The Bluebook and copyright

In ‘Bluebook’ Critics Incite Copyright Clash , The Wall Street Journal Law Blog reports that some ‘legal activists’ are planning to post online what they call a simpler, free alternative. This may or may not be called Baby Blue.

The activists (Carl Malamud and Christopher Jon Sprigman) have received a letter from the Harvard Law Review’s lawyers claiming copyright infringement if they use a title with ‘blue’ in it. But the copyright objections will apparently extend to the work itself.

The book is expected to be published in early 2016 in an editable form.

Messrs. Malamud and Sprigman’s effort could resonate with some in the legal community. The Bluebook has its critics, including Judge Richard Posner, who wrote an entire law journal essay** arguing that the 511-page manual exemplifies “hypertrophy,” a word “used mainly to denote a class of diseases in which an organ grows to an abnormal size.”

** Richard A. Posner, The Bluebook Blues (reviewing Harvard Law Review Association, The Bluebook: A Uniform System of Citation (19th ed., 2010)),” 120 Yale Law Journal 852 (2011). (PDF)

A quote from the Posner essay:

Many years ago I wrote a review of The Bluebook, then in its sixteenth edition. My review was naively entitled “Goodbye to the Bluebook.” The Bluebook was then a grotesque 255 pages long. It is now in its nineteenth
edition-which is 511 pages long.
I made a number of specific criticisms of The Bluebook in that piece, and I will not repeat them. I don’t believe that any of them have been heeded, but I am not certain, because, needless to say, I have not read the nineteenth edition. I have dipped into it, much as one might dip one’s toes in a pail of freezing water. I am put in mind of Mr. Kurtz’s dying words in Heart of Darkness – “The horror! The horror!” -and am tempted to end there.

Sharon Byrd

I was sorry to hear that Sharon Byrd died last year – in March 2014 in fact. She was only a couple of weeks younger than me. I completely missed it but I hadn’t been in touch for years. I copy below her bio on the Beck Verlag website. (By the way, you can see forthcoming publications there and I see that new editions of Dietl Lorenz in both DE>EN and EN>DE are announced for 2016).

When I was teaching various classes on English law, legal English and translation at the Instit für Fremdsprachen und Auslandskunde in Erlangen, Sharon was teaching legal English and US law at the university there, and she let my students come to her classes. I sat in once and watched her technique of getting the law students to argue about whether it was acceptable to throw out evidence because it had been gathered in an unreliable way. Although she was particularly interested in criminal law – she taught everything – her greatest interest was Kant. I was impressed and envious of her knowledge of philosophy, and quite incapable of understanding what she and her husband wrote on Kant and criminal law. Her first degree was in philosophy.

Sharon also taught at Augsburg and later for some years at Jena, where she helped her students to great success in moot court competitions.

There’s an obituary (PDF) by Heather M. Roff in the Newsletter of the North American Kant Society.

Prof. Dr. B. Sharon Byrd

Tätigkeitsschwerpunkte

• Angloamerican Jurisprudenc
• Angloamerican law
• Rechtsenglisch (USA)

Weitere Tätigkeiten

1996 Hon.-Prof. Univ. Erlangen

Studium

Studium Rechtswissenschaft, Philosophie

Beruflicher Werdegang

• 1969 B. A. Smith College-Department of Philosophy Northhampton Massachusetts/USA
• 1972 J. D. Univ. of California Los Angeles
• 1987 LL. M., 1991 J. S. D. Columbia Univ. New York
• Prof. Univ. Jena
• Leiterin Law & Language Center Univ. Jena

Veröffentlichungen

• Einführung in die anglo-amerikanische Rechtssprache 1997, 2. A. 2001
• Anglo-Amerikanisches Vertrags- und Deliktsrecht 1998
• Romain Alfred/Bader Hans Anton/Byrd Sharon B. Wörterbuch der Rechts- und Wirtschaftssprache Teil 1 Englisch-Deutsch, 5. A. 2000
• Romain Alfred/Byrd Sharon B./Thielecke Carola Wörterbuch der Rechts- und Wirtschaftssprache Teil 2 Deutsch-Englisch, 4. A. 2002

German Law Archive new site

The German Law Archive at Oxford University has moved to a new site, which was launched on August 6 2015. I was forwarded to it for a specific statute from the Centre for German Legal Information.

After a period in which we had allowed both content and design to collect dust, we are pleased to welcome our users to our new design, launched on 6 August 2015. We hope you will find it more user friendly. We will now work on an update of content. Feedback to the editors (see below) is welcome!

The site is still run by Gerhard Dannemann, now with Christoph König as assistant editor.

Wherein hereinafter, hereinbefore and therethroughout are considered

I can’t pass by Trebots’ brief entry on The sad decline of hereinbefore. I have to say I have little use for hereinbefore, but quite a lot for hereinafter. I will counter his with another
Google chart which makes me wonder why aforementioned should be on the rise.

English Language & Usage Stack Exchange calls these pronominal adverbs and links to a list in wiktionary. I have not heard of therethroughout but remember the confusion caused to students when they mistook wherefor for wherefore.

On the same subject, it seems that not everyone regards whereby and wobei as false friends.

I used to use an exercise with students where they had to enter the right form of, for instance, hereof, thereof and whereof. They found it surprisingly difficult – surprising to me because German does exactly the same thing.

There’s some good stuff on this and many other aspects of legal English in Rupert Haigh’s book Legal English. There is a website for the book where there are some exercises, although I could not understand the structure of the one on these words. The website is for the fourth edition of the book, whereas I only have the third edition.

Welcome to the online resource bank to support the fourth edition of Rupert Haigh’s Legal English.

If you are a student you will find a bank of activities and exercises corresponding to the chapters in the book designed to give you additional practice opportunities in using Legal English in a range of scenarios. These will range from simple gap-fill exercises, to multiple choice questions, to written activities, to comprehension exercises based on video simulations of real-life legal situations. An automatic grading facility will help you assess your own progress and identify areas for improvement. You can also email your results to your class tutor if required.

In the video section, you can find four instructional videos, based on the book and recorded by the author, to illustrate concepts discussed in the book.

If you are a lecturer you will find a bank of customisable activities which can be used with small groups in seminars or tutorials to help practice their use of oral Legal English.

Matching exercises
Question 3
The extract below is from an Indian deed of partition. It contains various old-fashioned terms beginning with here-, there-, or where- (e.g. hereof, whereof, thereof, hereby, hereinafter etc), which are still commonly found in documents relating to land purchases. For each numbered gap in the extract, select the correct word from the choices below.

UOGB v. TUKUO

What is this?

The mere sight alone promises curiosity: six men, seated, two women, instruments on their laps which look like newly-hatched baby guitars. Ukulele orchestra is the name of this bizarre appearance and wherever it plays it elicits frenetic applause from the audience everywhere.

It could almost be the Ukulele Orchestra of Great Britain.

British ukulele players indeed.

But what is that tell-tale touch of Denglish doing there?

Don’t miss it !!! , judged the SWR television. The Stuttgarter Zeitung titled ” The Ukulele rocks”, the Mannheimer Morgen spoke of a “brilliant performance of musical cabaret”, the Frankfurter Allgemeine Zeitung thought it was a “magic moment of musical comedy” and for the “Heilbronner Stimme” the whole show was “just great fun”. The musicians from London, Edinburgh, Nottingham and Glasgow just know how to capture the audience wherever they go.

But it doesn’t really matter, it is not going to be much different from the real thing.

You’d think they could have found a German or two, though.

The Intellectual Property Enterprise Court, part of the Chancery Division of the High Court, had to decide whether the United Kingdom Ukulele Orchestra, a German set-up with British players, had infringed the Ukulele Orchestra of Great Britain’s community trade mark and committed passing off and infringement of copyright.

Judgment

The trade mark was not held to be distinctive, so the claim failed, except with regard to passing off.

UKUO was set up by Mr Clausen, his business partner Mr Tings and Mr Moss in 2009. The three of them agreed upon the name. Mr Clausen admitted that at that early stage he knew about UOGB and informed himself about them by looking at their website. He must have known of their style of dress and the nature of their performances and that by 2009 they had enjoyed a good deal of success, particularly in the UK and Germany. Mr Clausen must have known that the concert services to be provided by UKUO were similar to those of UOGB. He must also have known that as a matter of language ‘The United Kingdom Ukulele Orchestra’ would to most people mean very much the same thing as ‘The Ukulele Orchestra of Great Britain’, not least in Germany where UKUO was to be based.

In my view, in those circumstances Mr Clausen and his colleagues either knew or ought reasonably to have known that from a commercial standpoint they risked objection from UOGB. In pressing ahead without seeking the sanction of UOGB or any kind of accommodation with UOGB, they acted outside honest practices within the meaning of art.12(b).

There is an account of the case at The IPKat, which concludes:

Ultimately only the claim under passing off succeeded, and UOGB’s mark was deemed invalid. This Kat is by no means an aficionado of small instruments, and believes the fight was a surprising one, seeing as the market for ukulele performances cannot be that big (readers more inclined in this area of music can correct me here, of course). In the end, the case seems shut, and the two orchestras just might have to get along for the foreseeable future.

I must admit that my attempts to learn the ukulele were fun, particularly in the classes of the redoubtable Pete of the Duke of Uke, but the idea of a large number of ukuleles strumming away in unison seems a bit of a dead end.

IMG_1569

Lord Chancellor’s advice on language

From The Independent: Michael Gove instructing his civil servants on grammar

Mr Gove, who studied English at Oxford University’s Lady Margaret Hall, is notorious for his obsession with correct language. While secretary of state for education, he changed the curriculum so that schoolchildren studied more classical literature. “It’s slightly patronising,” said a Whitehall source. “It does feel like the sort of thing someone would do when they have too much time on their hands.”

It appears there are a lot of style guides for civil servants, most probably not available online, and for a minister to request this kind of thing is not unusual. Apparently William Hague requested all correspondence to be written in the Ariel font, except correspondence to himself, which was to be in Georgia. However (to start a sentence in a way he bans), The Independent is keeping an eye on Michael Gove. He was unpopular with teachers but does have more brain cells than the last Lord Chancellor. But how will he use them?

On the subject of civil servants’ language, here is a PDF on Mandarin English

You will recall that
No you won’t.
You will wish to be aware
No you won’t, it’s bad news I’m afraid.
You may wish to consider [doing this]
Do this or else!
You Should Be Aware
Even worse news – not my fault, honest.

Changes in legal terminology

If a legal concept changes slightly, a new term may be introduced to replace the old.

For instance:
enduring power of attorney (EPA) up till September 2007
lasting power of attorney (LPA) from October 2007

These are the common powers of attorney you might take out for an aged parent while they are still compos mentis and have registered later. There are definite differences so the distinction is necessary.

But what about family-law terms like
custody > residence
access > contact

See John Bolch, A matter of terminology:

Perhaps the best known example – one that still catches out lay people (and some older lawyers) – is the new names given to the two main types of children’s order by the Children Act 1989. Out went the old terms ‘custody’ (which, incidentally, is still understood throughout the English-speaking world) and ‘access’. In their place came ‘residence’ and ‘contact’. I acknowledge that ‘residence’ has a different meaning to ‘custody’, but is a ‘contact order’ really that different to what an ‘access order’ used to be?

See that article for more on: child arrangement, ancillary relief > financial remedy, Divorce Registry > Principal Registry, registrar > district judge, child mnaintenance > child support > child maintenance, absent parent/person with care > non-resident parent/parent with care > paying parent/ receiving parent > parent who pays/parent who receives

As John writes about custody and access, these are terms familiar throughout the English-speaking world. It’s all quite a pain for translators out of English, and also into English, especially if they don’t translate from German for one specific jurisdiction.

In a later post, also on Marilyn Stowe’s family law blog, (Are the terms ‘custody’ and ‘access’ really degrading?). John Bolch writes that the terms custody and access are still sometimes used but some regard them as degrading. This sounds as if the change in terminology was regarded as a move towards PC.

My personal bugbear is the replacement in England of plaintiff by claimant. There was no change of meaning that might have justified this: it was purely done because the hoi polloi were not expected to understand it. But the term remains used in Ireland and hence in the EU, in the USA, Canada, Australia, New Zealand and elsewhere. When I translate into English for German clients my translations are not just for England so I always write plaintiff.

Translators and copyright

HC0114287

Translation and intellectual property rights is a brochure/PDF prepared for the EU by Bird and Bird LLP. It is only available in English (a bit Franglish).

The brochure considers the law in the EU and in a number of countries (Belgium, France, Germany and the UK). It considers it both from an upstream point of view (is the original text subject to copyright?) and a downstream one (is the translation subject to copyright?).

Whether one’s translation might be copyright is one of those topics that translators’ mailing lists get heated about every year or so.

Copyright usually attaches to literary and artistic works. But what about other types? For example, are statutes copyrighted? One hopes not. They should be freely distributed. Thus it’s interesting that the EU does not exclude EU publications from copyright, but at the same time the Commission’s policy is to increase their use:

In this respect, the status of European Union publications is not very clearly regulated. On the one hand, there is no legal provision at the European Union level, as it is the case under national laws, which stipulates that legal texts such as Regulations or Directives fall within a category of works are deprived of copyright protection. The “Legal notices and copyright” contained within the “Information Provider’s Guide”40 and the section related to copyright in the Interinstitutionnal style guide”41 (these two documents emanate from the European Union institutions) both tend to go in the opposite direction: they provide for that the European Union owns a copyright on all official publications of the Union institutions or bodies. It does therefore not seem that the official texts of the European Union are legally excluded from copyright protection. That being said, the reuse policy of the European Commission42 aims at increasing the use and the spread of the European Union information, also to foster innovation. Hence we believe that the official texts of the European Union fall under that policy and should be easily and freely reused despite their possible copyright protection, in accordance with the provisions laid down under Decision 2011/833/EU, hence, among other things, under reservation of the
exclusive rights of third parties.

There is a comparison of how the four countries treat works created by an employee in the course of employment.
Exceptions to copyright, e.g. for educational use, are discussed, and this is also related to the problem of machine-aided translation (where your database might contain elements from copyright works). The law as it stands would appear not to protect machine (-aided) translation, and the authors would welcome ‘full compulsory harmonization’.
Another aspect considered is how various legal systems treat translations carried out without the original author’s consent.

I was particularly interested in the protection of official translations of official texts.

It derives from the situation created by the Berne Convention that a distinction must be made in most Member States between the following three types of works: (i) official texts/acts; (ii) official translations of official texts/acts; and (iii) non-official translations of official texts/acts. For the first two categories the regime is rather straightforward: no copyright protection. …The situation is more complex with respect to non-official translations of official texts/acts. Scholars consider that the wording of article 2(4) in fine indicates a contrario that a contracting party of the Berne Convention “cannot deny protection to non-official translations of these texts – presumably translations made by private publishers”.

(Is in fine a French Latinism for the German am Ende? haven’t seen it in English before).

There is more, of course, including information on database rights and recommendations for contracts with translators – I have just skimmed the 146 pages. There’s a bibliography and case references too. Recommended.