Thin White Line

Questions about identity appropriation or construction are highlighted in Race, Resistance and the Boy Scout Movement in British Colonial Africa (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).

Meanwhile in R v Darwin and Anor [2009] EWCA Crim 860 the England and Wales Court of Appeal (Criminal Division) has stated

This is a notorious case. Anne and John Darwin are a married couple of previous good character. Together they set up a fraudulent conspiracy. Its objective was to collect the insurance and pension money due to her on his death while he was still alive. So his death was faked, and she reported it as an accident. The deception worked. The money was collected and distributed between them. They told, or rather she on behalf of both of them, told many lies in furtherance of this objective and on their joint behalf she told and played out many falsehoods to their adult sons in order to ensure that the truth did not emerge and that the plans would come to successful fruition. 

Their criminal partnership gave rise to a number of charges. On 13 March 2008, in the Crown Court at Teesside, before Wilkie J, John Darwin pleaded guilty to counts 1, 2, 3, 7, 8, 14, 15 and 17 in the indictment. On 23 July 2008, following a trial before the same judge and a jury, Anne Darwin was convicted of counts 1-14 and count 16 of the same indictment. On 23 July 2008 they were sentenced as follows. On each of counts 1, 2, 3, 7 and 14 (obtaining a money transfer by deception), Anne Darwin was sentenced to 78 months' imprisonment; John Darwin was sentenced to 75 months' imprisonment. On each of counts 4, 10, 11, 12, 13 and 16 (transferring criminal property), Ann Darwin was sentenced to 78 months' imprisonment; in relation to John Darwin, those counts were ordered to remain on the file in the usual way. On each of counts 5 and 9 (converting criminal property), Anne Darwin was sentenced to 78 months' imprisonment; those counts against John Darwin were ordered to remain on the file in the usual terms. On count 6 (using criminal property), Anne Darwin was sentenced to 78 months' imprisonment; that count against John Darwin was ordered to remain on the file in the usual terms. On count 8 (obtaining property by deception), Anne Darwin was sentenced to 78 months' imprisonment; John Darwin was sentenced to 75 months' imprisonment. On each of counts 15 and 17 (obtaining property by deception), John Darwin was sentenced to 75 months' imprisonment. All the sentences were ordered to run concurrently. Appropriate orders were made under section 240 of the Criminal Justice Act 2003. 

Although on the face of it there were many more counts in which Anne Darwin was involved than her husband, it was accepted throughout that although the counts in relation to John Darwin when they were jointly charged should remain on the file, John Darwin was as guilty as she in relation to those counts which related to the laundering of the proceeds of the fraud. The facts require some further public recitation. In 2002 the couple were suffering financial difficulties and were coming under pressure to meet their debts due to credit card companies and mortgage providers. This criminal conspiracy was their response to their financial problems. After several months of discussion, the first step of which we are aware occurred in December 2001 when a new life insurance policy was taken out on John Darwin's life. 

Three months later, on 21 March 2002, John Darwin staged his apparent drowning at sea in a canoeing accident. From this moment onwards these two people lived a lie. In the evening of 21 March the police at Hartlepool received a telephone call from Anne Darwin reporting that her husband had gone missing after canoeing in the sea. The report of his disappearance led to a rapid, expensive and resource intensive air and sea search. Throughout the night the Coast Watch, the Coast Guard, Air Sea Rescue, North East Air Support Unit and the Royal National Lifeboat Institution conducted a co-ordinated search of the sea and surrounding coast line. We must pause briefly to note that one important consequence of the actions of the appellants to this date was that a number of individuals became involved in the unpleasant and potentially dangerous task of trying to find and rescue him. A team of police officers was then deployed to continue the search which carried on until the end of May 2002, when police divers searched a rocky area known in the locality as the Blue Lagoon. They found a paddle and section of a canoe. This was later identified by Anne Darwin as part of her husband's canoe. In the meantime the appellants' sons offered their mother their immediate support. One travelled from Basingstoke to Hartlepool to be with her, and the second broke off a holiday in Canada to return home. Naturally the death of their father caused them both great distress. They were also concerned about their mother and the impact on her of the death of her beloved husband. When Mark arrived at the family home, she threw her arms around him, crying that she had lost him, that he had gone. She was sobbing uncontrollably. He felt that his world had been crushed. The sons also worried about how their mother would cope financially. 

On 16 April 2002 Anne Darwin telephoned her insurers to advise them that her husband had been lost at sea. She sought to make a claim on the policy on his life. In August 2002 a body was found off the coast of Hartlepool. Anne Darwin was asked if she would go and identify it. However, before that happened it was established independently that the body was not that of John Darwin. When the police officer acting as the liaison officer informed her that it was not her husband's body, she broke down saying that she had wanted the body to be that of her husband so that he could be laid to rest. 

Police inquires continued for many months. A witness appeal was made in September 2002. Anne Darwin contributed to the news release that was prepared. On 10 April 2003 a Coroner's Inquest was conducted into John Darwin's death. Anne Darwin and her sons attended. The inquest concluded that her husband had probably encountered difficulties at sea as a result of which he died. An open verdict was returned. He was declared dead. 

After the inquest Anne Darwin told the liaison officer that with these findings she and her sons would achieve closure and she would be able to get on with her life. 

Thereafter, claims were made on the various insurance and pension policies. The sons did not know the details. Quite innocently so far as they were concerned, but as part of the process of laundering the couple's dishonestly acquired funds, from time to time sums were transferred into their accounts with their agreement for the purchase of Premium Bonds. Although the bonds were bought in their names, they were under no illusion that they all continued to belong to their mother. In total something in the region of £250,000 was paid out under the policies and pensions schemes. There are, of course, frauds on insurers which produce greater financial rewards for the criminal, but what the appellants obtained was sufficient to wipe out their financial problems and to enable them to achieve substantial long-term financial security. Shortly after his disappearance, John Darwin returned home in disguise and continued to live in the area. He used the false identity of somebody who had died in childhood, and then lied his way into a new identity by obtaining a driving licence and passport and all the necessary documents required for modern living. Thereafter, he successfully managed to live with this false identity, undetected. At the same time Anne Darwin sold various properties in this country and enjoyed the profits. The money obtained by her was laundered through various carefully-structured transactions, including transactions involving John Jones, and eventually transferred to Panama. In due course she told her sons that she had set up a company in Panama of which she, her solicitor in Panama, and her sons were to be the directors. The company would be the legal owner of all her property in Panama and in this way Inheritance Tax would be avoided. She told her sons in 2006 that she would emigrate to Panama and settle there permanently. In October she formally emigrated to Panama. She took with her just over $1 million and left her sons with the impression that their widowed mother was now financially secure and settled in a new country of her own choice. In the meantime her husband had also taken himself to Panama. We do not accept that this was a relatively short-lived period of criminal activity. The sorting out of the dishonest accounts continued right up until mid-2007. 

Probably because he wanted to resolve his relationship with his sons, on 1 December 2007 John Darwin flew back from Panama and walked into the West End police station in London and said that he believed that he was a missing person. He gave his correct name and claimed to be suffering from amnesia. He had no memory of anything after going on a cruise with his wife to Norway in 2000. He was released into the care of his two adult sons, and he persisted in this story to them. While staying with one of them he spoke to his wife in Panama. They apparently discussed what they would say to the police. He was arrested on 4 December. In the meantime, Anne Darwin had been approached by a member of the press in Panama. She was advised that she would be hounded by other members of the press and that he could assist her. She returned to this country on 9 December 2007. When she landed at Manchester Airport she was arrested. 

It is clear on the evidence that the fraud only came to an end because they (or perhaps he) had had enough in the dislocation in their family life. Their return was not the consequence of remorse or a sense of guilt. What they were trying to do was to make up for the impact on themselves of the consequences of their own criminal activities. Both appellants were interviewed. Both prevaricated. John Darwin said that he had gone missing in 2002 and turned up at the family home some years later. Anne Darwin said that her husband had gone missing in 2002, that she genuinely thought he was dead, but that he had then turned up on the doorstep in February 2003, that is before the inquest had taken place and the fraudulent claims were made. 

When interviewed in early January 2008, John Darwin admitted that he had claimed money to which he was not entitled by pretending that he had died in an accident at sea. Faced with his statement, on the same day Anne Darwin admitted that they had staged his death in order to clear their debts by claiming funds to which they were not entitled. At an early stage John Darwin indicated his intention to plead guilty. Anne Darwin pleaded not guilty, and at trial relied on the defence of coercion by her husband. The defence was rejected by the jury.

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 (Belknap Press, 2007) and Joachim Radkau's Max Weber: A Biography (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 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 (Oxford University 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.

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".

Accountability

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.

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 (2009) 49(4) Pierce Law Review 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.

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.

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

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 (Barnes & Noble, 2003), Oliar and 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.]

There's another sort of magical thinking in Suncorp-Metway Limited v Nagy [2008] NSWSC 20, a property dispute in which a pseudo-legal defence - the sort relied upon by members of the sovereign citizen belief system - was used. 

The Court states 

[7] The contents of the “Defence” throws up comprehension problems. The substance of it looks to and is founded on s 118 of the Commonwealth Constitution. It then appears to proceed on the basis that there exists a Federal State which is called the Independent Sovereign State of Australia (ISSA); and that such an entity is a state within the meaning of s 118 and that there is no jurisdiction to grant the relief sought by the plaintiff. Such matters are in issue between the parties. 

 

[8] Save for the material contained therein which addresses this matter, the “Defence” does not put in issue the allegations made by the plaintiff in the Statement of Claim. 

 

[9] There was a related matter. It concerned a purported tender of a cheque from what was said to be the Federal State Bank of ISSA. The plaintiff joined issue on the validity of such a tender. 

 

[10] This matter was dealt with by Kiefel J in Australian Prudential Regulation Authority v Cameron & Anor [2007] FCA 628. Her Honour made orders restraining the defendants from, inter alia, carrying on any banking business in Australia. Her Honour took the view that there had been breaches of provisions of the Banking Act 1959 (Cth). In her judgment, she observed as follows:- 

 

“This is not the first time that such an argument has been raised in Australian courts. Goldberg J, in Australian Competition and Consumer Commission v Purple Harmony Plates Pty Ltd (2001) FCA 1062 at [28], pointed out that the Commonwealth Constitution recognises the Commonwealth and the States and Territories as the only entities in the federal polity known as the Commonwealth. An area of land cannot cease to be part of a State, except pursuant to s 123 of the Constitution. There are no other constitutional means available for the establishment of a separate political community in Australia. The property said to be that of the independent sovereign state here, upon which the bank conducts its business and in respect of which Mr Cameron and Mr Wheeley are said to be citizens, remains part of Australia.” 

 

[11] The defendant has purported to rely also on documentation which presents as being from the “Federal State Supreme Court” (an alleged institution of ISSA). One of the defendants in the case before her Honour (Donald Cameron) is presented in that documentation as being the Chief Justice of that Court. The documentation purports to present Donald Cameron as dealing with an appeal from the decision of her Honour and holding that her order was “unconstitutional, oppressive and corrupt”. I do not regard this documentation as giving any support whatsoever to what is advanced by the defendant. 

 

[12] It was common ground that the real issues between the parties during the hearing was whether or not the defence gave rise to an arguable issue. In my view, it clearly did not do so. 

 

[13] I consider that the contention sought to be advanced by the defendant is plainly unarguable (for reasons both of fact and law). In my view, inter alia, it is unarguable to suggest that the alleged ISSA is an entity that falls within the meaning of “state” as it appears in s 118.

Adorno on Blogging?

From Adorno's 'The Essay as Form' ('Der Essay als Form', 1958) in Sherry Nicholsen [tr] Notes to Literature vol one (Columbia University 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.