I’m not an Academic, I only Play one on the Weekends

Some things I just can’t process.  I may think I need to step back, or re-experience it, or talk it out.  But in the end, some things I just cannot process.  This conference was one of those things.

I’ve been to a lot of conferences over the past ten years. ---This is what law school does, prepares you to sit in overly air-conditioned rooms, staring at poorly designed slides on giant screens, collecting all sorts of branded bits and bobbles.  It’s practically baked into the profession by regulatory authorities that require you to stay re-educated by trading several hours of your time each year for bad wi-fi and stale bagels.---But this conference was different for me.  This was the first time I was attending an “academic” conference.  No continuing legal education credit on offer here.  No mix of practitioners in with the academics.  This was a wholly different animal; and to make matters worse, it was multi-disciplinary.

There were a lot of big words I couldn’t follow.  Words I knew the meanings of on their own; were they to be on a vocabulary quiz, I could match the definitions to them.  But strung together in long sentences with little words in between, I couldn’t make heads or tails of anything.  But even the bits I could understand left me feeling like the sentence ended with a semi-colon.  A complete thought, yes.  But, so?

The conference was called Race+IP.  People talked about race.  People talked about IP.  Some people even talked about both.  Some things seemed obvious, some over-simplified, some as though they were searching for racism, and others as though they were racializing a much broader oppression.  A lot of things seemed like there was no there there.  And I was lost.

‘The music industry is terrible to black folks.’  The examples given: that Pharrell lost to the Marvin Gaye estate, that Lil Wayne was owed $10 million by Cash Money, that Clyde Stubblefield’s creative products were owned by James Brown.  Somehow irrelevant that all the advantage-takers in those scenarios are also black.  And brushed away as a side note that the the music industry is terrible to anyone not already in power, that it entrenches the existing power structure and fights long and hard to further entrench, re-entrench, forever entrench that structure.  It is true that the power structure includes few blacks.  But racializing the inequities of the system leaves out all the others who cannot benefit, all the others who may want to fight.  Shrinking the size of an army does not help win the war.

Then there was this session about how Cadillac is a black brand.  (I did not know this, but it might explain why at least once a month a 50-year black man asks if Chester is for sale.)  GM was apparently upset about the association between the Caddy and black entertainers in the 50s and 60s.  Really, brand owners were racist?  How shocking.  This is nothing new, nor anything old.   But what does this have to do with IP, other than that brands are IP?  I didn’t get it.  I must have zoned out and missed something.

Add on top of the confusion a bad head cold, an atmosphere of self-aggrandizement with West coast-style Liberal assumptions, and horrible weather, and well, this wasn’t the best first-time experience of this sort of thing.  Perhaps I’ll leave these conferences to the real academics.  I think I prefer being a lawyer.

Yes, Virginia, Copyright Can Change the World*

I got to attend the most awesome presentation, and since there really isn’t a better place to write about it, y’all are just going to have to put up with some fun IP stuff.  (or… you know, go back to looking at Twitter.)

The Suyá

Professor Anthony Seeger is a ethnomusicologist who has been studying and working with a remote indigenous society in Brazil for nearly 45 years.  (He’s also, based on the hints from the introducer and his references to “Uncle Pete,” Pete Seeger’s nephew.)

Professor Seeger began his work with the Suyá in 1971.  He and his wife moved into the tiny village and he began learning about their music.  They taught the Seegers much.  They had songs they’d learned from fishes, and songs they’d learned from trees, and songs they’d learned from tribes they’d captured.  They had songs and ceremonies and art and all sorts of things that they’d gathered over the centuries and incorporated into their lifestyle and their Suyá culture.

A Giant Shift

Then, in 2004, Gisele came - Yes, that Gisele – and everything changed.  Gisele came for a commercial purpose, but more importantly, Gisele came with an NGO and Gisele came under requirements of Brazilian law.  (And this is where I start pulling out books from my “IP and writing shelf”".”)

Brazil and Protection of Culture

In 2001, Brazil enacted Provisional Act No. 2.186-16, on Genetic Heritage and Traditional Knowledge.(1)  Brazil has a very rich biodiversity (hello, the Amazon!).  For the peoples who have lived amid this biodiversity for generations, there’s a lot of knowledge related to the plants and animals in their surroundings, knowledge about what can be used as medicine, how to prepare things, how to find things, etc.  Basically, the communities have a lot of knowledge that has commercial value to outsiders.  The Act required, among other things, the fair and equitable sharing of benefits arising from the use of traditional knowledge related to this biodiversity.  And the trend and norms exemplified by the Act apply more broadly to cultural aspects of indigenous societies in Brazil.  If you want to use it, you ask and you compensate.

Gisele

As Professor Seeger tells the story, Gisele wanted to use some tribal designs on sandals.  She wanted to do some good, too.  I don’t know which came first.  And as discussed above, there were rules to follow: ask permission, compensate.  So, she partnered with an NGO to approach the Suyá about using their tribal designs.  She’d get to sell her sandals; they’d get $200,000 compensation for use of their culture; they’d get to be in a commercial; she’d get to be painted with their traditional body paint.(2)  Everybody’s happy.  Except…

The Suyá learn about the concept of ownership over traditional knowledge and traditional cultural expressions, and they go “wait a minute, we borrowed this stuff from other tribes.  What if the other tribes get mad that we’re using it?  What if they want some of the money?  What if they kill us in retaliation?” New concerns to them.

The Kïsêdjê

The Suyá began taking a critical look at their culture in a way they never had.  What had been “ours” was now analyzed to decide whether or not it really belonged to them.  And they started making changes. 

For the Commercial

First it was small things, mainly for the commercial, mainly so they wouldn’t have to worry about other claims on that compensation.  All the female body painting in their community had been borrowed from tribes further up the river.  They thought hard and “remembered,” reconstructed, what their traditional body paint must have looked like before incorporating paint styles from the other tribes.  This is how they painted Gisele.  For the music and the ceremony in the commercial, they chose very old songs that they were sure were theirs, a ceremony taught by the mice, not from another tribe.

The Songs and Culture

Changes continued long after Gisele left.  They stopped singing certain songs, stopped making certain handicrafts. – They created a brand new style of basket that has no practical purpose whatsoever other than being sold as a tchotchke to tourists, because they were worried about selling the baskets they used daily, which were incorporated from another tribe.(3) – They changed their language.  They even changed their name!  Suyá was what other tribes had called them and they’d gone with it.  But they’re original name for themselves was Kïsêdjê.  Now, they are the Kïsêdjê again.

The Language and Knowledge

Before Gisele, there was no word in their language for theft or stealing.  They would say to the outsiders, “you white people, why do you think that when you give something away you have less?  When we give something away, we have more.”  After Gisele, there are words for stealing and theft.  Their history used to talk of being great conquerors and all the things they borrowed or took from other tribes.  Their history has changed.  There are things they were given; things they learned.

Elders from the village went upriver to see some of the tribes whose songs and ceremonies they had incorporated. (4)  Those tribes said, “these are not ours anymore; you have changed them; you have made them your own; they are yours now.”(5)  But the Kïsêdjê do not want to take chances.

Professor Seeger was last with the Kïsêdjê several years ago.  He is going back soon to see what else has changed.

How We Got Here

Brazil’s laws and cultural norms surrounding  Traditional Knowledge (TK) and Folklore did not arise in a vacuum.  The concept of TK as something that should be owned and protected under the guise of intellectual property began in the 1960s as the global IP community was amending the international copyright treaty, the Berne Convention.(6)  But, it didn’t really pick up steam until the late 1980s and early 1990s when international  Intellectual Property was being shifted out of this sort of wishy-washy handshake treaty home to the very toothy jaws of international trade law.(7) 

In both its initial incarnation and its full blown growth spurt, TK was and is, a response to external intellectual property norms being imported, first through colonialism, then through multi-lateral treaties, and finally through trade agreements. Brazil was always at the forefront of this pushback.  (8)

Following the Path to TK as IP

Gisele brought the Kïsêdjê the concept of ownership over culture.  The rules of the Brazilian society to which Gisele belonged had taught her that cultural elements belonged to the community whose culture they composed.  Scholars and policy people had built this idea into Brazilian culture.  And not just the idea that the cultural elements belong to the community, but that the community has the right to exercise control over the use of the elements by others, the right to prevent use, the right to be compensated for use, the right to determine the manner of use.  Scholars and policy people had applied these rights to the elements they found most valuable in their own countries and communities.  These rights come from a foreign framework for individual ownership of individual’s creations; a foreign framework that was being foisted upon them by other communities looking to increase the market size for the most valuable elements of their own cultures.  It’s a long, connected road.

Mind Blown

I was absolutely stunned by the manner in which the Kïsêdjê incorporated all this.  Pulling out elements that had been in their culture for centuries because they originally came from a different people.  Can you imagine if every culture tried to give back the things they borrowed?!

Can you imagine English without its loanwords?  Can you imagine not teaching preschoolers Ring Around the Rosy, Frère Jacques or Happy Birthday because they’re British, French or Canadian, respectively, and not American?  What would we have left?  What would we eat?!  If we gave all the borrowed cultural elements back.  The idea is baffling.

Drastic changes in a tiny little community in the middle of Brazil’s vast forests are the result of the trade-exportation of Euro-American concepts of Intellectual Property.  Talk about a butterfly effect!

 

Footnotes

*But is this the change we were aiming for?

(1) This was followed in 2005 by Decree No. 5.459 of June 7, 2005 on Genetic Heritage & Traditional Knowledge.  Since Gisele came to the village in 2004, I’m focusing on the 2001 provisional act.

(2) We got to watch the commercial twice during Professor Seeger’s talk. It’s quite neat. I couldn’t find it on YouTube.  It’s in Portuguese and for sandals.

(3) I find this particularly fascinating because the purpose behind copyright and intellectual property laws in general in the Anglo tradition is to spur innovation.  Coming up with a brand new basket design is innovation.  So in that regard, the concept of TK protection did exactly what is was supposed to do.  However, how useful is innovation that leads to an article that useless from a practical stance?

(4) An anthropologist who studied one of the upriver tribes was in the audience. That was pretty neat.

(5) In Western Copyright law, this would be like the concept of a work that becomes so uniquely its own and removed from the original on which it is based that it is no longer considered a derivative work of the original; such as the relationship between Fifty Shades of Grey and Twilight.

(6) WIPO has a great TK background briefer

(7) Google ngram showing growth of the term

(8) The Implementation Game (Carolyn Deere) goes into this in much more detail on p. 42.

Updated 4/13/2015 with video link.

Adventures with Ivory: SBW AMC

SB whata what?  Last month,  I attended my first ever State Bar of Wisconsin Annual Meeting and Conference.  The hashtag for the event was #SBWamc.  I’ve been to a couple smaller WI Bar events, but this was my first big one.  It was fabulous!

I had no idea that there hasn’t been a State Bar of Wisconsin Annual Meeting for the past 7 or 8 years.  If people there hadn’t told me, I wouldn’t have guessed it either.  Everything went smoothly, the educational programs were great, the logistics appeared flawless (which means several somebodies behind the scenes were working their tail feathers off), and the extra stuff was fun and inclusive.

The first night, the new president of the State Bar was sworn in.  The MC for the night – Mike McCarthy.  Alfred was jealous.  I was less enthusiastic than she would have been about trying to get a picture, but I did get this one almost decent one for her.  The swear in event was fun and by the time Coach got done introducing the new President, I felt like the State Bar was headed for greatness.

One of my favorite parts of WI Bar events is the passport game.  When you check-in, you get a little passport card that lists all the vendors at the event.  Your task is to visit each of the vendors and have them sign off on the passport.  When your passport’s full, you put it in a fishbowl at the Bar’s booth for a drawing.  I didn’t win a drawing prize this time, but I did win one at a previous program.  I love the passport event because it’s a good excuse to visit all the vendors and learn about lots of neat products and opportunities.  You can also pick up some pretty swanky swag, like a sewing and manicure kit!

The State Bar of Wisconsin has an excellent Twitter account.  Wisconsin isn’t exactly known for being tech savvy as a state, but man did the Bar do a great job of using Twitter at the event.  The attorneys are a little behind in terms of this tech stuff, so the Bar offered encouragement and promoted the use of social media throughout the program.  Attendees were given the hashtag ahead of time and anyone who tweeted with the hashtag 3 or more times during the conference was entered into a drawing.  There was a large monitor in the main hallway, near the snacky-snacks, that showed the hashtag feed.  There was also a Selfie-Twitter game with Jellybean, the Bar’s cow mascot at one of the parties.

Jellybean is by far my favorite thing about the State Bar here.  I just love the way Wisconsinites embrace our stereotypes – like the whole Cheeshead thing.  The cow is on the State Bar website, the cow is on programs, the cow is on a stick for selfies, and the cow is available to take home!

My favorite swag from the event:

Those little foam guys are my absolute favorite.  Mommy named mine Schlai.

The costs and benefits of over-regulation

I didn’t like the idea at all, but I knew he was right.  The law is something to weigh when doing your cost-benefit analysis.  Whether or not to break the law is simply part of a business decision.

To me, this exemplifies everything that’s bad about our over-regulated society.  Law is no longer a dictate of what is right or wrong.  It’s far beyond keeping some semblance of order in society.  Law is just another weight to be put on your scale when making decisions.   And we all do it, whether we realize it or not.

When was the last time you drove above the speed limit, or crossed the street when the red hand was lit?  The last time you didn’t bother to pay a parking meter or posted a picture you found somewhere online to one of your social networking sites?  And when do you do these things?  When the cost is lower than the benefit, when the risk of getting caught or the risk of being punished if caught is minimal.

As plain-old-Joe’s, most of the laws we break are what we would consider minor.  The laws are often there to protect us; the punishments are relatively small fines and there’s no risk of ‘a record’ that might hurt us later.  (Note: my last example above does not fall into this category.)  But for businesses, these are real, heavily thought about decisions.

Perhaps nowhere is this more true than when dealing with intellectual property.  The law is so grey that it’s often difficult to know when something is against the law.  People spend hours and lots and lots of money trying to answer this question.  Then they spend more hours and lots and lots more money trying to decide, if it is against the law, what are the risks to the business.  They buy insurance to protect themselves from this risk.  The law is like a fire or flood, a quasi-predictable occurrence of which you can only estimate the chance of its harm to you.

Of all the laws out there,  I can only think of two groups that truly regulate right and wrong, and they have the cost benefit analysis built in; society has decided when the benefits outweigh the cost:  causing harm to someone else or causing death.  If you’re defending yourself, there’s an excuse; the benefit of protecting you outweighs the cost of the loss of the other person.  If you’re completely enraged because you found your partner in bed with someone else, society understands.

Does it have to be this way?   Can we expect people to respect the law when disobeying the law is only a question of how it will affect you?

Photo: Statue of Lady Justice at Nasarawa Law School in Nigeria

My Neighborhood Trademark Infringement

Just in time for INTA…

Walking down the street to get some quarters from the bowling alley, I passed a sign taped to a lamp post.  It caught my eye, and I had wait for the light to change before I could cross the street, so I took a closer look.

“A new gym in the neighborhood.  Awesome!  Maybe I’ll check it out; it would be nice to walk instead of BARTing or driving to the gym.”  Then I saw the logo and became slightly puzzled.  “Is this a subsidiary of 24 Hour Fitness, or related in some other way?  If it is, maybe my 24 Hour membership will work there and I could start using it now without any extra fees.” 

The fact that this question even came up in my mind – is this gym related to another gym I know – raises trademark concerns.  Here is a closer view of the logo on the flyer:

And here is one of the 24 Hour Fitness logo:

Same colors, same use of a red circular shape, outlined in blue with white text in the middle.  The fonts are different, the names are different and the word “fitness” is in a different color, but there’s still a lot of visual similarity between the two.

The standard for trademark infringement is whether a mark is confusingly similar to another mark.  I was confused.  Mr. Trizzle wasn’t.  “They have different names.”  What do you think?  Would you wonder if the two were part of the same company?

After looking at the poster in more detail, I decided the gym is likely not related to 24 Hour Fitness, but I’m still not sure.  In either case, I think the new gym is trying to use 24 Hour’s reputation and strong presence in the area to its advantage, which is still a problem.

Testing Knowledge of Wisconsin Law, or Knowledge of Wisconsin?

Next week, across the nation, thousands of fresh law grads will be pouring into large conference centers, pouring all the information they’ve spent the last two months memorizing onto an answer sheet and watching the sweat pour down their faces.  With them will be a smaller, and theoretically less nervous, group of veterans.  Attorneys who have done this before; glutens for punishment that have found a reason to take another bar exam.

I’m one of them. Next week, I’ll be in the happiest place on earth, sitting for my second bar exam.  Wisconsin, here I come!

 

In preparation for this upcoming exam, I’ve been doing a bunch of essays from previous Wisconsin bar exams.  The hardest part is not going to be remembering the law, applying the law or finishing on time.  The hardest part is going to be remembering how to be a Wisconsonite.

The questions are full of language, incidents, names and the occasional joke, that will only make sense if you know Wisconsin.  Essentially, the questions are written in Wisconsin-eese (not to be confused with Wisconsin cheese).

 

Here are some examples of things that would have a non-Wisconsite surely perplexed:

Last Names, like Lomanski and Bielski, Backhausen and Mentzel.  More ski's than Tahoe, more sch’s than Cindy Brady.   String a bunch of those together and it’s enough to make most people skip over half the page.  But not in Wisconsin.  Not only can we read those, we can pronounce them, too!  Heck, we probably have a bunch of friends with those names.

 Geographical locations “Whiskey River,” “Nonesuch County” and “Waukesha.”  That first one would stop most people dead in their tracks out of pure shock.  The second would leave them scratching their head and the third, although it’s a real place, would leave them tongue-tied.  (Trust me, I’ve heard enough out-of-staters try to pronounce it.)

Whiskey River falls into another category of things, the things I call the “wait, is that acceptable?” category.  Sample answers that begin, “My prayers and thoughts are with you” in a tax advice letter to a terminally ill client.  Prayers?! in what you’re supposed to write?!  Why that’s enough to make a Californian turn blue and pass out from shock. 

My favorite though was the answer that pointed out the police officer’s stop was probably a pretense for profiling, but then goes on to explain why that’s ok under the law.  I had started to write that in my answer and then thought, ‘no, wait, I shouldn’t include that, it’s not time to get on a soap box.’  Should’ve stuck with my gut, my Wisconsin gut.

Seemingly-crazy situations which really aren’t that crazy: a family with six children, each of whom has four to eight children of their own;  a foot of snow falling during the work day and a guy losing control of his car on I-94 driving home through the storm; an acre of quarry in the middle of a farm; or a person signing a check over to another person.  -  I once asked Mr. Trizzle to sign a check over.  He and the Legend looked at me like I was nuts, called me nuts, told me it wasn’t possible.  Hah! – These aren’t parts of the issues in the question’s fact patterns, just supplemental details, but they’d certainly trip up a non-Wisconsinite into going down a very wrong path.  (probably into Whiskey River).

Photo: My mom and most of her cousin’s on her mom’s side of the family (more were born later).  She’s one of 6, her mother was one of 9.

Oh, and then I musn’t forget, the questions that aren’t asked.  The Wisconsin problems tend to ask one, fairly specific question, when what’s really wanted is the answers to four questions.  This is different than the questions on other bar exams, for example the California exam, where there might be on big question that requires answering a bunch of small questions in the process. 

No, this is more like asking “did you go to the store” when you really want to know if the person bought pickles, if the new store next to the grocery, which is implied by “store” in your question, is open and if the cute cashier was working that night. 

It’s the sort of thing I do to Mr. Trizzle all the time.  And it’s taken him a long time to break me of the habit of answering all the unasked questions when he asks me a question.  He’s not from Wisconsin; he’s actually only asking me one question.

“Did you make it to work on time?” 

“Well, the original bus didn’t come, but I did get on BART, which then broke down, but it was ok because I left half an hour early because I had a good night’s sleep last night and had no trouble picking out an outfit this morning.”

The your-doing-it-again look shot in my direction…

“Yes. I made it to work on time.”

At least they throw in some nice midwesterner funnies, too.  How about a potentially unconstitutional diversity policy at Great Lakes State University?  Or a company in IL called “Flatland”?  The only way that could have been better was if it was Flatland International Bank, FIB.

 

Hopefully, my few extra days in Wisconsin before the Bar Exam will get me wholly back in the Wisconsin mind-frame needed for this exam.  Mommy, I think I better get some Leon’s and cheese curds when I arrive.  You know, to help me remember Wisconsin, hey?

A Justice, a Dean, an Adventure

“Are you still in Boston?”  It should have been an easy question to answer, a simple text message, but it had me all a flutter and unsure how to answer.  It was quarter after one, I’d been at the airport since 10am, hoping to get on standby for a flight earlier than my scheduled 5:40 departure.  No luck, 5:40 it was.

I looked at the text in my hand.  Could I do it?  Could I leave the airport, get to Harvard and take advantage of this amazing opportunity that had just been offered to me, and get back in time to make my flight?

A friend of mine, a new friend, I hope a continuing friend for the future, Mr. Nice Lawyer, had just offered me his extra ticket to go see Justice Souter speak at the afternoon ceremony part of Harvard’s graduation.  Wow!  Chances to hear a retired Supreme Court Justice don’t just pop up everyday.  Plus, as I’m sure you can guess by his name, Mr. Nice Lawyer is really nice and fun to hang out with.  The ceremony started at 2:30.

Google map, some math, a call to Mr. Nice Lawyer, a trip to the ticket counter to check what was no-longer my carry-on bag, and the next thing I new, I was back on the T and headed to Harvard, Daddy Bunny in tow.  Good thing I didn’t throw out my 7-day pass for the T, Boston’s public transit system, when I got to the airport.

Hah-vahd

The campus was a bustle of commotion.  Men in coat tails and top hats directing people.  Signs left-over from the morning graduation portion posted here and there.  A maze of people in jeans, in dresses, in long black robes, in bright red robes, caps and gowns and cameras and smiles everywhere.  A long line of alumni, old white-haired alumni in crimson baseball caps filed slowly to their special seats in the front.

Mr. Nice Lawyer and I cut down a side-aisle and through a row, making a bee-line for some great seats next to the recording platforms.  Both blessed with long legs, we gracefully stepped over a fee rows of chairs, avoiding the people all ready seated, and took our seats.

The day was gorgeous, bright and sunny.  We sat under the shade of two large, green trees that celebrated the day by dropping a confetti of little green seedpods onto our hair and down my shirt throughout the ceremony.

The Ceremony

Things kicked off with some sort of alumni meeting.  The president of the alumni was this spunky Cuban woman with a delightful accent.  She welcomed new graduates to alumni association, introduced the Dean of the University and awarded medals to distinguished alum. 

The marching band came down the center aisle, horn angles all askew, music attached to their instruments -  Hey, even Harvard students aren’t perfect – but they did sound good.  And the tuba player had a little rubber duckie glued inside the bell of his tuba, which highly amused both me and Mr. Nice Lawyer.

The Honorable Justice

After many long speeches and frequent, nervous checkings of my watch, Justice Souter finally rose to speak.  It was a very interesting speech, mostly a criticism of what he called “fair reading” of the Constitution.  I believe this is also called strict interpretation, or something like that.  And it happens to be the rallying cry of one, if not both, of my favorite Supreme Court Justices.

Justice Souter talked specifically of two famous cases.  One, the Pentagon Papers case in which the US government argued “no law” did not mean “no law”.  And the other, Brown v. Board of Education.  Souter’s argument was that if one were to follow the fair reading approach, these cases could not be correct the way they were decided.

He spoke eloquently, and made good use of pauses – the speech coach that came to CC a few weeks back would be proud.  He also spoke for awhile, which combined with the late start, made me nervous.  It was after 4, I was at least 45 minutes from the airport and my flight was boarding at 5:15.  As soon as the speech was over, while everyone else was standing for an ovation, I jetted out of there, running across Harvard Yard to the T stop.

The Stranger on the T

A nicely dressed gentleman joined me on the last leg of the T journey to the airport.  I had caught all the trains I needed immediately and was relaxing a bit, though still checking my watch now and then.

The gentleman started up a pleasant conversation, asking about the T, explaining that although he had lived in the Boston area most of his life, he had never taken the T to the airport.  I told him what I knew and explained I had minimal experience, mostly from that morning.

Being at the gate, leaving the airport, jumping on the T to Harvard and running back to the airport – the gentleman told me I was crazy.  He also told me he appreciated the effort.  He was the Assistant Dean of Harvard and had also been at ceremony.  But he had left before Justice Souter’s speech.  “David’s a great guy,” he said, explaining that he knew Justice Souter well and been able to spend some time with him earlier in the day, even though he couldn’t stay for the speech.

We had a nice chat on the bus ride, about Boston, Florida, Wisconsin and Cali.  And before I knew it, we were at my terminal.  Time to jump off and go back to running.  I did make my flight.  Thanks in part to the security man who took me to the front of the line and in part to the flight’s 30 minute delay.

What a great adventure!  Thank you, Mr. Nice Lawyer.

The Wait

I sat there, just staring at the computer screen, my four digit number-typed in, the arrow hovering over the submit button, waiting.  6pm Pacific Time, 6pm the results would be released, the results that would decide the next year of my life, the results to the California Bar Exam.  6pm.  It was after 6pm.

I was waiting, not for the clock to reach a certain hour, but for Mr. Trizzle to get off the phone.  For some strange reason, he decided that 5:45pm on Friday, the Friday, was a good time to start shopping for new auto insurance.  He’s haggling over $50 and I’m sitting there, just staring at that submit button.

Finally, I could click submit.  Text popped up on the screen.  Mr. Trizzle threw his arms around me and hugged me so hard I couldn’t read the screen.  Mr. Trizzle was clearly excited (he never voluntarily hugs me), but I had no idea what was going on because I couldn’t read the screen.  I forgot, if you don’t pass, nothing comes up.

1 Million Toilets for India

Did you know that there are more cell phones than toilets in India?   My goodness, can you imagine having to share a toilet with 3, 4 or 5 other people?

The people of India are suffering horribly for this lack of toilets.  Sharing toilets with more than one other person is highly unhygienic.   The facilities get dirty quickly and can not be cleaned as often as necessary to keep them free from deadly bacteria.  Obviously, since we in America require one toilet for every two people, if not one for each person, everyone else in the world deserves the same amount of toilets.  It’s a human right.

This is why my dear friend, Tremainz and I have decided to start 1 Million Toilets for India, so that children across India can grow up safe and happy, without the degradation and disease that comes from having to share a toilet with too many people.  We’re going to include everyone on the Indian subcontinent, too.  After all, country, continent, it’s all the same to us.

You Can Help!

Here’s how the project works.  You, rich white people who have never been outside your little bubble world, save for that two-week vacation to a third world country that totally changed your life, you are going to donate money and stacks of toilet tissue to us.  See how simple it is for you to help save the world!

Then we, the people of 1 Million Toilets for India, will solicit donations of old toilets from people in Africa.  We will take your money and buy more toilets from African toilet manufacturers.  Now, we’re helping those starving people in Africa, too!  Next, we’ll have those toilets and tissue packages shipped across the country of Africa to India.  This will help all sorts of local economies by employing drivers.

Once we get to India, we’ll use a group of volunteers sourced from our program staff, the African companies that donated and delivered the toilets, and some lucky donors who win our special contest to go to India and get their life totally changed, again.

What about the Indian toilet manufacturers and installers?  Who cares!  Clearly, if they knew what they were doing, India wouldn’t have this awful toilet shortage.  They must be terrible at making toilets, so we’re going to ignore them.

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I hope, dear readers, that you realize what is written above is totally tongue-in-cheek.  Tremainz and I did develop this idea together.  The joke amused us for several days at least.  Spawned by the 1 Million T-Shirts for Africa ridiculousness [I’m not giving it a link, google it], we went off on a sarcastic binge against junk aid.

But this foolishness about junk aid has made me begin to question what I always thought of as decent aid.  I started wondering where to draw the line.  Is any aid really decent or good?

Donations of Infringing Goods

This past week, I attended INTA, the International Trademark Association’s annual meeting.  In the Exhibition Hall, generally full of vendors peddling their oh-so-useful trademark services, was a booth for World Vision. 

World Vision was there to solicit donations.  Donations of infringing goods that would otherwise be destroyed because of their violation of trademark law.  Their display featured a series of pictures of smiling African children and adults wearing Chicago Bears Super Bowl XLI Champion t-shirts and hats.  For those of you who don’t know, the Bears didn’t win that Super Bowl.

I looked at those pictures, at first slightly amused.  It didn’t last too long.  I soon learned where those pictures were taken.  Zambia.  Monze, Zambia.  The Monze, Zambia I called home for two years.

The Local Economy

My first thought was the tailors that sit outside the store fronts in Monze or under an insaka on their family compound in the village.  My second thought was of the people sitting in the dusty, crowded market in downtown Monze, selling salaula (used clothing imported from the West) and new clothing imported from Asia.  All these people lost something when the Bears swept down on Zambia as Champions.

Setting an Example

My third thought came not from my experiences in the Zambian community where these clothes were deposited, but from my training in intellectual property law.   What message does it send when we say, “you must stop counterfeit goods” with our mouths, and with our hands, fill the country with counterfeit goods?

The US government, the Zambian government, most of the other governments in Africa, are trying to teach their citizens the value of trademarks and not to infringe others’ marks.  There are many reasons for this, I’m not going to get into all of them here.  But I will mention the one most important in this instance.

Weak protection of trademarks discourages investment in the country.  It discourages new companies from forming within a country and it discourages foreign companies from entering the local market.  Bad, bad, bad.

Long Term Effects

How can we convince Company X that it should invest in Zambia, that it should open a facility and employ thousands of people and that its company will be protected from imposters when the population is taught that there is nothing wrong with infringing goods?

How can we convince Mr. Banda he should start a new business in Zambia instead of abroad when he’ll be subject to imposters and to having his company’s market overrun by free donations from abroad?  (This later issue is addressed well in Dambisa Moyo’s book Dead Aid.  I highly recommend it.)

Final Thoughts

I remain conflicted on World Vision’s program.  In general, I like World Vision and the organization's work.  But this clothing thing has made me question their other work as well.
I understand the idea that donating something is better than destroying it.  But how about just not making it at all?  Do we really need to have our Super Bowl champions shirts available immediately after the game?  What’s wrong with waiting a day or two? 

As for the infringing goods, how about removing the mark when possible, and recycling the materials when not.  There must be other solutions than drowning developing countries in our excess and illegal goods.

Research in Richmond

It was as if the Pillsbury Doughboy had been left in the oven a little too long.  Extra puffy in some places, slack in others, a strange mix of variations of white and cream, her off white sweater folding into her pinkish skin, blending into her yellow-grey hair.  I might not have noticed if she’d been nicer.  But she was in no mood to be nice.

“That’s not me; I’m just the person they pay to sit behind a desk,” she said to some poor caller who certainly didn’t get the help they were seeking.  “That’s not how things work here,” she glumly told her friend on a later call, after explaining that she can’t just tell people to read something because too many of them refuse to try, “they’d rather pick your brain,” she explained.

I made the mistake of asking her for help shortly after my arrival at the Public Law Library in Richmond.  “The website said there’s wifi…?”  “That’s not here; that’s Martinez.”  I’d soon learn, “That’s Martinez,” is her general answer for almost everything. 
Then I asked for the login for Westlaw or Lexis.  The sign clearly said both services were free for library patrons.  She looked at me as if I just asked her what number came after one.  “What do you mean a login?  You just click enter, everything’s populated.”  “There’s no information on the screen.”

Begrudgingly, she extradited herself from her chair and waddled over to the lone computer terminal with it’s empty login boxes on the screen.  “Oh. It must have gotten removed.”  I expected her to just quickly type in the user name and password and let me have the computer.  Not that easy. 

“You need to go stand on the other side of the room!”  So I wouldn’t steal the password she claimed.  Five minutes later, after I had perused every aisle of books, up and down, F. Supp., Cal. Reporter, Supreme Court Reporter, Shepard’s, Real Estate Forms, she called me back to the little terminal.

She left several times during the afternoon, each time locking the door behind her.  I don’t know if I was locked in or not.  I assume not since that would violate the fire code and there were no other exits.  But then, this is Richmond, so who knows.

At 4pm, she warned me the library would be closing soon.  The sign says it’s open ‘til 4:30, but I could see she was anxious to leave.  I finished up a few things and packed up my bags.  As I headed out the door, I turned back to say goodbye.  She smiled at me for the first time.

The Examination Room is Ready

Last night Mr. Trizzle and Short Artichoke came over to my place to practice examination techniques.  I wasn’t really involved in this whole deal, but my place is pretty much half-way between the two of them and they’re both my friends, so it seemed an ideal place to meet.

Short Artichoke wanted some help with her cross and direct examination skills.  Mr. Trizzle’s done nearly a dozen trials himself already and Short Artichoke, well, like most attorneys, Short Artichoke has done zero.  It makes good sense that Mr. Trizzle would help her out with some pointers.

Being the good little friend that I am (and very silly), I decided I would help Mr. Trizzle and Short Artichoke by setting up a court room for them.

I pulled out the long plastic folding table Mr. Trizzle’s currently letting me borrow and set it up as counsel’s table with a nice chair behind it.  On the other side of the room, off from center a bit, I put a stall stool to be the witness stand.  Even put a Bible on it.  The Bible’s in Greek, but that hardly matters.

In the center of the front of the room sat the judge.  A very proud and regal judge, dressed in a black robe, sitting high atop his bench.  Ok, it was Daddy Bunny wearing a black bag and sitting on a table, but it looked very judicial.  And on the side of the room opposite the witness stand sat the jury.  It was a very diverse jury, complete with alternate jurors.

Turned out, they didn’t need the court room.  Short Artichoke is doing an agency hearing.  Oh well.

 

 

While the two attorneys worked in the kitchen, I sat curled up in my comfy large chair, hemming the pants on Mr. Trizzle’s newest suit and listening to their banter.  I learned a lot just by sitting in the next room.  I also laughed a lot.

When Mr. Trizzle went into Attorney Trizzle mode and started role-playing the cross-examining attorney to Short Artichoke’s witness, I couldn’t help but giggle.  He sounded just like he does when we get into an argument: short, yes or no, leading questions that give you no chance to explain and twist everything around to sound bad.

“You bought a pair of black shoes today?”  “Yes.”  “Isn’t it true you already have 50 pairs of shoes?”  “Yes, but…”  “Isn’t it true you already have several pairs of black shoes?”  “Yes, but…”  “Aren’t you not supposed to be spending money?”  “Yes, but…”  “And don’t shoes cost money?”  “Yes, but…”  And by the time he’s done, you feel like you’ve done the worst thing in the world when all you’ve really done is bought a pair of black stilettos to replace the pair that broke yesterday and you couldn’t even explain that it doesn’t matter if you have another pair of black shoes if they aren’t dress shoes and that although it costs money to buy shoes, you need them to get a job and wear to work and besides, they were on sale anyway.  whew…

When they switched roles so Short Artichoke could play attorney and Mr. Trizzle was the witness, I really cracked up.  Poor Mr. Trizzle has spent too much time in Richmond.  The minute he went into witness mode, he became so ghetto: ebonics accent, short and casual answers - “You’re the head of this company?” “Yup.”  Poor Short Artichoke!  She kept shaking her head and saying, but my witness isn’t going to answer like that.

The best part was when Short Artichoke asked a question, “Did you do x?” And Mr. Trizzle says “Yup.”  And Short Artichoke vigorously  shakes her head no at him, and he vigorously shakes his head yes back at her.  And she explains, the real answer based on the facts is “no.”  He looks at her, cocks his head and says “Impeach me.”

The court room, Honorable Judge D.B. presiding.

Hey! Where are the Fake Boobs?

When I was a little girl, I thought Silicone Valley was called Silicone Valley because of all the fake, silicone, boobs in it.  I knew it was in Cali.  Cali has lots of women (and others) with fake chests.  Made perfect sense to me.  Of course, that's much more LA than Bay Area, but since the rest of the country pretty much thinks the two are right next to each other, that hardly matters.

Well, Tuesday I went to Silicone Valley, and you know what?  I didn't see any fake boobs. (Or if I did, they were done so well, I couldn't tell.)  Turns out it's called Silicone Valley for the silicone in the computer parts.  [Fake boobs must be pretty crunchy with all those chips in there!]

A Twitter friend of mine invited me to a discussion panel at a law firm out there.  I won't bore you all with information about the discussion; you can read the IP blog if you want to know more.  I'm just going to tell you about a few really neat parts.

Neat part #1: a pretty famous blogger was on the panel; he used to teach at Marquette law; I got to shake his hand

Neat part #2: a guy came in a little late and sat next to me; when I turned to look, I saw it was someone I had met at INTA just over a week ago

Neat part #3: I got to meet my twitter friend in person - very mini-tweetup; that's always neat

The rest of Tuesday was also pretty cool because I drove all over the place and didn't get lost once!  I found my way to Palo Alto and back (about an hour drive), and went to some places in Berkeley and Oakland.  One of the really tricky parts was getting home from Oakland via freeway.  Hwy 24 to I 580West to I 80 East.  And I did with no problem! :)  (Of course, I got lost next day just trying to take Mr. Trizzle his lunch less than 10 minutes away at his office - but we're talking about Tuesday right now.)  I'm getting better at getting around out here!