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In the historic piece "Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation," Derrick Bell, Jr. observes that "Leroy Clark has written that the black community's belief in the efficacy of litigation inhibited the development of techniques involving popular participation and control, that might have advanced school desegregation in the South." 2 91 Bell, who echoes the criticism of Civil Rights Movement leaders such as Dr. King, goes on to observe that "[t]he problem of unjust laws . . . is almost invariably a problem of distribution of political and economic power." 29 2 If We accept Bell's principle as true, then it is necessary to find productive extra-legal as well as legal approaches to anti-racist and anti-colonial resistance within the context of intellectual properties, ones which are not invested in conservative law and economics models. Following Bell's lead and his conceptualization of racial realism,293 we offer as one avenue for locating such radical approaches: decolonial theory. Addressing the structural sources of the unequal distribution of political and economic power that Bell raises as a primary cause of racial nonneutrality in law is a central goal of decolonial theory and practice, which have become increasingly central to anti-racist and anti-colonial strategy among academics and activists. While we do not mean to suggest that decolonial theory is the one right answer to reworking race and intellectual property, we maintain that its understanding of the nexus of (neo)coloniality, narratives of progress, power, and knowledge is a useful one to deploy to undo intellectual property's racial and (neo)colonial logics. Moreover, decolonial theory can be thought together with other types of critical theory, including CRT, feminism, and queer theory in order to imagine new ways of creating radical multiversalities. As such, it creates space for a complex and multifaceted engagement with race, (neo)coloniality and intellectual property that addresses the fundamental historical power dynamics that shaped laws of knowledge production. In short, it is only through the death of the (European/American) human2 94 that Others can claim their place as radical equal partners in humanity. 295

Taken together, critical race, feminist, and internationalist critiques of IP have the potential to transform the way we think of IP rights and protection. IP itself is in a period of analytical and practical turbulence, and a focus on critical perspectives can be invaluable to re-imagining an IP system that actually provides real incentives to artists at the bottom of society, rather than multi-national conglomerates concentrated across IP industries. The critical project of IP examination can provide ways to achieve racial and gender equality, rather than reinforcing unequal social constructs through the dynamics of IP protection. Critical perspectives locate IP in a social construct, just as race and gender are socially constructed.130 Therefore, IP can be re-engineered to bring about results of distributive justice and to foster norms of racial and gender equality. These results would be in keeping with the constitutional mandate of IP protection, which is designed to insure a robust marketplace of ideas, and to compensate those who add intellectual, scientific, and artistic value to society. Further, a critical examination of IP rights is consistent with a human rights perspective of IP being developed by scholars using international norms to inform IP entitlements

As I have tried to argue throughout this chapter, sampling, layering, and rhythmic ›ow/asymmetry lead hip-hop aesthetics toward ironic forms of narration and ambiguous criticisms of American culture. Intellectual property law and legal discourse, however, have historically assumed that meaning is directly correlated to the words, sounds, or images of a given text. While irony revels in ambiguity and double meanings, intellectual property law operates as if words have a distinct meaning without reference to any particular audience or cultural context. One of the primary analytical tools upon which courts have relied in copyright law is the idea/expression dichotomy.92 Thus, an author can own the expression or particularly wording of a concept, but not the concept itself, because legal discourse has determined that allowing authors to own particular articulations of an idea provides the necessary balance between innovation and property rights and between the creator and the public. This scheme functions properly as long as particular expressions denote one distinct idea. Hip-hop aesthetics challenges this assumption of copyright law because its aesthetic theory presupposes ambiguity and double meanings and carefully constructs these texts to produce these ironies through sampling, layering, and rhythmic /asymmetries. Rather than assuming that a particular text constitutes a subset or articulation of a given idea, hip-hop aesthetics turns this relationship upside down and attempts to transform a single expression into a multiplicity of ideas. For example, when Jay-Z samples from the musical Annie in his song “Hard Knock Life,” he transforms the meaning of a “hard knock life” even if copyright law required him to pay a royalty for merely copying the song. The idea/expression dichotomy breaks down when applied to hip-hop producers because their verbatim copying frequently shows how multiple ideas exist within a single expression. It is precisely this free play of ideas, which hip-hop promotes, that intellectual property law regulates and limits.

This lack of data is problematic given that empirical information is critical to develop successful strategies to attract, hire, retain, and promote women of color in the practice areas that involve copyright, patent, trademark, and related fields like privacy, technology, and innovation law. While IP attorneys can, of course, face similar racial or gender biases in their careers, there are distinctions between the experiences of women of color and their white and/or male counterparts.12 Women of color face a double dose of both race and gender bias in the workplace, which can impact them in ways that men of color or white women do not face.13

This intersectionality conundrum makes the experiences of women of color unique and necessitates a unique strategy to diversify the IP field across all related disciplines. Given this reality, diversity and inclusion efforts cannot exist in a one-size-fits-all type of vacuum. According to Dr. Arin Reeves, an expert on gender biases, diversity and inclusion efforts affect the majority of the people in that specific category.14 Under such logic, “minority” efforts largely benefit minority men, and women-specific strategies largely benefit white women.15 It is no wonder that women of color have statistically lagged behind their colleagues in terms of representation. Given this reality, quantitative data about women of color would provide better foundational context to tackle the issues revolving specifically around diversity and inclusion efforts for this uniquely situated group.

“Intellectual property’s economic structure is ‘always already’ raced,”42 because capitalism’s orientation to knowledge is always already raced. Betsy Rosenblatt, for instance, demonstrates about copyright law that “it rewards appropriation of materials perceived as primitive, raw, or ‘folk’ by purveyors of dominant culture, while punishing appropriation of materials that it associates with higher culture or views as already completed.”43 As such, copyright law operates as “the language of the colonizer.”44 Kara Swanson similarly shows about patent law that its “ideology of slavery reached into the technical bureaucracy of the patent office, an arena of law and of the administrative state frequently considered outside politics.”45 As such, patent law implicates “an ultimate claim of whiteness as intellectual property.”46 Knowledge, in both instances, is ordered in a manner that centers whiteness and its attendant estimations of the value of creation and knowledge. Trademark law too produces and entrenches visual economies of whiteness. Rosemary Coombe writes that trademarks “denied or downplayed the cultural and ethnic differences of some ‘Americans’” through “the medium of the consuming body and embodiment…of others whose claims to an American subjectivity were complicated by contemporary relations of subjugation.”47 Put differently, America’s visual culture, as constituted through trademark law, constituted whiteness as valuable by objectifying people of color. One way that the “scopic regime”48 of trademark law operated was through the articulation of people of color as primitive, i.e. from a time past. As Coombe puts it, in the late nineteenth and early twentieth centuries “we see preoccupation with the frontiers of civilization and the containment of the primitive.”49 In the sections that follow, I explore how Harjo and Blackhorse not only reinforce temporally based race discrimination by portraying Native Americans as primitive but also illustrate how the manipulation of time through legal procedure can advantage certain litigants over others, with considerable racial and colonial consequences.50

Taken together, critical race, feminist, and internationalist critiques of IP have the potential to transform the way we think of IP rights and protection. IP itself is in a period of analytical and practical turbulence, and a focus on critical perspectives can be invaluable to re-imagining an IP system that actually provides real incentives to artists at the bottom of society, rather than multi-national conglomerates concentrated across IP industries. The critical project of IP examination can provide ways to achieve racial and gender equality, rather than reinforcing unequal social constructs through the dynamics of IP protection. Critical perspectives locate IP in a social construct, just as race and gender are socially constructed.130 Therefore, IP can be re-engineered to bring about results of distributive justice and to foster norms of racial and gender equality. These results would be in keeping with the constitutional mandate of IP protection, which is designed to insure a robust marketplace of ideas, and to compensate those who add intellectual, scientific, and artistic value to society. Further, a critical examination of IP rights is consistent with a human rights perspective of IP being developed by scholars using international norms to inform IP entitlements

The idea-expression dichotomy refers to the legal fact that, per $102(b) of the Copyright Act, expression is copyrightable but ideas are not. In part due to the collection practices of folklorists, e.g., Alan Lomax, Black musical innovations have consistently been treated as raw material for the taking, i.e., musical ideas outside of the scope of copyright law and not as tangible expressions deserving of copyright protection. # For Lomax, the mere act of collecting music by pressing record on a tape machine justified credit ranging from arranger to composer on blues sound recordings.# The fixation requirement refers to the legal fact that $101 of the Copyright Act requires creative works to be "fixed in a tangible medium of expression" to be copyrightable.

Because Black musicians often built upon familiar aural traditions while being denied access to legal tools and rights, such as literacy and ownership, their artistic works tended not to be fixed in any tangible medium of expression. Moreover, because courts have created a high bar for the protection of rhythm, which is central to many Black musical traditions, they have also de facto-privileged European creatorial cultures by centering melody and decentering beats. As Even those Black creators who did fix their work in the tangible medium of the sound record-ins, as required by the Copyright Act, could not claim copyright protection until the 1970s.

Third is what may be termed “neoliberal exports of education.” I reiterate ideas advanced in previous published works (Dei, 2008, 2014, 2017b). We cannot minimize the impact of neoliberal thinking that seeks to regulate and control knowledge systems through a culture of hierarchies. Commercialization and privatization of education in the Global South have created a hierarchy of academic subjects, whereby certain academic courses and subjects are seen as more economically valuable and suitable than others. These academic courses and subjects are privileged because they bring high returns to learners who take them at school. Consequently, learners place high premiums on these courses and by so doing devalue other courses of study. Perhaps more disturbingly, this thinking has led to funding being allocated to certain fields, including hard sciences, technology, engineering and management, at the expense of the liberal arts and humanities. The value and relevance of some courses in liberal arts and humanities (e.g., classics, history and anthropology) are always questioned, even though such courses foster critical thought and contribute to ways of addressing social poverty through the pursuit of education for a “common good.” High-prestige academic courses do not always cultivate the notion of multi-centric knowing and can be informed more by the coloniality of Western science. This form of science has been a tool of colonization. Clearly, we could have educators in these subject fields critically teach the colonial underpinnings of all courses, whether in the liberal arts, humanities and social and “hard” sciences. The fact of the matter, however, is that certain subjects in a neoliberal context of productivity, consumerism, private investment for high returns and so forth are unfortunately seen as more relevant and are connected to the requirements of global capital and markets (see Dei, 2008). The commercialization of ideas within neoliberalism has consequences when these ideas are imposed on broad communities as part of a dominant discourse on the future of global knowledge economies. While innovations in the knowledge economy may be welcome, we must be critical of the emerging market place of ideas, where knowledge is commodified and sold to the detriment of social and communal values, privileging simply the sharing of ideas. Emerging tensions around intellectual and cultural property rights are a case in point. Within the new knowledge economy, there is also presumed sharing of knowledge; however, certain requirements inhibit free exchange of ideas. Understandably, these restrictions were imposed for abuses determined by the encroachment of global capital in the political economy of knowledge production. Paradoxically, while these restrictions are ostensibly for the protection of Indigenous communities and their knowledges, they serve private and corporate capital—the mechanisms and processes that appropriate, commodify and sell local cultural knowledges for profit. Take, for example, the question of control of knowledge. What are the political aims of copyright legislation? The control of intellectual property through restrictive copyright legislation reduces knowledge sharing globally. While safeguards are intended to benefit local communities and their knowledges, they actually serve corporate capital interests because it is the same corporations and colonial states that infringe upon these Indigenous and cultural protections. In a neoliberal context, those who have power and economic means dictate what is knowledge, how such knowledge should be produced and disseminated, and who should benefit from the supposed sharing of global knowledge. Certain knowledges may be outside boundaries for some (e.g., technologies of Western industrial powers that are concealed from Indigenous, African and other communities of the Global South). These knowledges are “out of bounds” because their costs are prohibitive and end with excluding others for easy access. Within neoliberalism, there is a form of marketization of knowledge that simply creates colonial exploitation and imperial domination of less powerful nations and communities. This control is aptly highlighted by restrictions on sharing generic drugs and patents between the Global North and South. In the production, interrogation and dissemination of knowledge, internally and externally, class plays out in the neoliberal arena to benefit groups differentially. Classism is perpetuated through lack of recognition, credentials or education obtained in the Global South, such that a blue-collar workforce and lower class are maintained in the Global North. Violent practices associated with child labour, forced labour, debt bondage and indentured servitude have been in the service of empire (De Genova, 2005; Sharma, 2005; Walia, 2013). Transnational corporations, with the blessing of nation-state political elites, reap huge profits by reducing costs through uncompensated labour, low wages and so forth. The interconnectedness of global capital and exploitation of gendered and racialized labour has always been a colonial practice of state and empire building. It is happening simultaneously in the Global South and North (Dei, 2016).

The law assumed the crucial task of racial classification, and accepted and embraced the then-current theories of race as biological fact. This core precept of race as a physically defined reality allowed the law to fulfill an essential function - to "parcel out social standing according to race" and to facilitate systematic discrimination by articulating "seemingly precise definitions of racial group membership.' 3 1 This allocation of race and rights continued a century after the abolition of slavery. The law relied on bounded, objective, and scientific definitions of race - what Neil Gotanda has called "historical race" 133 - to construct whiteness as not merely race, but race plus privilege. By making race determinant and the product of rationality and science, dominant and subordinate positions within the racial hierarchy were disguised as the product of natural law and biology 134 rather than as naked preferences.' 35 Whiteness as racialized privilege was then legitimated by science and was embraced in legal doctrine as "objective fact." Case law that attempted to define race frequently struggled over the precise fractional amount of Black "blood" - traceable Black ancestry - that would defeat a claim to whiteness. 136 Although the courts applied varying fractional formulas in different jurisdictions to define "Black" or, in the terms of the day, "Negro" or "colored," the law uniformly accepted the rule of hypodescent 137 - racial identity was governed by blood, and white was preferred.138

“Intellectual property’s economic structure is ‘always already’ raced,”42 because capitalism’s orientation to knowledge is always already raced. Betsy Rosenblatt, for instance, demonstrates about copyright law that “it rewards appropriation of materials perceived as primitive, raw, or ‘folk’ by purveyors of dominant culture, while punishing appropriation of materials that it associates with higher culture or views as already completed.”43 As such, copyright law operates as “the language of the colonizer.”44 Kara Swanson similarly shows about patent law that its “ideology of slavery reached into the technical bureaucracy of the patent office, an arena of law and of the administrative state frequently considered outside politics.”45 As such, patent law implicates “an ultimate claim of whiteness as intellectual property.”46 Knowledge, in both instances, is ordered in a manner that centers whiteness and its attendant estimations of the value of creation and knowledge. Trademark law too produces and entrenches visual economies of whiteness. Rosemary Coombe writes that trademarks “denied or downplayed the cultural and ethnic differences of some ‘Americans’” through “the medium of the consuming body and embodiment…of others whose claims to an American subjectivity were complicated by contemporary relations of subjugation.”47 Put differently, America’s visual culture, as constituted through trademark law, constituted whiteness as valuable by objectifying people of color. One way that the “scopic regime”48 of trademark law operated was through the articulation of people of color as primitive, i.e. from a time past. As Coombe puts it, in the late nineteenth and early twentieth centuries “we see preoccupation with the frontiers of civilization and the containment of the primitive.”49 In the sections that follow, I explore how Harjo and Blackhorse not only reinforce temporally based race discrimination by portraying Native Americans as primitive but also illustrate how the manipulation of time through legal procedure can advantage certain litigants over others, with considerable racial and colonial consequences.50

The Black body lives to die; the specter of death shadows it everywhere. What matters crucially here, in our invocation of the hyper-real, is the importance of the Symbolic. The Symbolic is what “structures the libidinal economy of civil society.”7 The Symbolic here is understood as “the representational process” that structures “the curriculum and order of knowledge” and/or “the descriptive statement of the human” in our contemporary World.8 And in this World, white symbolism is everywhere. In fact, in an anti-Black paradigm, white symbolism is everything. White symbolism over-determines itself as the Symbolic itself, and denounces anything that challenges its genre-specific mode of knowing, seeing and understanding the World. In other words, white symbolism holds a monopoly on the Symbolic in ways that operate “lawlikely so within the terms of their/our order- specific modes of adaptive cognition-for, truth-for.”9 There is no outside to whiteness, to white semiotics, to white constructs of value and reality, to white structuring of libidinal value. And for this reason, like Wilderson, “[I] am more interested in the symbolic value of Whiteness (and the absence of Blackness's value)...”10 in a world of white hyper-reality. Propter Nos 2:1 (Fall 2017) 7 If Blackness is lived in the hyper-real, then there is a hyper-intensification—an overrepresentation—of semiology that dictates the coercive violence of the Black’s (non)existence. The semiotics of White Being is the factitious fiction that simulates the entire World. White Being and black death are part of a globally blood-soaked symbolic exchange that has extended itself over the terrain of the World to such an extent that there can be no distinguishing between the Real and the Non-Real. White Being is that Being for whom ontological capacity exists, whereas the Black is the antithesis to Being, that fleshly matter whose essence is incapacity.11 If “language is the house of being,”12 as Heidegger puts it, then Blackness is trapped at the very center of White Being. Dionne Brand puts it concisely when she writes, “We are people without a translator. The language we use already contains our demise and any response contains that demise as each response emboldens and strengthens the language it hopes to undermine.”13 This abject positionality was codified through a violence so epochal that Modernity itself can be said to have been inaugurated through it. However, at the same time, “the center is, paradoxically, within the structure and outside it.”14 That black death and anti-blackness exist in this liminal positionality posits the impossible possibility of a rupture in the moment. For that which is inside the structure, only through being outside the structure, enables the possibility of both sedimentation and disorientation. Jacques Derrida writes, “The function of this center was not only to orient; balance, and organize the structure— one cannot in fact conceive of an unorganized structure—but above all to make sure that the organizing principle of the structure would limit what we might call the freeplay of the structure.”15 If black death centers the structure, then it is somewhere in the perfection and expansion of this antagonism (the inside-outside antagonism) that the cartography of gratuitous anti-Black violence is laid out. What might happen when what orients the structure becomes insurgent, attacking the structure through that which centers its very Being? What might happen if black death became weaponized in order to further limit the freeplay of the structure—the expansion of White Being? Afro-Pessimist thinkers, in favor of a diagnostic analysis, tend to veer away from the tradition of critical social theory that prescribes solutions to the analysis in the conclusion of their work. However, one finds throughout Afro-Pessimist literature a battle cry, a prophetic vision, a pulsing pessimist hope for the “end of the World.” For if Whiteness ended Worlds through its colonial simulations and violent transmutations of Africans into Blacks, then the only way out is an end to the White World. White Being is irredeemable, and so is the World it fosters. Sexton says, “In a world structured by the twin axioms of white superiority and black inferiority, of white existence and black non-existence, a world structured by a negative categorical imperative—‘above all, don’t be black’—in this world, the zero degree of transformation is the turn toward blackness, a turn toward the shame, as it were, that ‘resides in the idea that 'I am thought of as less than human.’”16 It’s only through black vigilance that the simulacra of White Being is made clear and the spectacle of Propter Nos 2:1 (Fall 2017) 8 gratuitous freedom is made visible. It is somewhere in this structural antagonism, that on the one hand conditions the possibility of the World, and on the other hand conditions the possibility of its end, its limitations, its disorientation, that we found the language to say the unsayable and do the undoable. As Frank Wilderson reminds us: Black Studies in general and Afro-Pessimism in particular present non-Black academics with more than an intellectual problem. It presents them with an existential problem. The reason is because there’s an aspect of Afro-Pessimism that we don’t talk about...which is that were you to follow it to its logical conclusion, it’s calling for the end of the world...it wants the death of everyone else in the same way that we experience our death, so that one could not liberate Blacks through Afro- Pessimism and be who one was on the other side of that. That’s the unspoken dynamic of Afro-Pessimism.

If we are engaging in a war in which the symbolic value, the semiotics of this World itself, positions “the Black as death personified, the White as personification of diversity, of life itself,”18 then resistance needs an “unspoken dynamic.” It needs a space where “words don’t go”—a form of guerrilla linguistics, a submarined syntax, an undercommon communication. Perhaps, here, where the conversation is blackened, and the theory is phobogenic, and the journal is Propter Nos, we can allow ourselves to excavate insurgent dictions still lost in the lingua franca of White Being, but full of the specter of black terror, black disorientation. If the Black is death personified, then what might happen if we weaponized our death? What might happen if we recognized the inevitability of that death? What if we began to think that the non-uniqueness of that death was an opening towards the “end of Humanity?” In The Spirit of Terrorism, Jean Baudrillard writes, “When global power monopolizes the situation to this extent, when there is such a formidable condensation of all functions in the technocratic machinery, and when no alternative form of thinking is allowed, what other way is there but a terroristic situational transfer?”19 Terrorism consists of the militaristic tactics used by those who are facing globalized White Being with asymmetrical technologies of terror, violence, intimidation and war. A terrorist is any armed vigilante willing to rupture the system of semiotics through an equally cofounding semiotic. A semiotic that returns one to the “desert of the [Black] Real”—where a “project of total disorder” is unleashed upon the semiotic system.20 Black terrorism is a violence that re-appropriates the death embedded in the Black’s ontological incapacity in order to enable the possibility of a radical capacity—gratuitous freedom. White Being itself is a decentralized onto- epistemic deployment of violence, and if violent insurgency is necessary, then the decentralized approach of the black terrorist is necessary to counter the terror of White Being. This being said, black terrorism is perhaps better understood as counter-terror terrorism. We do not have the power to end the World with life.

IN THE TWENTY-FIRST CENTURY, significant racial inequalities and anti-black violence continue to be rampant in the United States. Decades, even centuries, of political and legal struggle have deco lisle to change that fact. This chapter will argue that black Americans need new tactics and strategies for responding to the white class privilege and white supremacy that fundamentally structure the country.' They need to increase the number and type of tools in their racial justice toolkit, expanding beyond liberal faith in civil rights and white people's good intentions to cooperate with racial change. The political and legal work that black and other people of color (along with some white people) have done to eliminate antiblack racism isn't working. Pragmatists in particular need to be able to face up to that fact given that we value the practical work that ideas, concepts, and truths can do. Why then, as Calvin Warren pragmatically asks in the epigraph above, would we expect people fighting racism to keep doing the same thing? Why would anyone hope that the same failed actions and strategies would mm out any differentia the future? This kind of hope can function as a cruel optimism that "works" by keeping black people focused on the very thing that undercuts their flourishing (Warren 2015, 221).

In line with Warren's concerns, I argue that black America' hope that political struggle can achieve racial justice tends to be a harmed emotion they should avoid. I maim my case in a pragmatist spirit that opposes Comet West's influential argument for black hope In contrast to West, I contend that pragmatists and others concerned about racial injustice would do better to draw on Derrick Bell's racial realism and Warren's blank nihilism to develop alternative strategies for addressing antiblack racism In related ways, Bell and Warren urge their readers to reckon with the permanence of racism and to give up hope that additional political struggle will eliminate it. After exploring their complementary accounts, I augment them with concrete evidence from the health sciences that black hope can be physically harmful to black people, weathering their bodies nod damaging their psychosomatic health such that they are less able to withstand the inequities of anti-black racism. I conclude by arguing for the advantages of reading Bell's and Warren's claims about the permanence of racism pragmatically, that is, by assessing the truth of their claims via their effects. The result is the working hypothesis that black people will have a much greater chance of developing new practices, habits, and strategies of flourishing in an anti-black world if they no longer hope that political struggle will eliminate racism.

In community, we slip away from fixed places and practices. Fugitive convivial praxis defies infrastructures of domination, the material systems that organise and reproduce everyday life. Fugitive convivial praxis centres fluid networks of knowledge, off the radar, that may be deemed illegible or even unintelligible to the outside. The construct of fugitivity within university undercommons can grow into forms of maroon communities or acts of marronage. Rather than being simply a flight from the plantation in a literal sense, marronage refers to flight from oppressive institutions through permanent institutional reconfiguration as well as to an existential or different state of being (Ortiz ). Historical maroon practices emerged from the fragmented places, experiments, and possibilities of our future world (Gilmore ). That is, marronage refuses enslavement to ‘quite literally … change places: to destroy the geography of slavery by mixing their labour with the external world to change the world and thereby themselves’ (Gilmore , 231).

Marronage as a practice of flight becomes a significant black method of producing place. Black geographers continue to expand the concept of marronage in countering the presumed aspatial nature of black place-making (McKittrick ; McKittick and Woods ). As Wright () notes, the conversion of difficult, unruly terrains deemed too undesirable and inaccessible for governance and capital accumulation made possible maroons’ alternative ‘social and political worlds’ (1142). In university undercommons, maroon scholar communities rework the geographic refuse, collectively ally in black scholarly space, and tap into openings for fugitive convivial praxis. Such maroon communities remain tenuous as both fugitivity and marronage are still limited frames for theorising freedom. That is, fugitivity and marronage as strategies for black freedom must be considered alongside conditions of unfreedom. For example, while we were able to nurture decolonial undercurrents amongst ourselves, there was a constant re-emerging above ground in other course encounters where we had to reckon with norms, codes, and rules of the university. According to Rinaldo Walcott, ‘flight is not freedom and neither is subterfuge’ so to rethink ‘fugitivity and marronage as freedom’s violence’ is to push the work of the radical imaginary in the long emancipation or ‘freedom yet to come’ (, 107). For us, learning inside the university demands constant questioning of the illusions of power and fomenting dissent along with the (re)actualisation of life-affirming collective relationships – with one another and with Mother Earth – to see both the possibilities and the limits of fugitive convivial praxis.

Perm for the james k (black feminist music sound k). first line says poetry is good for this.

Could prolly be re-worded to be a warrant for non-black people advocating this aff---has lines about how poetry as performance puts demands on the reader that are usually only placed onto black people, which is good because it makes them “question their choices.”

While scholars in a variety of disciplines have begun to work through the histories of intellectual property and race in particular instances, a great deal more work needs to be done in theorizing how copyrights, patents, and trademarks have played important roles in racial formation, how their racial scripts evolve and pervade public culture, in discursive and material ways, and how political economy is tied up with questions of race. Coming to grips with intellectual property law’s stubborn doctrinal and discursive resistance to creating narrative space for non-white creators and their full personhood renders legible those discourses that subtly but persistently normalize Enlightenment views of creatorship, infringement, and concomitantly race. In the United States and globally, the struggle over creating equitable intellectual property law is a struggle about the ways in which Americans imagine, feel, and commodify knowledge in intersectionally raced and (neo)colonial ways.

Reimagining intellectual property through the lens of decoloniality is also a rhetorical project, one in which a developing theory of Critical Race IP can assist. The examples of Prince’s name change, Lynch’s Beast Mode®, decolonial vernacular in the Yoga Wars, and dewesternization through the TKDL demonstrate the broad spectrum of resistive performances and practices through which people of color remake notions of creatorship, citizenship, and personhood. They also concretize decoloniality in ways that are helpful for thinking about praxis in all its material realities.

In the historic piece "Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation," Derrick Bell, Jr. observes that "Leroy Clark has written that the black community's belief in the efficacy of litigation inhibited the development of techniques involving popular participation and control, that might have advanced school desegregation in the South." 2 91 Bell, who echoes the criticism of Civil Rights Movement leaders such as Dr. King, goes on to observe that "[t]he problem of unjust laws . . . is almost invariably a problem of distribution of political and economic power." 29 2 If We accept Bell's principle as true, then it is necessary to find productive extra-legal as well as legal approaches to anti-racist and anti-colonial resistance within the context of intellectual properties, ones which are not invested in conservative law and economics models. Following Bell's lead and his conceptualization of racial realism,293 we offer as one avenue for locating such radical approaches: decolonial theory. Addressing the structural sources of the unequal distribution of political and economic power that Bell raises as a primary cause of racial nonneutrality in law is a central goal of decolonial theory and practice, which have become increasingly central to anti-racist and anti-colonial strategy among academics and activists. While we do not mean to suggest that decolonial theory is the one right answer to reworking race and intellectual property, we maintain that its understanding of the nexus of (neo)coloniality, narratives of progress, power, and knowledge is a useful one to deploy to undo intellectual property's racial and (neo)colonial logics. Moreover, decolonial theory can be thought together with other types of critical theory, including CRT, feminism, and queer theory in order to imagine new ways of creating radical multiversalities. As such, it creates space for a complex and multifaceted engagement with race, (neo)coloniality and intellectual property that addresses the fundamental historical power dynamics that shaped laws of knowledge production. In short, it is only through the death of the (European/American) human2 94 that Others can claim their place as radical equal partners in humanity. 295

As each of the themes that we highlight demonstrates, intellectual property law, as much as law more generally, is about crafting narratives which are implicitly or explicitly racialized. Whether through understandings of intellectual property which marginalize people of color by emphasizing labor as creativity,183 narratives of piracy which characterize those in the developing world as thieves,1 84 or stories of the public domain which erase colonial histories,' 8 5 copyright, trademark, patent, right of publicity, trade secret, and unfair competition law are rife with normative racial discourses of creation. One important function of Critical Race IP scholarship is to render visible through counter-storytelling those narratives that animate intellectual property law's non-neutrality around race. Engaging the underlying characters, plots, and values these stories endorse is a vital step in undoing intellectual property's whiteness. Moreover, we might also read creative works and embodied performances as part of the practice of speaking back to intellectual property law, in the tradition of the legal fiction of scholars such as Derrick Bell and Richard Delgado.1 86 For instance, 2 Live Crew's "Pretty Woman," Biz Markie's "Alone Again," and Randall's The Wind Done Gone function as their own types of counterstorytelling, operating as "sites of memory" 187 for alternative intellectual property truths. As Schur argues in Parodies of Ownership, African American performance, including hip hop and parody, operates as both powerful critique and pragmatic remaking of intellectual property law.' 8 8 Counter-stories need not be literary or musical. For instance, protests against Crazy Horse liquor1 89 and Marshawn Lynch's trademarking of the nickname BeastMode' 90 might be read as embodied and performative practices of storytelling, which both assert different epistemological standpoints than those in dominant culture. Each standpoint is used to understand knowledge production and critique the historical exclusion of people of color, particularly black people, from the privileges of intellectual property ownership. Exploring the role of storytelling in knowledge production, in forms that both comport with and break from those traditionally accepted in the academy, is a productive goal for Critical Race IP, and builds upon a long history in CRT. Storytelling is a practice that has been and remains important to Critical Race IP, as a mechanism for locating the voices of marginalized groups and centering them in legal contexts that otherwise erase them.

This lack of data is problematic given that empirical information is critical to develop successful strategies to attract, hire, retain, and promote women of color in the practice areas that involve copyright, patent, trademark, and related fields like privacy, technology, and innovation law. While IP attorneys can, of course, face similar racial or gender biases in their careers, there are distinctions between the experiences of women of color and their white and/or male counterparts. Women of color face a double dose of both race and gender bias in the workplace, which can impact them in ways that men of color or white women do not face.

This intersectionality conundrum makes the experiences of women of color unique and necessitates a unique strategy to diversify the IP field across all related disciplines. Given this reality, diversity and inclusion efforts cannot exist in a one-size-fits-all type of vacuum. According to Dr. Arin Reeves, an expert on gender biases, diversity and inclusion efforts affect the majority of the people in that specific category. Under such logic, “minority” efforts largely benefit minority men, and women-specific strategies largely benefit white women. It is no wonder that women of color have statistically lagged behind their colleagues in terms of representation. Given this reality, quantitative data about women of color would provide better foundational context to tackle the issues revolving specifically around diversity and inclusion efforts for this uniquely situated group.

Modern theories of property reject the assumption that property is "objectively definable or identifiable, apart from social context. ' 75 Charles Reich's ground-breaking work, The New Property,76 was an early effort to focus on the function of property and note the changing social relations reflected and constructed by new forms of property derived from the government. 77 Property in this broader sense encompassed jobs, entitlements, occupational licenses, contracts, subsidies, and indeed a whole host of intangibles that are the product of labor, time, and creativity, such as intellectual property, business goodwill, and enhanced earning potential from graduate degrees.78 Notwithstanding the dilution of new property since Goldberg v. Kelly79 and its progeny80 as well as continued attacks on the concept,81 the legacy of new property infuses the concept of property with questions of power, selection, and allocation. Reich's argument that property is not a natural right but a construction by society8 2 resonates in current theories of property that describe the allocation of property rights as a series of choices. This construction directs attention toward issues of relative power and social relations inherent in any definition of property. 3. Property and Expectations. - "Property is nothing but the basis of expectation," according to Bentham, "consist[ing] in an established expectation, in the persuasion of being able to draw such and such advantage from the thing possessed."8 3 The relationship between expectations and property remains highly significant,8 4 as the law "has recognized and protected even the expectation of rights as actual legal property. 8 5 This theory does not suggest that all value8 6 or all expectations give rise to property,8 7 but those expectations in tangible or intangible things that are valued and protected by the law are property. In fact, the difficulty lies not in identifying expectations as a part of property, but in distinguishing which expectations are reasonable and therefore merit the protection of the law as property.8 8 Although the existence of certain property rights may seem self-evident and the protection of certain expectations may seem essential for social stability,89 property is a legal construct by which selected private interests are protected and upheld. In creating property "rights," the law draws boundaries and enforces or reorders existing regimes of power. 90 The inequalities that are produced and reproduced are not givens or inevitabilities, but rather are conscious selections regarding the structuring of social relations. In this sense, it is contended that property rights and interests are not "natural," but are "creation[s] of law."91 In a society structured on racial subordination, white privilege became an expectation and, to apply Margaret Radin's concept, whiteness became the quintessential property for personhood. 92 The law constructed "whiteness" as an objective fact, although in reality it is an ideological proposition imposed through subordination. This move is the central feature of "reification": "Its basis is that a relation between people takes on the character of a thing and thus acquires a 'phantom objectivity,' an autonomy that seems so strictly rational and all-embracing as to conceal every trace of its fundamental nature: the relation between people." 93 Whiteness was an "object" over which continued control was - and is - expected. The protection of these expectations is central because, as Radin notes: "If an object you now control is bound up in your future plans or in your anticipation of your future self, and it is partly these plans for your own continuity that make you a person, then your personhood depends on the realization of these expectations.

Modern theories of property reject the assumption that property is "objectively definable or identifiable, apart from social context. ' 75 Charles Reich's ground-breaking work, The New Property,76 was an early effort to focus on the function of property and note the changing social relations reflected and constructed by new forms of property derived from the government. 77 Property in this broader sense encompassed jobs, entitlements, occupational licenses, contracts, subsidies, and indeed a whole host of intangibles that are the product of labor, time, and creativity, such as intellectual property, business goodwill, and enhanced earning potential from graduate degrees.78 Notwithstanding the dilution of new property since Goldberg v. Kelly79 and its progeny80 as well as continued attacks on the concept,81 the legacy of new property infuses the concept of property with questions of power, selection, and allocation. Reich's argument that property is not a natural right but a construction by society8 2 resonates in current theories of property that describe the allocation of property rights as a series of choices. This construction directs attention toward issues of relative power and social relations inherent in any definition of property. 3. Property and Expectations. - "Property is nothing but the basis of expectation," according to Bentham, "consist[ing] in an established expectation, in the persuasion of being able to draw such and such advantage from the thing possessed."8 3 The relationship between expectations and property remains highly significant,8 4 as the law "has recognized and protected even the expectation of rights as actual legal property. 8 5 This theory does not suggest that all value8 6 or all expectations give rise to property,8 7 but those expectations in tangible or intangible things that are valued and protected by the law are property. In fact, the difficulty lies not in identifying expectations as a part of property, but in distinguishing which expectations are reasonable and therefore merit the protection of the law as property.8 8 Although the existence of certain property rights may seem self-evident and the protection of certain expectations may seem essential for social stability,89 property is a legal construct by which selected private interests are protected and upheld. In creating property "rights," the law draws boundaries and enforces or reorders existing regimes of power. 90 The inequalities that are produced and reproduced are not givens or inevitabilities, but rather are conscious selections regarding the structuring of social relations. In this sense, it is contended that property rights and interests are not "natural," but are "creation[s] of law."91 In a society structured on racial subordination, white privilege became an expectation and, to apply Margaret Radin's concept, whiteness became the quintessential property for personhood. 92 The law constructed "whiteness" as an objective fact, although in reality it is an ideological proposition imposed through subordination. This move is the central feature of "reification": "Its basis is that a relation between people takes on the character of a thing and thus acquires a 'phantom objectivity,' an autonomy that seems so strictly rational and all-embracing as to conceal every trace of its fundamental nature: the relation between people." 93 Whiteness was an "object" over which continued control was - and is - expected. The protection of these expectations is central because, as Radin notes: "If an object you now control is bound up in your future plans or in your anticipation of your future self, and it is partly these plans for your own continuity that make you a person, then your personhood depends on the realization of these expectations.