April 19, 2006

Grand theft bovine; or, when is an antelope not a document?

Cows might not be motor vehicles, but Bill Poser's argument for that proposition prompted Heidi Harley to remind us on about her discovery, last year, that "there are genuine laws of the land according to which cows and cars do form a natural class, namely the class of items which you can be charged with 'Grand Theft' for stealing one of".

According to the California Penal Code, section 487:

Grand theft is theft committed in any of the following cases:
(d) When the property taken is any of the following:
(1) An automobile, horse, mare, gelding, any bovine animal, any caprine animal, mule, jack, jenny, sheep, lamb, hog, sow, boar, gilt, barrow, or pig.
(2) A firearm.

[Given the care with which "horse, mare, gelding" and "hog, sow, boar, gilt, barrow, or pig" are enumerated, it seems odd that "automobile" is all on its terminological lonesome: what about SUVs, pickups, panel trucks and the like?]

Anyhow, this all reminded me of a lovely passage in Eben Moglen's "Anarchism Triumphant", which I've quoted before and will quote again:

No one can tell, simply by looking at a number that is 100 million digits long, whether that number is subject to patent, copyright, or trade secret protection, or indeed whether it is "owned" by anyone at all. So the legal system we have ... is compelled to treat indistinguishable things in unlike ways.

Now, in my role as a legal historian concerned with the secular (that is, very long term) development of legal thought, I claim that legal regimes based on sharp but unpredictable distinctions among similar objects are radically unstable. They fall apart over time because every instance of the rules' application is an invitation to at least one side to claim that instead of fitting in ideal category A the particular object in dispute should be deemed to fit instead in category B, where the rules will be more favorable to the party making the claim. This game - about whether a typewriter should be deemed a musical instrument for purposes of railway rate regulation, or whether a steam shovel is a motor vehicle - is the frequent stuff of legal ingenuity. But when the conventionally-approved legal categories require judges to distinguish among the identical, the game is infinitely lengthy, infinitely costly, and almost infinitely offensive to the unbiased bystander. [emphasis added]

I've been meaning for years to ask Professor Moglen whether the typewriter-as-musical-instrument example is taken from a real case, and if so, which one. A similar concern with necessary and sufficient conditions for category-membership underlies the traditional quasi-proverb "if my grandmother had wheels, she's be a wagon" (or perhaps a bicycle), used by Scotty in Star Trek III.

And any discussion of the natural class of unnatural categorizations should mention Borges' celebrated discussion of "El Idioma Analítico de John Wilkins" -- discussed in Language Log here -- as well as Suzanne Briet's widely-cited analysis of when an antelope is a document. As Michael Buckland explains:

One individual, who had, for years, been involved in discussions of the nature of documentation and documents, addressed the extension of the meaning of "document" with unusual directness. Suzanne Briet (1894-1989), also known as Suzanne Dupuy and as Suzanne Dupuy-Briet was active as a librarian and documentalist from 1924 to 1954 (Lemaître & Roux-Fouillet 1989; Buckland 1995).

In 1951 Briet published a manifesto on the nature of documentation, Qu'est-ce que la documentation, which starts with the assertion that "A document is evidence in support of a fact." ("Un document est une preuve à l'appui d'un fait" (Briet, 1951, 7). She then elaborates: A document is "any physical or symbolic sign, preserved or recorded, intended to represent, to reconstruct, or to demonstrate a physical or conceptual phenomenon". ("Tout indice concret ou symbolique, conservé ou enregistré, aux fins de représenter, de reconstituer ou de prouver un phénomène ou physique ou intellectuel." p. 7.) The implication is that documentation should not be viewed as being concerned with texts but with access to evidence.

Briet enumerates six objects and asks if each is a document.
Object --- Document?
Star in sky -- No
Photo of star -- Yes
Stone in river -- No
Stone in museum -- Yes
Animal in wild -- No
Animal in zoo -- Yes
There is discussion of an antelope. An antelope running wild on the plains of Africa should not be considered a document, she rules. But if it were to be captured, taken to a zoo and made an object of study, it has been made into a document. It has become physical evidence being used by those who study it. Not only that, but scholarly articles written about the antelope are secondary documents, since the antelope itself is the primary document.

I haven't been able to find the original of Briet's "Qu'est-ce que la documentation?" on line, but an English translation is here, and the relevant passage is this:

In our age of multiple and accelerated broadcasts, the least event, scientific or political, once it has been brought into public knowledge immediately becomes weighted down under a "veil of documents" (Raymond Bayer). We admire the documentary fertility of a simple originary fact: for example, an antelope of a new kind has been encountered in Africa by an explorer which has resulted in the capture of an individual that is then brought back to Europe for our Botanical Garden [Jardin des Plantes]. A press release makes the event known by newspaper, by radio, and by newsreels. The discovery becomes the object of an announcement at the Academy of Sciences. A professor of the Museum mentions it in his lectures. The living animal is placed in a cage and cataloged (zoological garden). Once it is dead, it will be stuffed and preserved (in the Museum). It is loaned to an Exposition. It is played on a soundtrack at the cinema. Its voice is recorded on a record. The first monograph serves to establish part of a treatise with plates, then a special encyclopedia (zoological), then a general encyclopedia. The works are cataloged in a library, after having been announced at publication (publisher catalogs and the French National Bibliography). The documents are recopied (drawings, watercolors, paintings, statues, photos, films, microfilms), then selected, analyzed, described, translated (documentary productions). The documents which relate to this event are the object of scientific sorting (fauna) and of ideological sorting (classification). Their ultimate conservation and utilization are determined by some general techniques and by sound methods for assembling the documents--methods which are studied in national associations and at international Congresses.

The cataloged antelope is an initial document and the other documents are secondary or derived.

It was surely a modern discipline of Briet who wrote in the Onion last year about Google Purge.

"Our users want the world to be as simple, clean, and accessible as the Google home page itself," said Google CEO Eric Schmidt at a press conference held in their corporate offices. "Soon, it will be."


"Thanks to Google Purge, you'll never have to worry that your search has missed some obscure book, because that book will no longer exist. And the same goes for movies, art, and music."


"Book burning is just the beginning," said Google co-founder Larry Page. "This fall, we'll unveil Google Sound, which will record and index all the noise on Earth. Is your baby sleeping soundly? Does your high-school sweetheart still talk about you? Google will have the answers."

Page added: "And thanks to Google Purge, anything our global microphone network can't pick up will be silenced by noise-cancellation machines in low-Earth orbit."


Although Google executives are keeping many details about Google Purge under wraps, some analysts speculate that the categories of information Google will eventually index or destroy include handwritten correspondence, buried fossils, and private thoughts and feelings.

The company's new directive may explain its recent acquisition of Celera Genomics, the company that mapped the human genome, and its buildup of a vast army of laser-equipped robots.

[Update: Bill Poser protests that

According to the California code cows and cars do NOT form a natural class. They BELONG to a natural class, but they do not FORM one since they are a proper subset of the elements of the class of things the theft of which is grand theft.

Right, there's all that stuff (in other clauses of the code) about avocados, shellfish, credit cards and other West Coast flora and fauna.]

[Update #2: Joe Gordon offers a legal opinion:

On a whim, I did the Westlaw search

typewriter /s "musical instrument"

and WL returned 24 results.

Many simply included both in a listing of the form of "equipment, including but not limited to..."

One had the ominous lines "...11, 1974, about 7:30 p. m., the defendant and his companion, Clifford Kam (Kam), entered Floyds of Hawaii, a retail musical instrument and typewriter repair store located in Kailua, Oahu. The defendant proceeded towards the backroom of the store where the owner, ..." (State v. Napeahi, 57 Haw. 365, 556 P.2d 569, Hawai'i, Nov 12, 1976)

(you just know that didn't turn out well for the owner, the defendant, and probably the typewriter)

Not one opinion returned by Westlaw involved the categorization problem, but I sympathize, really I do. In law school our administrative law prof introduced us to HLA Hart in the context of the question of what a vehicle was. "No vehicles in the National Park" - do snowmobiles count? Vehicles, we were told, have a hard chewy center (okay, that's not how he taught it, it's how I remember it), with a progressively vaguer and fuzzier penumbra (again, my phrasing) where related but not necessarily quintessential instantiations of the concept hover. Is a vehicle motorized, does it have wheels, does it carry passengers, is it a car, do trucks count, how about a bicycle. Etc. and etc.

Another example of the affinity between legal scholars and linguists.]

Posted by Mark Liberman at April 19, 2006 05:52 AM