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larstenobar · 5 years ago

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Okay so I mentioned it in the tags but I kinda wanna talk about my experiences with So/uth Pa/rk. I say this as a cis, gay, non-Jewish man. I also say this as someone who used to actually engage with the forums on the main site. I also say this as someone who played. both the two major video game RPGs. So I am speaking not from reaction to other people’s reactions but from my own personal knowledge. This post is incredibly long so it’s under a read more. In it I provide what I believe are the actual effects of South Park on its viewership but I need to stress that I think it’s the wrong energy to blame parents for letting their children watch the show.

Don’t blame the parents, blame the show.

That show is genuinely horrible. I’ve seen a lot of people questioning how anyone could let children watch it - and to that I say you’re not adding anything to the conversation by shaming parents for letting their children watch that show.

My own parents weren’t even out of their twenties when I watched the show, and many other parents grew up with the show as a non-issue. Young parents make mistakes.

At the time it came out and its early years only extremely vigilant parents realized how problematic the show was and the news was hard to spread without social media. At best you could inform your parent friends and hope they listened.

The show’s main characters are children, many parents found/find it hard to believe that a show with children as the main characters could be bad for those children. If the show were exactly the same but the children were college-aged then it would be another raunchy show they could easily see is not meant for their kids.

There’s a good portion of children who watched the show that weren’t actually allowed to watch it because their parents weren’t as tech savvy as them and therefore didn’t know about pirating/streaming until it was mainstream. We who grew up with YouTube knew you could put in [show] episode 1 part 1 and start watching. (this is gonna be another point later btw)

I know that it’s hard for you guys to even know all the reasons it’s problematic because you all barely scratch the surface of it’s problems. But before we even get into the meat of its problems (Science Denial, Homophobia, Transphobia, Ableism, Anti-Semitism, Islamophobia, etc.) we have to look at the very premise of the show.

The main characters begin in fourth grade. Fourth Grade. There’s a phenomena in our culture where we believe that children saying stupid stuff is harmless, and we forget that when children hear children speak - even animated children - they are hearing their peers. And peers learn from each other. This is why the show is so insidious, because it makes it easier for children to digest the messages.

Another thing that’s very important to note is that - while it’s labelled satire, every single joke is played straight, and the straight man character (usually either S or Ky) are ridiculed by the culture they’re surrounded in. Don’t believe me? Think I’m over-exaggerating? Think about the election episode, where they had to pick between a literal piece of shit or a douche. Our Straightmen were constantly saying how ridiculous the situation was, but everyone around them was telling them they were the ones who were stupid for not particpating in the election until they eventually break and submit to the absurdity. This is a light example, but it’s the typical formula. If they aren’t actively participating in the absurdity around them, they’re ridiculed until they break. What this tells the audience isn’t that the people who were particpating were stupid, but that they were right.

Now that we’ve looked at the show premise, let’s get into the details. A note: This is just what I remember from approximately age 5-18, the latter years I’d been turned off from it slowly so I wasn’t as engaged but it was not any better then. Since this is just what I can remember without looking through episodes or looking up articles, this is going to be a small sampling of things that stuck with me. Be assured, there was much, much, much more.

Science Denial and its effects on the viewers.

This is the lightest thing I can recall, and probably going to be the smallest section as it’s mostly centered around their stand-in for global warming, a cryptid figure called M/an/Be/ar/P/ig. Al G/ore was painted as a desperate, raving lunatic for believing in the phenomena, and was even implied to be making it up by having him dress up as the cryptid. I don’t have to explain why this is wrong, but we need to look at the effect this had.

On the one hand it made fans think that Global Warming (as it’s something A.G. believed in) was a hoax. Furthermore, it made them believe that anyone who believed in it was telling lies, which was overwhelmingly the most progressive people. A direct effect of these jokes (which they apologized for but never stopped propagating btw, MBP was still a joke when I stopped watching) was that progressives were seen as over-dramatic and stupid.

Now, I am not saying people watched these shows and immediately thought “oh wow, how fucking stupid of A.G. I don’t believe in climate change anymore.” It’s more like this: “Oh haha, S thinks A.G. is annoying, I like S so I agree, A.G. is annoying. You know, A.G. is kinda annoying with all that global warming, maybe there’s something to him being over-dramatic? Gosh why can’t these progressives see that it’s not that big of a deal. If they trust A.G. then they MUST be blowing other things out of proportion.” That’s the thought processes it trains its viewers to have.

LGBT+ Characters

Okay so there’s actually a lot of things that go into the Homophobia of S/P. And it goes back to the very beginning of the show, and is both explicit and implicit. There is a huge problem with these, but the main problem isn’t so much that they exist, but the show’s attitude towards their own ‘jokes’ and the ways in which fans suck up that thought process.

Before I get into this, there were some things that I need to say in favor of the show - not because I think the show deserve praise, but because there were some things that I latched onto and showed a surprising nuance. There’s like one thing, really but it is, of course, attached to something that’s a much larger issue within the show, so while it is a small glimmer, it’s in no way outshining any of the problems in the show.

For a while, the teacher underwent gender reassignment when he (the teacher currently identifies as male from my last interaction with the show) got breast implants and presumably bottom surgery (I vaguely remember a surgery but honestly that could be an invention) he was in a gay relationship. His then boyfriend had a very heartfelt and difficult conversation about how he still cared about him and how he’ll never hate him for being the woman that he wanted to be, but there was no way that he could pursue a relationship with him. I thought that this was a very mature depiction of a very difficult situation that is never really talked about. However, as I implied earlier, this is attached to a larger issue. Before any of you start having second thoughts about your ideas about S/P’s portrayal of gay and trans people, immediately after getting broken up with the teacher became violently homophobic as a backlash, I vaguely recall a group being formed.

Our main examples of LGBT individuals in the show are these big four (five?):

The afforementioned teacher

The teacher’s boyfriend, who wears leather gear at school and can’t stop talking kink even in front of the child characters

A character called B/ig G/ay A/l who is just as stereotypical as his name implies.

T/weak and C/raig, who are classmates of the focal characters. There’s a lot of reasons this is problematic, none of them being the age of those involved in the relationship - but the portrayal of them is hugely problematic.

Since I’ve already touched on the teacher, we’ll get into them first. When he was introduced, he was a sort of ambiguously gay character who was very bitchy and spoke with a slight lisp that eventually became a canon gay character with his relationship with the Kink Character. He was violently hateful towards his class, verbally abusing them all the time and often particpating in bullying children. Furthermore he’s seen as incompetent. This is problematic not because he’s a gay man doing this (though it’s not great either) but because this taught children that teachers don’t care about them and that they shouldn’t listen to them because they don’t know what they’re talking about anyways. This goes into their anti-intellectual stance mentioned earlier. It enforces the idea that education systems are useless, not because of the institutional problems they have with racism, but because of the incompetence of the system.

Going back to the point of this, still with the same character, let’s further explore the problems they had when the teacher had an arc as a trans woman. Honestly, I didn’t pay much attention to it, but the show made a point to let you know that the other characters were uncomfortable when Mr. G became Ms. G. The most damning thing about this, however, is the fact that Mr. G detransitioned bc he realized he wasn’t a straight woman, just a gay man. I think this is problematic because it frames transitioning as a sexual strategy. I don’t think I have to go into detail on why that’s problematic. And while this isn’t actually a tie into how horrible their handling of this character is, it should be noted that he’s the character that went on to be their T/rump stand-in.

The next character is the Kink Man.

God, the character’s personality isn’t actually all that bad. He’s loving and caring and empathetic and actually usually on the right side of topics, but. He doesn’t separate his kink from his personal life. He’s always strutting around in leather-daddy gear and has a lisp. His name is literally Mr. S/lave. There was an episode where he shoved a hamster in his ass. To viewers, he represents the dirty gays that keep shoving their sex-life down their throats - and this view is never, ever, ever subverted, so since the show never makes fun of people for having that view it reinforces that idea in their minds.

Honestly the least problematic character of the LGBT characters that I mentioned was BGA. He’s still a stereotype, yeah, he has a gay dog and is super flamboyant and constantly talks about how proud he is but honestly that’s not really all that bad. I can’t directly recall anything bad about him except that he’s incredibly flamboyant, speaks with a lisp, and loves to call things he owns “BGA’s Big Gay [noun].” Relatable. That doesn’t mean there was nothing problematic, it just doesn’t immediately come to me.

Now, for the next most problematic “representation” in the show. First, T&C showed no signs of actually being gay before. I do recall them both being my favorite characters before they became a couple, however. T is a coffee addict which has some suspect aspects we’ll get into later, and C used to flip everyone off. This was why they were my favorites. They became gay literally when fangirls started shipping them in the show. I’m sure there was an actual fandom movement, but their getting together was incredibly forced - that was part of the joke btw, that gay shipping is always forced. What’s horrible about this is that this was in an episode about ya/oi.

Now, let’s try to dissect this issue. First off, what this tells viewers is that being gay was not a natural part of who they were, but was an active choice (if you’re being kind) or something society forced on them (if you’re not.) The two were actively fighting with the narrative that they were gay and in a relationship. I think their actual agreement for being boyfriends was more of a mutual public display than an actual relationship, but it’s a fuzzy memory because that whole episode felt like a fever dream.

What’s worse about this, is that the show actually displayed ya/oi depictions of these children within the show. Nothing NSFW, but clearly sexually charged situations were definitely shown. At the time, they were 5th graders. 9/10 year olds for those not in the states. This emboldened actual CT shippers “If the show could do it, then so can I” was the general mentality on the forums I was on. So we can talk on pedophilia to reasons why this show is awful.

And those are just the named recurring characters. Another commonly recurring character is a prostitute with a deep voice who is very sloppy looking that, from my recollection, is implied to be a transwoman. This might have just been a conclusion I drew when I was young however - but even that is reason to be critical of the character, that such a conclusion could even be drawn means it might have played a factor in the character’s inception.

They also “Solved Overpopulation” with a gay orgy. I don’t have the language to define why this sat so wrong with me, but I remember being very deeply hurt by it. I think it has something to do with the idea that homosexuality is a choice and that it should only be accepted because of the potential benefits it has for population control.

Islamophobia and Racism

Okay so I’m just gonna come out the gate by saying that they fought hard to depict the prophet Mohammad. Like, hard. And they did it twice - one time went almost unnoticed but the second had a huge backlash from the Islamic people. For those who aren’t aware, it’s sacrilege to depict Mohammad. It’s like desecrating a church, maybe worse - I really have no frame of reference for how bad it’s viewed, but however bad it is, it still boils down to being a strict taboo that S/P broke not once, but twice.

Now, as I keep reminding, my memory gets hazy for many things, especially things I wasn’t aware of being insensitive early on. I have vague memories of terrorists being depicted in traditional Sikh garb, and similar instances of directly relating Islam with terrorism. I don’t recall the show ever making fun of anyone for relating Muslims with terrorism, for all those fans out there saying they make fun of everyone.

There was an episode where the characters wore blackface. There’s a black character literally named t/oken b/lack. Sure, that could be satire and maybe even be defended if they subverted the trope, however it should be noted he’s not the only black character in the show! There was an episode where there was a child adopted from Africa whose name escapes me - he was emaciated and devoured food at an alarming rate and generally was a nuisance if I remember correctly.

There was an instance where one of the main character’s father was on Wheel of Fortune. The category was people who annoy you. the letters on the board were ‘N_ggers.’ You know where this is going, the father said the N-word. The word was really naggers, but the rest of the episode was a sympathetic journey with him dealing with being ostracized. He became known as an ‘n-word guy’ which was treated as a worse term within the universe. I say this because a law was passed where the phrase was outlawed and they said you had to have a space of at least 5 words between ‘n-word’ and ‘guy’. Also, the n-word was said multiple times by a number of white characters. Now, I know the argument people make about this episode. They say that we were supposed to find the scanario ridiculous, but the issue I take with it is more that we’re led to feel sympathetic to racists who’ve had their lives ruined for being racist. That’s the issue with South Park’s brand of ‘satire’. It satirizes one issue, but doesn’t touch on the problematic things used to support that satire.

Almost every single Mexican character is a stereotype of some sort. Either a laborer who can barely speak English, a gangbanger, or some other stereotype. There was an episode where they had C’s hand become a famous Latina popstar by singing about Mexican Food themed songs, like the actual songs ‘T/aco F/lavored K/isses’ and ‘T/aco B/urrito’. The hand’s name was Jennifer Lopez, I don’t know of these songs are direct parodies bc I’ve only heard Jenny From the Block.

And while S/P tends to stay away from very direct anti-black jokes, they don’t shy away from other races. There’s an asian character whose business is called ‘c/ity wok’, but he always pronounces it ‘shitty’ because the joke here is ‘oh haha asians have funny accents’ and literally nothing else. I honestly believe that asians receive the WORST treatment on S/P when it comes to facing racism, but I’m not qualified to make that claim. Other examples of anti-asian racism: There was an pokemon episode where they said that Japan was using anime to indoctrinate youth, they literally had the kids operate fighter jets to make an attack on the U.S. What’s worse about this, is that whenever the Japanese execs were questioned about this, every time, they dropped their pants to show how small their penises were and how they should be pitied for it. Another instance, I very strongly remember a depiction of asian characters as being lemon yellow with eyes like this: \ /. There was an episode where they had Asians violently murder whales with glee. They lean into anti-asian racism so much harder than any other form of racism - the only thing they’re worse about is their antisemitism, which will get its own section later.

Antisemitism

God there’s so much. Jew Gold, nazi imagery, the entirety of c/a/r/t/m/a/n as a character and there are so many posts on this website by people much more qualified than me to delve into what exactly is wrong with this and the depictions of it, so I’m mostly just going to catalog what comes to mind and then speak about the actual factual instances of S/P inspired antisemitism I’ve witnessed and been party to.

There was an episode devoted to Jewish people having a secret bit of gold around their necks. This was proven true in the universe when Ky gave up his ‘J*w Gold’ to C.

Ky’s mom is such an overbearing harpy who bulldozes over everyone, this was later explained as her having Jersey-Blood (yes this was a Jersey Shore joke) but before that it was completely because she was a proud Jewish woman.

Ky’s father is depicted as weak-willed and piddling. He always wears a yarmulke no matter the situation.

Ky is often depicted as being whiny and non-commital

OF ALL THE CHARACTERS, KY IS THE ONE WHO IS DEPICTED AS A HYPOCRITE THE MOST

Ky’s cousin with the same name is depicted as in poor health, complains about everything, whines about things not being fair bc they don’t go his way, and has caricatured Jewish features

As mentioned above, there are hosts of Nazi imagery associated with C

C has said every Jewish slur I have ever heard. In fact he introduced me to the concept of antisemitism

Ky, in a Christmas episode, is depicted as wishing he could celebrate Christmas and Hanukkah is depicted as a sort of consolation prize that’s Not As Good.

Ky’s father was an internet troll, and the trolls were. literal trolls. with certain features that are not great.

The following image is the Prophet Moses:

And there’s more and more and more. I will not accept anyone saying that this is just jokes because I know firsthand how insidious their treatment of Jewish people is because this show literally made me think it was okay to engage in Antisemitism. I made greedy jokes, like saying a got J**ed when i was screwed over, or that someone who was being greedy was being a J*w. I am not proud of this, and I think I grew out of it relatively quickly as I dropped that language in middle school.

But not everyone did. Even some of my closest friends were still saying they got J**ed when we were graduating high school. There were no Jewish people at my school, so there was no humanizing face for the Jewish people for us. Thank god for the Nanny or who knows what kind of person I’d be now. There were people even worse than me, I should mention. There was one person in my school who literally used J*w as a stand-in for loser because of this show. This show was the only interaction with the Jewish faith that most of my classmates ever had, and the same is true of many rural towns in America who have only Protestant populations.

Fatphobia

All the most unlikeable characters are fat. C. Ky’s mom. The gun-toting republican. And there are other specific episodes where they equate fatness to not being healthy. In their episode partnered with WoW (don’t forget that happened, y’all) the main antagonist was depicted as a no-life having loser and he was, surprise, fat. This show draws a very direct line between being fat and being unlikeable.

Sexism

God, the portrayal of women is so horrible, literally my only entry here is going to be one single link:

youtube

Note all the other isms depicted in this btw.

Substance Abuse

The prostitute mentioned in the LGBT section would wander into scenes screaming about how she wanted crack. There was an episode where they created a league of basketball players who were comprised entirely of ‘crack babies.’ I’m being generous by not putting that in the racism section because most of the babies were BIPOC which says something about the kind of people that M/att and T/rey think are addicts.

The character T/owelie is supposed to show an addict, but his addiction is literally just weed which means they’re claiming weed is addictive.

I can’t even begin to describe the show’s relationship to alcohol. As a child of an alcoholic, I can say that it’s not fucking cute that they made S’s dad a violent drunk. It’s genuinely scary to see your parent fly into a rage because of their alcoholism and them reducing it to a joke was, I think, one of the points where the ‘it’s just a joke’ mentality started to break for me personally.

While we’re on the subject of parents, C’s mom was literally a crack addict who was also a full service sex worker. The correlation is not sympathetic in the slightest. And even worse was Ke’s parents. They were depicted as abusive, neglectful, drug-addicted rednecks. This was sometimes played to make you sympathize with Ke, and it worked because even now I can hardly think of how Ke himself was problematic rather than the situations he was in. (He’s the one who gets gruesomely murdered every episode) I don’t know if this is because of selective memory, if he was genuinely just the least problematic in the show, or if I’m waxing nostalgic for the show. Regardless, as I said, his situation was mostly played for sympathy. However, it was also played for jokes almost as often.

Pedophilia

The children are put in sexual situations a nonzero amount of times, they make priest molestation jokes, and they made jokes about MJ.

Slurs

Yeah they said them a lot. There was the aforementioned N-Word Guy episode, but there was also an episode that thinly mirrored immigrants coming to America for work and the people (time-travelers) were called ‘Goobacks’. I think the word ch*nk was used a nonzero amount of times, C used every slur for Jewish people in the book. None of these were censored by the show, any censoring was done by networks.

Why make this post?

Because I know people know this show is garbage, but I think it’s important that people know why it’s garbage with specific and nonspecific instances of why the show was problematic.

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alchemisoul · 6 years ago

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I've never told anybody this before, and never had a reason to disclose it, mostly because I never thought it to be particularly noteworthy. But when I was a kid, as soon as I was old enough to both know 1) the alphabet and 2) was aware of the distinction between boys and girls - I had what I assumed was a mildly peculiar interpretation of the alphabet that distinguished individual letters as being either masculine or feminine.

There was no rhyme nor reason, or any conscious effort on my part in denoting which were masculine and which were feminine. They just were what they were, and it was just seemingly obvious, implicit, and indisputable to me. And in a way, this hasn't changed with the exception of 2 or 3 letters - which I either can't quite recall what their designation was or they appear more ambiguous (J, O, Z) to me now than they did as a child. It wasn't an every other letter sort of thing, A was femine, B-G were masculine, HIJK were feminine, L masculine, on and on, etc.

I've always assumed this was just a silly way my mind was making sense of things I was learning at the same time - the alphabet and the distinction between boys and girls. Nothing more. And maybe that is the case. But on my lunch break, I was reading about forms of synesthesia, and what is completely bewildering to me is that apparently this is something other people experience as well - some of them far more elaborate than my own.

#synthesia #ordinallinguisticpersonification #ordinal linguistic personification #when i was a child #when i was a kid #as a child #strange #alphabet #the alphabet

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gbsoriginals-blog · 6 years ago

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projectile idea generation (w4)

This week we looked at how to generate ideas for a project, including who the project could be for, how it could be presented and what it could do.

Project

Disobedient Electronics

This project highlights people's (1) digital activities of the quantified self, (2) sharing everything online and (3) the 'taboo' around periods and the post-puberty reality of women's bodies. By raising this idea, Sondergaard and Hansen question the "I share therefore I am" (Turkle, 2015) culture as well as the culture of creating technological artefacts to quantify and measure ourselves. The obscurity of the idea is somewhat mocking of the Kickstarter culture of "hey, look at this really cool thing we definitely don't need - let's throw money at it so it can be real!". Just because we can do something with technology, does that mean we should?

I love this project because I think periods contain and reflect so many of the problems we have in today's society. Issues of neoliberalist feminist ideals, issues of poverty and privilege, the weird and gross obsession with pretending women are still aesthetically pre-pubescent and then the monitoring and tracking of women's bodies for fertility purposes too. Reading about this project made me laugh, especially because I can imagine that some layers of the joke would be completely lost on people. I really enjoy the way media takes some aspect of everyday life which we might accept - like weird projects for completely unnecessary tools on Kickstarter, and questions them. Why do we do this?

This project is exclusive, but I think deliberately - it is a project which applies only to privileged period-havers, however, that is the point. The extremes to which people with money for these technologies go to do extra with themselves, and realistically the self-involved nature of these kinds of campaigns and technologies, is the absurdity that is being mocked with this project.

Task - speculative project

To increase awareness/engagement with art featuring or produced by PoC and disabled people on Instagram.

I sampled 20-30 Instagram comics from #comic and #comics on Instagram, taking the most popular at the time of sampling (the week of Halloween 2019). I took the loose format outlined in Herring's 'Web Content Analysis' (Herring, 2009), and considered some of the downfalls.

"1) The researcher formulates a research question and/or hypotheses" What is the representation of women in the most popular Instagram comics? Hypothesis: representations of women in Instagram comics will largely be of white, non-disabled women. Where race is not coloured, whiteness will be implicit.

"2) The researcher selects a sample" This is a sample of the sample.

"3) Categories are defined for coding" 1. People present y/n 2. Gender m/f/both 3. Race white/non-white/both/'none' 4. Disability present/not present

"4) Coders are trained, code the content, and the reliability of their coding is checked" (ignored, as this overview is conducted only by me)

"5) The data collected during the coding process are analyzed and interpreted."

Of the 26 comics sampled, 18 featured people, 1 of which was dubiously included as it featured human-esque witches. 7 of these comics featured both men and women and 6 featured just women, the others featured either just men or 'genderless' humans.

Of all the comics sampled, there were no people of colour (PoC) represented. In 9 cases the people were clearly white (i.e. skin had been coloured in white skin tones) and in 7 cases the people had not been coloured or were coloured ambiguously. In one case race was unclear and therefore may have included PoC. In all cases of ambiguous colouring, characters had other traits which might identify them as white, as well as the implicit whiteness of the uncoloured page itself being white.

In all the comics sampled, no disabilities were visible or referenced.

Comics often portray human experiences in funny or relatable ways, encouraging the viewer to relate to and/or be amused by the content. Considering the samples were from the most popular posts tagged #comic(s) on Instagram, comics featuring (and or produced by) PoC seem to be less popular. The lack of featuring of PoC in these sampled comics likely means they are harder to find and less visible to Instagram users looking for comics. It gives the impression that comic art is exclusively white and perhaps not a place for PoC artists or fans. It suggests that white is neutral and others PoC. Similarly, but to a less extreme degree, women are secondary in these comics. In the few cases of "genderless" character representation, the characters resembled men. Similarly, this suggests that a character which appears to be male is neutral and/or "universal" and any other gender is specific to a situation. Disability is invisible in the comics sampled. This suggests that disabled people are other, and their experiences cannot be applied to "universal" relateable comic content.

Following on from this initial research, it would make sense to find PoC featuring/produced art on Instagram and consider how it could be more visible. It might be necessary to interrogate Instagram's algorithm in terms of how it prioritises white content.

Herring S.C. (2009) 'Web Content Analysis: Expanding the Paradigm.' In: Hunsinger J., Klastrup L., Allen M. (eds) International Handbook of Internet Research. Springer, Dordrecht

#week 4

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challengingpride · 8 years ago

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No Pride in Apartheid: Pinkwashing in Israel

Swarms of muscled, care-free, white men revel on the white beaches of Tel Aviv, a paradise for rich, white, gay men to vacation. With the rich blue sea, stunning natural landscapes, and modern cities, one almost forgets the coexisting ethnic cleansing project happening in Israel alongside this homoerotic beach party. This is what I gather from the television spots developed by Brand Israel in an attempt to engage in pinkwashing. Pinkwashing refers to the homonationalist efforts of governments to focus international attention of their progressive LGBTQ+ rights record (though more often than not, this is just a pseudonym for gay rights), in order to draw attention away from their human rights violations. In this case, these violations encompass the existing state of Apartheid within Israel in which Palestinians are designated second-class citizens. Meanwhile, Israel continues their settler-colonial project to appropriate ever-dwindling Palestinian land, engages in bombing campaigns against Palestinian civilians, and exploits Palestinian labor.

Brand Israel is a multi-million dollar marketing campaign developed in 2005 between the Israeli government and American corporate marketing executives (Schulman). This propaganda campaign was focused on shifting the then-dismal and accurate public perception of Israel as a conflict-ridden settler-colonial state, and works to maintain an image of Israel as a modern, progressive, and legitimate state. Brand Israel further promotes Israel as a refuge for persecuted Palestinians, when in fact, the Israeli Apartheid severely restricts the movement of Palestinians, and queer Palestinians taking refuge from homophobia in Israel are “often detained and sent back to the West Bank or Gaze where they face the same abuse they fled from.” Queer Palestinian refugees (queer activist groups reject the LGBT acronym and labels as a Western influence) often live in severely marginalized conditions to avoid detainment, despite the fact that their deportation as LGBTQ+ refugees violates Israel’s accord with international humanitarian law (Feng).

To be clear, Palestine is by no means queer-friendly. Homosexuality is illegal in the Gaza Strip, but has been decriminalized in the West Bank since the 1950s “when anti-sodomy laws imposed under British colonial influence were removed from the Jordanian penal code, which Palestinians [must] follow” (Schulman). Queer Palestinians can potentially face both extreme interpersonal and state violence, including “beatings, stabbings, burnings, prolonged immersion in sewage water, and forced starvation” (Feng). Queer Palestinians do not have specifically outlined rights within the law. However, the definition of queerness as Other, and thus, the need for laws to protect queer Palestinians, is the result of the importation of homophobia from British colonialism. Further, the propagation of Israel’s LGBT rights is demonstrably a tool for rebranding, not done out of concern for queer Palestinians. Beyond the fact that Israel legally does not accept queer Palestinian immigrants, Brand Israel coordinates its pinkwashing with StandWithUs, an Israeli government-funded lobby group with ties to right-wing anti-LGBTQ+ activists such as John Hagee of Christians United for Israel (Barrows-Friedman). “The rise of the gay equality agenda in Israel is concomitant with the increasing repression of the Israeli state towards Palestinians,” explains anthropologist Rebecca L. Stein.

It’s important to distinguish between LGBTQ+ rights not as something gifted from the West to non-Western nations, but to reframe LGBTQ+ rights as something necessitated by the homophobia enhanced, imported, and imposed by Western colonialism. It must also be acknowledged that the representation of the non-white immigrant (especially Muslim immigrants) as intensely homophobic “opportunistically ignores the existence of Muslim gays and their allies within their communities. They also render invisible the role that fundamentalist Christians, the Roman Catholic Church, and Orthodox Jews play in perpetuating fear and even hatred of gays.” This narrative has been transposed from its origins as a European xenophobic tool to a facilitator of the Israeli apartheid. Puar clarifies that homonationalism in Israel is not “a reflection of any exceptionalist activity,” but is merely an iteration of a traditional colonialist tactic, which weaponizes the treatment of marginalized groups “to justify imperialist violence” (Jasbir 283). Classic examples include the British-Consul General Lord Cromer, head of the colonial Egyptian government, supposed supporter of the liberation of Egyptian women, despite restricting their education, and founder and president of the Britain-based Men’s League For Opposing Women’s Suffrage.

The discussion of pinkwashing consistently refers to the weaponization of “LGBT” rights, and yet, Israel’s gay-targeted marketing agenda and even outside pinkwashing activism, ambiguously situate trans people within their frames. Saffo Papantonopoulou terms this “trans-homonationalism” (because transnationalism was “already taken”). Papantonopoulou describes a “Zionist economy of gratitude” that inserts transgender people in Israel into “a cycle of debt...[in which the transgender subject is perpetually indebted to capitalism and the West for allowing her to exist” (281). Thus, although trans people targeted by pinkwashing in implicit terms only, as Brand Israel’s marketing describe an LGBT haven, but shows only (mostly white) gay men. Israel’s trans rights are relatively underdeveloped for a nation that seeks to align itself with Western models of modernity – specifically, it is very difficult for trans people in Israel to transition under the age of 18, and a significant number are turned away because of strict definitions of gender dysphoria diagnoses. Trans people may serve in the military, although the right to enforce the Israeli settler-colonial project should not correlate with progressivism. For example, Israel has recently promoted its first transgender military officer, Shachar Erez. Erez’s tour is, consequently, presented by StandWithUs. Israel’s neoliberal idea of progressivism once again situates itself in such a way as to distract from the state’s human rights abuses, in such a blatant way that it nearly satirizes itself. Luckily, Nora Barrows-Friedman can do that on her own, covering Erez’s tour with the Onion-worthy headline: “Israel’s First Trans Officers Helps With Ethnic Cleansing.”

Like homonationalism, pinkwashing insidiously appropriates the struggles of queer people to the detriment of others; in this case, it is those within our own community who suffer. Israeli Apartheid and the decolonization of Palestine is an LGBTQ+ issue. LGBTQ+ organizing against Israeli Apartheid is developing throughout the United States and beyond. We must give our support and deference to queer Palestinian liberation groups like Aswat, Al-Qaws, and Palestinian Queers for Boycott, Divestment, and Sanctions. We cannot allow apolitical Israeli or pro-Israeli events to take place in LGBTQ+ spaces. Not in our name.

Free Palestine.

- Emily

CITATION

Barrows-Friedman, Nora. "Israel’s First Trans Officer Helps with Ethnic Cleansing." The Electronic Intifada, 12 Apr. 2017.

Feng, Josh. "A Selective Sanctuary: "Pinkwashing" and Gay Palestinian Asylum-Seekers in Israel." The Yale Review of International Studies, Vol. 5, No. 1, Oct. 2014.

Papantonopoulou, Saffo. "“Even a Freak Like You Would Be Safe in Tel Aviv”: Transgender Subjects, Wounded Attachments, and the Zionist Economy of Gratitude." WSQ: Women's Studies Quarterly, vol. 42, no. 1-2, 2014, pp. 278-293.

Puar, Jasbir. "Citation and Censorship: The Politics of Talking About the Sexual Politics of Israel." Feminist Legal Studies, vol. 19, no. 2, 2011, pp. 133-142.

Schulman, Sarah. "Israel and 'Pinkwashing'." The New York Times, 22 Nov. 2011.

#pinkwashing #palestine #freepalestine

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marymosley · 6 years ago

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New PatentlyO Law Journal Essay: Is There Any Need to Resort to a § 101 Exception for Prior Art Ideas?

New PatentlyO Law Journal Essay by Jeremy C. Doerre. Mr. Doerre is a patent attorney with the law firm of Tillman Wright, PLLC.

In the wake of Alice, many observers have suggested that the implicit judicial exception to 35 U.S.C. § 101 for abstract ideas is now sometimes being used as a judicial or administrative shortcut to invalidate or reject claims that should properly be addressed under 35 U.S.C. § 103. This article notes that “the concern that drives this exclusionary principle [is] one of pre-emption,” and queries whether, given the Supreme Court’s “standard approach of construing a statutory exception narrowly to preserve the primary operation of the general rule,” the implicit statutory exception to 35 U.S.C. § 101 for abstract ideas should be narrowly construed to not apply for prior art ideas because 35 U.S.C. § 103 already ensures that claims do not “’disproportionately t[ie] up the use of [] underlying’ [prior art] ideas.”

Read Jeremy C. Doerre, Is There Any Need to Resort to a § 101 Exception for Prior Art Ideas?, 2019 PatentlyO L.J. 10. (2019.Doerre.AnyNeed)

Prior Patently-O Patent L.J. Articles:

Colleen V. Chien, Piloting Applicant-Initiated 101 Deferral Through A Randomized Controlled Trial, 2019 Patently-O Patent Law Journal 1. (2019.Chien.DeferringPSM)

David A. Boundy, Agency Bad Guidance Practices at the Patent and Trademark Office: a Billion Dollar Problem, 2018 Patently-O Patent Law Journal 20. (Boundy.2018.BadGuidance)

Colleen Chien and Jiun-Ying Wu, Decoding Patentable Subject Matter, 2018 PatentlyO Patent Law Journal 1.

Paul M. Janicke, Patent Venue: Half Christmas Pie, And Half Crow, 2017 Patently-O Patent Law Journal 13. (Janicke.2017.ChristmasPie.pdf)

Paul M. Janicke, The Imminent Outpouring from the Eastern District of Texas, 2017 Patently-O Patent Law Journal 1 (2017) (Janicke.2017.Venue)

Mark A. Lemley, Erik Oliver, Kent Richardson, James Yoon, & Michael Costa, Patent Purchases and Litigation Outcomes, 2016 Patently-O Patent Law Journal 15 (Lemley.2016.PatentMarket)

Bernard Chao and Amy Mapes, An Early Look at Mayo’s Impact on Personalized Medicine, 2016 Patently-O Patent Law Journal 10 (Chao.2016.PersonalizedMedicine)

James E. Daily, An Empirical Analysis of Some Proponents and Opponents of Patent Reform, 2016 Patently-O Patent Law Journal 1. (Daily.2016.Professors)

Tristan Gray–Le Coz and Charles Duan, Apply It to the USPTO: Review of the Implementation of Alice v. CLS Bank in Patent Examination, 2014 Patently-O Patent Law Journal 1. (GrayLeCozDuan)

Robert L. Stoll, Maintaining Post-Grant Review Estoppel in the America Invents Act: A Call for Legislative Restraint, 2012 Patently-O Patent Law Journal 1 (Stoll.2012.estoppel.pdf)

Paul Morgan, The Ambiguity in Section 102(a)(1) of the Leahy-Smith America Invents Act, 2011 Patently-O Patent Law Journal 29. (Morgan.2011.AIAAmbiguities)

Joshua D. Sarnoff, Derivation and Prior Art Problems with the New Patent Act, 2011 Patently-O Patent Law Journal 12 (sarnoff.2011.derivation.pdf)

Bernard Chao, Not So Confidential: A Call for Restraint in Sealing Court Records, 2011 Patently-O Patent Patent Law Journal 6 (chao.sealedrecords.pdf)

Benjamin Levi and Rodney R. Sweetland, The Federal Trade Commission’s (FTC) Recommendations to the International Trade Commission (ITC): Unsound, Unmeasured, and Unauthoritative, 2011 Patently-O Patent Law Journal 1 (levi.ftcunsound.pdf)

Kevin Emerson Collins, An Initial Comment on King Pharmaceuticals: The Printed Matter Doctrine as a Structural Doctrine and Its Implications for Prometheus Laboratories, 2010 Patently-O Patent Law Journal 111 (Collins.KingPharma.pdf)

Robert A. Matthews, Jr., When Multiple Plaintiffs/Relators Sue for the Same Act of Patent False Marking, 2010 Patently-O Patent Law Journal 95 (matthews.falsemarking.pdf)

Kristen Osenga, The Patent Office’s Fast Track Will Not Take Us in the Right Direction, 2010 Patently-O Patent L.J. 89 (Osenga.pdf)

Peter S. Menell, The International Trade Commission’s Section 337 Authority, 2010 Patently-O Patent L.J. 79

Donald S. Chisum, Written Description of the Invention: Ariad (2010) and the Overlooked Invention Priority Principle, 2010 Patently‐O Patent L.J. 72

Kevin Collins, An Initial Comment on Ariad: Written Description and the Baseline of Patent Protection for After-Arising Technology, 2010 Patently-O Patent L.J. 24

Etan Chatlynne, Investigating Patent Law’s Presumption of Validity—An Empirical Analysis, 2010 Patently-O Patent L.J. 37

Michael Kasdan and Joseph Casino, Federal Courts Closely Scrutinizing and Slashing Patent Damage Awards, 2010 Patently-O Patent L.J. 24 (Kasdan.Casino.Damages)

Dennis Crouch, Broadening Federal Circuit Jurisprudence: Moving Beyond Federal Circuit Patent Cases, 2010 Patently-O Patent L.J. 19 (2010)

Edward Reines and Nathan Greenblatt, Interlocutory Appeals of Claim Construction in the Patent Reform Act of 2009, Part II, 2010 Patently‐O Patent L.J. 7 (2010) (Reines.2010)

Gregory P. Landis & Loria B. Yeadon, Selecting the Next Nominee for the Federal Circuit: Patently Obvious to Consider Diversity, 2010 Patently-O Patent L.J. 1 (2010) (Nominee Diversity)

Paul Cole, Patentability of Computer Software As Such, 2008 Patently-O Patent L.J. 1. (Cole.pdf)

John F. Duffy, The Death of Google’s Patents, 2008 Patently O-Pat. L.J. ___ (googlepatents101.pdf)

Mark R. Patterson, Reestablishing the Doctrine of Patent Exhaustion, 2007 Patently-O Patent L.J. 38

Arti K. Rai, The GSK Case: An Administrative Perspective, 2007 Patently-O Patent L.J. 36

Joshua D. Sarnoff, BIO v. DC and the New Need to Eliminate Federal Patent Law Preemption of State and Local Price and Product Regulation, 2007 Patently-O Patent L.J. 30 (Download Sarnoff.BIO.pdf)

John F. Duffy, Are Administrative Patent Judges Unconstitutional?, 2007 Patently-O Patent L.J. 21. (Duffy.BPAI.pdf)

Joseph Casino and Michael Kasdan, In re Seagate Technology: Willfulness and Waiver, a Summary and a Proposal, 2007 Patently-O Patent L.J. 1 (Casino-Seagate)

New PatentlyO Law Journal Essay: Is There Any Need to Resort to a § 101 Exception for Prior Art Ideas? published first on https://immigrationlawyerto.tumblr.com/

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natashaclitherow-blog · 6 years ago

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Evaluating Research

The starting point for this project was how the theme of Liminality had been conveyed in ‘Wuthering Heights’ by Emily Bronte, and so after some collaging, a natural starting point was to analyse and pick out imagery from the novel which helped me to consider semiotic connotations pf images from the outset of the project. Image association helped me to continue the theme of liminality but step away from my original influence and I think the images produced show a leaning toward human anatomy and a detached form to convey the idea of ‘essence over existence’.

I began by researching how to make a clamshell box as by understanding the construction I could consider how my research would feed into a final piece, but I quickly began theoretical research. Looking into Metaphysics helped me to understand the context in which the concept of liminality originates from and by introducing the argument of the extent of existence starts to instigate concepts to visualise whilst looking into Ontology puts an importance on the intangible over the tangible. This leaning toward the lack of physicality meant my research took a very spiritual path, indicated by studying liminal thinking as this process is a state of thinking that quietens the mind and attempts to get closer to reality, the method is defined by the gap between the unknowable reality and one’s own beliefs and so the process attempts to traverse the space in between.

Although these ideas of spirituality are essential to the foundations of my research I needed to start thinking about how I would realise these ideas and so the focus on an absence of the physical lead me to start researching astrology as this introduced images that would effectively convey a sense of the intangible due to the pertinence of the subject of time and space. To exacerbate the spirituality I studied ‘The Fundamentals of Indian Astrology’ as it personifies and anthropomorphises features of astrology and so opens up more opportunities for illustration by relating animals and characteristics to planets.

Studying the work of M.C. Esher was a productive step toward visualising my concept as his work challenges perception and reality, along with his ‘Metamorphosis’ works which visualise a transformation by playing with the shape and line in his drawings – the works focal point is the transition, being the essence of liminality. His adaption of perception has influenced the composition if my work along with giving the impression of a connection that goes deeper that the physical through the disjointed physical body. This transfiguration is continued in the work of Myriam Tillson, her figures are often fragmented, melting and dissipating and these transformations evoke a divine sense using colour – such as gold, or luminescence or cosmological settings. Her work has inspired ways in which I can manipulate the human form to translate my concept by extracting the verbs she has visualised in different contexts. The surrealist ambiguity of the work creates a sense of spirituality and spiritual change.

I really like the range of Ganesh Rao’s work, his ‘Controlling Chaos’ series visualises the ideas or liminal thinking as Rao explains that we ‘gather information of our surroundings through or perceptions to make vague predictions of ourselves’ and the unpredictability contain these impulses on the canvas. This abstract emotivity could influence me to be more experimental with the images I create. However, I want to replicate his analysis of his ‘I Control Nothing’ series, the long exposure photographs explore how every frame captured has an implicit indication of time, a temporal memory of light making a subjective representation of an instant. The finished image is a sculptural representation of the motion separate from the dimension of time. Creating an image that exists as it is separate from time visualises the metaphysical question of the ‘first cause’ and researching Rao’s work has influenced me to adapt this idea for a fashion context.

As I need to apply the images, I create to a fashion context I looked at the highly influential fashion photographer Tim Walker as he is notorious for creating whimsical fantasy worlds in which to photograph clothing. His photography has a dream-like quality, and realises the liminal state of dreaming, exploring the subconscious. Studying his work will facilitate how I direct fashion photography, creating a new reality for the photographs to capture, his work has showed me a value in careful planning for shoots in order to produce captivating photographs that visually translate the idea of liminality. Similarly, hyper-feminine fashion photography by Kimberly Gordon also contain a dream-like quality with a drive from beauty. Images are saturated with flora depicting Spring – nature’s state of transition and re-emergence.

It was increasingly evident that my project would be driven by surrealist imagery and so research into Surrealism was a natural progression, I learnt about the origins of the movement and discovered the influence of Sigmund Freud’s research into dreams and the subconscious mind. The emphasis on revolting against the constraints of the rational mind lead me to create ink blots to attempt to access the subconscious of those around me, conjuring up images which could influence how I manipulate the ink blots in order to create images.

A peer review was invaluable as feedback made me consider how I presented my outcome and so I began to think about a publication in an untraditional format which will lead to experimentation of presentation. I was also intruded to the medieval science: Alchemy, which has been very influential on my project. The science encompasses transformation, divinity and a spirituality – all ideas that have been prevalent in my project, therefore the topic collected and even visualised some of the concepts I was struggling to and gave me access to more visual stimuli that is necessary for image making fir my project. I found how the presentation of the science had been modernised and stylised within the illustrations of the cocktail bar ‘The Alchemist’, which not only showed me how they had presented the ideas but I also was opened up to a darkness that I didn’t necessarily want to convey which helped to inform the direction of my illustration.

In order to execute my project in a sophisticated manner I read into design practice. ‘The Design Method’ by Eric Karajaluoto outlined a methodical way of working when it comes to design, stressing the discovery and planning stages in order to create effective work that successfully translate what it needs to for its purpose, the sobering book stresses the importance of design after function and clearly defining a difference between artist and designer. However, ‘The fundamentals of Illustration’ by Zeegan, L has a more imaginative and sympathetic attitude as the discipline of illustration borders the art and design world. The book also stresses the importance of research and planning and outlines a method in which to follow when starting illustration. It offered useful tools such as collecting key ideas and link them to inspire visual responses.

After reading about the design process I felt comfortable to start creating. I have found that all my research has offered new dimensions to how it has progressed and a range of forms of research i.e. theoretical, visual and practical has meant that it hasn’t strayed too far from the central theme of liminality. I think such an encompassing; ambiguous topic means research will have to be constant throughout the project as it evolves but this will naturally occur in response to practical making. It will be valuable for research to take the form of market research and will become more functional as I start creating work to compare and collect public opinion.

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emmagreen1220-blog · 7 years ago

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New Post has been published on Literary Techniques

New Post has been published on https://literarytechniques.org/motif-vs-theme/

Motif vs. Theme

Motif is a recurring element (a symbol, a feature, an expression, a concept) which, if used throughout a single work, suggests its theme (also leitmotif), and, if used across many texts, communicates a common topic of an almost archetypal nature (topos). Theme, on the other hand, is the main idea/subject matter that a literary work treats, or, put even more straightforward, the answer to the question “what is this work about?”

Whatever the subject of repetition, motifs are more often than not bound to the theme of the work, most of them implicitly hinting at it. Interpreted in this context, they are much more ambiguous—and grasped much more intuitively—than symbols that unequivocally stand for something else which is not necessarily the theme.

Throughout history, the words “motif,” “leitmotif,” “theme,” “topic,” “topos,” “symbol” and a few others, have been used interchangeably to describe many similar and related concepts. That’s why it is often difficult to say where the definition of either of them ends and the definition of a related term begins; which is why it should be noted from the start that it is neither a mistake to say that “many of Shakespeare’s sonnets are variations of the common memento mori motif” nor it is an exaggeration to claim that “many of Shakespeare’s sonnets focus on the theme of the passing of time.”

In other words, most distinctions between the terms “motif” and “theme” are tentative—see the definitions section below—and ours can’t be any different; but it is one which, if only because of its simplicity, is more generally accepted in primers and schoolbooks.

Definitions: Motif, Leitmotif, and Theme

As we said above, the words “motif” and “theme” are often used interchangeably, which means that it is not a rare occurrence for a literary dictionary to list the definitions of both under one entry; this is further complicated by the word leitmotif which is often treated as a more modern term for “motif” (see the section below). To demonstrate this Babel of meanings, we selected a plethora of definitions from many compendiums of knowledge (glossaries, dictionaries, encyclopedias); we present them in the table below. We’ll try to make sense of them in the other two sections

SOURCE MOTIF LEITMOTIF THEME Joseph T. Shipley, Dictionary of World Literary Terms (1970) “a word or pattern of thought that recurs in a similar situation, or to evoke similar mood, within a work or in various works of a genre.” “an expression that as a unit bears a particular significance, e.g., the Homeric epithet, the folktale repetition.” “the general topic, of which the particular story is an illustration.” Arnold Lazarus and H. Wendell Smith, A Glossary of Literature and Composition (1973) “a recurring symbol, expression, or feature (e.g., the love potion).” / 1. “a unifying idea, motif, or archetypal experience in a literary work.” 2. “the unifying statement, expressed or implied, in a literary work.” H. L. Yelland, S. C. Jones, and K. S. W. Easton, A Handbook of Literary Terms (1983) “a recurring theme or basic idea.” / “the central thought in a literary work.” Jack Myers and Michael Simms, Longman Dictionary and Handbook of Poetry (1985) “also called ‘topos;’ a theme, device, event, or character that is developed through nuance and repetition in a work.” [e.g., ubi sunt and carpe diem formulas, stock character motifs] “indicating a theme associated throughout a work with a particular person, situation, or sentiment.” “the paraphrasable main idea(s) of a piece of literature, that is, what the work is about.” Northrop Frye, Sheridan Baker, and George Perkins, The Harper Handbook to Literature (1985) 1. “a recurrent thematic element—word, image, symbol, object, phrase, action.” 2. “a conventional incident, situation, or device” [e.g., the excruciating riddle] “a repeated phrase, word, or theme running through and unifying a novel or play.” “a central idea.” Katie Wales, A Dictionary of Stylistics (1990) 1. “the simplest narrative thematic units in folk-tales and stories.” 2. “a synonym for leitmotif: a recurrent theme or idea in a text or group of texts.” “the use of repeated […] phrases; in a looser sense it is often used, like motif, to mean recurring or favorite themes throughout an author’s oeuvre.” “the ‘point’ of a literary work, its central idea, which we infer from our interpretation of the plot, imagery and symbolism, etc.” Kathleen Morner and Ralph Rausch, NTC’s Dictionary of Literary Terms (1991) “a recurring image, word, phrase, action, idea, object, or situation that appears in various works [a recurrent theme] or throughout the same work [sometimes leitmotif].” “the repetition of a significant word, phrase, theme, or image throughout a novel or play, which functions as a unifying element.” “the central or dominating idea, the ‘message,’ implicit in a work.” Chris Baldick, The Concise Oxford Dictionary of Literary Terms (2001) “a situation, incident, idea, image, or character-type that is found in many different literary works, folktales, or myths; or any element of a work that is elaborated into a more general theme[…]within a single work, it is more commonly referred to as a leitmotif.” “a frequently repeated phrase, image, symbol, or situation in a literary work, the recurrence of which usually indicates or supports a theme.” “a salient abstract idea that emerges from a literary work’s treatment of its subject-matter; or a topic recurring in a number of literary works.” Edward Quinn, A Dictionary of Literary and Thematic Terms (2006) “an element that appears in a number of literary works. It differs from a theme, which it closely resembles, in that it is a concrete example of a theme.” “a phrase or image that suggests a particular theme.” “A significant idea in a literary text, sometimes used interchangeably with motif.” Peter Auger, The Anthem Dictionary of Literary Terms and Theory (2010) “a recurring element within or between artistic works”: 1. “a basic means of shaping meaning within a work through repetition which hints at an overall theme” (“similar in meaning to leitmotif”) 2. “intertextual reappearance of elements” (“topoi”) “a prominent idea, character, image or situation that recurs throughout a work, or an author’s works.” “an abstract idea that seems central to a literary work’s design; a work’s structure and imagery (motifs) appear to support the theme.” M. H. Abrams, A Glossary of Literary Terms (2012) “a conspicuous element, such as a type of incident, device, reference, or formula, which occurs frequently in works of literature[…] an older term for recurrent poetic concepts or formulas is the topos.” “the term ‘motif,’ or else the German leitmotif (a guiding motif) is also applied to the frequent repetition within a single work of a significant verbal or musical phrase, or set description, or complex of images.” “sometimes used interchangeably with ‘motif,’ [but] more usefully applied to a general concept or doctrine, whether implicit or asserted, which an imaginative work is designed to incorporate and make persuasive to the reader.”

Comparisons: Motif vs. Theme

Various Names in Different Literary Contexts

As one can deduct from the definitions above, sometimes even great literary scholars have problems differentiating between motifs and themes. To make matters even worse, each of these terms is considered—by different authors—synonymous with at least a few other terms used in similar contexts. Here’s an overview of this cacophony of terms and concepts:

IN A SINGLE WORK ACROSS MANY WORKS Name Example Term Example MOTIF leitmotif, leading motif, central motif a repeated reference (rings and arches in D. H. Lawrence’s Rainbow) or an expression (“So, it goes” in Kurt Vonnegut’s Slaughterhouse-Five) literary topos / topoi ubi sunt, memento mori, carpe diem… common symbols cross, dove, love potion stock characters; folk-motifs miles gloriosus; the beauty and the beast THEME theme, topic, subject matter Christian redemption, The American Dream perennial theme Death, Love archetype the prostitute with a golden heart, the divine teacher, Don Juan motif see the first row

The comprehensive table above can be simplified in this circular manner:

IN A SINGLE WORK ACROSS LITERARY WORKS MOTIF Leitmotif Topos THEME Theme Motif

So, in other words, when a motif starts reappearing across numerous literary works, it becomes a general, almost conventional, theme, i.e., a “topos.” If, however, we’re dealing with a recurrent element within a single work, then we’re actually talking about “leitmotifs,” constitutive elements of a certain idea, meaningful patterns which are suggestive of a certain mood or atmosphere or, else, hint at the larger theme of a work. Let’s try and further elaborate on these two meanings of the word “motif.”

Internal Distinctions: Two Types of Motifs

Topoi: Traditional Understanding of Motifs

Traditionally, the word “motif” has been understood in a rather general manner, i.e., as a synonym for a “commonplace topic,” or, to use a Greek term, a topos (topoi in plural). As such, motifs have been around since the earliest days of writing, and many of them are being constantly revisited and reworked with regards to different circumstances, occasions, or needs.

In cases such as these, motifs can sometimes be almost indistinguishable from themes. For example, both Andrew Marvell’s “To His Coy Mistress” and Robert Herrick’s “To the Virgins, to Make Much of Time” are variations of the same carpe diem (“seize the day”) motif, but this is also very much their central theme (see our Examples of Motif in Literature).

Other traditional motifs often revisited by poets and authors are, say, the motif of the perfect place (Arcadia, Eden, Utopia, El-Dorado, Shangri-La…), the motif of the womanizer (Casanova, Don Juan, Lothario…), or the motif of the (hero’s) journey. Each of these three motifs has served as the premise for numerous wildly different works written by thousands of dissimilar authors.

For reasons such as this, it is sometimes convenient to place all these writings into one class and to speak of the carpe diem genre or the utopian/dystopian genre. In folkloristics, in fact, there exists a wide-ranging classification, called the Aarne-Thompson-Uther Motif-Index, which lists, in a nested manner, all variations of all traditional motifs found in world folklore. We mention one in our main Motif article, under the section “Songs with Motifs.”

Leitmotifs: Modern Reinterpretation of Motifs

In modern literary studies, motifs are usually understood much more strictly and are used in a much more different manner than traditional topoi are by writers. To make a distinction, some authors use the term leitmotif for this modern meaning of the word “motif.”

Musical Origin of the Term “Leitmotif”

The term leitmotif comes from music and is German in origin. It means “leading (guiding) motive” and was coined by Hans von Wolzogen to refer to a musical theme—repeated orchestral phrases—which evokes and/or can be identified with a specific character, situation, object, or emotion. Wolzogen used and developed the term with a specific reference to the operas of Richard Wagner, in which there are hundreds of leitmotifs, most of them related to a specific character or a situation.

To understand the musical meaning of the word leitmotif better, think of the ominous music which suggests an imminent shark attack in Steven Spielberg’s Jaws, or the sound of heavy breathing which indicates the presence of killer Michael Myers in John Carpenter’s Halloween.

Literary Use of “Leitmotifs”

First applied by the English physician Havelock Ellis in 1896 to the work of Émile Zola, the term leitmotif assumed a similar meaning in literature: a reminder of continuity which hints at the general theme of a work. Modernist authors consciously appropriated this device, especially since while composing their experimental works, they stopped relying on conventional narrative concepts such as plot, characters, story or symbols. As a result, they had to use something different to create internal cohesion within their texts, “economically to build a unified work.” And they found that something in the idea of the recurring motif—or, more precisely, the leitmotif.

In this case, motifs are unifying elements, and they merely point to a theme; however, they are very different from it. For example, flying is an essential motif in Toni Morrison’s 1977 novel, Song of Solomon, but the themes the novel explores have nothing to do with planes or birds, but, among other things, with one’s search for his/her own identity beyond the shackles of his immediate reality.

Motif vs. Theme: General Distinctions

“Motif and theme are two different things,” writes the great German scholar Ernst Robert Curtius in an essay on Hermann Hesse, “and critics would do well to distinguish between them.” But, unfortunately, due to the confusion over what exactly motif is, they haven’t. Curtius himself doesn’t offer particularly clear distinction, but he does well when he compares the motif to a plant: “it unfolds, forms nodes, branches out, puts forth leaves, buds, fruit.” In this analogy, the theme is something both more abstract and more straightforward, such as the Latin name of this plant or its place in a taxonomic table; often, the motif is what makes the theme tangible by adorning it with mood, ambiance, and overall atmosphere.

In the table below, we’ve tried summarizing the differences between this modern understanding of the word “(leit)motif” and the usual definitions of a “theme.” Hopefully, it can help you distinguish the terms “motif” and “theme” better in cases when you’re dealing with and analyzing a single work.

TYPE (LEIT)MOTIF THEME Element Recurring symbol, object, phrase, idea, situation Central idea; the subject-matter Size A simple, Indivisible element; (an atomic thematic element) A dividable union of elements (a molecule of motifs, symbols, characters, relations, etc.) Presence Local General Visibility Concrete, tangible, directly expressed, e.g., the rain in Hemingway’s Farewell to Arms or the phrase “To Moscow” in Chekhov’s Three Sisters Abstract, outside the text, indirectly expressed through motifs, images, characters, actions, symbols, etc. Perceptibility Intuitively grasped through reading Can be rationally deduced through interpretation Function motifs can suggest some atmosphere (e.g., the color red and darkness in Macbeth), mood (e.g., the breaking of string in Chekhov’s Cherry Orchard), hint at a theme (e.g., mongooses in Junot Diaz’s The Brief Wondrous Life of Oscar Wao) or contribute to the unification of a literary work (e.g., periodic striking of clocks in Mrs. Dalloway) the theme is what the writer wanted to say with his story, characters, motifs, etc.; it is not something he uses to say something; it is what he says by using something else Communicability Can’t be rephrased or summarized; e.g. “the motif of the green light in Great Gatsby” Can be paraphrased and recapitulated; e.g. “the theme of Hamlet is the conflict between human indecisiveness and duty” (this, of course, is not the only way to summarize the theme in Hamlet, neither the only theme for that matter) Commonness Usually more unique and more personalized; e.g., slippers and rackets in Nabokov’s Lolita A single theme can be reworked numerous times in thousands of different ways

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freewhispersmaker · 8 years ago

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ITEC851 Mobile Data Networks Assignment 1 Due: Friday (Week 8) – 6th of October, 2017, 6 pm (Via Turnitin). Total Marks: 60 Weighting (Value): 20% Submission The assignment needs to be submitted online using Turnitin. Objectives This assignment has been designed to test the following areas: • Medium Access Control • Wireless LAN • Mobile IP Note • Answers must be within the specified word limit. This is an absolute word limit and no excess will be allowed. • Assumptions (if any) must be stated clearly in your answers. Remember, there may not be one right answer for some of the questions. Rather, your explanations do need to present your case clearly. The explanations you provide do not have to be long, conciseness is preferred to meandering. Assessment For all questions in this assignment not only content but also presentation will affect your mark. You will lose marks (and not necessarily only a small portion) if there are problems with the presentation, particularly with clarity. This means that your answers to each question should be a coherent statement and that the spelling and grammar of your submission will be taken into account in assessing its presentation. For full marks, your answers should all be clear, coherent and correct. The standards of marking described in the unit outline L.O. 1-6 will be applied to this assignment as relevant to the assignment topics. In addition, the following particular standards will be applied in marking this assignment: • Spelling and grammar: o Assignment submissions with more than 4 spelling or grammatical errors will not achieve a grade higher than distinction; submissions with more than 8 such errors will not achieve a grade higher than credit. • Clarity: o Ambiguous or poorly worded answers will receive a grade no more than a pass for the individual question. o Minor issues of clarity will receive a grade no more than credit for the individual question. • Correctness of approach taken and answer obtained: o Incorrect answers with the correct logic or approach will receive no more than a pass for the individual question. o Correct answers with incorrect logic or approach will receive no more than pass for the individual question. o Incorrect answers with no explanation of the approach taken or with the incorrect approach will receive a fail grade for the individual question. The questions will be marked individually, the marks totalled, and a final grade assigned that is no more than indicated by the total marks, and no more than allowed by the standards specified above and in the unit outline. 1. A CDMA system includes two stations X and Y. The Walsh codes for stations X and Y (-1 1 -11 -1 1 -11) and (-1 -111 -1 -111), respectively. (18 marks) a. Show the output at the receiver if X transmits a data bit 1 and Y does not transmit. (2 marks) b. Show the output at the receiver if X transmits a data bit 0 and Y does not transmit. (2 marks) c. Show the output at the receiver if X transmits a data bit 1 and Y transmits a data bit 1. Assume the received power from both X and Y is the same.(2 marks) d. Show the output at the receiver if X transmits a data bit 0 and Y transmits a data bit 1. Assume the received power from both X and Y is the same. (2 marks) e. Show the output at the receiver if X transmits a data bit 1 and Y transmits a data bit O. Assume the received power from both X and Y is the same. (2 marks) f. Show the output at the receiver if X transmits a data bit 0 and Y transmits a data bit O. Assume the received power from both X and Y is the same. (2 marks) g. Show the output at the receiver if X transmits a data bit 1 and Y transmits a data bit 1. Assume the received power from Y is twice the received power from X. This can be represented by showing the received signal component from X as consisting of elements of magnitude 1(+1, -1) and the received signal component from Y as consisting of elements of magnitude 2(+2, – 2). (3 marks) h. Show the output at the receiver if X transmits a data bit 0 and B transmits a data bit 1. Assume the received power from Y is twice the received power from X. (3 marks) 2. Explain why the vulnerable time in ALOHA depends on the frame transmission time (Tfr), but in CSMA it depends on frame propagation time (Tp)? (5 marks) (300 words) 3. In the CSMA protocol, if a station successfully receives an acknowledgement, it knows that its frame has been correctly received at the destination station. Now, if the station has another frame to send, the protocol forces the station to re-enter the back-off phase in which the station chooses a random back-off value and counts down this value when the channel is sensed idle. What rationale might the designers of CSMA/CA have had in mind by having such a station not transmit the second frame immediately –after the DIFS period (if the channel is sensed idle)? (4 marks) (200 Words) 4. In MACAW, the scheme of having the congestion information disseminated explicitly by media access protocol produced a fairer allocation of resources. What problems can surface when using such a scheme? (3 marks) (200 Words) 5. Consider a novel Mobile IP scheme in which a mobile station announces its permanent (home) IP address to agents in foreign networks. These agents, in turn, announce this information to other routers using their regular routing protocol update messages. What are some benefits and drawbacks of this scheme when compared to the IETF Mobile IP scheme? (8 marks) (300 Words) 6. An organization has deployed a campus network using cellular IP. The cellular IP network extends the wired infrastructure of the campus as shown in the figure below. The gateways in cellular IP connect their respective wireless segments to the wired segment. Each Base station in the wireless segment provides layer 3 functionality (in other words, they act as IP forwarding engines). The campus network supports multicast routing. All the components in the wireless part strictly adhere to cellular IP standard. Assume that this campus network deploys DVMRP multicast routing scheme – a protocol that builds source based multicast distribution trees (Refer to Appendix for a brief explanation on DVMRP). A visiting mobile node MN enters the wireless network and initially gets registered to its home network via BS1-G1 and acquires a Care of Address (CoA – an address from the campus network address space). The CoA assigned to the MN remains unchanged irrespective of MN’s movements within the campus network. In other words, MN does not need to acquire a new CoA upon moving to a wireless segment under the same or under a different gateway. While initially at BS1, the MN joins a multicast group G whose scope is local to this campus network (all sources, and members reside in the campus network). Assume that hosts H1, H3, H5, and H7 are members of this group with H1 and H7 also acting as Multicast sources. Furthermore, assume that MN itself is a source for multicast traffic. In this scenario, explain what problems can arise in multicast communication due to MN’s mobility. (10 marks) (300 Words) 7. Briefly explain the architectural difference between IETF Mobile-IP and Columbia Mobile-IP. Highlight the architectural difference along the following dimensions: a. HA b. FA c. Location Directory d. Location Update (12 marks) (500 Words) Appendix Source Based Multicast Routing Consider a single sender. In source based multicast Routing, the routing process builds shortest path trees rooted at the sender. The router delivers packets to each receiver along the shortest path. In a nutshell, it builds a shortest path spanning tree routed at source to all intended destinations. Source Based Multicast Routing (SBMR) The SBMR techniques implement the Reverse Path Multicast (RPM) algorithm. The RPM constructs an implicit spanning tree for each source. ? It accepts a packet from a source S, on link L, if L is the shortest path toward S. (Reverse Path Check) ? Uses unicast routing table which contains shortest paths to each node in the network. In this technique, the first packet flooded across the internetwork. The packet scope is restricted by a TTL value. Due to flooding, all routers in the network get a copy of the packet. Routers not having any downstream router in multicast tree are called leaf routers. If a leaf router has no group members on its sub-networks, a Prune message to parent router (one hop up). The prune state is maintained in every router. This process is repeated every hop upwards. These cascaded prune messages create/truncate the original RPM tree. Prune information only held for a certain lifetime (soft state). A Graft message is sent to quickly recover back a previous pruned branch. It cancels out previously received prune message. Graft cascades reliably hop by hop toward the source. Due to this graft and prune feature, messages are forwarded on only those links leading to a group member.

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neptunecreek · 8 years ago

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Aadhaar: Ushering in a Commercialized Era of Surveillance in India

Since last year, Indian citizens have been required to submit their photograph, iris and fingerprint scans in order to access legal entitlements, benefits, compensation, scholarships, and even nutrition programs. Submitting biometric information is needed for the rehabilitation of manual scavengers, the training and aid of disabled people, and anti-retroviral therapy for HIV/AIDS patients. Soon police in the Alwar district of Rajasthan will be able to register criminals, and track missing persons through an app that integrates biometric information with the Crime and Criminal Tracking Network Systems (CCTNS).

These instances demonstrate how intrusive India’s controversial national biometric identity scheme, better known as Aadhaar has grown. Aadhaar is a 12-digit unique identity number (UID) issued by the government after verifying a person’s biometric and demographic information. As of April 2017, the Unique Identification Authority of India (UIDAI) has issued 1.14 billion UIDs covering nearly 87% of the population making Aadhaar, the largest biometric database in the world. The government asserts that enrollment reduces fraud in welfare schemes and brings greater social inclusion. Welfare schemes that provide access to basic services for marginalized and vulnerable groups are essential. Unlike countries where similar schemes have been implemented, invasive biometric collection is being imposed as a condition for basic entitlements in India. The privacy and surveillance risks associated with the scheme have caused much dissension in India.

Identity and Privacy in India

Initiated as an identity authentication tool, the critical problem with Aadhaar is that it is being pushed as a unique identifier to access a range of services. The government continues to maintain that the scheme is voluntary, and yet it has galvanized enrollment by linking Aadhaar to over 50 schemes. Aadhaar has become the de-facto identity document accepted at private, banks, schools, and hospitals. Since Aadhaar is linked to the delivery of essential services, authentication errors or deactivation has serious consequences including exclusion and denial of statutory rights. But more importantly, using a unique identifier across a range of schemes and services enables seamless combination and comparison of databases. By using Aadhaar, the government can match existing records such as driving license, ration card, financial history to the primary identifier to create detailed profiles. Aadhaar may not be the only mechanism, but essentially it's a surveillance tool that the Indian government can use to surreptitiously identify and track citizens.

This is worrying, particularly in context of the ambiguity regarding privacy in India. The right to privacy for Indian citizens is not enshrined in the Constitution. Although, the Supreme Court has located the right to privacy as implicit in the concept of “ordered liberty” and held that it is necessary in order for citizens to effectively enjoy all other fundamental rights. There is also no comprehensive national framework that regulates the collection and use of personal information. In 2012, Justice K.S. Puttaswamy challenged Aadhaar in the Supreme Court of India on the grounds that it violates the right to privacy. The Court passed an interim order restricting compulsory linking of Aadhaar for benefits delivery, and referred the clarification on the nature and scope of privacy to a larger bench. More than a year later, the constitutional bench is yet to be constituted.

The delay in sorting out the nature and scope of privacy as right in India has allowed the government to continue linking Aadhaar to as many schemes as possible, perhaps with the intention of ensuring the scheme becomes too big to be rolled back. The government enacted the 'Aadhaar Act', passing the legislation without any debate, discussion or even approval of both houses of Parliament. In April this year, Aadhaar was made compulsory for filing income tax or PAN number application and the decision is being challnges in Supreme Court. Defending the State , the Attorney-General of India claimed that the arguments on so-called privacy and bodily intrusion is bogus, and citizens cannot have an absolute right over their body! The State’s articulation is chilling, especially in light of the Human DNA Profiling Bill seeking the right to collect biological samples and DNA indices of citizens. Such anti-rights arguments are worth note because biometric tracking of citizens isn't just government policy - it is also becoming big business.

Role of Private Companies

Private companies supply hardware, software, programs, and the biometric registration services for rolling out Aadhaar to India’s large population. UIDAI’s Committee on Biometrics acknowledges that biometrics data are national assets though American biometric technology provider L-1 Identity Solutions, and consulting firms Accenture and Ernst and Young have been involved in the scheme. Under the Aadhaar Act introduces electronic Know-Your-Customer (eKYC) government agencies and private companies can download data such as name, gender and date of birth from the Aadhaar database at the time of authentication. Banks and telecom companies are downloading data to auto-fill KYC forms and to profile users. Over the last few years, the number of companies or applications built around profiling of citizens’ personally sensitive data has grown exponentially.

A number of people linked with creating the UIDAI infrastructure have founded iSPIRT, an organisation that is pushing for commercial uses of Aadhaar. Private companies are using Aadhaar for authentication purposes and background checks. Microsoft has announced SkypeLite integration with Aadhaar to verify users. Others such as TrustId and Eko are integrating rating systems into their authentication services and tracking users through platforms they create. In essence such companies are creating their own private database to track authenticated Aadhaar users which they may sell to other companies. The growth of companies that share and combine databases to profile users is an indication of the value of personal data and its centrality for both large and small companies in India.

Integrating and linking large biometrics collections to each other, which are then linked with traditional data points that private companies hold such as geolocation or phone number enables constant surveillance to take over. So far, there has been no parliamentary discussion on the role of private companies. UIDAI remains the ultimate authority in deciding the nature, level and cost of access granted to private companies. For example, there is nothing in Aadhaar Act that prevents Facebook from entering into an agreement with the Indian government to make Aadhaar mandatory to access WhatsApp or any of its other services. Facebook could also pay data brokers and aggregators to create customer profiles to add to its ever growing data points for tracking and profiling its users.

Security Risks and Liability

A series of data leakages have raised concerns about which private entities are involved, and how they handle personal and sensitive data. In February, UIDAI registered a complaint against three companies for storing and using biometric data for multiple transactions. Aadhaar numbers of over 130 million people and bank account details of about 100 million people have been publicly displayed through government portals owing to poor security practices. A recent report from Centre for Internet and Society (CIS) showed that a simple tweaking of URL query parameters of the National Social Assistance Programme (NSAP) website could unmask and display private information of a fifth of India's population.

Such data leaks pose a huge risk as compromised biometrics can never be recovered. The Aadhaar Act establishes UIDAI as the primary custodian of identity information, but is silent on the liability in case of data breaches. There is Act is also unclear about notice and remedies for victims of identity theft and financial frauds and citizens whose data has been compromised. UIDAI has continued to fix breaches upon being notified, but maintains that storage in federated databases ensures that no agency can track or profile individuals.

After almost a decade of pushing a framework for mass collection of data, the Indian government has issued guidelines to secure identity and sensitive personal data in India. The guidelines could have come earlier and given large data leaks maybe redundant. Nevertheless, it is reassuring to see practices for keeping information safe and the idea of positive informed consent being reinforced for government departments. To be clear, the guidelines are meant for government departments and private companies using or seeking to use Aadhaar for authentication, profiling and building databases fall outside its scope. With political attitudes to corporations exploiting personal information changing the world over, the stakes for establishing a framework that limits private companies commercializing personal data and tracking Indian citizens are as high as they have ever been.

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nancyedimick · 8 years ago

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Statutory damages in copyright law: “On forgetting how to read a statute”

My colleague Sam Bray, who is one of the nation’s leading remedies experts, and also someone whose judgment I very much trust, passes along this note highly recommending Prof. Tomas Gómez-Arostegui’s “What History Teaches Us About U.S. Copyright Law and Statutory Damages“:

Mark Twain said many witty things. He also didn’t say many witty things that have been attributed to him, and one of the best fake Mark Twain quotes is: “It’s not what you don’t know that gets you into trouble, but what you know for sure that ain’t so.” In a short essay published in 2013, Professor Tomás Gómez-Arostegui takes aim at one of the things we knew for sure that ain’t so about statutory damages in copyright law, namely that they were once intended to serve a strictly compensatory function. Professor Gómez-Arostegui’s essay is brief and somewhat opaquely titled (What History Teaches Us about US Copyright Law and Statutory Damages). But it is a neglected gem, and I hope this post brings it further attention from scholars of copyright, remedies and statutory interpretation.

The Copyright Act of 1909 authorized statutory damages but said they “shall not be regarded as a penalty.” To the reader now, the meaning of that clause looks plain. It means that statutory damages under the Act were not designed for punishment and deterrence, but merely for compensation. To take one example of a distinguished scholar recognizing this apparently plain meaning, Professor Shyamkrishna Balganesh referred to the clause as “seemingly endowing” statutory damages under the Act “exclusively with a compensatory dimension.” The Uneasy Case Against Copyright Trolls, 86 S. Cal. L. Rev. 723, 774 (2013).

The “shall not be regarded as a penalty” clause is no longer part of the federal statutory law on copyright, having been eliminated by the Copyright Act of 1976. But it remains important. If the 1909 Act said that statutory damages for copyright were to be purely compensatory, and the 1976 Act eliminated that restriction, then maybe statutory damages for copyright can now be punitive. In addition, some might be tempted to think of a golden age: Statutory damages were compensatory in the good old days, the argument might run, and they should be so again.

All of this seems fairly straightforward, but Gómez-Arostegui convincingly shows that it should be classified as things that just ain’t so. In fact, the clause speaks to an entirely different question than the one it seems to.

Gómez-Arostegui notes that “our first clue that something special was afoot” should be the word regard. As he puts it, “If Congress had wanted to instruct courts not to impose statutory damages in a punitive way, I suspect it would have said so directly. Using ‘regard’ to achieve that result is needlessly circuitous.”

He then recovers the critical distinction that lies behind the clause. At the time, for an interpreter of a statute, there was a threshold question: is this a penal statute or a remedial statute? If the statute were penal—that is, something like “quasi-criminal”—it was to be narrowly construed, and ambiguities were resolved in favor of the defendant. If it were remedial, it was to be broadly construed. The classification of a statute as penal had further implications, among them the fact that a court of equity could not award a penalty. Congress had reason to be concerned that its copyright statute would be classed among the “penal statutes” and thus narrowly construed.

Gómez-Arostegui also offers evidence from the legislative history. He shows that the drafters and supporters of the new copyright statute were uneasy about how courts might classify the statutory-damages provision. For example, Arthur Steuart, the chairman of the ABA’s copyright committee, had pointed out the danger that courts might consider the provision “penal in character, and therefore an interpretation may be applied to it which will be exceedingly strict and rigid” (quoted on p. 84).

With these premises in place, the conclusion follows easily. As Gómez-Arostegui says, “historical principles, coupled with the textual context and legislative history, make clear that Congress did not declare that there could be no punitive purpose. By prescribing that the remedy ‘shall not be regarded as a penalty’, Congress was simply stating that courts should not subject these awards to all the defendant-protective consequences normally associated with penal laws.”

Gómez-Arostegui’s essay is only thirteen pages, and the core of the argument is shorter still. Once stated, it may look obvious. But before Gómez-Arostegui’s essay, it was not. It is a testament to his curiosity and diligence that the penal/remedial distinction has been recovered and can now be used to understand statutory damages under the 1909 Act.

The obvious implications lie in copyright and in remedies. Perhaps statutory damages should serve only a compensatory purpose. But the 1909 offers no direct support for that proposition. Nor can the 1976 Act, which excised the “shall not be regarded as a penalty” language, be easily taken as congressional support for imposing statutory damages for punitive purposes. (What members of Congress thought they were doing when they excised the language from the 1909 Act is another question, also interesting. Yet another interesting question is whether any weaker implications about the substance of the 1909 Act can be drawn from Congress’s attempt to control its interpretation.)

Other implications about statutory interpretation more generally. These are not explored in the essay, but they may be some of the most far-reaching. The “shall not be regarded as a penalty” clause becomes a parade example of why scholars need to know the contemporaneous legal-intellectual milieu to read statutory terms. Legal scholars are of course aware that to be good readers of a legal text, we need to read it in its legal context. But that point is usually expressed in terms of relatively specific and discrete categories, such as “terms of art” and “background presumptions.”

Gómez-Arostegui’s essay is a reminder of how our appreciation for legal-intellectual context should not be reduced down to those categories. To be sure, penalty was a term of art. And there was a background presumption about how ambiguities should be resolved under a penal statute. But what drives Gómez-Arostegui’s account is not so much the meaning of the term penalty, or any specific background presumption, but rather a larger view of statute-making and statute-interpreting that was encoded in the statute. Recovering that kind of regime of legal thought is crucial to understanding many legal texts; it cannot be reduced to sleuthing for terms of art and background presumptions.

Finally, the larger view of statute-making and statute-interpreting is itself is of interest. The old canon that “remedial statutes are broadly construed” seems like pre-Realist nonsense to many scholars. (It has been called “dice-loading” and “artificial” by Justice Scalia, “arbitrary” by Judge Posner, and “useless” by Professor Sunstein.)

But the canon about remedial statutes is more intelligible when put alongside the canon of interpretation that “penal statutes are narrowly construed.” They are a pair of interpretive canons, not dueling Llewellyn-style, but working in tandem. Together they divide up all of the statutes into two kinds, instructing the interpreter about how to resolve ambiguities in each kind of statute. In this pair of canons, there may be an implicit concession of human frailty. The idea is that we can never really interpret a statute straight up, with no thumbs on the scales. If so, the beginning of wisdom would be to sort out what kind of statute is being interpreted, and where the thumb needs to be.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/02/10/statutory-damages-in-copyright-law-on-forgetting-how-to-read-a-statute/

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wolfandpravato · 8 years ago

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Statutory damages in copyright law: “On forgetting how to read a statute”

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/02/10/statutory-damages-in-copyright-law-on-forgetting-how-to-read-a-statute/

#Law #Lawyer

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