Writing Guidelines - Aug 2014

8/11/2019 Writing Guidelines - Aug 2014

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&0o'$ la#('a(e +eco!es clea$ a#d st$o#( #ot whe# yo' ca##o lo#(e$ add +'t whe# yo' ca# #o lo#(e$ tae away(

P$actice $eadi#( c$itically

0o' will #ot lea$# to w$ite well +y tali#( to !e o$ toa#yo#e else a+o't w$iti#( yo' will lea$# to w$ite well +yw$iti#(.

Give yo'$self ti!e to $evise a#d to $evise a(ai#

The$e is '#fo$t'#ately #o s'ch thi#( as a# -& fo$ E3o$t/

whe# it co!es to w$itte# wo$

Eve$ythi#( 0o' P't 4# The Pa(e 5atte$s

Dearning how to write well begins with an attitudeB from this dayforward, everything you put on the page - every word, every bit ofpunctuation, every decision to begin a paragraph with one sentence ratherthan another, every decision whether to use &shall( or &should( or &may( or&might,( or whether to use &asserted( or &stated( or &commented( or&argued( or &noted( or &said( - matters.

This attitude may or may not come naturally to you, but in any case !urge you to start cultivating it assiduously. ! have never met a really top-

Eight lawyer who didnt have it. Care about the words you use. Think aboutthem. Try to get them right. $ive a damn about them. They reEect who youare as a lawyer, and they are often the only reEection of who you are as alawyer that your professional colleagues will ever get to see. !f you dontcare whether they reEect well on you, they wont.

See Appendix 1 On Why Everything You ut on the age Actually!oes "atter

-Good P$ose Is Lie & Wi#dow"a#e/6

The point of legal writing is not to make the simple complicated, but tomake the complicated simple "for the reader#. =o not be afraid of simplicity.Though we have all been taught that simplicity is a sign of stupidity, it isnot. @ou #antyour reader to say, after having read your brief or your memoor your article, something likeB &Well, thatwas simple.(

+George r$ell, -Wh" Write/ available online athttp!!or$ell.ru!librar"!essa"s!$i$!english!e0$i$.

Writing Guidelines & 'avid #ostAugust, 21)#age *+*
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Dike a windowpane, good prose is transparent, allowing the reader tosee, clearly, whatever is on &the other side.( What is on &the other side( ofyour prose0 The ideas, arguments, and opinions in your mind. $ood proseallo#s the reader to see those% clearly.

This presents an obvious and very serious problem. !f your prose is likea windowpane, then, as 2rwell so nicely put it, &when you make a stupidremark its stupidity will be obvious, even to yourself.( 2ften, when puttingtogether written work, you will think to yourselfB &1y ideas and thoughts area +umbled-up mess. ! dont haveany sort of Fargument about why so-and-soeposes our client to liability for such-and-such . . . ! dont #antmy prose tobe like a windowpane, because then the reader will see +ust how confused !am.(

This is an understandable reaction, but it is to be resisted at all costs.@ou have to #antto write clearly if you are going to learn how to do it. /eing

confused about the law is no sin* the law is very, very confusing, certainlywhen you are %rst learning it and even after youve been at it for manyyears. The law is full of simple questions

&!s it copyright infringement if ! download a photograph of the'hilly 'hanatic from the 'hilly.com website and display it on thescreen in my classroom0(

- that are actually quite comple, requiring an understanding ofcomplicated statutory provisions, caselaw that may be conEicting orcontradictory and that in any event never seems to quite answer the precise

question being asked, etc. Whenever you are analy9ing hard legal questions,your initial thoughts and ideas are likely to be something of a +umbled mess.Thats not the pro&lem* it is to be epected, and it happens to all of us, aninevitable part of the process of trying to master very complicated material.

The problem, however, arises if you allow that to dissuade you fromwriting as clearly as you possibly can. posing the disorder in ones mindcan be painful and embarrassing, but one of the functions of writing is tohelp you see what it is that you dont understand, so that you can go out anddo some the thinkingGreadingGresearch necessary to understand it. !f you areconfused, eplain your confusion to the reader as clearly as you possibly can

that will help you %gure out where the confusion lies, and will help you%gure out how to eliminate it.

I!"e$so#ate 0o'$ Reade$

This is one writing skill on which all others, in a sense, dependB thea&ility to read your o#n #or' as it appears to a reader( The process ofwriting well consists of "a# writing something, "b# reading what you have

Writing Guidelines & 'avid #ostAugust, 21)#age *)*


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written from your readers perspective, and "c# revising what you havewritten as necessary to make it clear to your reader. 2ver and over and overagain.

To do that, you must, %rst, know "or decide# #ho your reader is,

because the question &!s what ! have written clear0( cannot really beanswered unless and until you have answered the questionB &Clear towhom0( @our eplanation of why section H54"c# of the Copyright 7ct coversdissemination of decryption software, or why business method patents donot serve the purposes underlying the 'atent 7ct, or why the Copyright)oyalty Tribunal is unconstitutional under the doctrine of separation ofpowers, etc., will be very di:erent, depending upon whether you areeplaining that to "a# a +udge on the >ederal Circuit, "b# the Chief Iystemsngineer at Comcast, "c# a reader of the 'hiladelphia !nquirer, "d# a highschool student, "e# a partner at your law %rm who speciali9es in internationalta law, "f# a partner at your law %rm who speciali9es in patent prosecution,

etc.

Consider this simple sentence that might appear in your written workB

&Dike other provisions of the =1C7, sec. H54"c# provides !I'swith a safe harbor against copyright infringement claims formonetary damages.(

That sentence is either perfectly clear, or complete gibberish* itdepends on who the reader is and what has preceded the sentence inquestion, because whether or not it is clear depends on what the reader has

in her head at the moment heGshe encounters the sentence. Whats the=1C70 WhoGwhat are &!I's(0 Whats a &safe harbor(0 Whats copyrightinfringement0 What are &claims for monetary damages(0 ither "7# thereader knew what these things meant &eforestarting in on your paper, "/#you have eplained earlier in your paper what they mean, or "C# thesentence is a failure and needs to be revised because the reader does notknow what it means. Writing #ell means satisfying yourself that either )A* or)+* is true% for every sentence in your paper.

@our task is to make it as easy as you can for the reader, given theinherent compleity of the material youre dealing with. verything that

makes a reader stop and try to %gure out what it is that you are trying to say every ambiguous reference, every uneplained argument, every misplacedassumption, every over-complicated assertion requiring re-reading and re-re-reading, etc. makes your writing weaker than it need be, and puts a littlebit of noise into the readers ears* that noise accumulates, and at somepoint, if youve introduced too much of it, the reader will eventually give up.

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7lways remember thatyour reader reads from left to right% and fromfront to &ac'. 8se &as eplained below( very sparingly, if at all. $enerally,this is a signal that your work is not yet properly organi9ed. What is a readersupposed to do when heGshe encounters the phrase &as eplained below( ina paper0 Itop reading and go &below( to wherever you eplain what needs

to be eplained0 !f something needs to be eplained now, eplain it now. !fit doesnt, dont. )eaders read from front to back, and from left to right* donot make the readers understanding of something depend on somethingthat you say later.

)eading your own work from your readers perspective means learninghow to clear your head of everything you have learned about the sub+ectmatter before reading what you have written, because you should neverassume that the reader has in hisGher head what you have in yours. !f youkeep everything that you know in your head as you read over what you havewritten, you may conclude that your writing makes sense and is reasonably

clear "because it makes sense and is reasonably clear to you# when it isactually very confusing to your reader "who does not have any of that inhisGher head#.

)ememberB youare the one editor who will always be at your disposalthroughout your career as a lawyer, the one person who will always beavailable to read your work and to comment upon it, to help you see whicharguments are strong and which are weak, which sections make sense andwhich do not.

&0o'$ La#('a(e Beco!es ,lea$ d St$o#( Not Whe# 0o' ,a# No

Lo#(e$ &dd B't Whe# 0o' ,a# No Lo#(e$ Tae &way(J

Dess is more. Iay what you need to say. liminate unnecessary words.$et to the point.

Keres an ecerpt from a student paperB

!n /lumenthal v. =rudge, LL4 >. Iupp. JJ "=.=.C. 5LLM#,the district court ruled that the defendant was sub+ect tothe personal +urisdiction of the court. !n so ruling, the courtfound that both prongs of the personal +urisdiction test had

been met. >irst, the court found that the defendant fellunder the =istrict of Columbias long arm statute, =.C.Code N 5;-J4;, and was therefore sub+ect to the+urisdiction of the court. Iecond, the court found that thedefendant possessed the minimum contacts with the=istrict of Columbia necessary for the eercise of personal+urisdiction to be constitutional.

)Attributed to saac abel.

Writing Guidelines & 'avid #ostAugust, 21)#age **


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commit to spend however much time it takes to produce a quality product.@ou need to revise your work as necessaryso that it makes sense to thatreader. @ou dont get to stop when you have completed the draft that youresupposed to hand in on Tuesday morning* you get to stop when you havesomething that is clear to your reader "or at least as clear as you can make

it at this point in your pro+ect#. Kowever long it takes you to produce that,thats how long you need to spend on it.

The$e is '#fo$t'#ately #o s'ch thi#( as a# -& fo$ E3o$t/ whe# itco!es to w$itte# wo$

@ou dont get any pri9es for the number of revisions youve done, theamount of sweat you poured on the page, or the diculties you overcame toproduce your paper* you get pri9es for epressing yourself clearly. Thereader doesnt know, and the reader doesnt care, about anythingotherthan what you have put onto the page. &! would have added in the

additional cases and %ed the mess in Iection !!!, but my car broke down on1onday and my uncles family has been staying in our house this week,and . . .( wont cut it, !m sorry to say.

II. RULES

Kere are some more speci%c and concrete rules that you should obey,blindly if necessary. !f you would like to know more about my rationale forincluding any particular rule, or if you disagree with one or more of them, !would be delighted to talk more about them and to defend them but thatdoes not ecuse you from your obligation of obedience.

1. Befo$e yo' s'+!it a#ythi#( to !e a# o'tli#e a d$aft whateve$ $ead it ove$ f$o! sta$t to 7#ish i# o#e sitti#( as if yo' we$e the"e$so# fo$ who! it is +ei#( w$itte#.

2. P$oof$ead yo'$ wo$ with ca$e o$ 7#d so!eo#e who will do thatfo$ yo'.

6. Whe# yo' co!e to s"ea to !e a+o't yo'$ "$o8ect +$i#(so!ethi#( i# w$iti#( 9a#d if at all "ossi+le e!ail it to !e i#adva#ce:.

*. Use "a$allel st$'ct'$e.

;. Whe# yo'


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>. W$ite yo'$ I#t$od'ctio# L&ST.

?. @'ote 7$st eA"lai# late$.

. Use to"ic se#te#ces to o$(a#iCe yo'$ "a$a($a"hs.

1). & checlist ofthi#(s to eli!i#ate f$o! eve$ythi#( yo' w$ite 9o$at least to +e ve$y ca$ef'l a+o't:%

&. The Passive oiceB. Th'!"i#( o# the Ta+le,. U##ecessa$y &dve$+sD. U##ecessa$y I#t$od'cto$y a#d T$a#sitio# Wo$dsE. The wo$d -si#ce/ whe# yo' !ea# -+eca'se/. Disa($ee!e#t a!o#( yo'$ P$o#o'#s

11. d "lease% Itind those places where the reader will be confused by what youhave written, and try to eliminate the confusion "or, at least, try tounderstand what makes it confusing so that you and ! can work oneliminating the confusion in subsequent drafts#.

2. P$oof$ead yo'$ wo$ with ca$e o$ 7#d so!eo#e who will do thatfo$ yo'.

!f you are not a good proofreader, 2nd someone #ho isand as'him3her for help. 7ll of the little details matter not only because they cana:ect the meaning of what you have written, but also because of what theycommunicate to your reader about your attitude towards your work.

Take typographical errors, for instance. They matter even when theydo not a:ect the meaning of what you have written. !t is easy enough forthe reader to reali9e you meant &ideas( when you wrote &idea,( or that you



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meant &the Copyright 7ct( when you wrote &the Copyrihgt 7ct,( or that youmeant &the >irst 7mendment( when you wrote &the >irst 7mednment,( etc.The meaning is clear, notwithstanding the errors so whats the big deal0

The big deal is that the errors communicate a lack of attention to your

own writing. Iurely, if you had seenthe words &idea( or &Copyrihgt,( or&7mednment,( you would have corrected them so the fact that you didntcorrect them suggests "very strongly# to the reader that you didnt readyour #or' over carefully yourself(And if you didnt read it over carefully%#hy should 40

6. Whe# yo' co!e to s"ea to !e a+o't yo'$ "$o8ect +$i#(so!ethi#( i# w$iti#( 9a#d if at all "ossi+le e!ail it to !e i#adva#ce:.

!m always happy to talk to you about your pro+ect. To enter my oce,

however, you need a ticket which consists of somethingin writing that willserve as the basis for our discussion. This can be anything from a onesentence description of the question youd like to ask me, to a shortparagraph describing your confusion in researching a particular question, toan outline, or a full draft but it must be in #riting.

*. Use "a$allel st$'ct'$e.

Iuppose you are writing something about the doctrine of personal+urisdiction, and you introduce the sub+ect with a sentence like this oneB

&Courts analy9e personal +urisdiction under two di:erentheadingsB speci%c and general.(

/ecause you have introduced them in that order "speci%c andgeneral#, you should discuss them in that order. !f you are going to followthis sentence with a brief discussion of the two forms of personal+urisdiction, begin with speci%c personal +urisdiction, because that is whatthe reader is epectingB &>or a court to eercise speci%c personal+urisdiction, the defendant must have . . . .( When you come to thedescription of general +urisdiction, use parallel languageB &>or a court toeercise general personal +urisdiction, the defendant must have . . . .( !t

makes it much, much easier for the reader if you do that.

Iimilarly, if you write

&The Copyright 7ct imposes three requirements for copyrightprotection.(

the reader is epecting you, net, to tell himGher what they are.



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&The Copyright 7ct imposes three requirements for copyrightprotection. There must be a Fwork of authorship,


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This is of supreme importance in legal writing, because of thetendency in the law to attribute very comple meanings to speci%c terms,sometimes very simple and familiar terms. @ou are introduced to thisconcept very early in law school* for instance, you recall from Torts that to

commit some act &intentionally( is not the same as committing it &willfully,(or &knowingly,( or &purposefully.( 8sing those terms interchangeably whenreferring to a defendants state of mind will be hopelessly confusing to thereader and will also misstate the law, which does not treat those terms asinterchangeable.

This is a very, very widespread phenomenon in the law words orphrases "&terms of art(# that have, within any particular domain of legalknowledge, comple "and sometimes contested and controversial#meanings. !t leads to a problemB When you are +ust beginning to learn aboutthe law in any particular area, you will often not know #hichwords or

phrases have such a history of interpretation and construction. !n anordinary discussion with a friend, you might speak interchangeably about&publishing,( or &distributing,( or &selling( a book. /ut those terms meanverydi:erent things in copyright law, and if you switch randomly from oneto another to describe the same action your readers will be hopelesslyconfused.

The best way to avoid that is to avoid the temptation to insert arti%cialvariety into your writing by means of lots of synonyms for commonly-usedterms. Reep it simple. There are many ways to introduce variety and colorinto legal writing* using lots of di:erent words to describe the same things is

not one of them.

=. Read yo'$ wo$ alo'd.

&Writing,( Dawrence Iterne wrote "in Tristram Shandy#, &isconversation.( Ke was correct. !f your paper, or outline, or memo, or letter,or brief, or . . . does not make sense to a listener, it will almost certainly notmake sense to a reader, and vice versa. )ead your work aloud to yourselfif need be, or to someone else if possible. 1any of your works shortcomingswill become evident when you do that. When students come to my oce todiscuss something they had written that ! found confusing and unclear

whether its an article draft, or an eam answer, or a practice memo !often ask them simply to read what they have written out loud to me, fromstart to %nish. !nevitably, within the %rst paragraph or two, they stop and,without my having reacted in any way, they say something likeB &2h, ! seethat doesnt make any sense at all . . . What ! was trying to say was . . .(

Thats the good news. Dearning how to write well is learning how toidentify the shortcomings in your own writing, and learning how to % them.

Writing Guidelines & 'avid #ostAugust, 21)#age *1+*


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@ou cant % them if you cant even %nd them, and reading your work aloudwill help you %nd them.

;. W$ite yo'$ I#t$od'ctio# L&ST.

7 great deal of legal writing consists of four basic partsB an!ntroduction, /ackground, the 7rgument"s#, and a Conclusion in that order.The function of the !ntroduction is to tell the reader whats coming a littlebit about the question"s# youll be answering, and the basic structure of yourargument that will lead to your conclusion. 7 road map to what follows. !nthe early stages of your pro+ect, you have no idea whats coming, i(e(, whatshape the argument is going to take or, often, what your conclusion is goingto be. Io you cant possibly write your !ntroduction yet. 2nce you knoweactly what your argument looks like "i(e(, at the endof the pro+ect#, it isusually trivially easy to write an !ntroduction* &eforeyou know what yourargument is going to be, it is very dicult almost impossible to do so.

?. @'ote 7$st eA"lai# late$.

The actual words used in the statutes or the opinions under discussional#aysmatter. =o not tell your reader what you thin'a statutory sectionmeans until you have given him the actual language in the statute* dontventure to say what you think a court meantuntil you %rst address what itactually said. !f the statutory language "or the courts language# is clear,then its clear, and nothing more need be said. !f it needs eplanation andinterpretation "as it almost always does#, eplain and interpret afteryoutell me what the words are that you are eplaining and interpreting. ! dont

want to know your opinion about the statute or the case ! want to know "a#what it says, and "b# what it means.

. Use to"ic se#te#ces to o$(a#iCe yo'$ "a$a($a"hs.

ach paragraph in your paper should cover one point, which youshould place in a declarative sentence at the start of the paragraph. TwotipsB >irst, develop the habit, when reading over your own work, ofsatisfying yourself that all sentences in any particular paragraph eplain, ormodify, or clarify, or somehow deal with, that paragraphs topic sentence.Iecond, read your paper over ignoring everything except the 2rst sentences

in each paragraph, from start to %nish( !t should make sense "to someonewho knows little or nothing about the sub+ect#. !f it doesnt, youre not%nished.

1). & checlist ofthi#(s to eli!i#ate f$o! eve$ythi#( yo' w$ite 9o$at least to +e ve$y ca$ef'l a+o't:%

The Passive oice

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7lways write so that the reader can tell #hois performing the actiondescribed in each of your sentences.

=o notsay &7s the !nternet grew, new uses for domain names were

found . . .( Tell your reader who found them "e(g(, &7s the !nternetgrew, users found new uses for domain names . . . .(#.

No% &The H-step test for determining likelihood of confusion under theDanham 7ct was crafted . . .(0es% &The ighth Circuit crafted the H-step test for determininglikelihood of confusion under the Danham 7ct . . . &

No% &Where there is no general +urisdiction, the possibility of speci%c+urisdiction must be eamined.(0es% &Where there is no general +urisdiction, the court must eamine

the possibility of speci%c +urisdiction.(

No% &The arbitrators decisions are enforced by the imposition ofmonetary penalties on wrongdoers.(0es% &The IC enforces the arbitrators decisions by the imposition ofmonetary penalties on wrongdoers.(

No% &The modern framework for analy9ing a question of personal+urisdiction was developed in 4nternational Shoe .o( v( Washington,;4O 8.I. ;56 "5LJH#.(0es% &The Iupreme Court developed the modern framework for

analy9ing questions of personal +urisdiction in 4nternational Shoe .o( v(Washington, ;4O 8.I. ;56 "5LJH#.(

No% &7IC7' was authori9ed to demand payment for the broadcast ofcopyrighted works.(0es% &Congress CC,( or &the Communications 7ct,( orwhomever it wasA authori9ed 7IC7' to demand payment for thebroadcast of copyrighted works.(

No% &!n this paper, theories of intellectual property protection arediscussed.(

0es% &!n this paper, ! discuss theories of intellectual propertyprotection.(H

Iometimes, when you try to implement this rule, you will say toyourselfB &/ut 4 dont 'no#who enforces the arbitrators decisions


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eample of how you can use the writing process to help you learn what youneed to learn about the sub+ect* if you %nd yourself using the passive voiceand cant correct the problem, you need to learn more about the sub+ect.

Th'!"i#( o# the Ta+le liminate the phrases &it is clear that . . . .,(

&it is obvious that,( and all similar phrases, along with the words &clearly,(&obviously,( and &undoubtedly,( and their close cousins "see &8nnecessary7dverbs,( below#, from your vocabulary. !f something is obvious, sho#mehow obvious it is* +ust tellingme that it is obvious "to you# doesnt get meanywhere. !f it is so obvious, it should be easy for you to get the reader seeit for herself. !f it is notobvious, saying that it is will not make it so.

3inety-nine times out of 566, the words &clearly( and &obviously( arecrutches, obscuring the fact that you have notmade something clear orobvious when you should have, and you are hoping that using the words&obviously( or &clearly( will make up for the de%ciency. They wont. They do

+ust the opposite they make the reader angryB &The author thinks this isclearGobvious but hasnt shown me why or how, and is asking me +ust totake her word for it.(

U##ecessa$y &dve$+s &The road to Kell,( author Itephen Ring"correctly# observed, &is paved with adverbs.( 7dverbs "words that modifyverbs or ad+ectives, using ending in ly# are rarely your friend. Dike thepassive voice, they are signals that the author is aware that he is notepressing himself clearly or getting his point across, but doesnt quite knowhow to do so.

&The facts of this case are incredibly similar to those in Smith v(:ones.(&=efendants unauthori9ed transmissions blatantly infringed

plainti:s copyright.(

7s a reader, what do you take away from those sentences07pparently, the author of the %rst thinks the facts of the two cases underdiscussion are very similar, and that the defendants conduct wasparticularly egregious &ut shes not actually giving the reader theinformation necessary to understand that% shes ;ust telling you .

Ihow me how similar they are, and you wont need the &incredibly.(Ihow me how outrageous the defendants conduct was, and you wont needthe &blatantly.(

7dverbs sometimes are useful but if you use anyin work that youhand in to me, be prepared to defend each one as necessary and important.


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The word &essentially( is particularlyOegregious. =o not ever use it.

&The court essentially held that the Copyright 7ct of 5LSOprohibited the importation of Fgray market goods . . .

&ssentially, the defendants argument was that the Fmust-carryprovisions of the Telecommunications 7ct of 5LMO were invalidunder the doctrine of Fcompelled speech.(

&There was, essentially, no material di:erence between thedefendants conduct in the two cases involved in . . .(

The word &essentially( adds nothing other than ambiguity to thesesentences. =id the court hold that the Copyright 7ct of 5LSO prohibited theimportation of Fgray market goods, or didnt it0 =id the defendant makethat argument, or not0 Was there a material di:erence between the

defendants conduct in the two cases, or not0 8sing the word &essentially(+ust signals to the reader that the situation is actually a little morecomplicated than youre making it out to be, #ithout explaining ho# it ismore complicated, so the reader is left angry and confused.

U##ecessa$y I#t$od'cto$y a#d T$a#sitio# Wo$ds =o not say&!tshould be noted that . . .( or &!t is important to note that . . .( or the like.ven &1oreover, . . .( or &7dditionally, . . .( or &>urthermore, . . .( should beavoided. They are almost always inserted when the logical transitionbetween your sentences or paragraphs makes no sense, and they reEectyour desperate hope that by saying &!t is important to note . . .( or

&1oreover( or &>urthermore( you will cover up that unfortunate failure oforgani9ation. !f something is important to note, show me how and why it isimportant +ust telling me &this is important( is not helpful. !f you have twosentences that do not belong together, throwing in an &!n addition, . . .( atthe beginning of the second sentence will nothelp. 8se these devices verysparingly, if at all.

7nd again when you %nd yourself using phrases like this, dont +ustcross them out and move on. ThinkB &Why did ! use that phrase0 Whydo !think this point is so &important to note(0 Where, within the structure ofwhat !m writing, does this point belong0 Where should it go so that the

reader will see +ust how important it is without my having to say &This isCare6ul readers $ill notice that am violating the no*adverb rule & the ver" rule am discussing * here. can,ho$ever, de6end m" choice o6 $ords. 6 ta8e out the adverb, the sentence $ould read as 6ollo$s

-The $ord 9essentiall": is egregious./

That $ould impl" that the uses have ;ust been discussing are notegregious, and do not mean that. The $ord-particularl"/ does use6ul $or8 6or me here.


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important(0 What other point"s# does it clarify, or contradict, or modify thatmake it so important0(

Then, move it to wherever it should go.

The wo$d -si#ce/ whe# yo' !ea# -+eca'se/ When ! comeacross a sentence in a paper that begins like thisB

&Iince enactment of the Copyright 7ct in 5LSO (

! epect what follows to look something like thisB

&. . . music reproduction technology has greatly altered thelandscape of the music business,( or

&. . . there have been many attempts to revise the statutory

Fwork for hire provisions,( or

&. . . copyright law has become a more signi%cant component oflegal practice.(

What ! do notepect is something that looks like thisB

&Iince enactment of the Copyright 7ct in 5LSO was part of ane:ort to balance the incentives to create and to disseminatecopyrighted works, it is important to keep the interests ofauthors and publishers in mind when considering statutory

provisions.(

! get a little +olt of dissonance when ! reach the words &was part of ane:ort . . .( !ts the wrong part of speech, and ! have to return to thebeginning of the sentence to make sense of whats written. Thats +ust alittle bit of etra work ! have to do as a reader, and it violates a cardinal ruleB


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7cme, !nc. is estopped from asserting that their overseasoperations qualify for the credit because . . .

8nder the Fwork for hire doctrine, the employer, as de%ned withreference to the common law of agency, owns the copyright in

all works created by their employees. . . .

These can be tricky to % "at least in nglish# because of the $ender'roblem. We are "and should be# no longer comfortable about using thepronoun &his( as the catch-all form of the singular possessive "even thoughit will produce grammatically correct sentences#B

ach customer is responsible for payment of the taes due onhis purchases . . .

7ny citi9en sub+ect to the courts +urisdiction can assert his

claims in a special proceeding . . .

nglish does not have a gender-neutral form for the singularpossessive.S The plural possessive &their( is nicely gender-neutral, so wetend to slip into it even when "as above# it is grammatically incorrect.

The solutions to this problem areB

"a# 8se &hisGher( "or &his and her(# and &its(B

ach customer is responsible for payment of the taes due on

his or her purchases . . .

7ny citi9en sub+ect to the courts +urisdiction can assert hisGherclaims in a special proceeding . . .

7cme, !nc. is estopped from asserting that itsMoverseasoperations qualify for the credit because . . .

8nder the Fwork for hire doctrine, the employer, as de%ned inthe common law of agency, owns the copyright in all workscreated by its employees.

"b# 7lternate &his( and &her(B

3The campaign to introduce 9hesh: 6or this purpose has m" $holehearted support, but recogni@e that it is not "etgained enough traction to have become an accepted part o6 the vocabular". ut hope springs eternal . . .4Please note The $ord -its,/ $hen used as a pronoun (-its ta7es,/ or -its overseas operations/? does not have anapostrophe. -t:s/ is a contraction o6 the $ords -it is/ -t:s a beauti6ul da" in the neighborhood./



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ach customer is responsible for payment of the taes due onhis purchases . . .

7ny citi9en sub+ect to the courts +urisdiction can assert herclaims in a special proceeding . . .

4R

"c# Change the sentence to refer to a plural noun.

Customers are responsible for payment of the taes due on theirpurchases . . .

7ll citi9ens sub+ect to the courts +urisdiction can assert theirclaims in a special proceeding . . .

Corporate tapayers are estopped from asserting that theiroverseas operations qualify for the credit because . . .

8nder the Fwork for hire doctrine, employers, as de%ned in thecommon law of agency, owns the copyright in all works createdby their employees.

11. It


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-A man ma" ta8e to drin8 because he 6eels himsel6 to be a6ailure, and then 6ail all the more completel" because hedrin8s. t is rather the same thing that is happening to theBnglish language. t becomes ugl" and inaccurate becauseour thoughts are 6oolish, but the slovenliness o6 ourlanguage ma8es it easier 6or us to have 6oolish thoughts. Thepoint is that the process is reversible./

George r$ell,Politics and the English anguage


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&""e#diA% Why Eve$ythi#( 0o' P't o# the Pa(eReally Does 5atte$

When )obert >rosts .ollected oemswas %rst published, it containedthese familiar lines "from &Itopping by Woods on a Inowy vening(#B

The woods are lovely, dark, and deep/ut ! have promises to keep7nd miles to go before ! sleep7nd miles to go before ! sleep.

!n fact, what >rost had actually written wasB

The woods are lovely, dark and deep

/ut ! have promises to keep7nd miles to go before ! sleep7nd miles to go before ! sleep.

7dding that comma after &dark( changes - subtly, but critically - themeaning of that stan9a.

We are not poets, and the tets we read and write as lawyers are,heaven knows, not poetry. /ut consider the followingB The Copyright 7ct of5MSJ granted copyright protection to any &engraving, cut, or print.( !t alsoprovided that . . .

&. . . in the construction of


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7nd note how the meaning would change if there were commas afterboth the words &pictorial illustrations( and &works(B

&. . . in the construction of


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"C# the institutionprovides to all users of itssystem or net#or' informational materials thataccurately descri&e% and promote compliance #ith%the la#s of the =nited States relating to copyright.(

)ead it again, carefully. Keres a little problem of statutoryinterpretation. 7ssume thatB

"a# Temple 8niversity is a &nonpro%t institution of higher education(that is a &service provider( within the meaning of subsection "e#*

"b# 7 faculty member call him &'rofessor 'ost( is an employee ofTemple 8niversity and is &performing a teaching or researchfunction( within the meaning of subsection "e#*

"c# Temple 8niversity does notprovide &informational materials that

accurately describe, and promote compliance with, the laws of the8nited Itates relating to copyright( to all users of its system, i(e(, itdoes notmeet the condition laid down in subparagraph "C# of theabove provision.

The questionB !s 'rofessor 'ost &a person other than the institution( for&the purposes of subsections "a# and "b# of this section( "whateversubsections "a# and "b# might be#0

The answer is &3o.( Why0 /ecause &for the purposes of subsections"a# and "b# of this section( 'rof. 'ost &shall be considered to be a person

other than the institution( only if the conditions in sub-paragraphs "7#, "/#,and "C# are satis%ed. /ecause the condition in sub-paragraph "C# is notsatis%ed, 'rof. 'ost shall not be considered to be a person other than theinstitution.

3ote what happens if we omit the comma before the word &if( at theend of the %rst paragraph. The section now reads as followsB

&"e# When a public or other nonpro%t institution ofhigher education is a service provider, and when afaculty member or graduate student who is an

employee of such institution is performing ateaching or research function, for the purposes ofsubsections "a# and "b# of this section such facultymember or graduate student shall be considered tobe a person other than the institution, and for thepurposes of subsections "c# and "d# such facultymembers or graduate students knowledge or

Writing Guidelines & 'avid #ostAugust, 21)#age *2)*


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awareness of his or her infringing activities shall notbe attributed to the institution if --

"7# such faculty members or graduatestudents infringing activities do not involve theprovision of online access to instructional materials

that are or were required or recommended, withinthe preceding ;-year period, for a course taught atthe institution by such faculty member or graduatestudent*

"/# the institution has not, within the preceding;-year period, received more than two noti%cationsdescribed in subsection "c#";# of claimedinfringement by such faculty member or graduatestudent, and such noti%cations of claimedinfringement were not actionable under subsection

"f#* and"C# the institution provides to all users of its

system or network informational materials thataccurately describe, and promote compliance with,the laws of the 8nited Itates relating to copyright.(

The answer to the question presented is now &@es.( )emoving thecomma has completely changed the meaning of the subsection. 3ow, for&the purposes of subsections "a# and "b# of this section( 'rof. 'ost &shall beconsidered a person other than the institution( full stop. The conditions insub-paragraphs "7#, "/#, and "C# apply onlyto determining whether thefaculty member will be considered to be a person other than the institutionfor purposes of su&paragraphs )c* and )d*("!f you dont see that, read thesection over again aloud if necessary until you do#.

Writing Guidelines & 'avid #ost

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Writing Guidelines - Aug 2014