The ABA Business Law Section is pleased to announce publication of the fifth edition of Ken Adams’s A Manual of Style for Contract Drafting. One of the most popular titles of ABA Publishing, this book is always in the Top Five for best-selling titles among all ABA books.
You can buy print and e-book versions only from the ABA. (ABA members and members of the Business Law Section, remember your discount!)
With each new edition of MSCD, we have wondered, what more can Ken offer? Each time, the answer has been, “a lot of substantive changes”—and this holds true for the fifth edition. In the preface, Ken describes what’s entirely new and what has been revised. Cumulatively, the updates amount to more than seventy pages of additional material.
In the nineteen years since it was first published, MSCD has grown from a small-format paperback of fewer than 300 pages to a bigger-format hardback that weighs in at 667 pages, with no padding.
One result of this evolution is that MSCD is somewhat intimidating. It contains within its covers some mind-bending complexity. And Ken will tell you that even he can’t remember everything it covers—often enough he consults MSCD as if he were an ordinary reader. On the other hand, that complexity is offset by Ken’s clear and no-nonsense prose.
The sheer size of the book is valued by those who work with contracts and need guidance on all issues relating to how to clearly say whatever you want to say in a contract. Readers have come to rely on Ken’s wisdom, his eye for detail, and most important, his clear writing.
For a taste of the breadth of the book and its new material, here is the new section from chapter 13 (“Selected Usages”) on the phrase public domain.
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PUBLIC DOMAIN
13.706 The phrase in the public domain is used in contracts in two ways.
Used in the Exception to the Definition of Confidential Information
13.707 It’s standard to state exceptions to the contract definition of what constitutes confidential information, and one exception covers information that’s public or becomes public other than as a result of breach of an obligation under the contract. Information falling within that exception can be described in different ways, besides public. For example, publicly available, available to the public, and publicly known. Another of those variants is in the public domain.
13.708 Public domain originally referred to land belonging to the public, but it has also come to refer to anything, including information, that is available to all. Hence use of the phrase in that exception to what constitutes confidential information. But using in the public domain to mean simply public is wordy and primarily British. Furthermore, it’s confusing, as in the public domain has another meaning that is more entrenched in legal circles; that meaning is discussed in the following section. So don’t use in the public domain to refer to information being public.
Used Regarding Intellectual Property
13.709 The phrase in the public domain is also used to refer to the copyright status of a work of authorship that is no longer subject to copyright protection. And formerly patented inventions and unpatentable inventions are also sometimes said to be in the public domain.
13.710 The Oxford English Dictionary gives as a definition of public domain (besides the one pertaining to land) “The state or condition of belonging or being generally available to all, esp. through not being subject to copyright.” That suggests that the copyright meaning of public domain is more prevalent than using it to say that information is public (see 13.707).
13.711 But you can’t count on readers outside of intellectual-property circles knowing the intellectual-property meaning of public domain, so if you use the phrase in the public domain, consider explaining what it means. That would give you the speed of messaging offered by a term of art while letting everyone else in on the secret. But it would be even simpler to omit public domain and say what you mean instead of using a confusing term of art:
Except for portions
in the public domain (that is,not subject to copyright protection), the Acme Products and related documentation are the property of Acme and are protected by law, including U.S. copyright laws and international treaties.
