The SearchVoat Forum

2009

The Wall Street Journal’s Law Blog points us to a WSJ story on the absurd language used in copyright contracts these days:

"Decked out in sequined black and gold dresses, Anne Harrison and the other women in her Bulgarian folk-singing group were lined up to try out for NBC’s "America’s Got Talent" TV show when they noticed peculiar wording in the release papers they were asked to sign.

Any of their actions that day last February, the contract said, could be "edited, in all media, throughout the universe, in perpetuity."

She and the other singers, many of whom are librarians in the Washington, D.C., area, briefly contemplated whether they should give away the rights to hurtling their images and voices across the galaxies forever. Then, like thousands of other contestants, they signed their names." ..

"The terms of use listed on Starwars.com, where people can post to message boards among other things, tell users that they give up the rights to any content submissions "throughout the universe and/or to incorporate it in other works in any form, media or technology now known or hereafter developed."

Lucasfilm Ltd., Star Wars creator George Lucas’s entertainment company that runs the site, said the language is standard in Hollywood.

"But, to be honest with you, we have had very few cases of people trying to exploit rights on other planets," says Lynne Hale, a Lucasfilm spokeswoman.

In a May 15, 2008, "expedition agreement" between JWM Productions LLC, a film-production company, and Odyssey Marine Exploration Inc., a shipwreck-exploration outfit, JWM seeks the rights to footage from an Odyssey expedition. The contract covers rights "in any media, whether now known or hereafter devised, or in any form whether now known or hereafter devised, an unlimited number of times throughout the universe and forever, including, but not limited to, interactive television, CD-ROMs, computer services and the Internet.""

It reminds me of a draft settlement I received not too long ago that, notwithstanding the statute of limitations, required my client release all claims "from the beginning of the world until the present." Just for fun, I negotiated that down to "from the dawn of mankind."

Ken Adams, the blogosphere expert on contract language (and who is interviewed in the article), blogged about the same problem nearly three years ago, and updated his post today to note:

"The phrase occurs most often in contracts in which a consultant or employee assigns to a company all rights to any intellectual property the consultant or employee develops in the course of providing services under the contract. An example: "Employee hereby irrevocably assigns, licenses and grants to Company, throughout the universe, in perpetuity, all rights, if any, of Employee to …." In that context, saying "all rights" is entirely comprehensive; adding "throughout the universe" constitutes needless elaboration."

Indeed, making your contract apply to "all rights … throughout the universe" could be worse than applying to "all rights," because it redefines an unambiguous word and makes it more likely that other ambiguous parts of the contract will be interpreted against whoever inserted the "throughout the universe" language.

"All" means "all." "All rights… throughout the universe" means "all" with a caveat. When faced with unambiguous contract terms (e.g., "all") that are specifically defined by the parties (e.g., "throughout the universe"), a court will ask itself, why did someone try to further specify the unambiguous term?

The court will then presume there must have been some reason for the additional language and try to figure that reason out. The danger of needless elaboration like "throughout the universe" is that the court will view additional language as narrowing the unambiguous terms, which is usually not what the party demanding the additional language wanted.

Moreover, the court will presume that, if one party keeps adding language to "clarify" the meaning of general words (such as "all"), then any ambiguity in the contract should be interpreted against that party, because that party was the one with the most control over the contract’s language.

In the contexts above, those distinctions are probably irrelevant. But, as Adams notes, "it’s symptomatic of the broader dysfunction in contract language." It’s also a bad habit: once you become comfortable with this type of ridiculous language redefining the word "all," how do you know if the ambiguity will stop there?

phpBB [video]

S. MUTHIAH
New Delhi and Canberra echo each other in appearances. Struck by the coincidence, S. Muthiah explores
the two capital cities. The first in a series of articles.

Curiously, both countries, whose present capitals had their beginnings in the same year, celebrate their
National Days on the same day, January 26.

It was at a dinner at a friend's place in Canberra that an Australian parliamentarian told me that it was a
hundred years ago this year that Australia's capital got the land on which it was to develop. It was on
January 1, 1911, he said, that New South Wales handed over to the Federal Government of Australia the
Canberra Valley for the development of a capital for what had become a federation of six British
colonies.

Coincidences

That year, a hundred years ago this year, sounded uncannily familiar to me, but for the life of me I
couldn't place it till I came home and looked up in an Indian chronology what its significance was. At
first glance, what registered was that it was the year of the Delhi Durbar specially convened for the King
Emperor, George V, and Queen Mary. But it wasn't long before I found a curious coincidence; it was in
that same year, on December 12, that King George announced at that durbar that ancient Delhi, that
had served as capital seven times in its history, would be a capital for an eighth time, replacing Calcutta
as British India's capital. On December 15, he laid the foundation for the development of that capital at
a spot on what became known as Kingsway. Even more curiously, both countries, whose present capitals
had their beginnings in the same year, celebrate their National Days on the same day, January 26, one
honouring the founding of the republic, the other remembering the landing of the first settlers.

Struck by the coincidences, I got down to following the trail of both capitals and, surprise, surprise,
found other similarities. But the first similarity that struck me was how much New Delhi and Canberra
echoed each other in appearance. Long distances, broad roads radiating out of circles, gardens
everywhere, striking architecture including several vestiges of the colonial, and what might be called
‘capitol hills'. And just as Delhi is a part of the National Capital Region, Canberra is a part of the
Australian Capital Territory. Even the weather while I was in Canberra was almost as unkind as a New
Delhi summer, but as cool of an evening as Delhi can get. Delhi, however, has Old Delhi and its older
avatars; Canberra has no such past except that Canberra means ‘meeting place' in an aboriginal tongue,
giving the site vestiges of a lineage.

A more discernible past goes back to the colonisation of Australia from 1824 and New South Wales
emerging as the dominant colony, an independent territory of the Crown like the other colonies that
followed. Bitter rivals in the early days, the colonies had by 1851 begun to see strength in unity and talk
of federation was very much in the air. It was, however, 1891 before a decision was taken to form a
union of colonies with a federal legislature and executive whose roles would be defined by a constitution.
The draft constitution of 1891 was the subject of bitter debate for ten more years before the
Commonwealth of Australia was born on January 1, 1901. It would have been a happy day for `The
Father of the Federation', Henry Parkes of Sydney (NSW), who personally as well as through his
newspaper, the Empire, and during his five stints as Prime Minister of New South Wales and in the years
out of office, campaigned relentlessly for the formation of a federation. Noteworthily, over a score of the
compositors and pressmen at the Empire, more than half its machine-room were the first Anglo-Indian
emigrants to Australia, all of them trained at the Madras Male Orphans' Asylum that has grown into St.
George’s School, Madras.

The most debated of all issues from 1851 was which town was to be the capital of the Commonwealth.
New South Wales, as the ‘mother colony', insisted the choice should fall on one of its towns. Victoria
would have nothing of it; if it wasn't Melbourne, it would have to be another town in Victoria. A long
drawn-out, acrimonious debate finally ended in 1891 with an agreement that the territory of the oldest
colony (NSW) would host the Federal Capital Territory, the site would have to be at least 100 sq. miles
but at least 100 miles from Sydney, and that till its infrastructure was developed Melbourne would host
the Federal Parliament. This, however, was not the end of the wrangling. Various New South Wales
towns then began aggressively putting forth their claims to be the territory of choice. It was 1908 before
the Canberra Valley, with its vast virgin spaces, temperate climate, and plentiful water, got the nod. In
the event, 900 sq. miles of the Valley about 200 miles southeast of Sydney was gifted to the Federal
Government by New South Wales as 1911 dawned.

As in the case of New Delhi, an architect from abroad was commissioned to design the new capital.

Rewards

A competition was announced in March 1911 for a design for Canberra and, a year later, Walter Burley
Griffin, a Chicago architect and the winner, was given the commission for Canberra. That same year,
Edward Lutyens was commissioned to draw up the plans for New Delhi and work on British India's new
capital began almost immediately. Work in Canberra began on February 20, 1913 – and that is the
centenary Canberra plans to celebrate, not the grant of the land, my dinner companion informed me.
Now I can't help but wonder whether New Delhi is planning any celebration at the end of this year or
some time next year to mark the beginning of its development as modern India's capital.

Work on both capital cities proceeded at a slow pace, marked by the interruption of the Great War,
debates over design, and wrangles with contractors. In the end, Canberra was inaugurated on May 9,
1927, Delhi on February 13, 1931. Delhi became a Union Territory in 1950 and a State with its own
legislature in 1993. The Federal Capital Territory, re-named the Australian Capital Territory, gained selfgoverning status in 1988.


Delhi, however, was developed with an imperial vision. Canberra in its early days was described as
“several suburbs in search of a city.” It was Prime Minister Robert Menzies who in the immediate postWorld War II years made it a city worthy of being a capital..

Burley Griffin came to India in 1935 to design a library for the Lucknow University. He stayed on to
design several other buildings in Lucknow, including the headquarters of the famed daily, The Pioneer,
for which he also regularly wrote. Sadly, however, he passed away in 1937 before completing most of
his assignments. He is buried in Lucknow.