28 August 2009

Thin White Line

Questions about identity appropriation or construction are highlighted in Race, Resistance and the Boy Scout Movement in British Colonial Africa (Athens: Ohio University Press 2004) by Timothy Parsons.

Parson notes at 69 that Scouting in British colonial Africa conferred status, offered social mobility (even physical mobility, in the form of free rail passes) and signalled trustworthiness (and hence preferential access to employment and scholarships). That provided an incentive for identity subversion.
The only way of knowing if an African was a Scout was by the uniform (which often consisted of nothing more than a Scout badge pinned to a school shirt) and thus any African wearing a uniform could claim the privileges of the movement. The uniform could also be put to larcenous purposes because many rural communities assumed that anyone in uniform had the authority of a government servant. As a result, colonial officials had considerable problems with rogue Scouts or impostors who acquired a uniform by unapproved means. Most territories gave their Scout associations sole legal claim to their uniforms and badges, and the Ugandan government passed a specific ordinance barring Scouts from posing as government agents. ... Even registered Scouts often skirted regulations by buying rank and proficiency badges instead of earning them.
He goes on to note control mechanisms such as registration schemes and blacklists (at 186) before commenting at 187 that
sometimes there were pragmatic reasons to impersonate a Scout. Boys desperate to find work masqueraded as Scouts to impress potential employers. These pseudo-Scouts usually claimed membership in another territorial Scout association on the assumption that it would be harder for local authorities to check their credentials ... Christopher Mutingi was arrested for collecting money from Nairobi shopkeepers to supposedly fund a Scout hike from Dar es Salaam to Kampala. Mutingi explained to the authorities that he wore the uniform because "people [were] kinder to him". An ex-Scout named Joseph Orawo became notorious in Uganda for using a forged Scout membership card to collect money in Kampala. The Ugandan police arrested him several times for illegally using ornate Scout uniforms, complete with epaulettes to add credibility to his activities. Adults also posed as Scoutmasters. One particularly brazen impostor claimed to be a touring area commissioner from Zanzibar and managed to charge a large tea party at the Queen's Hotel in Nairobi to the Zanzibar Scout Association.
Identification on the basis of uniform meant that "Scout belts were a particular problem" (p189).
there was a steady flow of Scout belts into the hands of imposters in all three East African territories. The situation became so bad in central Kenya in the mid-1950s that the police detained every African wearing a Scout belt until he could produce proof that he was an authentic Scout or Scoutmaster ... The crackdown was so draconian that Kenyan Scout officials had to issue African Scouts special membership cards to prevent the police from confiscating their uniforms. ... the belts had such a high resale value that legitimate Scouts often sold them to raise money for living expenses and school fees.
In 1960s South Africa
Some troops had only a few Scout badges, which their members shared by taking turns attaching them to their everyday clothes with safety pins. The [SA Scouting Association] subsidized badges to the point where they sold for just one cent, but many Scouts still could not afford them. ... the Scout establishment tried to make the African Scout uniform more affordable by making it simpler, but many Scouts objected on the grounds that the new styles were too different from the European uniform (p232)

... Africans had a great deal of difficulty earning badges and advancing to senior Scout ranks. The Scout authorities caught some boys forging badge certificates to overcome this problem. Yet African Scouts objected to the [Association's] attempts to draft an easier 'Native' Scout curriculum because they wanted to use the movement to demonstrate that they were as able and resourceful as European boys (p233).

Ecstatic Fury

I'm rereading George Steiner's 1980 'The Cleric of Treason' in conjunction with Thomas McCraw's Prophet of Innovation: Joseph Schumpeter and Creative Destruction (Cambridge: Belknap Press 2007) and Joachim Radkau's Max Weber: A Biography (Cambridge: Polity Press 2009).

Of the three I'm most impressed by the Steiner piece on Anthony Blunt, reprinted at 13-46 in the new George Steiner At The New Yorker (New York: New Directions 2009) edited by Robert Boyars. The same volume features reviews of the Moldenhauer biography of Webern, a piece on Louis-Ferdinand Celine, one on Beckett, a demolition of Cioran (his "ominous facility" leads to "the question not so much whether the emperor has any clothes as whether there is an emperor" ... post-Steiner we're sans clothes and emperor), and a moving homage to Scholem & Benjamin.

What's striking about the three subject is their shared psychological distress (the "ecstatic fury"), visible underneath a surface of austere rationality and profound scholarship, arguably driving each intellectual's achievement but at what cost to themselves and to their associates. McCraw's account of 'being Joseph Schumpeter' (cue John Malkovich!) or 'being' each of the several Joseph Schumpeters - lover, fin-de-siecle Hapsburg aristocrat, minister, financier, academic, scholar, Middle-European-at-Harvard - is reminiscent of Julia de Beausobre's Lewis Namier (London: Oxford Uni Press 1971). Ironically, a subsequent publication by Namier's widow was Creative Suffering, on the life offered up to God rather than consecrated by the market through innovation. Lots of creative destruction in the lives of Namier, Schumpeter, Blunt and Weber; with an ecstatic state that only other intellectuals of that excellence can experience.

Prophet of Innovation is worth browsing just for the photos of Schumpeter, who looks decidedly like a well-fed Max Schreck in Malkovich's 2000 Shadow of a Vampire. Schreck in spats. If there's room for a mashup such as Seth Grahame-Smith's 2009 Pride and Prejudice and Zombies: The Classic Regency Romance - Now with Ultraviolent Zombie Mayhem! perhaps we can look forward to Schumpeter The Vampire, the bloodsucking fiend who gives a new meaning to the meme 'creative destruction'. Just like Wall Street or Macquarie Bank he's undead, uninhibited by conventional morality and oh so very very hungry.

26 August 2009

Merry Widow

After looking at media coverage of today's High Court decision in the 'teabagging case' (oops, thanks to Lane v Morrison [2009] HCA 29 there goes Division 3 of Part VII of the Defence Force Discipline Act 1982 (Cth) and the Australian Military Court) I couldn't resist an Oxford Dictionary of National Biography entry on a merry widow.

TAB Corley's profile of Elizabeth Chudleigh, later the Countess of Bristol and Duchess of Kingston upon Hull (c.1720-1788), notes that
... After a fling with James, sixth duke of Hamilton, on 4 August 1744 Elizabeth secretly married Lieutenant the Hon. Augustus John Hervey RN (1724-1779)... This secrecy allowed her to remain at court, but when in 1746 Hervey returned from two years' naval service in the West Indies, he was incensed to learn that she had not been faithful to him. A reconciliation, won after lavish payments of money by him, resulted in the birth of her only child [who] died soon afterwards. After much provocation, early in 1749 Hervey severed all relations with her.

Perhaps that brush-off led to Elizabeth's reckless appearance, at a masquerade at Ranelagh that May, as Iphigenia undressed for sacrifice: she wore a smile, some foliage rather low round her middle, and a covering of the flimsiest flesh-coloured gauze. Princess Augusta reacted to this audacious impression of nakedness by throwing her veil over Elizabeth. The infatuated George II asked if he could place his hand on her bare breasts; with great presence of mind, she offered to put it on a still softer place and guided it to the royal forehead. Far from taking offence, the king gave her a 35 guinea watch and made her mother a housekeeper at Windsor.
Elizabeth stuck to a good thing, "speedily" becoming the mistress of the second duke of Kingston upon Hull. In 1759 the imminent demise of George Hervey, second earl of Bristol, inspired her hopes that her husband would succeed to his brother's title. She "confessed all to the princess dowager of Wales", as one does, then "dashed down to Hampshire, acquired a blank parish register, and had her marriage recorded, with one other entry for credibility's sake". Alas, in 1769 a court ruled that the marriage had not taken place. She then married the duke of Kingston.
Elizabeth was now approaching fifty. Like a later temptress, Emma, Lady Hamilton, she had grown fat, thanks to overeating and a fondness for the bottle. Yet she remained voluptuous, with large bovine eyes, a roundish nose, and sensual lips, never short of admirers. Trouble really began when the duke died in 1773 and was found to have left her the income from his real estate for life and the whole of his personalty as long as she remained a widow; he feared that she could easily be taken in by some adventurer.
The duke's nephew and heir immediately disputed the will and had her indicted for bigamy. No matter, as Thackeray would say, she was safely offshore. From Rome, where she "more or less decorously captivated the intelligent but weak Clement XIV and half the curia", the merry widow hastened home
having demanded with menaces (by brandishing a pistol) the necessary funds from a reluctant English banker. The law took its ponderous course until in April 1776, as a peer (Hervey had lately become third earl of Bristol), she was tried before her fellow peers in Westminster Hall. She defended herself by putting the blame on her lawyers and others, including the princess dowager. The Lords believed not a word of this defence, and all 119 of them declared her guilty. She evaded the clerical punishment of being branded on the hand, and escaped in an open boat to Calais before the [Duke's] family could legally prevent her from leaving the country.
She never returned. Although wealthy (with an income of £20,000 a year), Elizabeth "became so restless, irritable, and moody that she had no close friend". In 1777 she moved to St Petersburg in a private frigate - the super-yacht of that era - but was soon bored with life at the court of Catherine the Great and became involved with a supposed Albanian prince who relieved her of some loot, was unmasked as a swindler and committed suicide after arrest for forgery. Elizabeth bought an estate near St Petersburg and established a vodka distillery, which she bestowed on a young English carpenter - "no doubt for services rendered" – when she moved back to France.

Characteristically, a dispute over purchase of a mansion saw her back in court. Corley notes that "on hearing that she had lost the case, she threw such a hysterical tantrum that she burst an internal blood vessel. On the following day, 26 August 1788, she died suddenly in Paris".


Bede Harris, author of the exemplary A New Constitution for Australia (London: Cavendish 2002) and new Constitutional Law Guidebook (Oxford: Oxford Uni Press 2009), has an Op Ed in today's Canberra Times. (The text is here but will shortly disappear behind the CT firewall.)

Dr Harris highlights two key changes to increase the accountability of the executive to the legislature: reform of the electoral system and an enhancement of the power of parliamentary committees.
First, in order to break the Labor/Coalition duopoly, it is necessary to adopt proportional representation for the House of Representatives. Unlike electoral systems based solely on geographic electorates, which favour parties with concentrations of support, proportional representation gives minor parties and independents a real chance of obtaining representation. This makes it far more difficult for large, monolithic parties to survive unless they act in a far more consultative way internally, because disaffected members can simply leave and form their own party.
He goes on to suggest "a radical change to the law of parliamentary privilege".
Although in theory parliamentary committees have the power to subpoena ministers and public servants, and to sanction them if they refuse to answer questions, that common-law power has never been tested at Commonwealth level (although it has been affirmed by the High Court in the case of the NSW Parliament). Ministers frequently refuse to answer questions and prohibit public servants from doing so. However, the law allows sanctions to be applied only by a House as a whole, rather than by committees.

The political reality is that ministers will never be called to account for refusing to answer questions: the two major blocs cooperate in shielding each other from scrutiny ... The remedy for this is to amend the Parliamentary Privileges Act so as to make ministers compellable witnesses before parliamentary committees, subject only to a court-adjudicated public immunity test, as was proposed by the Australian Democrats in a Bill introduced in 1994.

Furthermore, the power to compel evidence should be exercisable by a committee or a member thereof.
He notes in conclusion that
It is a matter of supreme irony that the legislative branch in the US has far greater power over the executive than does Parliament under our supposed system of responsible government, where the executive operates safe in the knowledge that it will never be subject to sanction by parliamentary committees so long as the two major parties collude in ensuring that Parliament's powers are never fully exercised.

25 August 2009

Drafting and Do-rags

'Dressing Up a Constitutional Issue: First Amendment Protection of School Uniform Protests in Lowry v, Watson Chapel School District and the Threads Remaining to Enforce School Policies' by Adrianne Mittelstaedt in (2009) 32(2) Hamline Law Review 609-655 quotes (at 614) the Watson Chapel School District Student Apparel Policy - try reciting that at speed unless you are patter king George Grossmith - which prohibits the wearing of any
towel, scarf, bandana, do-rag, shirt, string, chain, jewelry, special button, insignia, label, marking, different-coloured stitching, fringe, brad, stud, picture, logo, ribbon, embroidery, initials, monogram, special buckle or other form of adornment from being worn on or over any part of the uniform, except the school name, school logo or school insignia.
Regulation of student clothing, adornment such as 'exotic piercings' and indicators of affiliation/faith such as crucifixes or chastity rings is a matter of ongoing contention in the US and parts of Europe, with disagreement about free expression, intervention by an ostensibly secular state and a K12 'veil politics' that serves as a surrogate for questions about values in society at large, in an echo of traditional sumptuary law.

Works such as 'Covering Islam: Burqa and Hijab - Limits to the Human Right to Religion' by Paul Morris in (2004) 2 Human Rights Research Journal  [PDF], the 2007 Victorian Parliamentary Inquiry into Dress Codes and School Uniforms in Victorian Schools [here] and 'It's not because you wear a hijab, it's because you're Muslim: Inconsistencies in South Australia's discrimination laws' by Anne Hewitt in (2007) QUT Law & Justice Journal [here] illustrate that contention is not foreign to Australia and New Zealand.

A range of Australian law shapes articulation of and compliance with K12 dress codes, including contract law (important for private schools) and legislation such as the Victorian Education & Training Reform Regulations 2007 (SR 61 of 2007) [here] and ss 361-362 of the Education (General Provisions) Act 2006 (Qld) [here]. There has been little case law; one example is Cope v Girton Grammar School Limited [1995] VADT 2.

The Policy is interesting as an example of drafting. It is also interesting as a point of reference in considering Australian legislation - such as the Serious and Organised Crime (Control) Act 2008 (SA) [here] and the Serious Crime Control Bill 2009 (NT) - aimed at 'outlaw motorcycle gangs' (the acronym for which, as a friend points out, is the resonant OMG).

Can we target people on the basis of their clothing? Is it feasible to define that clothing in a way that isn't readily subverted yet doesn't involve the laundry list noted in Mittelstaedt's article?

Trade Mark Dilution and US Kids

Martin Schwimmer notes a new article on the US Trademark Dilution Revision Act of 2006 (TDRA), which applies only to a mark "widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark’s owner".

'New-School Trademark Dilution: Famous Among the Juvenile Consuming Public' [PDF] by Alexandra Roberts in 49(4) Pierce Law Review (2009) 579-645 argues that
The heightened degree of fame the TDRA requires narrows the universe of marks it protects, leaving insufficiently famous marks with protection only under trademark infringement laws. Yet, for marks that qualify, the TDRA offers hefty rewards upon a showing that dilution is merely likely. As such, it provides strong incentives for wealthy companies to strive to make each mark "widely recognized by the general consuming public of the United States". While the dilution doctrine offers more potent protection, children have simultaneously become both more sophisticated and more sought-after as consumers.

Many courts have already vindicated consultants' use of children as part or all of the relevant universe for survey purposes. Children’s impressions and opinions about brands will only increase in importance as they continue to gain spending power and product savvy. These legal and social forces coalesce where the TDRA meets marketing to kids, making dilution law a driving force in the commercialization of childhood
Roberts comments that
By privileging those major players who succeed in turning their brands into household names, the TDRA strengthens incentives for mark-owners to ensure their logos and brand names are well-recognized not only among adult consumers, but also among children. This Article examines a set of marketing behaviors aimed at children that the TDRA’s revised fame standard both reflects and rewards. Deeming fewer marks famous may serve the immediate purpose of creating a higher bar for plaintiffs to successfully bring dilution claims, but that bar should be set at age twenty-one to avoid rewarding firms for making loyal consumers out of teenagers, tweens, kids and even infants.

24 August 2009

All a-twitter about trade marks?

Twitter's application to the USPTO last month for a trade mark in the word 'tweet' (denoting the messaging beloved by media pundits, self-consciously 'digital' academics and those for whom even a 250 character blog entry is just too too long) has been provisionally denied on the basis of likely confusion, following application by other companies for trademarks with very similar words.

The Patent & Trademark Office - counterpart of IP Australia - cited applications by Tweetphoto, TweetMarks and Cotweet. Twitter's co-founder Biz Stone had earlier indicated that Twitter-related applications featuring the stem 'tweet' (such as Tweetboard, Tweetdeck and Tweetie) were not a trade mark problem.
The ecosystem growing around Twitter is something we very much believe in nourishing and supporting. There are lots of really awesome services and applications out there like TweetDeck, TweetMeme, Tweetie, BackTweets, Tweetboard, and others that we absolutely love as do many users. However, as the ecosystem grows there is also the possibility that confusing and potentially damaging projects could emerge.

We have applied to trademark tweet because it is clearly attached to Twitter from a brand perspective but we have no intention of 'going after' the wonderful applications and services that use the word in their name when associated with Twitter. In fact, we encourage the use of the word Tweet. However, if we come across a confusing or damaging project, the recourse to act responsibly to protect both users and our brand is important
A quick search of the USPTO's TESS database indicates that there are 59 'live' or 'dead' word marks featuring 'tweet', including 'Home Tweet Home', 'Tweet Street', 'Tweety's Tweat Shop', 'Tweet Suite', 'Tweatweats', 'Tweatworking' and of course 'Tweatlaw'. It's all so twerribly twee that I'm reminded of Dorothy Parker's New Yorker review, in the guise of the Constant Reader, in which she savaged A A Milne's The House at Pooh Corner, ending
And it is that word 'hummy,' my darlings, that marks the first place in The House at Pooh Corner at which Tonstant Weader fwowed up.

The perplexed might peruse Shanahan′s Australian Law of Trade Marks (4th Ed, Pyrmont: Lawbook Co 2009) by Dan Shanahan, Mark Davison, Annette Freeman & Tracey Berger.

23 August 2009

That old black magic

The Guardian reports "Spain's magicians are up in arms over a television show hosted by a rebel prestidigitator who reveals many of the secrets behind their tricks".

The outraged practitioners have asked Spanish lawyers to devise legal challenges regarding the 'Masked Magician' (a less than catchy moniker used by Val Valentino) and his 'Magic Without Secrets' show, claiming that their tricks should be protected as intellectual property. One outraged fan has reportedly used his Facebook page to call for the death of the Masked Magician - we're talking a brick to the back of the miscreant's head, a fender bender by moonlight or suffocation with a bouquet of paper flowers, presumably, rather than eye of newt & ear of bat - "for spoiling the illusion behind the tricks".

Don't hold your breath. Attempts to stop the show have so far failed and are unlikely to be successful in future, consistent with difficulties regarding IP protection highlighted in works such as Jim Steinmeyer's sprightly Hiding The Elephant: How Magicians Invented the Impossible and Learned to Disappear (New York: Barnes & Noble 2003), Oliar & Sprigman's 2008 paper 'There's No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy' and Jacob Loshin's 2007 paper 'Secrets Revealed: How Magicians Protect Intellectual Property without Law'.

Loshin notes that Valentino was the 'Masked Magician' on FOX in the US, recounting
The magic community discovered the identity of the masked magician shortly after his first television special, and well before he dramatically “revealed” his identity on the fourth special. The masked magician turned out to be a middling Las Vegas magician by the name of Val Valentino. One of Valentino’s magician friends, after discovering that Valentino was the masked magician, recalled that he advised Valentino to go on TV and "do a Jimmy Swaggart thing, cry and ask for forgiveness". Valentino resisted, and was branded by magicians as the "masked traitor".
I'm looking forward to an analysis from Christine Corcos, author of the Law & Magic Blog, whose comments are a delight to read. [Her response is now available here.]

Adorno on Blogging?

From Adorno's 'The Essay as Form' ('Der Essay als Form', 1958) in Sherry Nicholsen [tr] Notes to Literature vol one (New York: Columbia Uni Press 1991) 3-23 ...
In Germany the essay arouses resistance because it invokes intellectual freedom. Since the failure of an Enlightenment that has been lukewarm since Leibniz, even under present-day conditions of formal freedom, that intellectual freedom has never quite developed but has always been ready to proclaim its subordination to external authorities as its real concern. The essay, however, does not let its domain be prescribed for it. Instead of accomplishing something scientifically or creating something artistically, its efforts reflect the leisure of a childlike person who has no qualms about taking his inspiration from what others have done before him. The essay reflects what is loved and hated instead of presenting the mind as creation ex nihilo on the model of an unrestrained work ethic.

Luck and play are essential to it. It starts not with Adam and Eve but with what it wants to talk about; it says what occurs to it in that context and stops when it feels finished rather than when there is nothing to say. Hence it is classified as a trivial endeavor. Its concepts are not derived from a first principle, nor do they fill out to become ultimate principles. Its interpretations are not philologically definitive and conscientious; in principle they are over-interpretations – according to the mechanized verdict of the vigilant intellect that hires out to stupidity as a watchdog against the mind. Out of fear of negativity, the subject’s efforts to penetrate what hides behind the facade under the name of objectivity are branded as irrelevant. It’s much simpler than that, we are told. The person who interprets instead of accepting what is given and classifying it is marked with the yellow star of one who squanders his intelligence in impotent speculation, reading in things where there is nothing to interpret.

A man with his feet on the ground or a man with his head in the clouds – those are the alternatives. But letting oneself be terrorized by the prohibition against saying more than was meant right then and there means complying with the false conceptions that people harbor concerning themselves. Interpretation then becomes nothing but removing an outer shell to find what the author wanted to say, or possibly the individual psychological impulses to which the phenomenon points.

But since it is scarcely possible to determine what someone may have thought or felt at any particular point, nothing essential is to be gained through such insights. The author’s impulses are extinguished in the objective substance they seize hold of. In order to be disclosed, however, the objective wealth of meanings encapsulated in every intellectual phenomenon demands of the recipient the same spontaneity of subjective fantasy that is castigated in the name of objective discipline. Nothing can be interpreted out of something that is not interpreted into it at the same time.