Ab Fab

IP Australia, the government agency that is the nation's counterpart of the USPTO, has released a brief report on its recent survey of industry awareness of intellectual property protection and the agency's Fashion Rules guide.

Fashion Rules was developed by IP Australia in 2007 - and launched by Australian designer Akira Isogawa - to assist what the organisation characterises as 'the Australian Textiles, Clothing and Footwear (TCF) industry'. Much production by that industry, in particular for the mass market, has been migrating overseas, with some estimates suggesting that 80% of Australia's consumption of footwear and clothing is now sourced from offshore (particularly from China). Designs, copyright and trade mark law however remains important - both for protection of Australian creativity and investment and for avoidance of infringement of another nation's IP. At the launch the deputy minister commented that

Investment in intellectual property protection in the fashion industry is just as important as investing time, effort and money in developing new designs ... There is nothing more soul destroying than seeing your hard work and creativity being copied and exploited by an unscrupulous operator.

The survey attracted responses from 149 entities, almost double the respondents in the 2008 survey. 30% of respondents this year were designers, 16% were marketing professionals and 28% were in the 'Other' category (including "teachers, lecturers and trainers", production managers and business owners).

The survey was aimed at identifying "changes to the level of intellectual property awareness and understanding" among TCF members. A secondary objective was evaluation of recent IP Australia marketing and communications activities.

75% of respondents were "very aware" of intellectual property (which IP Australia indicates is a 24% increase from the previous survey), 23% were "somewhat aware" and 3% were "not aware". Awareness of trade marks was highest, with 93% of respondents aware, followed by copyright (86%), Patents (82%) and Design protection (75%).

IP Australia claims that the results indicate "a 24% increase in the level of IP awareness", with "overall results indicating growth levels of IP amongst the Australian TCF industry". The meaningfulness of the self-assessment is unclear: respondents might be modest about a sophisticated and comprehensive understanding of IP principles and practices or instead mistakenly but politely report that they are "very aware" yet lack a good sense of how IP works. I am aware of the principles of the internal combustion engine but if you value your hardware please do not ask me to disassemble and rebuild what is under the bonnet of your car.

Assessments of institutional validation will vary. IP Australia reports that

One of the key areas of interest was to ascertain how successfully the Fashion Rules resource had penetrated the TCF market. 30% of respondents had seen the resource with the majority of participants viewing it online (43%). Exposure via a Ragtrader magazine promotion came in second with 33%, followed by Fashion Week promotions (17%). 23% of respondents specified 'other' which included Design Victoria events, a Fashion Group International workshop and a TAFE conference.

I've moved on to Philip Leith's Software and Patents in Europe (Cambridge University Press, 2007).

Sad Lobster Quadrille

The BBC 'Open Secrets' quotes an admission by the UK Information Commissioner that his office took too long to consider complaints.

The Commissioner agreed that "We're not as efficient as we should be" and in the best tradition of Whitehall (or Burley-Griffin) reported that 'measures were in place to speed up' complaint handling. He was 'also telling public authorities that they had to make the FOI process more straightforward'. There's no indication of whether those authorities are listening and whether there will be a substantive response an announcement that the authorities are committed to seeing that 'measures are in place'.

The blog reports that the Commissioner

described freedom of information as a cumbersome process like "a complicated stately dance with many parties", so that "it's a question of 'Will you walk a little faster?', said the whiting to the snail".

This reference to the Lobster Quadrille in Alice in Wonderland, where the Mock Turtle and the Gryphon dance slowly and sadly round Alice while treading on her toes, may indeed capture some of the spirit of how the FOI system operates.

But if Mr Graham and his team are really seeking inspiration from a character in Alice in Wonderland, perhaps they have most to learn from the Mad Hatter.

He informs Alice that as long as you keep on good terms with Time, he'll do almost anything you want with the clock. He can make it go from nine in the morning to half-past one, time for dinner, in a twinkling. Equally well, he can "keep it to half-past one as long as you liked".

While on the subject of time and quadrilles, sad or otherwise, I've finished reading Adam Kuper's disappointingly thin Incest & Influence: The Private Life of Bourgeois England (Cambridge: Harvard Uni Press 2009).

It's an account of kin marriage among the 'cousinage' (Rothschilds, Darwins, Stracheys, Wedgwoods, Clapham Connection and Bloomsbury Group - the latter hyperbolically tagged as "the most eccentric product of English bourgeois endogamy" - more eccentric than the Plymouth Brethren?), for me less insightful than Noel Annan's writing on the intellectual aristocracy or Lawrence Stone's writing on the history of English marriage as a legal institution. From a dissertation perspective it's most valuable for a quick introduction to UK law regarding marriage of relatives within the 'prohibited degrees'. Harvard promotes it as

This groundbreaking study brings out the connection between private lives, public fortunes, and the history of imperial Britain.

In reality it doesn't break much ground and the connection is rather thin, with few treasures for lawyers and little that's new or striking for a historian of the period. Ideally there would be a detailed comparison with intermarriage and influence among contemporary urban elites in say Boston, Philadelphia, Amsterdam, New York and Frankfurt.

Starting points for an evaluation might include Frederic Jaher's The Urban Establishment: Upper Strata in Boston, New York, Charleston, Chicago, and Los Angeles (Urbana: Uni of Illinois Press 1982), R. J. Morris' Men, Women and Property in England, 1780–1870: A Social and Economic History of Family Strategies amongst the Leeds Middle Class (Cambridge: Cambridge Uni Press 2005), Sven Beckert's The Monied Metropolis: New York City and the Consolidation of the American Bourgeoisie, 1850–1896 (Cambridge: Cambridge Uni Press 2001) and Werner Mosse's The German-Jewish economic élite, 1820-1935: a socio-cultural profile (Oxford: Oxford Uni Press 1989).

Stephen Halliday in the THE sniffed that

a whole chapter is devoted to the Bloomsbury Group. There was a good deal of sleeping around among that strange and diverse cast of characters, but little if any intermarriage of any consequence; moreover, the group's members showed very little interest in anything as vulgar as business, and in many cases would have been very upset to hear themselves described as "bourgeois".

Halliday goes on to comment that

The reference to "characteristic strategy" in Kuper's initial explanation of his thesis implies that there was something deliberate about the choice of relatives in marriage, but he provides other, more convincing explanations of the phenomenon. He reminds the reader that, in an age when chaperones were considered essential for young unrelated couples, cousins had more opportunities to be alone together.

The interesting chapter on "The Family Business" observes that many of the people considered here were Quakers, and indeed Kuper could have concluded that friendships nurtured at Quaker meetings were a more likely explanation of their tendency to marry one another than any "strategy" to protect family interests. Perhaps they just liked one another.

Likewise, the chapter devoted to "Wilberforce and the Clapham Sect" could have suggested that people with common values, such as a fierce opposition to slavery, who meet frequently to pursue their common goals are likely to generate intimate friendships. ... Kuper should have called his book Networking in 19th-Century England, but that wouldn't have been a very catchy title, would it?

If you are lawyer you might want to skip Kuper and read Wharton's The Age of Innocence instead.

Edutourism and ethics

It's that time of year again when the UC Law Faculty halls, walls, windows and even toilets are decorated with glossy ads for 'summer school' business law courses in Dubai, Beijing, Shanghai, Ho Chi Minh City and Hanoi.

I'm planning to skip the "desert tour and boat trip on the Dubai Creek" which is apparently one of the attractions of this year's CBL International Dubai Law School, an offer that's badged as being in cooperation with BBC World News, IP law group Rouse, FedEx and Allen & Overy.

That's partly because I'm squeamish about the legitimisation that's provided through edutourism in regimes that don't respect human rights.

One matter for discussion in the 'ethics' component of clinical legal education might be the appropriateness of "peaceful engagement" with such regimes through institutional and personal endorsement of for-profit short 'business law' courses.

Is it sufficient to say that those courses are concerned with business law, that students will see something of another culture (a visit to a Pearl River sweatshop or to a UAE construction site might be more revealing than canapes on the Dubai Creek or an encounter with a camel) and even acquire valuable language skills that will bridge gaps in understanding between the locals (unlikely in the UAE if all the service staff are right-less gastarbeiter - disposable people - and the teaching is in English)?

Are apologetics different because the law is concerned with trade ... or that the course might be construed as tourism or that it's located in a liberalising economy? Why not study in Mugabe's Zimbabwe, Castro's Cuba or the Fat Boy's North Korea. There's scope there for an entrepreneur - a dash of revolutionary chic, cheap locals to change the sheets and smile obligingly as hard currency rolls in, exotic scenery (I was going to say colourful wildlife but in the N Korean socialist workers paradise the bears and birds have probably been eaten along with the rats and cats), promises of growing friendship ...

I'm thinking of a summer school in Burma for students of national security law: luxurious villa accommodation, plentiful service by oh so deferential servants, an excursion or two to see a restored pagoda, an audience with senior officials who will with heartfelt tones explain that they have learnt from their mistakes and will - but of course - become even better as long as the money keeps rolling in. Premium class students might even get to shoot an elephant (shooting famished peasants is so so yesterday and won't provide tasteful photos for display in the office on the 43rd floor back home) ...

Foxes roaming free

One of the treats of teaching at UC is seeing the occasional fox walking through the mist or - as recently - haring after a plump rabbit. After reading Edward Carr's piece on polymaths which laments that

Isaiah Berlin once divided thinkers into two types. Foxes, he wrote, know many things; whereas hedgehogs know one big thing. The foxes used to roam free across the hills. Today the hedgehogs rule

I was reminded of the 1980 NYRB letter by John Bowman examining Berlin's use of a fragment from Archilochus for his 'The Hedgehog and the Fox' and acceptance of Berlin's metaphor.

As quoted by Berlin, Archilochus is saying: "The fox knows many little things. The hedgehog knows one big thing." Berlin then proceeds to compare Tolstoy, the "fox," to Dostoevsky, the "hedgehog," and before he is through the Archilochus epigram seems to be saying that there are two different ways of approaching or knowing reality—put quite simplistically, the way of the far-ranging generalist and the way of the concentrated specialist.

As I admit, that is oversimplifying Berlin's subtle arguments, but it is not my intention to accuse Berlin of anything. I do not even know who is responsible for the translation of the Archilochus that he uses. My point is that it is this reading of the Archilochus epigram that has held sway since Berlin used it many years ago: when people refer to "the hedgehog and the fox" these days, they are usually referring to this contrasting approach to the world. Furthermore, there is a general disposition to favor the way of the fox—although this may be entirely my own bias. For instance, the reviewers of Berlin refer to his "pluralism" and other aspects of our Western-liberal tradition that Berlin so epitomizes in a way that suggests we all are better for knowing a lot of things.

Again, that may be my own prejudice. At the very least we may allow that Berlin's translation — and his thesis — award equal status to these two animals. Yet when we look closer at the original Archilochus, or rather at some other translations, the issue is not so clear. To begin with, "thing" tends to become "trick," and the "one big thing" that Berlin's hedgehog knows is how to curl itself into a ball to escape its enemies—including, presumably, the fox. There is thus the implied, if not explicit, suggestion that although the fox knows many tricks, it is the hedgehog with one "big trick" that ends up defeating the fox. In this reading, Tolstoy and Dostoevsky would not just be taking different routes to reality: they would be in conflict — and Dostoevsky would outfox Tolstoy!

This version of the Archilochus is given its most committed translation by Guy Davenport (Carmina Archilochi: The Fragments of Archilochus: University of California Press, 1964) when he first translates the original with what he states are the literal seven words: "Fox knows many / Hedgehog one / Solid trick." Davenport then provides an alternate translation that he claims expresses the true thrust of the original: "Fox knows / Eleventythree / Tricks and still / Gets caught: / Hedgehog knows / One but it / Always works." Not all translators go this far, but others do imply that (1) the hedgehog's trick is superior to the fox's many tricks, and (2) the hedgehog's trick may actually defeat the fox.

Nor is that the end of the problem. It has been suggested by at least one (hedgehoggy? foxy?) student of this matter that although the hedgehog may roll itself into a ball to elude the fox, it has been observed in nature that a fox may roll said hedgehog down a slope into water, where the hedgehog will either drown or be forced ashore to be killed by the fox. Your reviewers of Berlin may be hinting at this when they write that "an ironist would remark" that the one big thing that the hedgehogs of this world know is "that there is not, or should not be, any hedgehog's thesis about human affairs to expound." (Note that it is the fox's way, again, that is being favored.)

William Harris' commentary on Archilochus [PDF] includes the epigram

No man is praised by his citizens or greatly honored when dead.
We rather follow the favor of the living while we are alive,
and the dead always get the worst part.

Harris states that

This telling line has been so often quoted and perhaps misquoted, that no comment should be necessary, other than to note a personal preference for the staying qualities of the hedgehog who is still peering out of his burrow while the farmer hangs the body of the fox on the barbed wire fence as a reminder of the fate of being a smart aleck.

Poor foxling sharp-ears.

Vanessa Friedman in the Financial Times meanwhile quotes the characterisation of Goldman Sachs as a "great vampire squid wrapped around the face of humanity". Mixed metaphor (Nosferatu meets Alien?, but I get the picture.

Kafka's Law

After an era where vade mecum's included kitty litter such as God is My CoPilot (the big guy's presumably flattered to share the joystick) and the Business Secrets of Attila The Hun (the latter was presumably a hit at Bear Stearns) it was nice this morning to encounter 'In Search of Heimat: A Note on Franz Kafka's Concept of Law' by Reza Banakar in (2010) 22 Law and Literature  on SSRN.

Banakar asks

Are Franz Kafka's descriptions of law and legality a figment of his imagination or do they go beyond his obsessive probing of his neurosis, reflecting issues which also engaged the social and legal theorists of the time? Does Kafka’s conception of law offer anything new in respect to law, justice and bureaucracy, which was not explored by his contemporaries or by later legal scholars?

He uses Kafka's newly-fashionable "office writings" - Franz Kafka: The Office Writings (Princeton University Press, 2009) edited by Stanley Corngold

as a starting point for re-examining the images of law, bureaucracy, hierarchy and authority in his fiction; images which are traditionally treated as metaphors for things other than law. It will argue that the legal images in Kafka’s fiction are worthy of examination, not only because of their bewildering, enigmatic, bizarre, profane and alienating effects, or because of the deeper theological or existential meaning they suggest, but also as a particular concept of law and legality which operates paradoxically as an integral part of the human condition under modernity. To explore this point Kafka's conception of law is placed in the context of his overall writing as a search for Heimat which takes us beyond the instrumental understanding of law advocated by various schools of legal positivism and allows us to grasp law as a form of experience.

Banaker examines

Kafka's "rhetoric" while paying special attention to his day job as an insurance lawyer and a bureaucrat and to his legal and clerical writings, which show he borrowed material from the cases he was involved in to develop some of the characters, settings and images in his fiction. Joseph K. and his inexplicable experience of the law in The Trial were, for example, born out of an actual legal case, while Gregor Samsa and his bizarre transformation into an insect in Metamorphosis were inspired by Kafka's daily work experience. Would Kafka have thought the way he did, constantly striving "to interpret discourse that looks like one thing but might well be another" – often its opposite – had he not been leading a dual life, practicing law during the day and producing fiction during the night? His day job as an insurance lawyer and his nighttime preoccupation as a fiction writer both involved creative writing, one belonging to the world of modern work, the other to art. In Kafka's fiction these two separate worlds merge to uncover the inner contradictions of modernity. ...

The legal aspects of Kafka’s work do not, admittedly, explain his "linguistic imagination", but throw new light on the link between law and his images of legality. They also challenge some of the previous readings of Kafka's work that emphasize the theological, psychoanalytical, ontological, historical, metaphysical and existential interpretations of his fiction at the expense of exploring the role of law in his narratives. It might indeed be true, as noted by Albert Camus, that Kafka's novel The Trial is "the diagnosis", while "The Castle imagines a treatment". This should not, however, distract us from also considering the significance of Kafka's choice of criminal proceedings when making "the diagnosis", and private law when searching for a "treatment". Is Kafka's choice of law arbitrary or does it resonate a concern with the rise of modernity which engaged legal and social theorists of the time? More importantly, does Kafka offer an insight into the complexity of the relationship between modern law, justice and bureaucratic forms of organization, not explored by his contemporaries or by later legal scholars?

I wonder about assumptions regarding modernity, law and bureaucracy (irrational, indifferent or otherwise), given the omnipresence of law and procedure in steam age writers such as Stifter, Balzac, Fontane and Dickens.

Meanwhile, after coffee with Bill, I'm doing a fast re-read of The Big End of Town: Big Business and Corporate Leadership in Twentieth Century Australia (Cambridge University Press, 2004) by Grant Fleming, David Merrett & Simon Ville before looking at How Terrorism Ends: Understanding the Decline and Demise of Terrorist Campaigns (Princeton University Press, 2009) by Audrey Cronin.

Whereof one cannot speak

Derridian, that most generous of scholars despite difficult conditions, has kindly pointed me to debate in the Chronicle of Higher Education about Carlin Romano's attack on the gnome of Todtnauberg in a review of Emmanuel Faye's Heidegger: The Introduction of Nazism Into Philosophy (Yale University Press, 2009). Ooh, what fun - Heidegger true believers and phobes going for it!

Romano starts off modestly by asking

How many scholarly stakes in the heart will we need before Martin Heidegger (1889-1976), still regarded by some as Germany's greatest 20th-century philosopher, reaches his final resting place as a prolific, provincial Nazi hack? Overrated in his prime, bizarrely venerated by acolytes even now, the pretentious old Black Forest babbler makes one wonder whether there's a university-press equivalent of wolfsbane, guaranteed to keep philosophical frauds at a distance.

I moved on to 'A Paradigm Shift in Heidegger Research', a review [PDF] by Thomas Sheehan in (2001) XXXII(2) Continental Philosophy Review 1-20 of the dark prince's Beiträge, complete with gems such as the

definition of Denken: "Thinking no longer appears as a faculty of the mind but as the mystery through which the sway of being sways as the counter-sway of a finite projection and a finite but always already on-going and self-sustaining forth-throw"

Sheehan commented that

The Beiträge hits us at a time of crisis when, in the eyes of many, the Heidegger establishment has painted itself into a corner. It's not just that outsiders don't understand what we're talking about; there is a growing suspicion that we don't either. Heideggerians seem to have abandoned philosophy to become glossolalics. ...

Medard Boss, the Swiss psychiatrist, reports that well into the 1930s Heidegger was plagued by a recurring nightmare in which he is back at his Maturitätsprüfung, the final exam before leaving high school. He freezes up and cannot find the right answer to the examiners' question. It's a terrifying experience ...

I imagine a similar nightmare in which all of us in the Heidegger Conference are compelled, like elementary school children, to take a standardized test in Heidegger. The bell rings out over the schoolyard - say, at my own Mission Dolores Grammar School in San Francisco. Reluctantly we leave our games and, under the watchful eyes of the Sisters of Notre Dame, trudge into our seventh-grade classroom. We slouch into our seats and whisper a desperate prayer to der letzte Gott as the stern-faced Sister Constantia hands each of us a number-two pencil and a bluebook. There is only one question: 'In plain English, define each of the following terms and relate them to one another: Ereignis, Geschick, Lichtung, Austrag, Entzug, Seyn, Sein, Sein, and Wesung'.

What would Sister Constantia think of an undergrad who assumes that John Rawls was channelling Ayn Rand (admittedly an interesting variation on announcement in one 2008 tutorial that Rawls was a Communist, presumably of the godless atheistical babies-for-breakfast and boots-on-the-table variety)?

Time to reread Sheehan's 'A Normal Nazi' [PDF] in (1993) XL(1) New York Review of Books  30-35.

Responses to DNC and Speam

Direct marketing industry advocates and some pessimists argued several years ago that establishment of an Australian Do Not Call (DNC) regime was unviable because there would be no community support ... variously because consumers wouldn't bother to list their numbers on the national DNC register or that most people welcomed unsolicited contact from telemarketers.

That claim was belied by the growth of the register (over one million people signed up within a short time) and community endorsement of DNC litigation. It is also belied by comments in a 77 page report commissioned by ACMA, the national telecommunications regulator.

Community attitudes to unsolicited communications [PDF] "explores community attitudes to unsolicited telemarketing calls and electronic communications, and the awareness and effectiveness of the regimes that regulate these communications".

The report notes that around one in three Australian adults (32%) have registered a number on the DNC Register. Although all of those people have their home number on the Register, only six per cent of all adults have registered their mobile phone numbers. Arguably that is because most people are not yet aware that mobile numbers can be listed and have not become sensitised to inappropriate telemarketing (including speam) involving mobile numbers. "Awareness and knowledge of aspects of the Do Not Call Register Act and the registration process itself are generally low."

The report comments that the Register "appears to have been very effective, particularly for those who have their home phone number registered".

It also suggests that awareness and understanding of spam is "generally high, as is use of spam filters", although email users are typically receiving 23 spam emails per week despite such filtering. SMS or MMS spam is less prevalent, with personal mobile phone users receiving an average of two spam messages per month. Awareness of Australia's anti-spam regime is low, according to ACMA.

The report indicates that

People are generally unsure who they would complain to about unsolicited telemarketing calls. Complaining about unsolicited spam messages, however, is a little clearer, with many opting to contact the telephone or internet service provider. Supporting this, nearly one in four have considered making a complaint, but have not gone through with it (mainly because they didn't know how to).

Justice Logan of the Federal Court this week imposed an aggregate $15.75 million in fines under the anti-spam regime on operators of the 'Mobilegate' speam scam noted here in August.

Mobilegate Ltd, Winning Bid Pty Ltd and three individuals were penalised for a scheme involving premium-priced SMS 'adult chat services' that leveraged numbers garnered through fake personal profiles on dating web sites. In August ACMA gained injunctions and declarations against the two companies and Simon Owen, Tarek Salcedo and Glenn Maughan for breaches of the Spam Act 2003 (Cth) and the Trade Practices Act 1974 (Cth).

Mobilegate and Winning Bid were fined $5m and $3.5m respectively, with fines of $3m imposed on Owen, $3m on Salcedo and $1.25m on Maughan. ACMA has announced that it will continue to pursue a further three respondents.