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Registered™

19 Jul

My iPhone is biometrically coded, offers encryption that baffles the FBI, and can connect me to global news and networks that defy the reach of political censorship. But it does want me to capitalise ‘Polaroid’:

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Digital freedom means many things, but apparently not the right to appropriate trademarks.

The extent to which registered trademarks enter common language, or “genericisation”, is one of the hard knot of editing issues, along with libel and legal reporting, where editors can really earn their money – high-stakes prescriptivism, so to speak. Lawyers representing dominant companies live in fear of their trademarks becoming nouns or verbs that define an entire market, not just  their clients’ products (see, for example, “googling”, “photoshopping”, “thermos”, “sellotape”, and once, long ago, “aspirin”). Once a word has “entered the language”, the courts are inclined to take that as a fait accompli and deny any further copyright infringement cases; so the lawyers have to act fast and early to prevent genericisation ever happening. They email, write, phone, demand corrections, suggest alternatives (Velcro likes you to say “hook and loop fasteners”). They are language change’s sharpest and best-resourced opponents.

And that’s why the Tribune’s style guide on the issue says the following:

trademarks (TM)
Take care: use a generic alternative unless there is a very good reason not to, eg ballpoint pen, not biro (unless it really is a Biro, in which case it takes a cap B); say photocopy rather than Xerox, etc; you will save our lawyers, and those of Portakabin and various other companies, a lot of time and trouble

The editor’s natural interest in enforcing distinctions chimes well with the lawyers’ determination to have them enforced, even if the legal vigilance gets a little grating at times. Portakabin, notably, used to send round a letter a week before the summer music festival season – long before any transgression had actually taken place – to “remind” editors that their clients did not provide the toilet facilities for Glastonbury, so on no account were festivalgoers to be described as using “Portaloos”. This would reliably cause the kind of grumbling, even among hard-nosed copydesk veterans, that one might almost have described as descriptivist. However, one can see the point: in court cases, one of the determining factors of a word being deemed to have entered the public domain is to what extent it appears in a general sense in media reports.

That said, it’s still not entirely clear what Apple is hoping to achieve with its suggestions on QuickType (as the predictive typing aid in iOS9 is called). As an experiment, I tried out Facebook Messenger with single-word nouns given as trademarks in the Tribune’s style guide.

Whenever it recognised the word (it didn’t in all cases), QuickType invariably suggested an initial cap, with the sole (and slightly baffling) exception of Jacuzzi (trademark of the company founded in 1915 by Giocondo Jacuzzi in Berkeley, California.)

But is that enough? As the style guide suggests, the best practice when trademarked words come up is to change them to a generic alternative – at least, better practice than scattering the copy with ™s and ®s. Is a capital letter, without more, enough to escape accusations of aiding genericisation? Is the fact that your operating system is suggesting a semi-proper noun less likely to annoy the lawyers, or more?

It might be argued that proposing some acknowledgment of copyright is enough to absolve you of blame; certainly better than offering a lowercased suggestion. But the best practice recommended to lawyers is to use the trademark as an adjective not a noun (“Xerox brand copiers”), and QuickType seems happy to suggest nouns. It may be that QuickType is following the dictionary practice of capitalising trademarked nouns when defining them; but dictionaries always quickly make clear that such words are trademarks, and QuickType does not.

In the end, the genericised fate of escalator, kerosene, laundromat and trampoline suggests that the battle – like nearly all battles against language change – may be futile. Certainly, Xerox have fought doughtily against “xeroxing” as a verb and kept their trademark protected: but there are many fewer photocopiers in today’s broadband-connected offices than there used to be, and it may be that the word will die out with the practice. But in the meantime, the letters will keep on arriving. And the lawyers aren’t the amateur grammar grumblers of the letters page: these people peeve for a living.

 

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The secret of singular ‘they’

3 Aug

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Singular “they” is a good thing. It helps you avoid the clunkiness of “he or she”/”his or her”/”himself or herself” all through an article where gender is irrelevant. It is sometimes the preferred non-specific pronoun when referring to a trans person. And there’s one other thing it can do as well: it can help avoid a lawsuit.

The Sunday Times’s high-profile revelation about doping in athletics comes with some alarming statistics, but no names – at least, not of the guilty. It has identified and exonerated some favourite British stars, to widespread national relief, but also found one “top UK athlete” whose blood-test results are said to be highly irregular.

But because journalists agreed with the whistleblower who provided the data that they would not identify anyone on the suspicion list – and possibly also because the athlete in question, who emphatically denies the allegations, has threatened to sue – identities have been strictly concealed. Everything is withheld: the name, the events, the sport, and, thanks to singular “they”, even the athlete’s gender.

A top British athlete looked shaken last weekend when the Sunday Times showed them the list of their own results in the blood-doping data …

The athlete firmly states that they “never cheated” and supports calls for more money to be spent on stamping out blood-doping …

The data shows that the athlete’s blood scores increased as their performances improved on the national stage …

… the athlete swore on the lives of loved ones that they had never doped …

Last week the athlete said their score had been elevated because it had been taken when they were dehydrated after winning a race in summer temperatures.

Thanks in part to singular “they”, the whole article largely avoids the danger of jigsaw identification. All that can be gleaned from it is that the person in question is a “top UK athlete” (whatever that means); that they were some kind of racer (which rules out the Olympic ball sports or field events like javelin and hammer); that they were active in the first decade of the 21st century; and that they are, perhaps, retired (with a hint of finality, the article refers to them having tested unusually highly “on three occasions during their career”). That’s all.

In those circumstances, perhaps specifying gender wouldn’t have gone much further in directing suspicion. But incorporating all athletes of both sexes that fall within those very loose parameters leaves even the most eager speculator with little to go on.

 

Errors and omissions excepted

29 Oct

Wow:

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Kevin Langston, the New York Post reports, who was given 15 years in jail for his part in a gun-running operation, “is about to get sprung from the slammer early”  because of a mistake: the court’s official record shows he was only given a sentence of five years. According to the Post, “prosecutors say the transcript showing the shorter term was missing a ‘1’ due to ‘an error by the court reporter’, who has since retired and can’t be found”.

The Brooklyn district attorney is clear that this is a straightforward mistake:

“It is our position that this defendant benefited from a court reporter’s error,” said a spokeswoman for DA Ken Thompson. Langston, she said, “heard the judge sentence him to 15 years. The sentencing judge gave him 15 years, and that is what he should serve.”

But the appeals court does not see it as being nearly so straightforward, and has now ruled that Langston had “acquired a legitimate expectation of finality” with the five-year sentence. As the Brooklyn Daily Eagle points out, although the court did have the power to amend the errant transcript, it went uncorrected for seven years.

The ultimate decision in the case – the DA’s office is reportedly “weighing its options” – will be a complex one, likely to involve discussions of double jeopardy (for example, whether any change in the transcript would mean Langston was being sentenced twice for the same crime).  But the central problem is a very familiar one to anyone who, like me, used to work as a legal editor: in court, typos are not a trivial matter.

Years ago, while working on a book about bills of lading and maritime law, I was proofreading extracts from widely used bills quoted in the text against the original documents. Quite by chance, I discovered that a significant chunk of one popular bill’s terms and conditions had gone missing from the latest official reprinting of the form. They were present in our book, quoted from the previous version, but absent from the small type on the new document itself.

I drew the author’s attention to this as a curiosity. Somewhat to my surprise, he not only got in touch with the issuing authority – which confirmed this had been an accidental omission – but insisted on reopening that chapter to explain what was absent, concluding that, legally, “the effect of this is unclear, to say the least”. Whatever the upshot of a hypothetical dispute over the missing clauses on that form might have been, it was clear that they could not simply be taken as read.

In descriptivist linguistics, what is meant ultimately takes precedence over what is said: this is why double negatives become intensifiers, “head over heels” means “upside down” and “irregardless” means the same as “regardless”. But in law, and in legal editing, it is frequently the other way round. What is said can trump what is meant – even if there was no confusion about intent; even if there was a mistake. This is why when you’re editing a court report – or writing a headline that might one day appear before a judge – descriptivism may not be enough to save you. When the lawyers are hovering, it’s not enough to know what you meant; you have to know what you’ve said.

 

Statutes and limitations

6 Nov

File this one under “some things are just mistakes”:

A typographical error in Queensland’s new anti-bikie laws means gang members who commit grievous bodily harm will spend only one year in jail.

Laws targeting bikies were rushed through state parliament this month, skipping the usual parliamentary committee process designed to identify flaws, including typos.

The laws were supposed to say that gang members who committed grievous bodily harm or assaulted a police officer faced a minimum mandatory sentence of one year.

Instead, it says “the offender must be imprisoned for one year”.*

Last year, a reader and contributor to Language Log, Deniz Rudin, made a comment about prescriptivism – and, by implication, editing – that struck an uncomfortable chord with many of us working editors:

Prescriptivism … is a branch of etiquette columnry – prescriptivists advise us of what the more embarrassing solecisms are, so that we can in avoiding them be judged by the cultured to be one of their own.

In our current state of self-doubt – assailed by newsroom cost-cutters on one side and linguistics on the other – we editors rather cringed and retreated at this. Was it true? Was what we did simply to act as valets to the principals in a modern-day salon? Were we just dressing our writers to meet the Queen? But when necessary words actually go missing out of a criminal statute, it isn’t just a solecism. “Imprisoned for one year” isn’t widely understood to mean “imprisoned for a minimum of one year” in conversational usage. This isn’t a delicate matter of tone or register. Some things are just mistakes.

* Item first noted by former colleague Mary Hamilton (briefly “Scary Hamiltron” during the All Hallows festivities but now restored to herself). @newsmary is where it’s at.

Jay v Hislop

27 May

I miss the Leveson inquiry. What eventually becomes of the much-kicked-around report on press regulation that resulted from it could be the subject of about 50 blogposts, but the inquiry itself was hands-down the best long-form TV concept of the decade. Jokes keep being made about a DVD box set coming out, but, sad to admit, if it were true I’d seriously consider buying one.

It was an Ashes series of media self-absorption; you could switch on BBC Parliament in the morning and it would fill the day, and the week, with cut-and-thrust, unexpected cameos, tours de force, slow, ineluctable swings in fortune … there’s nothing on telly now anywhere near as gripping, or as badly lit.

So let’s have a quick flashback to two of the stars of the show: the superb Robert Jay, chief counsel to the inquiry  (now promoted to the bench), and Ian Hislop, editor of Private Eye, whose position vis-a-vis a semi-statutory press regulator is going to be a tricky one:

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Rough drafts

3 May

In the previous post on “which”, “that”, Fowler and the jurisprudence of America, Rich Greenhill made an interesting observation in the comments about why the drafters of state laws seem to fight so shy of relying on commas to define non-restrictive clauses.

“They may have been influenced by lawyers’ traditional antipathy towards punctuation,” he writes. “In the UK, acts of parliament did not generally use punctuation (other than periods) until 1850; and even until recent decades the idea persisted that any punctuation should be ignored when construing laws. Much subordinate legislation continued to be drafted without punctuation until around the mid 20th century.”

Then I found this significant passage in Wisconsin’s Bill Drafting Manual:

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I think Mr Greenhill is on to something. So, bearing that in mind, and for the sake of completeness, it’s probably worth sprinting through how the remaining states of the union handle the which/that  issue.

Twenty states don’t make their legislative drafting manuals available online,* and another 12 don’t explicitly address the matter in their guidance.** Of the 18 that do, most seem to fall into one of three camps when it comes to Fowler’s rule.

The Wisconsin position Insisting on “that” for restrictive clauses and “which” for non-restrictive, and also insisting on the use of commas to set off non-restrictive clauses: WisconsinArizonaArkansas, ColoradoIndiana, Minnesota, Montana and Utah.

The Texas position Insisting on “which” and “that”, but saying only that commas are “generally” used to set off non-restrictive clauses: Texas and Maine.

The Massachusetts position No reference to commas at all, by implication making “which” or “that” the defining feature of the clause: MassachusettsAlabamaDelawareFlorida and North Dakota.

Special mention must go to Idaho, for this breezy but baffling advice:

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and Oregon, which goes in particularly hard on the function of “which”:

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“Introduces a parenthetic effect, even if not so punctuated”? Really?

But let’s end with a cheer for Washington, which offers descriptivist-friendly, pro-comma advice that might gladden the heart even of Professor Pullum:

“(ii) A nonrestrictive clause is set off by commas, but a restrictive clause, which is essential to the meaning of the word being modified, should not be set off by commas. Compare the following two sentences, which illustrate a restrictive clause and a nonrestrictive clause, respectively:

Men who hate football should stay home.

Men, who hate football, should stay home.”

* California, Georgia, Iowa, Kansas, Louisiana, Michigan, Mississippi, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Carolina, Oklahoma, Rhode Island, South Carolina, Tennessee, Vermont, Virginia and Wyoming.

** AlaskaConnecticutHawaiiIllinois,  KentuckyMarylandMissouriNew MexicoOhioPennsylvaniaSouth Dakota and West Virginia.

That’s the law

29 Apr

We all know what a prescriptivist rant sounds like: after all, there’s a lot of them about. A descriptivist rant is a much rarer thing: after all, descriptivist linguistics is a flexible, observational and forgiving discipline. But they do exist, and some of the best I’ve ever read have been by Geoffrey Pullum, professor of general linguistics at Edinburgh University and one of Language Log’s greatest eminences.

The subject of several of his rants has been that old favourite, the distinction between “which” and “that” – specifically the idea that “which” must introduce non-restrictive clauses, set off with commas,  that are parenthetical to the sentence, and that “that” must introduce restrictive clauses, without commas, that define (or “restrict”) the item that has just been mentioned.

It’s often taught as a rule of English grammar, but it isn’t: it was a suggestion advocated by HW Fowler  (in fact, he called it a “plea”) to clarify a part of English where genuine ambiguity can occur.* It caught on and became widely taught, especially in the US. But Professor Pullum, who very much believes in letting language flow free of artificial restrictions, is less than impressed with the intellectual landscape that has resulted:

“Grammar snobs trying to show off their linguistic rectitude by playing gotcha with an invented rule that never matched educated usage; copy editors slaving away trying to enforce it; Microsoft Word blindly putting wavy green underlining under every relative which not preceded by a comma. What a senseless waste of time and energy.

Follow the Fowler rule if you want to; it’s up to you. But don’t tell me that it’s crucial or that the best writers respect it. It’s a time-wasting early-20th-century fetish, a bogeyman rule undeserving of the attention of intelligent grownups.”

Linguists who are able to take a calmer view of the matter than the professor (who also wrote another post on a similar subject entitled “More Timewasting Garbage, Another Copy-editing Moron“) explain that, in fact, it is the presence or absence of the commas that makes the crucial difference. You can use “which” for a restrictive clause without making it non-restrictive, as long as you avoid commas.

The always sensible Stan Carey offers a good example on his blog: “The bike which I keep in the garage is ideal for short trips” means something different from “The bike, which I keep in the garage, is ideal for short trips”. In the first case, there may be more than one bike under discussion; in the second, there is clearly only one. As Mr Carey says:

“I don’t think it’s useful or beneficial to outlaw which from restrictive clauses, and I like having a choice of relative pronouns. Let punctuation do the work of clarifying. Used with skill, it does it well.”

There’s no doubt that the linguists’ case is  a convincing one – not least because of the large corpus of English that precedes and contradicts Fowler’s efforts to introduce the distinction. But nonetheless, his idea has spread. And not just to the subs’ desk, or even Microsoft’s grammar checker, but even further – to the state capitol.

The legislative drafting manuals of several US states – that is, the official guides for those who write laws for legislators to pass – reveal an adherence to Fowler’s idea so slavish and definite that it makes you fear for Professor Pullum’s blood pressure. For example, The State of Wisconsin’s Bill Drafting Manual makes Fowler’s “plea” a straightforward rule for its drafters:

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Utah does more or less the same thing:

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Colorado’s guide concurs, additionally exhorting its drafters to use which and that “correctly”:

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But Massachusetts’s guide is much balder: “which” and “that” alone, it suggests, do the work of distinguishing a non-restrictive from a restrictive clause. Commas are not even mentioned:

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And Texas goes as far as to indicate that commas, far from being the critical feature in defining the clause, are more or less an afterthought:

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“As a rule of thumb.” Ouch.

Fowler’s suggestion may not be strictly necessary for comprehension, but if you follow it the way he drew it up, it won’t get you into any trouble. However, if you don’t grasp the rule fully – and, on the face of it, Texas and Massachusetts don’t – it might be a different matter. By ignoring or downplaying the role of commas, it’s at least theoretically possible that a “which” clause somewhere in the statute book that was intended to be non-restrictive has become restrictive, and changed the meaning of a section in a bill or an Act.

Not very likely, perhaps, and you’d need three spare weeks and a Westlaw account to look for it. But it makes you wonder.

*Ambiguity, for example, like this.