June 2008

Bye-Bye, Bi and Other Thoughts on the State of the Language

by Robert C. Cumbow

A reader wrote me:

I often see the terms bimonthly, biweekly, and biannually in contracts and other documents. These terms drive me crazy because they mean two things at once — in the case of biweekly either: (1) every two weeks; or (2) twice a week. Considering that knowing when and how often something is agreed to be done can be essential to the performance of a contract, you would think that drafters would be more careful.

On this point I am an absolutist: “Bi-” means “two,” not “half.” Therefore, no matter what any dictionary may say (most dictionaries these days no longer prescribe correct, logical usage and preserve important distinctions, but only codify popular error), “biweekly” does not mean “twice a week,” never did, and never could. The word for “twice a week” is “semiweekly” — that is, occurring every half-week (an awkward time-measure, I admit). “Bimonthly” means every two months, not twice a month; “biannual” means every two years, not twice a year.

My reader remained unpersuaded that this is simply a “common error.” He suggested that if “bi-” means “two,” a contract calling for biweekly payments could mean either a payment every two weeks or two payments every week, and therefore the word truly is ambiguous. But since the word “weekly” is well understood to mean “every week,” then by extension, “biweekly,” which means “two-weekly,” should be equally understood to mean “every two weeks,” and it would be illogical to force it to mean “two times in one week.”

However, my interlocutor pointed out that “bi-,” by itself, does not necessarily distinguish between “two” and “half.” In geometry we speak of “bisecting” an angle, which could be described with equal accuracy as splitting the angle in half or dividing it into two angles. But “sect” means “section” or “part,” and thus “bisect” clearly means “two parts,” not “in half.” Nevertheless, this is a point on which our language is not as precise or as logical as we would wish. We speak of “cutting something in half” and of “cutting something in two,” and we mean the same thing, even though a “half” is only one-fourth of “two.”

On the other hand, no one thinks that a bisexual is someone who has only half a sex; it’s someone who participates in both sexes. A bicycle has two tires, not half a tire. “Bipartisan” means involving two parties, not doing something twice for one party. Yet a large number of people aren’t sure whether “biweekly” means doing something every two weeks or two times a week. “Bi-” means “two” in “two times a week” just as surely as in “every two weeks.”

The Random House Unabridged Dictionary emphatically confirms that “biweekly” means once every other week, but adds that it also — only “loosely”— means twice a week. However, it’s that “loosely” that undoes us. We can’t be sure how the writer intended the term or how the reader will understand — or misunderstand — it. Using the word “biweekly” takes only one word. If you have to explain it, that takes at least three more. Sticking with the “bi-” word therefore will cause ambiguity, verbosity, or both. So we have these once perfectly good “bi-” words that we now can’t use for fear that they won’t be understood to mean what we know they do mean. It’s like driving in the snow — I’d do just fine if it weren’t for all those other people out there who get it wrong.

So, reluctantly, I recommend (this is the holding) that careful drafters not use the terms “biannual,” “biennial,” “bimonthly,” “biweekly” and the like, because too many people misunderstand them, and that invites confusion where we need clarity. At the same time (this is dicta), I long for a world in which everyone would recognize that each of those words has one precise meaning, that they are not ambiguous or ambivalent at all. But as long as a good number of speakers, writers, readers, and dictionaries think they are ambiguous, then they are, for, apparently, nothing is either clear or ambiguous but thinking makes it so. And thus, alas, several more once-useful words must be consigned to the fire, and our language is the poorer for it.

If what we mean is “every two weeks,” though, we don’t have to resort to three words. If we aren’t afraid of a little archaism, the word “fortnightly” is still perfectly clear. A “fortnight” is a period of two weeks — a truncation of the term “fourteen-night” — and so “fortnightly” unmistakably means “every two weeks.” I’ll be using it as often as I can, as my protest against losing the “bi-” words.

Seen Any Good Sights Lately?

Another reader wrote:

One grammar item that has been a pet peeve of mine is the ongoing misuse of the words “sight” and “site” and “cite.” Which would you recommend to out of town friends? Sight-seeing or site-seeing? Certainly, unless they came to watch a Supreme Court argument you would never recommend cite-seeing, right? As lawyers, it would seem that knowing when to cite something and being able to distinguish that act from a site visit would be a critical skill, yet I’ve seen some briefs that can’t seem to correctly use these phrases.

I agree that there’s a lot of confusion about sight-site-cite. When we’re touring, we see both sights and sites, but the right word for what we’re doing is sightseeing. That’s because any location is technically a site, but only those especially worth a visit are considered “sights” (as in “a sight worth seeing” or, if it’s a particularly welcome vision, “a sight for sore eyes”).

This raises (not begs) the question of redundancy. What other kind of seeing is there besides “sightseeing”? Can we see anything other than sights? Soundseeing? Well, I suppose if we’re looking out the window at the bay instead of working ... but you can’t see tastes, smells, or sounds — you can see only sights — so is “sightseeing” a redundant word? Should it be just “seeing”? Let’s get some lunch and then go out and do some seeing! But as noted above, the word “sight” not only means anything that is visible, as well as the gift of being able to see, but also carries the special sense of something particularly worth seeing. So sightseeing, as a short form of “seeing the sights,” is a legitimate and sensible word.

But back to the troublesome triptych of sight-site-cite: On a rifle, it’s a sight, not a site, because it’s a device for using the eyes to aim the weapon. On the Web, is it a sight or a site? Well, actually, it’s neither. A so-called “Web site” is actually a set of files that may be copied to one’s computer for viewing by communicating with the server on which those files are stored. You don’t “go” anywhere on the Web, and you don’t “visit sites”; you sit there and copy files. Most people don’t understand this, so no wonder copyright law is in such turmoil.

You may have noticed that I used the term “Web site.” This is the usage preferred by most dictionaries, and by Wired magazine’s technology usage guide. One also sees “web site” and “website,” but these, though increasingly used and tolerated, are not the preferred usage, since “Web” is a short form of the name “World Wide Web” (abbreviated “www” in Web addresses), which designates one specific thing and therefore merits its initial capital letters. That name raises another issue, since “worldwide” is actually one word, not two. But I guess when you’ve invented something like the World Wide Web, you can set your own rules for the proper spelling of its name.

That leaves us with “cite,” a verb meaning to point out or call attention to, which can refer to activities as diverse as providing support for an argument, honoring a person for her achievements, or giving a guy a speeding ticket. In our profession, we like to use “cite” as a noun, too, as in the joyous activity known as “cite-checking.” That’s acceptable legal shorthand around the firm or the Law Review office, but in formal legal writing, we should use the noun “citation.”

Now This …

From time to time, published appellate opinions address the use and meaning of words in the context of deciding legal issues. Most such opinions arise from cases interpreting the language of a contract or construing a statute or regulation. But with increasing frequency, linguistic analysis comes out of cases interpreting the validity and scope of patent claims.

Not long ago, the U.S. Court of Appeals for the Federal Circuit held that the word “an” means one, not “one or more.” Of particular interest in this case is the fact that the Federal Circuit has established a rule that in patent claim construction “a” or “an” customarily does carry the meaning “one or more.” So the impact of the recent decision in TiVo Inc. v. EchoStar Communications (Fed. Cir. Jan. 31, 2008) is not that “an” — an obviously singular article — has a singular meaning, but rather that the “one or more” rule is not absolute. In the TiVo case, the context in which TiVo had used the term “an” clearly limited its meaning to only the singular, the court held. While some patent claim uses of “a” or “an” could mean “one or more,” this specific use, claiming patent in a means of assembling audio and video components into “an MPG stream,” could mean only the singular, since part of the achievement of the patent was to eliminate the need to process audio and video as two separate streams. The upshot was that an EchoStar device assembling audio and video components into two separate MPG streams was held not to infringe TiVo’s patent.

A hat tip to patent lawyers, who labor on the front lines of the “War of Words,” and who know better than most of us that law is a communication profession, and that we are all in the business of clear expression.

Parting Shot

Why do people (and certain software programs) abbreviate “out of office” as “OOF”? Last time I looked, the word office started with an O. 

Robert C. Cumbow is a shareholder at the Seattle firm of Graham & Dunn PC. He teaches at Seattle University School of Law. For parts of this column, he acknowledges debts to Tim Woolsey, Patrick J. Murray, and Adam Torem.