A “Gödel’s incompleteness theorem” for the law?

Kurt GödelAn exchange on Twitter yesterday led me to this post by Paco Jariego summarising this post by Jay Stanley of the ACLU, in which Stanley discusses the concept of a “Gödel’s incompleteness theorem for the law,” and the problems that this creates when embedding legal principles in Internet of Things devices:

no matter how detailed a set of rules is laid out, no matter how comprehensive the attempt to deal with every contingency, in the real world circumstances will arise that will break that ruleset. Applied to such circumstances the rules will be indeterminate and/or self-contradictory.

Stanley makes some good points on how the law cannot be treated like an algorithm, and how human judgement is always going to be necessary – judgement that is hard to build in to the type of automated, embedded systems that will increasingly surround us. But is this the same as being a “Gödel’s incompleteness theorem for the law”?

Gödel’s incompleteness theorem is one of those concepts that gets widely used as a metaphor – along with those other triumphs of early 20th century mathematics and physics, the theory of relativity and quantum mechanics (Schrödinger’s Cat etc.). In its metaphorical use, Gödel’s incompleteness theorem is usually taken to mean that there are areas of knowledge that are necessarily “fuzzy” (“indeterminate and/or self-contradictory”). However, that misunderstands the significance of what Gödel was saying.

What Gödel’s incompleteness theorem actually asserts is subtly different. An earlier post by Paco Jariego quotes Wikipedia’s summary:

For any self-consistent recursive axiomatic system powerful enough to describe the arithmetic of the natural numbers (for example Peano arithmetic), there are true propositions about the naturals that cannot be proved from the axioms.

In other words, what Gödel’s theorem states is that for any “axiomatic system”, there are propositions that are true, but cannot be proved from the axioms. The point that is often overlooked is this: a “Gödel proposition” is not “fuzzy”, or “indeterminate and/or self-contradictory”; it is true. In fact, if you can show that a proposition is a Gödel proposition then you have proved that it is true – you just haven’t proved it from the axioms you started with.

Another subtlety of Gödel’s result is that you can’t plug the gap in your axiomatic system by appending your Gödel proposition as an extra axiom. Gödel’s theorem will continue to apply to that system, so that there must be another proposition which cannot be proved from the expanded set of axioms.

So, what would a “Gödel’s incompleteness theorem for the law” actually look like? It wouldn’t simply mean a legal proposition that is “indeterminate and/or self-contradictory”; it would have to mean a legal proposition that is (in some appropriate sense) true, but which cannot be proved from the existing “axioms” of the law.

What are the “axioms” of the law? In English law, we might take this to mean statute law together with the fundamental principles of common law. A “theorem” of the law would then be “proved” when a court applies the existing “axioms” to produce new case law applicable to the circumstances before it. (The point made above about appending propositions to the axioms means we needn’t be too precise in drawing the line between “axioms” and “theorems”, though.)

What Jay Stanley’s post argues (correctly, in my view), is that the above analogy is deeply flawed, because the law isn’t an axiomatic system in which “theorems” are “proved” from “axioms” by specific rules of inference. It is a more organic system, in which human judgement is always necessary.

But if we keep running with the analogy for now, then we are left with the question of what would be a “true” legal proposition that cannot be “proved” from the axioms (i.e. existing case law and statutes).

The best example that comes to mind is what we might call “textbook law”: the legal principles that have never actually been litigated (and thus never actually the subject of a definitive judgment), but which are widely accepted on the authority of leading legal textbooks. “Chitty on Contracts says this…” – that type of thing. Although even then, arguably a closer analogy would be to unproved mathematical conjectures (such as Fermat’s Last Theorem was, before Andrew Wiles ruined everyone’s fun by proving it).

But if anyone has any better ideas, then the comment box is open…

Edit: a tweet from Jay Stanley reminds me that another example I considered was the role of equity, whose historical roots can be seen as lying in “filling in the gaps” left by the common law. However, judges applying equity today – even Lord Denning at his most, ah, “creative” – at least pretend to be following established principles and precedent; to be “proving” a “theorem” from existing “axioms”, to use the analogy discussed above, rather than simply discovering new legal “truths”.

Ethics and the inhouse lawyer

Behavioural Change WheelI attended an interesting event on Tuesday organised by the UCL Centre for Ethics & Law, who were launching their Ethical Leadership Initiative on the role of inhouse lawyers, especially general counsel. You can read a report of the event here.

UCL were presenting the results of a research project they have carried out on inhouse lawyers’ approaches to legal risk, and this was followed by presentations from other panel members (including Enid Rowlands, chair of the SRA, and John Sutherland of the Prudential Regulation Authority) . A lively audience discussion followed.

Here are some of the points made during the evening that particularly struck me (not attributed to particular speakers, as the event was held under the Chatham House Rule):

  1. Risk management among inhouse lawyers “tends to be ad hoc, experiential and intuitive”.
  2. Lawyers take differing approaches to risk: some are “risk resistors” (“just say no”); some are “risk technicians” (who see it as their job to manage and mitigate risk, rather than eliminate it); some are actively “risk takers”. Overall, though, the legal team’s appetite for risk is generally determined by the business rather than vice versa.
  3. Are there ethical challenges to being an inhouse lawyer? Interestingly, the research showed that lawyers were more likely, not less, to be concerned about ethical questions in their role if they saw the law as “ambiguous” (rather than “binary”) and if they preferred a “commercial and pragmatic” approach to an arm’s-length, “I advise, the client acts” attitude.
  4. Regulators have generally ignored inhouse lawyers until now, but this is going to change with the next revision of the Solicitors’ Handbook, which will seek to tackle previously ignored questions such as: What does “independence” mean for an inhouse lawyer? What is the purpose of a GC, or of an inhouse lawyer generally? How do you manage the raising of concerns about a business’s activities?
  5. Inhouse solicitors are often very aware of the need to be “independent”, but are less conscious of the wider professional obligations that we remain under even when working inhouse, such as: to uphold the rule of law; to act with integrity; to act in the best interests of each client; and to behave in a way that maintains the trust the public places in you and in the provision of legal services.

Some of the most useful points made related to how we categorise and assess risk:

  1. What are the “Category 1” risks to your business (the greatest risks, with the highest potential impact)? What are the “Category 5” risks (low impact)? You need to assess this for each of your business’s main operating models.
  2. The areas of most rapid growth in your business are likely to be the areas where unseen risks are building up – partly because no one likes to be seen as hindering “success” by raising boring questions of compliance and risk.

There was also an interesting, brief presentation of the Behaviour Change Wheel (which illustrates this post).

Perhaps the most important message, though, was the need to align incentives with the ethical and risk outcomes you are looking for in your business. In particular:

  1. What do people get paid for?
  2. How do people get promoted?

One speaker quoted the title of a classic 1975 paper: “the folly of rewarding A while hoping for B.” A lesson that probably has yet to sink in for a lot of people…

Whisper it: there’s more to personal data than “PII”

Inigo Montoya: "You keep using that word..."If you’re running a social media app that “promises users anonymity and claims to be the ‘the safest place on the internet’,” you probably don’t want to be splashed across the Guardian for tracking the location of users, “including some who have specifically asked not to be followed.” And you really don’t want the report to include quotes from your executives like this (concerning a user who claimed to be a “sex-obsessed lobbyist in Washington DC”):

“He’s a guy that we’ll track for the rest of his life and he’ll have no idea we’ll be watching him.”

So, it looks like Whisper may have (to put it mildly) a reputation problem to address.

But the phrase that leapt out at me was this, from the company’s response to the Guardian’s claims:

Whisper does not request or store any personally identifiable information from users, therefore there is never a breach of anonymity.

It’s our old friend, “personally identifiable information”. This one comes up a lot in contracts relating to the use of personal data: service providers will insist that they are not accessing or using any “personally identifiable information”, and so there’s no problem with privacy or data protection compliance.

The problem is that the definition of “personal data” under the Data Protection Act goes rather wider than the popular conception of “personally identifiable information”, or “PII”. This phrase, as used in commercial practice (though see below), seems to lack any precise definition, but is usually taken to mean information such as name, address, email, social security number, etc.

The Data Protection Act, however, defines personal data as

data relating a living individual who can be identified:

(a)  from those data, or

(b)  from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller.

The point to note is that there are two limbs to this definition. If “personally identifiable information” has any precise meaning at all, I’d say it’s as the first limb of that definition: information from which a living individual can be identified directly.

But that still leaves the second limb: information which isn’t enough, on its own, to identify an individual, but which could be used to identify that individual if combined with other data. And the point that gets overlooked by people fixated with “personally identifiable information” is that this “second limb” information is just as much personal data for UK/EU data protection purposes as the “first limb” information.

Indeed, it should be noted that the legal definition of “personally identifiable information” under US law (if Wikipedia is to be believed) also includes this concept of “indirectly” identifying information. So it’s not even a “US vs EU” issue: it’s a “commercially convenient meaning” vs “actual legal meaning” issue.

The Guardian reports that Whisper has updated its privacy policy to warn users (somewhat belatedly) that the app’s geolocation feature may “allow others, over time, to make a determination as to your identity” – which, to my mind, amounts to an admission that this information is personal data within that second limb.

It remains to be seen how the Whisper story will play out, but it’s already a good lesson in the problems of widely-used but vaguely-defined (or misunderstood) terms like “personally identifiable information”, and the need for lawyers to be tediously pedantic in insisting that even so-called “non-PII” may still be subject to the rigours of data protection legislation.

What is a “quotation”?

I'm not sure what copyright exception I'm relying on for this image...

I’m not sure what copyright exception I’m relying on for this image…

The title to this post may sound a bit “meta” – like Bill Clinton asking what the meaning of the word “is” is. However, it’s prompted by the impending changes in UK copyright law, which (from tomorrow) will include new exceptions for quotation, parody and private copying.

The parody and private copying exceptions have been widely discussed, but the quotation exception may also have a significant impact. The exception states:

Copyright in a work is not infringed by the use of a quotation from the work (whether for criticism or review or otherwise) provided that—

(a)  the work has been made available to the public,

(b)  the use of the quotation is fair dealing with the work,

(c)  the extent of the quotation is no more than is required by the specific purpose for which it is used, and

(d)  the quotation is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise).

But what is a “quotation”? Specifically, how does a quotation differ from any extract or excerpt from a larger work? Is the result of this exception to say, in effect, “anything goes, provided it’s fair dealing”? (Fair use by the back door…?)

My instinctive response is “no”, but I’m not sure where you would draw the line between a “quotation” and an “excerpt”. It’s notable that the corresponding permitted exception in the Copyright Directive (on which the UK exception is founded) covers:

quotations for purposes such as criticism or review, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author’s name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose.

In other words, “quotation” is not some new category of usage. It is no more and no less than the sort of usage that is covered by the existing “criticism or review” exception – except that it can now be done for purposes other than criticism or review. (The UK government’s guidance, quoted here, confirms this as the intention of the regulations.)

Which does imply that “quotation” can be quite broad: not just text, but potentially encompassing the “quotation” of photographs, video clips, music, and so on – though subject, it should be emphasised, to the “fair dealing” and “minimum extent” requirements (paragraphs (b) and (c) as set out above). But does this mean that any excerpt or reproduction could potentially be defended as a “quotation”?

It seems to me that the difference between a “quotation” and an “excerpt” or “reproduction” lies in the purpose for which it is used. An excerpt or reproduction can be merely “decorative” – library footage used as background to a TV news report, for example. A quotation, however, needs to be in some way pertinent to the context in which it is quoted. Its use needs to be making a point, or at least confirming or illustrating a point made by the work in which it quoted.

However, all this is (hopefully reasonably educated) guesswork. If anyone has come across any more compelling authority (e.g. from other EU member states) on what a “quotation” is, please feel free to post details in the comments to this post.

Update (1 October) 

Emily Goodhand (a.k.a. @copyrightgirl) has pointed me in the direction of the CJEU’s decision in the Painer case, in which the court considered the quotation exception in some detail (see paras 118ff.).

In para 120, the court describes the purpose of the exception as follows:

That provision is intended thus to preclude the exclusive right of reproduction conferred on authors from preventing the publication, by means of quotation accompanied by comments or criticism, of extracts from a work already available to the public.

This seems to confirm my earlier guesswork. Note the court’s insistence that a quotation be “accompanied by comments or criticism” – that is, even though the quotation needn’t be specifically for “criticism or review”, it must still have some supporting context (“comments”). I think we can take it as read that there must be some connection between the comments and the quoted work, rather than a mere juxtaposition.

The CJEU added that there is a need to strike “a fair balance” between “the right of freedom of expression of users of a work” and the reproduction right of the work’s author – and that, in the case of quotation, users’ freedom of expression should have priority. This suggests a wider, rather than narrower, interpretation of the exception.

It will still be interesting to see where the courts draw the line in practice – especially as authors start to push the boundaries of how they can use existing material in their own work.

Computerising the courts

Lord Thomas of Cwmgiedd. Photo by FruitMonkey.

Lord Thomas of Cwmgiedd. Photo by FruitMonkey.

What experience and history teach is this — that nations and governments have never learned anything from history, or acted upon any lessons they might have drawn from it.

— G.W.F. Hegel, quoted by Lord Thomas

In April 1999, the civil justice system in England and Wales was transformed by the implementation of the “Woolf reforms”. The procedural changes were based on a report by Lord Woolf, published in 1996, and were intended to be introduced alongside new computer systems that would enable the new processes to work effectively. Last night, Lord Woolf’s successor as Lord Chief Justice, Lord Thomas of Cwmgiedd, explained (in the SCL Annual Lecture) why a programme to introduce those systems is now getting under way – fifteen years later.

In the first part of his lecture, Lord Thomas (starting with the line from Hegel quoted above) set out a brief and dispiriting history of the original attempts to computerise the courts between 1996 and 2004. These attempts were eventually abandoned after spending cuts in 2002 and 2004, and since then only piecemeal improvements have been made. Now, however, the government has allocated “between £300m and £400m” to introducing the required case management systems. (The audience politely refrained from pointing out that this is still less than the £600m cost estimated in the early 2000s.)

Lord Thomas then outlined nine lessons that the new project was seeking to learn from the previous failures. Some (not all) of these have relevance to large IT projects in other sectors:

  1. Security of funding – not just a hope the money will be there.
  2. A common approach across all branches of the court system.
  3. Judicial participation and governance [which, in other sectors, presumably equates to board-level engagement).
  4. Clear agreement at the outset of what is needed.
  5. Design of systems and procurement must work in tandem from the start, with good, well-managed contracts.
  6. Envisage technological change and build anticipated future developments into the plans.
  7. Continuity of personnel and planning.
  8. Processes should be built around IT, not IT around processes. IT isn’t just a way of automating what we already do, but of doing things in a new way.
  9. Need to be realistic in setting expectations, especially where previous failures have engendered cynicism among stakeholders.

One thought was troubling me throughout this, and during the Q&A. I raised it in a rather half-formed way during the Q&A, but subsequent discussion with other delegates brought it into sharper focus.

The issue is this: Lord Thomas kept talking about “a system”, or “an IT system”. At worst, this could imply a rather monolithic IT project of the type that government is now supposedly seeking to avoid, and which could quickly become outdated (one questioner had been involved in the National Programme for IT in the NHS, so he spoke with some feeling about the potential risks). When I queried this, Lord Thomas pointed out (quite reasonably) that he had been using the phrase as shorthand for a portfolio of “modular” systems, thus enabling parts of the system to be updated piecemeal as required in later years.

However, the thinking still seems to be very much “system” focused, even if “the system” is modular in nature. It was also hard to avoid a sense that the courts are still thinking in terms of “software” that you install on “a computer” sat on someone’s “desk”. As other delegates pointed out to me in conversation afterwards, an alternative approach is to focus on creating a framework and standards which can be used by a wide range of different systems, without the need to impose the same software on every court in the country at all times (even if in a “modular” way). Others suggested that seeking “clear agreement at the outset” might be misguided in the age of Agile development.

Easy for us to say, of course. Lord Thomas made the very fair (and illuminating) point that England and Wales is one of the largest legal jurisdictions in the world, and that we have a unitary court system – in contrast to Germany’s sixteen Länder, or the patchwork of state and federal courts in the United States. Any project to computerise such a system is going to be highly complex and difficult to achieve, but the alternative is a court system that is costly and inefficient. So I wish the new project well; but I remain uneasy. 

Chasing Bitcoin

What Bitcoins are not. Image by Zack Copley.

What Bitcoins are not. Image by Zach Copley.

I attended an interesting SCL event last night on cryptocurrencies, with three speakers: Hakim Mamoni of Seedco.in, Michael Taylor of 4 Pump Court, and Rich Folsom of Kemp Little (who hosted the event).

Hakim Mamoni opened proceedings with a talk that amounted to a passionate advocacy of Bitcoin as a means of protecting our money from impending state seizure under the EU’s Bank Recovery and Resolution Directive. Colour me sceptical, I’m afraid. (If I want to protect my money that badly, I’ll put it under my mattress rather than into a notoriously volatile speculative asset class like Bitcoin.)

It’s Michael Taylor’s contribution that I want to discuss in a little more detail, however. Mr Taylor was looking at what legal remedies are available should your Bitcoins be lost or stolen, and how the English courts’ approach is likely to contrast with that taken in other jurisdictions. This is particularly relevant where I want to take action against an innocent recipient or intermediary who is (or has at some point been) in possession of “my” lost or stolen Bitcoins – so that I can’t take action on the basis of their wrongdoing, but would need an alternative type of claim (such as applies to “conversion” of physical goods, which is a “strict liability” tort for which no evidence of wrongdoing is required).

While no cases specifically relating to Bitcoin have arisen yet, other intangible assets have come before the courts. In the sex.com domain name case (work-safe link!), the US courts held that the tort of conversion could apply to a domain name (as for physical goods). The Dutch courts held that two youths who forced another gamer to hand over virtual goods in the Runescape game could be guilty of theft. However, the English courts have consistently stated that intangible assets are not goods, and can therefore not be subject to either the tort of conversion or the criminal offence of theft.

So is that the end of the road, under English law, if your Bitcoins are lost or stolen (and you can identify who now has them)? Maybe not: Mr Taylor pointed to the case of Armstrong v Winnington, a 2011 case involving the misappropriation of carbon credits. Carbon credits are an intangible asset, and the court therefore reiterated that they could not be stolen or converted. However, the court held that a claim of proprietary restitution could apply. As the judge stated (para 94):

if and where legal title remains with the claimant, a proprietary restitutionary claim at common law is available in respect of receipt by the defendant of a chose in action or other intangible property.

Mr Taylor suggested that the same could be true where Bitcoins have been lost or stolen, provided you can identify who is now holding them (which, as he pointed out to laughter from the audience, “is the solicitor’s job”). So unless the defendant has bought the Bitcoins in good faith, you can sue for their recovery.

BUT… 

…a hidden assumption – and, to my mind, a profoundly mistaken one – lurks around almost every discussion of Bitcoin. To see what this is, we need to ask the question: what is a Bitcoin?

The very word “Bitcoin” conjures up an association with physical currency. Other common terminology such as “Bitcoin wallet” (which “holds” your “Bitcoins”), and of “mining” Bitcoins, adds to this.

However, I think this is misleading. Bitcoin isn’t like physical currency at all. For a long time, this confused me, because I couldn’t see what “a” Bitcoin could be. If it was a number or code of some type, I couldn’t see how you could establish the uniqueness of “a” Bitcoin, let alone how you could then subdivide that Bitcoin into 100 billion satoshis. What was to prevent me from copying “my” Bitcoins, giving you the copies, and hanging on to the “originals” myself, for example?

A better analogy for Bitcoin, though, is with banking and electronic transfers. Say I have £120 in my bank account and you have £250 in yours (you high-roller, you). You transfer £50 to my account, which means I now have £170 and you have £200.

However, no physical transfer of money has taken place. The balances on our accounts are just a reconciliation of all the transactions that have taken place in relation to those accounts, between our respective banks and others. So how do I “know” that I have £170? Ultimately, it’s because I trust that the processing of transactions and reconciliations within the banking settlement system is reliable (otherwise I’d insist on cash).

Now consider Bitcoin. Say I have 10 BTC in my various wallets and you have 20 BTC. You transfer 2.5 BTC to me. That transaction enters the Bitcoin blockchain, which is validated by the mathematical processing of Bitcoin miners. How do I “know” that I now have 12.5 BTC and you have 17.5 BTC? Because I trust the blockchain validation process, which is analogous to the banking settlement system. But again, no physical (or even notionally identifiable) “Bitcoins” are involved, or even exist: my “Bitcoins” are just a label for the number that emerges from the balancing of all Bitcoin transactions, just as my bank balance is the number that emerges from the balancing of all banking transactions.

Bitcoin is therefore significantly different from carbon credits under the European emissions scheme. As the court observed in Armstrong v Winnington (para 17), while EUAs have no physical existence or title documents, “each EUA has its own individual number and is easily identifiable”. It was therefore possible to trace the specific EUAs from Armstrong’s registry account to that of Winnington, as the basis for a common law proprietary restitution claim.

However, proprietary restitution “tracing” claims are not available under common law where the property involved has been mixed with other funds – as would be the case if you have put “my” Bitcoins into a wallet which also contains other Bitcoins. I might be able to bring a tracing claim in equity, but traditionally this required a “fiduciary relationship” between me and you. The courts have become less strict about this in recent years, but clearly this is going to complicate matters.

In short: there may be circumstances in which proprietary restitution will ride to my rescue, but these are likely to be limited. At the very least, we will need to keep in mind the nature of Bitcoin: not an identifiable, traceable asset like a physical coin or a registered carbon credit, but more like the balance of my current account.

Linking isn’t illegal; internet saved(?)

Court of Justice of the European Union (public domain image)Is it lawful to post a link to someone else’s website, or does it infringe copyright?

It will probably come as a surprise to most people – even to most lawyers – that this could still be an open question in 2014. After all, if linking to other sites were an infringement, and if (*BIG* if) that were to be enforced on a wide scale, then the internet as we know it would come to a juddering halt.

Conversely, though, think of a situation in which someone sets up a website that links to hundreds of unlicensed video streams of recently-released movies, hosted by other people. The hosts are clearly infringing copyright, but should DodgyStreamsRUs.com be able to do link to them with impunity? Maybe this question of linking isn’t as straightforward as it looks.

Enter the Court of Justice of the European Union (CJEU) or, as it is more popularly known, the ECJ. In a long-awaited judgment, the ECJ today gave its definitive view on whether linking infringes copyright. Its conclusion (you will probably be relieved to hear) was that (generally) it doesn’t. The exception is where the linking enables people to circumvent protections on the copyright owner’s website (e.g. evading a paywall).

Now, there are a lot of legal blogs and websites out there that will go into the details of this case, the Svensson case, in far more detail and with far more expertise (see, for example, this post by Eleonora Rosati at IP Kat, or this excellent analysis from Bird v Bird). But I hope I can give a quick overview of the basis of the decision.

The main legal question at issue was whether posting a clickable link to a copyright work (such as a web page or hosted file) amounts to communicating that work to the public – which would infringe copyright if done without permission. In brief, the court concluded:

  1. Yes, to post a link to a work does indeed communicate it to the public. BUT (and this is where the CJEU pulls a rabbit out of the hat to save the internet, as some might see it)…
  2. …if the copyright owner has made the work freely accessible online, then anyone could already see it anyway. So linking to it doesn’t make it available to anyone who couldn’t lawfully access it already. Hence “there is no new public”. So it hasn’t actually been communicated to the public in a way which would infringe copyright. Ta-dah!

The one exception the court gives is where the link would enable users to circumvent “restrictions put in place by the site … in order to restrict public access to that work to [its] subscribers only”. In that case, the work would be made available to a new public, namely non-subscribers, and hence “communication to the public” would have occurred, and the link would infringe.

There still remain plenty of questions about how the judgment will work in practice (what is “freely accessible”? what is a “restriction”? what is “circumvention”? etc. etc.). As I see it, though, the really critical question which Svensson bequeaths to us is this: 

Does this link communicate the work to a “new public”?

I suspect that could turn out to be something of an unexploded bomb in certain circumstances.

Why lawyers shouldn’t be educated

Isaac AsimovI came across the following quotation from Isaac Asimov the other day:

People think of education as something they can finish.

This made me think about lawyers’ (and other professionals’) attitudes towards education. For most of us, our professional “education” is something that lies firmly in our past. Our LinkedIn profiles mention our education well down the page, after the “summary” (i.e. “elevator pitch”), “experience” (i.e. list of current and previous jobs) and “skills and expertise” (i.e. random endorsements from people we met at a networking event in 2009).

Each year, we undergo our mandatory sixteen hours or whatever of “continuing professional development”. In some walks of life, this is called “continuing professional education“, but presumably the legal profession felt this to be too narrowly academic – or perhaps to carry too uncomfortable an implication that practising lawyers still need to be “educated”, rather than simply to “develop” what they had attained by the end of a completed education that now lies in the past.

I’m as guilty of this as anyone. While I am no CPD sceptic, and always appreciate a good course or seminar that helps me “develop” as a lawyer, I’m not sure I’ve ever seen CPD as an opportunity for education – with the positive implications that word has for expanding one’s mind and horizons and growing as a person, rather than as just a collection of “skills and expertise”. This despite my enthusiasm for self-education in other areas of my life.

Hence the title to this post: lawyers shouldn’t be “educated” in the passé simple sense of a completed process that lies entirely in the past. Rather, we should be in a “present continuous” state of “always being educated”.

So perhaps that can be my belated professional new year’s resolution for 2014: to engage in some continuing professional education this year, as well as just “doing my CPD”. After all, my employer’s parent company has as its motto a phrase of which I’m (whisper it) actually rather fond:

ALWAYS LEARNING

Schofield’s Laws of Computing: your cut-out-and-keep guide

Jack Schofield (and Pipe), by Aleks Krotoski

Photo by Aleks Krotoski.

The Guardian’s computer editor, Jack Schofield, has formulated three “laws of computing” over the years.

I’ve found these useful to keep in mind, both in my own personal use of computers and in advising on IT contracts, so here is a quick post bringing all three together in one short list:

  • Schofield’s First Law: never put data into a program unless you can see exactly how to get it out.
  • Schofield’s Second Law: data doesn’t really exist unless you have at least two copies of it.
  • Schofield’s Third Law: the easier it is for you to access your data, the easier it is for someone else to access your data.

Of those, I’d say the first is the most useful in a commercial IT context. (This post was prompted by reviewing a contract in which our ability to do this isn’t as set out as clearly as I’d like, though I’m sure it’s not going to be a problem in practice.)

In my personal IT use, it’s the second law that is the one I always keep in mind – and that I try to find a gentle way of pointing out to people when they are mourning the loss of family photographs in a hard drive crash or laptop theft. Dropbox is your friend, people! 

The third law is both vaguer and probably of wider application – particularly after the Year of Snowden has highlighted how porous supposedly “secure” IT systems can be.

“Pretty” is a feature for contracts, too

An ugly suspension bridge, yesterdayCame across the following quotation from Eric S. Raymond, the godfather of the open source development model, in an article he wrote about the programming language Python:

Ugly programs are like ugly suspension bridges: they’re much more liable to collapse than pretty ones, because the way humans (especially engineer-humans) perceive beauty is intimately related to our ability to process and understand complexity.

That makes a lot of sense to me, because I think the same thing is true of contracts. Ugly, badly-written, poorly-structured contracts seem far more likely to “collapse” (into uncertainty, failure, disputes and litigation) than contracts that are well put together.

This isn’t because getting your paragraph numbers aligned is guaranteed to prevent a contractual dispute. It’s perfectly possible to have a contract that is beautifully laid out, but legally and commercially inadequate. However, in practice there tends to be a correlation between the visual appearance of a contract and the care with which its content has been drafted and negotiated.

Eric Raymond gives a deeper reason for this: it’s because contracts can be complex things, and a large part of how humans process complexity is through our ability to grasp structures and patterns, both visual and conceptual.

Or, as another well-known figure in free/open source software, Mark Shuttleworth, put it:

“Pretty” is a feature.

This is just one way in which programming and legal drafting have many similarities (this post by @grabbeh gives some more). This shouldn’t surprise us: both are concerned with using language (often rather esoteric language, even in these days of “plain English” drafting) in precise, logical, well-designed ways to achieve an outcome in the real world.