanged sections unread across versions. When someone takes the time to read what I’ve rewritten, something changes, and I update it, they should get a note that it’s been updated and a clear sense of how.
Other pieces won’t cost anything to read, but will require an account to access. I’ve no plans to harvest e-mails for marketing or other shenanigans on the back end here. Logging in also brings a bunch more features, like user interface for quick feedback, with costs on my end. But I hope this will encourage people to register, while keeping particular pieces out of the maw of the large language model monster. I’ve already seen some truly bizarre, uncanny-valley knockoffs of my writing on certain niche legal topics. It’s bad enough, and now predictable enough, that I need to exert some countervailing control.
Still, I’m sure there are and will be projects that I would rather see published as widely and openly as possible, and not just overdue updates of things I’ve already published to the open Web. While I won’t be pushing it for a time, I’ve already coded up a subscription model that gives access to all publications, as well as access to a mini message board for proposing, discussing, and ranking new projects for me to write. I’d be glad to earn the trust of some readers who’d care to fund public writing where it has a chance to improve the state of the game overall.
In the back of my mind, I am still thinking a lot about business models for cutting edge legal form drafting, too. Riffing on my Fast Path License, I’m sure I’ll get around to implementing an ability to publish legal forms so the terms are publicly accessible, but extras like line-by-line readings, usage guides, and interactive document assemblers cost. I’m looking forward to having a concrete platform as the obvious place to implement those ideas.
As for that platform, I think the software side is also way overdue. Blogging with a static site generator helped me to focus on the writing, instead of twiddling with the publishing software or compulsively reorganizing metadata. But I’ve come to really feel the limitations.
I’ve long published and linked to some “living documents” and lists here on the blog, like this guide to types of lawyers and the Open Source Hype Antidote. For longstanding, updated docs like those, Blackacre already offers more of what I appreciate as a reader: RSS feeds for updates, EPUB downloads, version archives, a built-in way to track reading progress, common ideograms for aspects like depth of coverage and negotiating balance, and so on. Not to mention quick buttons to send comments on specific sections, including one-click canned comments like “this was confusing” or “typo here”.
I know what kind of software I’ve been dreaming of as a voracious online reader of many years. But I’m more interested to about the habits and preferences of you and other folks who’ve taken time to read my work over the years. Would it be useful to have a button to click to cut longer pieces into bit-sized chunks, and mail a segment every day? Should the site offer a built-in way to highlight text and save notes, or leave that up to users? Some kind of bite-sized newsletter?
I’m sure the best ideas haven’t occurred to me, and wouldn’t occur to me on my own. We all read and write a little differently. The important thing is that my writing helps who it’s supposed to help.
If the idea of more and better writing from me piques your interest, please know that I deeply appreciate it. I strongly encourage you to visit blackacrelabs.com, open an account, and poke around. I’ll see a notification of every signup. Forgive me if I’m tempted to e-mail you on the side. If you have thoughts to e-mail me, I will definitely read them.
I’ve been really encouraged by comments over the years about how useful this blog has been to others. My new challenge is to do better. What counts as better is up to readers like you.
]]>Authored by Members of the Student Data Privacy Consortium (SDPC) & Mark Williams, Fagen, Friedman & Fulfrost LLP
© Access 4 Learning (A4L) Community. All Rights Reserved.
This document may only be used by A4L Community members and may not be altered in any substantive way.
The United States has long had some federal-level laws at regulating privacy of child and student data, but we are now seeing many new laws from individual states. It’s hard to keep track of all these new laws, and to write contract terms that cover all of them. Sharing work on a single set of those terms makes sense.
Authored by Members of the Student Data Privacy Consortium (SDPC) & Mark Williams, Fagen, Friedman & Fulfrost LLP
The Student Data Privacy Consortium is a “Special Interest Group” under A4L focused more specifically on data privacy. I haven’t dug in too far, but I gather this is a kind of working group within A4L. A4L is international, but form deals with US-specific legal concerns.
Fagen is a law firm with several offices, mostly in California. They focus on public education.
The use of “Authored by” is notable here. Under copyright law, the default owner of a copyrightable work is its author. But that default can be overridden, and ownership can also change over time.
I’m not aware of any rule that says you have to note the author on a copyrighted document. So I’d take this authorship line as working more like a byline, to give credit.
© Access 4 Learning (A4L) Community. All Rights Reserved.
I’m not sure this claim is terribly clear. The name of the organization is plain enough, but the claim here is the A4L “Community”, not just A4L the org itself, holds copyright.
A4L seems to use “Community”, always capitalized, specifically to refer to its dues-paying membership. So perhaps this copyright notice is meant to say that the various authors, who are members of the Community, retain their copyrights. Or perhaps the intent was to centralize ownership of copyright in the A4L org itself. I’m not sure.
If the idea was to centralized copyright, I wonder whether or how the consortium and the law firm documented assignment of copyright in their work to the nonprofit.
In any case, I applaud the law firm in particular for agreeing to take on this project. Many, many firms avoid working on forms their clients will publish, especially forms that help would-be clients meet their needs without engaging their own lawyers.
This document may only be used by A4L Community members and may not be altered in any substantive way.
Again, A4L seems to use upper-case-C “Community” pretty consistently to refer only to its membership. So we’re looking at a club good: using it doesn’t diminish anyone else’s ability to do the same, but use is limited to only those who pay.
Two thoughts come to mind.
First, I wonder whether this is meant to require that both sides be A4L members, or only one side. Could a school district paying for membership propose sign form to a vendor that’s not?
Second, I’d read this language to prevent even paying members from making meaningful changes to the “standard” form. That would be a rather aggressive approach to standardization.
Blue Oak Council, the open licensing nonprofit I cofounded, allows edits to our model software license, so long as edited versions don’t use the “Blue Oak” name. We’ve registered “Blue Oak” as a trademark covering legal forms while Access 4 Learning doesn’t seem to have done so. Especially with these use terms coming directly after the copyright, I’m gathering A4L is using a primarily copyright-driven approach to maintaining the integrity of its form as a standard.
]]>Axios: “Court says Trump doesn’t have the authority to set tariffs”
ABC: “Federal court says Trump doesn’t have the power to impose tariffs unilaterally”
Based on whatever you’ve gathered about the decision up to now, do you see any problem with these headlines?
Compare these others:
USA Today: “Trade court blocks President Donald Trump’s tariffs”
CNN: “US court blocks Trump from imposing the bulk of his tariffs”
Or these:
AP: “Federal court blocks Trump from imposing sweeping tariffs under emergency powers law”
The Hill: “Court of International Trade blocks Trump’s tariffs in sweeping ruling”
The first group of headlines beg to mislead. They can be read two ways: one accurate, the other broader, more dramatic, more exciting, inflammatory, and wrong.
The court did not rule that the president can’t impose tariffs full stop, or that the president always has to act with the legislature to impose them. It did rule that the president can’t impose the particular tariffs the Trump admin announced and got sued for.
I’d call the first group of headlines clickbait. I’d also call them lawyerly, in the worst possible way. They’re playing tricky word games, with distinctions that matter, to influence conclusions. They are scratching at semantics to sow confusion, in this case to maximize drama.
Trump, as president, does have some power to set tariffs. The court’s decision says he does. “Court says Trump doesn’t have the authority to set tariffs” is wrong. It’s just fallback-defensible, by arguing that “tariffs” could have meant “recently announced tariffs” or “the tariffs the court was reviewing”. Not “tariffs generally”.
There are some procedural requirements for tariffs the president can impose. But for some purposes, the president can impose tariffs without prior approval by Congress. Those would be fair to call “unilateral”, in the sense of the executive branch acting alone, without the courts or the legislature. “Federal court says Trump doesn’t have the power to impose tariffs unilaterally” is wrong. It’s just fallback-defensible, by the same kind of dissembling.
The court’s decision covers all of this.
The court breaks down the tariffs into two groups, “trafficking tariffs” announced in executive orders and declarations giving drug trafficking as primary motivation, and “worldwide and retaliatory tariffs” citing concerns about unfair trade, tariffs, and economic policies worldwide.
The basic law is that the Constitution gives the power to regulate foreign trade to Congress, not the president, under article I, section 8, clauses 1 and 3:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
…
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
Congress can’t give this power over from the legislature to the executive just by passing a normal law. That would take a constitutional amendment. But it can pass laws to delegate part of its power to the president in limited ways.
The administration pointed to the International Emergency Economic Powers Act of 1977 as the law giving it delegated power to set the new tariffs. The court goes through the history of that law and changes made to it. It also mentions the National Emergencies Act, which sets up the process for declaring national emergencies referred to in the Powers Act.
The court struck down the “worldwide and retaliatory” tariffs because they’re so broad. The court couldn’t read the part of the International Emergency Powers Act delegating power to the president to impose unbounded tariffs. It couldn’t read the law that way because doing so would violate the rules about how Congress can delegate the powers the Constitution say belong specifically to it. The first of those rules, called the “nondelegation doctrine”, requires Congress to specify an “intelligible principle” according to which the power has to be exercised, passing a law that “meaningfully constrains” the president’s delegated power. Delegation has to be limited. Unlimited tariffs can’t fit under a limited power.
The court struck down the “trafficking” tariffs because the International Emergency Economic Powers Act requires that the president’s actions address the declared national emergency they’re based on. It found no reasoning in the orders imposing the “trafficking” tariffs showing how they address trafficking. It rejected the idea that using tariffs to create diplomatic pressure or negotiating leverage alone could count, since that would justify nearly anything, making the law’s requirement irrelevant.
- Any authority granted to the President by section 203 may be exercised to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.
- The authorities granted to the President by section 203 may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared for purposes of this title and may not be exercised for any other purpose. Any exercise of such authorities to deal with any new threat shall be based on a new declaration of national emergency which must be with respect to such threat.
The most important older legal decisions the court points to were in cases brought by a company called Yoshida International against broad tariffs imposed by the Nixon administration. The first of those decisions led Congress to change the International Emergency Economic Powers Act, adding more limits on what the president could do. The second actually upheld Nixon’s tariffs under the revised law, but strongly emphasized that the law has limits and the tariffs were legal because they were limited.
Lawyers would say the court distinguished this case, about Trump’s tariffs, from the Yoshida case, about Nixon’s. The rule remains that presidents can impose tariffs within the limits of the law Congress passed. Nixon’s tariffs came under those limits, so they were legal. Trump’s tariffs didn’t, so they’re not.
The Trump administration has already appealed this decision. Normally, that would mean the case goes first to the Court of Appeals for the Federal Circuit, and any appeals up from there to the Supreme Court.
The same Axios story headlined “Court says Trump doesn’t have the authority to set tariffs” also runs with the headline “Trump’s tariffs blocked by federal trade court”. I’ve got search results pages from DuckDuckGo showing two links to that same article, one in a media box with the “spicy” headline, another as text link with the other.
Which do you suppose will win the A/B click-off?
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