The Wall Street Journal has published this article on use of the phrase throughout the universe in contracts. And below is the accompanying video. I’m featured fleetingly in both.
Most of my interview ended up on the cutting-room floor, presumably because my take on this subject was dreadfully earnest: The phrase throughout the universe, which I wrote about in this January 2007 blog post, is certainly a bit silly. But more to the point, although it might be appropriate in some contexts, as a general matter it’s symptomatic of the broader dysfunction in contract language. Ultimately the joke is on the client.
5 thoughts on “Wall Street Journal Article and Video on “Throughout the Universe””
I still think caution is better here. If we had said “worldwide” in a 1930’s agreement, does that mean that the thing can’t be transmitted by satellite? The received wisdom in this field is that there are awkward cases that try to use the circumstances surrounding the deal as limitations on otherwise expansive language. For that reason, I would still use “everywhere and forever” in a grant that I intended to be that broad.
Admittedly, “throughout the universe” does sound funny.
Chris: I revised this post to make it a bit less categorical. My original post on the subject acknowledged that the phrase might serve a purpose in some contexts. Ken
Parallel universes – there is your carve-out.
Perhaps, just, there is an argument for using a word that means more than the World, for some technologies, eg satellites which might go beyond the limits of Earth/World, and where there is a territorial grant of rights. But in that case, why limit it to our universe?
If we are talking about IP licensing (which is where I encounter worldwide licences), I am not aware of eg the Martian Patent Office having granted any patents, so I doubt whether any grant of rights outside the World would have much meaning. It also raises questions as to the lex situs, eg as to the form that any licence for non-World parts of the territory should take. Does Martian law require licences to be in writing signed by both parties, notarised (with an apostille at the Martian Embassy) and filed at the Martian Patent Office?
I was recently involved in negotiations over a pharmaceutical patent licence agreement where our definition of the territory as the world had been changed by the other party to say the universe. We changed it back again, as being just too silly. I would not want someone looking at the agreement in 10 years’ time and wondering who was the plonker who said the universe.
Well, yes, “throughout the universe” does sound a bit silly, but I am haunted by New York Times Co. V. Tasini, 533 U.S. 483 (2001), where, I believe, the use of “in all media” and “in any form” clauses in the relevant licenses with freelance writers would have made the difference for the publishers. With so recent and glaring a precedent to guide us, I think some caution is warranted about dispensing with seemingly overbroad license clauses.