Originally published at: https://boingboing.net/2018/01/21/torts-illustrated.html
Originally published at: https://boingboing.net/2018/01/21/torts-illustrated.html
An interesting and potentially useful approach for demonstating understanding of complex contracts and EULAs, although if American workers find themselves affixing their retina scans to the kind of “simple infographic contracts presented to functionally illiterate South African fruit pickers” by employers it’ll be a sign that the country has officially entered “Diamond Age” mediaglyphics territory.
Interesting, I don’t know if this is that common but at places I’ve worked this is the format they have gone to for ethics, IP, compliance training etc. It’s actually much nicer because training used to be three days of miserable reading and then taking pop quizzes over the things you read miserably. So instead of reading ten pages of legal definitions we now watch Bob and Li make a couple critical mistakes when handling a project and then get to fix them visual novel style to get a better ending. It’s actually a LOT more effective and I’m fairly literate in English. Those, however, are being designed to be understood as clearly as possible. I would imagine people trying to obfuscate things with their contracts would still try to obfuscate them, just in a different style.
From the article:
The above comic is a full non-disclosure agreement. Three pictures with text.
That’s this comic, shown in the BB post:
IANAL, but how is that a full NDA? Apart from anything else, how you draw the line between talking about what you’re doing and talking about how you’re doing it? Where does the general become the specific?
IAAL, this comic, at least the three panels here, would never work as a real contract. It’s missing pretty much all the elements of an actual NDA, or of a contract at all.
ETA: the author of the original article makes some strong assertions about these kind of “contracts” being enforceable, but we won’t really know that to be true unless someone tries to litigate one of them.
As was mentioned above by TornPaperNapkin, these kinds of things might work pretty well to explain to people who aren’t lawyers what their duties under a contract are, but they are (IMPO) far, far too ambiguous to stand up to any kind of challenge in court or arbitration.
The proper answer is to replace arbitrary clauses in B2C contracts for common types like insurance or cellular service with statutory clauses that preempt any abuses a corporation can think of. California had such a law that banned binding arbitration but it was struck down by the always corporate-friendly Supreme Court.
Just one of the many areas the EU is way ahead of the US.
Previously on BoingBoing:
But if people understand and agree to the “plain english” version, how can the “legally binding” one actually be legally binding?
My guess is that the signee has to at least initial all parts of the contract. As we’ve seen with EULAs and many other contracts people sign without fully reading, knowing what they say or mean isn’t really necessary for them to become binding as long as the signee signed of their own free will.
If following the “plain” English version could lead the signee to be in breach of the legalese version, then a good lawyer could probably get the signee released from the contract since they in effect agreed to two different sets of rules. But as long as following the plain English to the letter keeps the signee from being in breach, I suspect it’s enforceable regardless of whether the signee understands the legalese.
My concern would be that one (though not the only) reason legalese is so complicated is to deal with nuances and edge cases (which are after all often what get litigated) - such as the example someone noted above of the difference between talking about what you’re doing and how you’re doing it. I’m sure all those things could be explained in plain non-technical English, but it might actually take more words than in the legal profession’s own argot. After all, like any specialized field, the legal profession developed its technical vocabulary in part for practical reasons.
I can also think of cases where one might be in breach of the plain English version but not the legalese version. Legalese might clarify the boundary.
For example, the difference between what you are doing and how you are doing it is incredibly fuzzy; for some things there is no difference at all.
I would love to see the legal industry adopt a formal language for legal statements, which could be compiled by software to various formats, as well as queried directly. For many purposes it might be enough to ask Siri/Google/whatever if X is ok and if not, why not.
You could call it Proleg and give it a caterpillar mascot.
I don’t think I understand this idea at all.
What would be the point?
Legal language is almost a programming language as it is. Defining it formally would enable a single, reference interpretation of laws, so that testing could be done entirely on the behavior of the law, rather than its interpretation.
It would also make it possible to generate outputs in specific styles. So you would update the source, then generate the comic strip style, the formal documents or the interactive app.
The problem with this idea (and it keeps cropping up) is that the interpretation of the law is usually not the problem.
That part of things is generally pretty clear. What causes legal disputes is normally disagreements about facts rather than the law.
Jurisprudence naturally tends to concentrate on the cases that deal with the interpretation of the law but the majority of actual legal work has very little to do with disagreements over the law.
Also - the ability to have disagreements over the interpretation of the law is generally seen as a feature rather than a bug.
Compare the comic with an actual NDA and you’ll see what is missing.
So er yeah, what’s missing is the entire exclusion part. So does the comic contract, in saying ‘you can’t talk about how you are doing it’ extend the reach of the NDA to elements of the method that are independently derived by the contractor? Seems pretty ambiguous…
Personally I find ‘plain language’ legal stuff like this to be extremely suspicious. Inevitably the ‘plain language’ version involves some grab of rights that are carefully written down in the formal version. Remember the Tokyopop contract?
““MORAL RIGHTS” AND YOUR CREDIT
“Moral rights” is a fancy term (the French thought it up) that basically has to do with having your name attached to your creation (your credit!) and the right to approve or disapprove certain changes to your creation. Of course, we want you to get credit for your creation, and we want to work with you in case there are changes, but we want to do so under the terms in this pact instead of under fancy French idea. So, in order for us to adapt the Manga Pilot for different media, and to determine how we should include your credit in tough situations, you agree to give up any “moral rights” you might have.”
i.e. whenever we want:
But at least you won’t have to deal with any of those nasty French ideas…
There is also the troublesome problem of contracts between parties of such wildly differing power that only the most creative and, um, ‘motivated’ jurisprudence has managed the keep a straight face about the whole thing.
There isn’t an obvious incentive to make things clearer if the other party isn’t in any position to do much about them and you are a n the upside of the asymmetric information.
Clearly I, as a mere worker-drone, have equal bargaining power with possible employer Mega-Corp plc. so that the restrictive covenants built into their contract of employment are entirely freely entered into and completely fine legally.
Likewise, I am obviously free to renegotiate the terms of my credit card with my credit card company if they don’t suit me.
Mind you as an exercise in FUN, try crossing out and scribbling amendments all over the fine print on those “Pre-approved” credit card application forms that get junk mailed to everyone. Things like they will pay you x% on the amount of your credit balance, etc.
Keep a copy and send the original back. See if you get a credit card on those terms.
Kids - don’t try this at home.
I think a real part of the problem is that no one (and I mean no one) ever really reads these agreements. They just sort of accrete over time out of a bunch of different precedents and maybe Fred tweaked clause 12.1.(i) back in '02 and Alice looked at clause 23 in 2015 when that new law came in and so on…
Half the time people working on these contracts haven’t got a clue what the agreement actually says or why it uses particular wording or even what it is the client actually wants the contract to do. Generally the last is because the client hasn’t got a clue what they want the contract for (beyond - “have a contract we can show people”…).