Naked Law

Now we are three

I was chatting to a friendly journalist this week and realised that we'd hit another milestone in the history of Naked Law: now we are three years old (as of Sunday just gone).  This made me look back at my previous posts about our first and second birthdays.

There have been no revolutions at Naked Law in the past three years, though there have been some evolutionary changes along the way (notably when we changed the layout and adopted Barbara's new logo, of which we remain very proud).  We're glad to have survived the inevitable ups and downs that most bloggers experience, particularly when the team has been rather (understandably) preoccupied with fee-earning work.  And we are planning to keep going too - there is still plenty to talk about on the themes we have chosen.

As always, we welcome any comments and feedback that our readers and subscribers may have about the future of Naked Law.  Thanks to you all for coming back for more.

Men are from Mars ... Lawyers are from Ancient Rome

I recently complained about lawyers' use of clumsy or archaic phrases in their drafting.  Soon after my post, I found myself providing a training session on drafting and negotiating IT contracts.  One of our co-presenters was covering basic drafting issues, including the need for clarity in contracts.  She stressed the need for us to avoid unnecessary uses of Latin - but confessed that she could not immediately think of an alternative for "mutatis mutandis".  This got me thinking.

Wikipedia lists over 200 Latin legal phrases and it seems that despite the Plain English Campaign’s best efforts and the principles of the Woolf reforms many of these are still prominent in legal documentation and amongst our learned friends.  I'm sure that there are always clearer ways of drafting or framing arguments that don’t involve legalease or sound unduly lawyerly.

Here are some of the those Latin phrases that are still sticking around, with possible alternatives in English:

• Caveat emptor - the buyer must rely on his own inspection of the goods
• Eiusdem generis - and other similar items
• Inter alia - among other things
• Mutatis mutandis - making the necessary changes (as a consequence of this act)
• Pro bono - for free (does our modesty prevent us being so straightforward?!)
• Prima facie - at first sight
• Ultra vires - outside his/her authority

And here is a link to a great compendium of many I hope I never hear.

It has always struck me as particularly cumbersome and incongruous given the cutting edge subject matter of some of the contracts we work on to hark back to Latin words as if they contained some sort of magic.  Is there ever an excuse?

The (strange) language of lawyers

I was reviewing a software contract this week and, in the space of the first four clauses, came across three statements prefaced with the phrase "for the avoidance of doubt" (including two in the very first clause).  These are classic go-to words used by fidgety lawyers (and non-lawyers groping around for something that sounds "legal").  And I have always disliked them.

It would be nice to think that lawyers sounding legal for the sake of it was a thing of the past (perhaps now indicative of lawyers who are insecure about the value of their services - "you've got to come to us because only we understand lawyerspeak").  But not only is "for the avoidance doubt" a rather arcane and archaic expression - it also raises more questions than it answers.  Why raise the issue of doubt?  Could there be some doubt?  It's rather like someone who begins a diatribe with the give-away words "with all due respect".  Labelling something respectful (or lacking doubt) doesn't make it so - and almost invariably betrays the opposite.

The notes from the old Norton Rose M5 Group on "drafting legal documents", which apparently come substantially from a chap called Jim Leaver, say it better than I could:

"The expression "for the avoidance of doubt" should itself be avoided.  It is remarkable how often in practice the expression is used to preface a provision which, far from avoiding doubt, actually creates it.  There are good reasons why the expression should not be used.  On general principles the whole agreement should be drafted in such a way as to remove ambiguity and uncertainty.  One of its main (if unproclaimed) purposes is to avoid doubt.  The draftsman should ask himself why he feels it necessary to state that purpose expressly in relation to one particular provision."

It's the sort of phrase that is used when the writer isn't actually sure about the meaning of the clause or its effect on the rest of the contract.  It almost always signals either poor drafting or areas where the parties aren't quite sure what they've agreed.  I'd put it (in Room 101) with that staple of dull journalism "in a very real sense".

A beer and open source cocktail

We are planning to mix up a heady concoction of ale and conversation (about open source software) in a Cambridge drinking establishment on Wednesday next week (27 February). 

We are hoping to bring together some interested (and, with a bit of luck, interesting) parties to chat about some of the perennial issues around open source (its "viral effect", the extent to which it can be used by businesses to make money, the concerns of investors in early stage software businesses) - as well as some more recent issues (such as changes in the new GPLv3 last year).

We have already invited a number of clients and contacts along, but if you would be interested in joining us, please send me an email, and (space allowing) I will let you know the details.

Broadcasting borders bulldozed

Summary judgement against distributors of conditional access cards to obtain access to foreign broadcasts was refused in an English Court hearing (Premier League Ltd v QC Leisure and others [2008] EWHC 44 (Ch)) a couple of weeks ago. Last week we reported that the Premier League had successfully prosecuted a user of a card when they used it to watch Bolton Wanderer’s matches.  In the QC Leisure case, Mr Justice Barling held that it was arguable that certain provisions restricting the distribution of conditional access cards – particularly to persons outside the exclusive broadcast territory, could infringe Article 81 of the Treaty of Rome.

However, it seems unlikely that any such victory will be more than pyrrhic: Coditel (Case 262/81 Coditel SA, Compagnie Générale pour la Diffusion de la Télévision v Ciné-Vog Films SA) upheld exclusive copyright licensing with territorial restrictions for broadcasts.  It seems unlikely that the existence of supporting provisions, such as prohibitions on export of cards or activation of cards by users outside the exclusive territory can so undermine the territorial limits on the licence itself as to save the users outside the exclusive territory from infringement.  Because of the difficulty in controlling the footprint of a satellite signal it is likely that inability to control users would seriously undermine the value of territorial restrictions.

See also IPKat's comment on this case here.

Orange: the pips won't be ordered to squeak

“Digital” and “dominance” can fit too well together.  There have long been concerns about the way in which digital technology, by the ease with which it can be used to control access to information, technology and services, may result in businesses building and then perhaps abusing a dominant position.  Microsoft dominating access to interfaces with their software; DRM being used to reach into the home; media players being manipulated or managed by their content suppliers; markets being partitioned by conditional access technology.

Such concerns were no help for Hutchison Mobile in the High Court which made clear that fishing on the back of suspicion is not enough.  Vigilantes against abuse will have to look for stronger leads than this.

Hutchison were seeking pre-action disclosure.  They suggested this might show that O2 (UK) Limited,  Orange Personal Telecommunications Services Limited,  T-Mobile (UK) Limited and Vodaphone Limited were exploiting the steps required for mobile phone number portability as a barrier to entry into the market.  Hutchison hoped that documents would show gossip: “we really like this position; keeps out the smaller players”.  Of course a request for pre-action disclosure is potentially a draconian step, especially if it does not focus on a small number of highly pertinent documents – and here it looked more like a fishing expedition for cod at the height of their abundance. The request was thrown out on the grounds that the class of requested documents was even wider than would be permitted under standard disclosure – a prospect of picking up some revealing hot gossip was not enough.  Pre-action disclosure needed to be tightly restricted to a narrow class of highly relevant documents.  Usually not an easy call in a competition law claim.

M&R in da (Library) House

The new management team at Library House last night hosted a hip-hop themed* "Meet the CXOs" event in Cambridge. A few of us from Mills & Reeve went along. I had a few observations and learnt a few things:

• despite some pessimism at the back end of last year, investors are still looking for opportunities - even among the web businesses, a sector where there had been mutterings about bubbles in the wake of the Web 2.0 media storm;
• Cambridge has a great history of creating successful IT, software and electronics businesses - but the new web and mobile businesses have more of a focus on content/media, and a lot of the talent is in London; and
• Games Eden, founded last year to give computer games developers in the Eastern region a forum to network, is an exciting innovation - Cambridge in particular hosts a number of significant games development businesses (we're hoping to get involved).

I also chatted about some perennial lawyers' issues, such as copyright and brand infringement by linking to content on other websites, and getting the contract right. On the latter, I exchanged stories with some other guests about IT outsourcings that go wrong, and about the importance of investing in getting service level schedules and statements of work right at the outset.

* There wasn't actually a hip-hop theme - it was more wine and canapes, which was nonetheless very welcome. This was just an excuse for a bad post title.

SCL meeting: IPR - are they good or bad?

Along with Mark (see here) I went last Wednesday to the Society for Computer and Law’s surprisingly not very animated debate on whether IPR was good or bad in the software industry. Unanimated because there seemed to be a fair measure of agreement from all sectors.  Distilled down these were:

• The question is wrong;
• IPR is just a game;
• In a free world, we would junk much of it. Pleased to see the back of look and feel, and much of the rest of it just gets in the way of the real competitive drivers: providing a good service.

Having got IPR, suppliers and customers have to live and work (and play) with it. If other suppliers accumulate patents, everyone does in order to be able to play the game. Negotiating ownership and exploitation rights in contracts is part of dance which has to be undertaken.

But really quite a lot of it does not seem to benefit the market. Everyone seemed pleased to see the back of look and feel in copyright protection. Many confirmed that patents were of doubtful strength or commercial value and an impediment to competition; and the advent of patent trolls in the software sector meant that the dynamics of the game had changed, and exposed suppliers to unjustified, but nevertheless, expensive challenges. And nobody really had an answer to a questioner’s challenge that the Gowers Review had suggested that there was no evidence that intellectual property had promoted innovation in the software sector.

At a time when we see the use of IPR related rights as a way of protecting from competition in the digital field should we be seriously worried that they are not providing any real benefit to innovation?

Now (that's what I call law blogging) 2.0

Naked Law readers will notice a number of changes to our blog today.  For a start, we have a smart new logo (thanks to Barbara Brownie for the design).  We have also played around with our layout.  We rather like our new look (though the somewhat 70s-themed colour scheme remains under internal discussion).

If anyone has any suggestions or comments on the changes, please let us know by the usual means ...

FOIA report 2006 - out now

The UK Freedom of Information Blog tells us that the latest report on FOIA requests etc is out.  At a glance, I note that (rather unsurprisingly) the number of "non-routine" FOIA and EIR requests received by central government has stabilised, with figures of around 8,000 a quarter (after an initial burst of enthusiastic requests early in 2005, when the Freedom of Information Act came into force).  Departments of State responded to 80% of requests "on time" (compared to 90% for other "monitored bodies").  The report attributed this to:

"the complex nature of information held by Departments of State where, for example, it is more likely to hold information central to the formulation of government policy or information that may prejudice international relations".

In our experience, businesses are still catching on to the opportunities to use the FOIA to obtain information about rivals (eg lost tenders), and public authorities are having to become increasingly adept at negotiating their way through the commercially sensitive and confidential information exemptions.