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  • The government's definition of writing is seriously out of date

    There's a federal law that defines writing. Because the meaning of the words in our laws isn't always clear, the very first of our federal laws, the Dictionary Act--the name for Title 1, Chapter 1, Section 1, of the U.S. Code--defines what some of the words in the rest of the Code mean, both to guide legal interpretation and to eliminate the need to explain those words each time they appear. Writing is one of the words it defines, but the definition needs an upgrade.

    The Dictionary Act consists of a single sentence, an introduction and ten short clauses defining a minute subset of our legal vocabulary, words like person, officer, signature, oath, and last but not least, writing. This is necessary because sometimes a word's legal meaning differs from its ordinary meaning. But changes in writing technology have rendered the Act's definition of writing seriously out of date.

    The Dictionary Act tells us that in the law, singular includes plural and plural, singular, unless context says otherwise; the present tense includes the future; and the masculine includes the feminine (but not the other way around--so much for equal protection).

    The Act specifies that signature includes "a mark when the person making the same intended it as such," and that oath includes affirmation. Apparently there's a lot of insanity in the law, because the Dictionary Act finds it necessary to specify that "the words 'insane' and 'insane person' and 'lunatic' shall include every idiot, lunatic, insane person, and person non compos mentis."

    The Dictionary Act also tells us that "persons are corporations . . . as well as individuals," which is why AT&T is currently trying to convince the Supreme Court that it is a person entitled to "personal privacy." (The Act doesn't specify whether "insane person" includes "insane corporation.")

    And then there's the definition of writing. The final provision of the Act defines writing to include "printing and typewriting and reproductions of visual symbols by photographing, multigraphing, mimeographing, manifolding, or otherwise." There's no mention of Braille, for example, or of photocopying, or of computers and mobile phones, which seem now to be the primary means of transmitting text, though presumably they and Facebook and Twitter and all the writing technologies that have yet to appear are covered by the law's blanket phrase "or otherwise."

    Multigraph machine in offices, 1905

    Above: The Multigraph was an important office writing machine back in 1905 but is virtually unknown today. It used strips of raised type inserted into a drum and inked with a ribbon to print form letters that looked like they had been individually typed.

    Below, left: ad for Ralph Wedgwood's Patent Manifold Writer, invented in 1806, which employed "carbonified" paper to duplicate a letter as it was being written; and right, an ad for Edison's mimeograph, patented in 1876, which promised to make 3,000 copies from a single stencil.

    Ads for Manifold Copier and Mimeograph

    Federal law can't be expected to keep up with every writing technology that comes along, but the newest of the six kinds of writing that the Dictionary Act does refer to--the multigraph--was invented around 1900 and has long since disappeared. No one has ever heard of multigraphing, or of manifolding, an even older and deader technology, and for most of us the mimeograph is at best a dim memory. 

    Congress considers writing important enough to the nation's well-being to include it in the Dictionary Act, but not important enough to bring up to date, and now, with the 2012 election looming, no member of Congress is likely to support a revision to the current definition that is semantically accurate yet contains no earmarks, and is able to win an up-or-down vote in the House and the Senate, be signed into law by the President, and survive a potential challenge in the courts.

    Still, revision is an integral part of writing, and revising the Dictionary Act seems worth a try. For ideas about how to do this, we might consult some dictionaries, since most of them do a better job of defining writing than the authors of the Dictionary Act, whose first concern is not lexicography, but getting re-elected.

    The originalists in Congress may prefer to go back to eighteenth-century dictionaries for the revision. If so, they'll find that Nathan Bailey (1736) defines writing as "the art or act of signifying and conveying our ideas to others by letters or characters visible to the eye." And Samuel Johnson (1755) defines it as "a legal instrument; a composure; a book; a written paper of any kind." Good definitions for the Age of Enlightenment, but not much help in the digital age.

    Nathan Bailey's definition of writing

    Above: The definition of writing from Nathan Bailey's Dictionarium Britannicum, vol 2. London: 1736. Below: the definition from Samuel Johnson's Dictionary of the English Language. London: 1755.

    Samuel Johnson's definition of writing

    Believers in American exceptionalism may prefer a homegrown definition. The great American lexicographer Noah Webster (1828) calls writing "the act or art of forming letters and characters, on paper, wood, stone or other material, for the purpose of recording the ideas which characters and words express, or of communicating them to others by visible signs." Like the Dictionary Act, Webster enumerates some, but not all, of the possible kinds of writing (for example, both omit writing with lemon juice, a technology popular among children who hope to grow up to be spies). But Webster adds, "We hardly know which to admire most, the ingenuity or the utility of the art of writing." Including that last comment in a definition would endanger bipartisan support, since Democrats tend to think of writing as ingenious, while the official Tea Party position on writing is that it is utilitarian, but only when done by registered Tea Partiers. Socialists of course see writing as collaborative (there's one Socialist in the House), but that would bring about a world where writing equals Wikipedia, making it way worse than universal health care.

    Noah Webster's definition of writing

    Above: Definition of writing from Noah Webster's An American Dictionary of the English Language. New York: 1828. Below: the definition from Webster's Third New International Dictionary. Springfield, MA: 1961.

    Webster's Third: definition of writing

    Webster's Third (1961) preserves much of Noah Webster's original, without the editorializing: writing is "the act or art of forming letters on stone, paper, wood, or other suitable medium to record the ideas which characters and words express or to communicate the ideas by visible signs." That's not likely to further the digital revolution. So far only the Oxford English Dictionary adds to the conventional view of writing as a visible medium the nonvisible writing done when computers transfer keystrokes to memory: "The process of causing an item of data to be entered into a store or recorded in or on a storage medium." As if to drive the point home, the OED's latest definitions are only available online.

    OED online definition of writing

    Excerpt from the definition of writing from the online Oxford English Dictionary. oed.com, 2011.

    The problem with the Dictionary Act's definition of writing is that it is specific without being inclusive. The law identifies as writing a number of technologies that many people might not have considered to be writing at the time the statute was drafted. Unfortunately, this attempt at cutting-edge defining now seems quaint but retro: some of the technologies that the Act names are obsolete--even typewriters in America are more likely to be museum pieces or attic junk than writing machines--and it is silent on the new technologies that should be covered by a legal definition.

    It's time for our lawmakers to acknowledge that, with more writing done with silicon chips than pen and ink, we're shifting away from mechanically reproducible text to writing on screen. The advent of text-to-speech and speech-to-text technologies promises to blur the traditional distinctions between speech and writing. And the forms which writing takes are not just visible representations of our ideas, but machine-readable strings of 1's and 0's, charged particles, nanoswitches flipping on and off, LEDs, pixels, and things not yet dreamt of in our philosophy. Writing is becoming less and less a physical object which can be grasped, or whose physical location can be fixed in time and space, and more and more something that can be coded and streamed, fragmented and rematerialized, zipped and expanded, mashed and remixed, and moved around with the fingertips on a touch screen. Try selling that to a bunch of legislators who think of the internet as a series of tubes.

    Of course no legal definition that fits into a single clause can hope to define writing, but at some point Congress needs to bring the Dictionary Act into the twenty-first century by dropping out the antique writing technologies and accommodating the newest ones. (Since the Dictionary Act defines the present as including the future, the new definition of writing won't have to anticipate all the kinds of writing not yet invented.) But given the state of the economy and of the world, and the increasing political rancor at home, redefining writing is not a high legislative priority. So for now the Federal Code will continue to treat writing as the province of multigraphs, manifolds, typewriters, and mimeos. Perhaps by the time Congress gets around to revising Title 1, Chapter 1, Section 1, Facebook and Twitter will be long gone, the digital age will have given way to the next big thing, and writing itself may have become nothing more than an obsolete series of tubes.

#1
dfried@fried-law.com Feb 23, 2011 8:52 pm
Sorry, but I think you are missing the point. The statutory definition of "writing" is an adumbration of Samuel Johnson's first definition, a legal instrument. The point is that a "writing" can have force and effect not only if it is an original holograph, but a mechanical or other reproduction. End of story.

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