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Further, the presumption of market power is gone, and today patents are regarded in most cases as no more indicative of monopoly power than are land titles or other tangible property interests.

Both antitrust policy and patent policy are properly concerned with economic welfare, although the concerns are articulated more clearly in antitrust than in patent law. At the atmospheric level, antitrust focuses on the short run, including such things as immediate pricing and output, while patent law is concerned with long run issues relating to innovation. But upon inspection this dichotomy quickly breaks down. In fact, antitrust policy has always been concerned with performance over both the short and long runs and often considers effects on innovation.

Innovation competition plays an increasingly important role in the economy, displacing more traditional forms of price competition. Antitrust enforcement has recognized these developments and increased its focus on technological change. Antitrust policy makers are placing greater emphasis on innovation in evaluating competitive conduct, licensing of intellectual property (IP), and mergers. The issue is whether antitrust policy makers have the right tools for the job. Incorrect economic analysis of innovation competition risks impeding competition, mischaracterizing anticompetitive activities, and discouraging welfare-enhancing innovation. In this article, I point out that economic frameworks applied by antitrust policy makers have not kept up with the growth of innovation competition. I find that antitrust policy makers need to update their economic frameworks to evaluate competitive and anticompetitive conduct when there is innovation competition. I argue that antitrust policy makers should take advantage of significant developments in the Economics of Technology & Innovation that address the rise of innovation competition.

Innovation has become the dominant mode of competition, driving greater antitrust scrutiny of innovation. What I have termed the ‘Business Revolution’ is driving digital automation of retail, wholesale, finance, supply chains, manufacturing, services, technology transfers, and other transactions.1 Digital platforms are improving the efficiency of transactions and creating new markets yet are raising concerns about privacy and exclusion.2 Companies engaged in innovation competition continue to shift investment from plant and equipment toward invention and innovation. Intangible assets’ contribution to the market value of leading publicly traded companies overshadows that of tangible assets, expanding from only 15 per cent of their value in the 1970s to over 90 per cent of their value.3 A large part of the economy participates in the production and distribution of knowledge.4 The number of specialized scientific and technical personnel engaged in Research and Development (R&D) is expanding rapidly.5 Nearly every part of the economy benefits from advances in general purpose technologies (GPTs) such as Information and Communications Technology (ICT), mobile and broadband communications, artificial intelligence (AI), cloud computing, processing of big data, virtual and enhanced reality, robotics, Additive Manufacturing (AM), and the Internet of Things (IoT).6

We write in praise of market disrupters—firms that shake up the status quo, threaten incumbent firms, and sometimes transform entire industries. Through this process, which Joseph Schumpeter famously called “creative destruction,” disruptive firms promote economic growth and bring the benefits of new technologies and new business practices and business models to consumers.

We focus on the impact of antitrust policy—known globally as competition policy—on innovation.1 Competition policy seeks to protect and promote a vigorous competitive process by which new ideas are transformed into realized consumer benefits. In this fundamental way, competition spurs innovation. The productivity and growth literature teach us that innovation is the primary driver of rising standards of living over time, so promoting innovation through effective competition policy is likely to be very consequential for economic growth and welfare.

The previous two Parts examined the existing sources of regulatory authority in the patent context--the PTO, the ITC, and the Federal Circuit--to create a hierarchy of potentially anticompetitive patent activities, categorizing them based on the degree to which they are already under patent-specific supervision. Where that alternative supervision exists, as the Credit Suisse Court recognized, the benefits of overlapping antitrust intervention are marginal. Of equal--if not greater--concern, however, are the costs of overlapping antitrust intervention.

The bulk of the Court's analysis in Credit Suisse was dedicated to calculating those costs in the securities context. Due to the "fine, complex, detailed line" separating activity the SEC permits and activity the SEC forbids, the "contradictory inferences" that might arise from identical behavior, the "need for securities-related expertise" in adjudication, the "risk of inconsistent court results," and the danger of permitting plaintiffs to "dress what is essentially a securities complaint in antitrust clothing," the Credit Suisse Court determined that "antitrust courts are likely to make unusually serious mistakes" where they intervene with securities law. 193 As a result, the Court stated, permitting antitrust law and securities law to overlap would likely "produce conflicting guidance, requirements, duties, privileges, or standards of conduct." 194 This Part extends that analysis to the patent context where the costs are equally substantial. Each of the above concerns is just as pressing in the patent sphere--if not moreso.

The real aim of antitrust law, then, is to curb excessive economic and political power of business. Yet the original legislation made only the restraint of trade illegal. Finding this too vague, the courts compelled Congress - in 1914, 1936 and 1950 - to spell out unlawful market practices, but always without reference to the exercise of power. Thus, in practice, antitrust policy has been used to ensure the free entry of competitors into all markets.

While Milton Friedman opposed antitrust because it creates bureaucracy, most of the opposition to it has rested on the claim that it penalises the best for being the best. University of Chicago economists and legal scholars, such as Robert Bork, convinced the courts that the real intent of the Sherman Antitrust Act was to enhance consumer welfare. The only relevant problem is the short-term market price - not market power. Monopoly power and business practices do not matter if a firm is the best and offers products at prices and qualities that benefit consumers.

On October 31, 2022, a federal court stunned the legal and publishing worlds when it sided with the U.S. Department of Justice and blocked the planned acquisition of publishing house Simon & Schuster by the book behemoth Penguin Random House.1 Just a little under a month later, the deal officially collapsed, “paus[ing] consolidation in an industry that has been profoundly reshaped by mergers and acquisitions, with little regulatory intervention.”2 For the publishing world, the court’s order—and the decision by Simon & Schuster’s parent company to terminate the deal rather than seek an appeal of the court order—broke a pattern of rapid consolidation in a deeply concentrated landscape that had dwindled to just five publishers.3 For the legal world, the DOJ’s win marked a rare victory for the new antitrust movement: regulators actively seeking to reform antitrust law away from what they argued was a narrow focus on consumer pricing, toward an expansive, mostly untested interpretation of the law that protected labor markets and curbed corporate power.4

More broadly, the decision was that rare collision between antitrust law and the deeply consolidated copyright-content industries, which many have long acknowledged but about which little has been done.5 Yet, to date, scholars have generally viewed copyright and antitrust as working independently of each other, theorizing that copyright law itself might regulate competition amongst firms through specific mechanisms like safe harbors and compulsory licenses, and in cases of extreme anticompetitive conduct, that antitrust law can step in and regulate discrete antitrust harms like price-fixing.6 But, as this Article argues, neither copyright nor antitrust law alone has been sufficient for addressing the immense concentration of the copyright industries or the anticompetitive practices of new, large technology companies.

"The unprecedented is necessarily unrecognisable. When we encounter something unprecedented, we automatically interpret it through the lenses of familiar categories, thereby rendering invisible precisely that which is unprecedented."

Shoshana Zuboff, The Age of Surveillance Capitalism2

How does antitrust law enforcement against the anticompetitive effect of a firm’s consolidation of patents shape innovation? This inquiry is at the crossroads of the antitrust and patent policy domains; thus, the answer is deemed crucial to a comprehensive understanding of how interactions between the two institutions shape innovation. However, existing studies seem to have provided only clues and limitations. Whether a stronger market competition drives innovation (Aghion et al., 2005; Arrow, 1962; Schumpeter, 1942) remains unclear. Meanwhile, there has been a sharp scholarly disagreement with mixed empirical findings on whether stronger patent protection promotes innovation (Hall and Ziedonis, 2001; Kortum and Lerner, 1997; Sakakibara and Branstetter, 2001). In antitrust law scholarship, questions about antitrust law’s relation to innovation (Khan, 2016), and the conditions under which the enforcement of antitrust laws shape market competition and innovation have drawn scholarly attention but with limited empirical evidence (Katz and Shelanski, 2005; Sidak and Teece, 2009). The present study explores a part of the answers to the foregoing question by examining the effect of antitrust regulation of patent consolidations on the creation of follow-on innovations. Firms can consolidate patents in two ways: (1) preemptive patenting through internal research and development (R&D) and A (2) purchasing existing patents (i.e., patent transfers). Preemptive patenting helps dominant players maintain their monopolistic market power (Gilbert and Newbery, 1982); this does not violate antitrust law (see, Gilbert, 1987). Meanwhile, patent consolidation by patent transfer can restrict access to upstream technology (Figueroa and Serrano, 2019; Hahn, 1984) by downstream innovators and deter their market entry (Gotts and Sher, 2012; Ziedonis, 2004); such consolidations may violate antitrust law. The latter case is the scope of this study. By reconciling the literature on patent pools and the role of patents in cumulative innovation, we hypothesize the negative effect of a firm’s patent consolidation on its competitors’ follow-on innovations and market competition in a sector where innovation is created in a highly cumulative manner. This holds if the patent-consolidating firm amasses patents for upstream technologies that are substitutes for technologies it already owns. In that case, antitrust regulation of patent consolidation is anticipated to positively affect the creation of follow-on innovations by the patent-consolidating firm’s competitors. We empirically test this hypothesis by analyzing the intervention by the US Department of Justice (DOJ) in transfers of Linux-related patents by Novell—an open-source software (OSS) company—to a consortium of four large proprietary software companies in 2011. The consortium, which comprises Microsoft (MS), Oracle, EMC, and Apple, was known as CPTN Holdings (CPTN). Because Novell’s patents were crucial to Linux software development, while the patent-consolidating firms’ products were in fierce market competition with the Linux-based software, the patent transfers could discourage software market competition. The DOJ intervened in response to antitrust concerns about this patent transfer deal. The intervention was intended to regulate the transfer of patents to MS rather than banning the entire patent transfer. Some Novell patents could (or could not) be transferred to the other three software companies (i.e., Oracle, EMC, and Apple) because of this partial regulation. By exploiting the fact that DOJ intervention was triggered by details of the patent transfer deal that were disclosed by the German federal antitrust authority, we identify the causal impact of the regulation of patent transfers. Our analyses using patent citation, copyright, and trademark data show the positive effect of the antitrust regulation of Novell’s patent transfers on the development of follow-on innovations by the patent-consolidating firms’ competitors. By empirically examining how antitrust regulation of patent-enabled monopolies affects follow-on innovations, this study advances the broad policy discussion on interactions between antitrust and patent laws become relevant to innovation. As intensively discussed by scholars (Katz and Shelanski, 2005; Sidak and Teece, 2009), the necessity of incorporating “technological innovation” into modern antitrust law by accounting for the Schumpeterian perspective has received increasing recognition from the antitrust law community. The Schumpeterian view posits that market competition and technological innovation are mutually and dynamically influenced in the so-called “innovation cycle.” Firms that are not dominant market players may enjoy monopolistic market profits through future innovation. In contrast, a dominant market player may lose its monopolistic market position due to a competitor’s innovation. The dynamics create therein incentives for firms to innovate. This scholarship leads to the important question of how antitrust law jointly shapes market competition and innovation. Our study contributes to this discussion by empirically showing that “patent consolidation” by firms is a venue where enforcement of antitrust law promotes market competition and technological innovation. The remainder of this paper is structured as follows. Section 2 reviews the literature on patent pools and cumulative innovation to derive our main hypothesis. Section 3 describes the data and methods for empirical analysis. Section 4 presents the findings, and Section 5 discusses the implications.

In The Ethics of Opting Out: Queer Theory’s Defiant Subjects, which was released in the spring of 2017, I put pressure on these theories on several levels, of which I’ll merely mention one, namely that I think that something essential gets lost in translation when American queer theorists appropriate 20th-century French critiques of the so-called humanist subject. It is true that Lacan, Foucault, and Deleuze and Guattari were all highly critical of the notion of the sovereign, autonomous, and agentic subject that we have inherited from Western philosophy in part because they, like earlier thinkers such as Adorno and Levinas, saw the connection between this subject and violence; they understood that this subject’s quest for selfmastery was linked to its quest to master the world, and that the results were disastrous, ranging from slavery and colonialism to Nazi Germany. However, I do not think that continental theorists, generally speaking, sought to destroy the subject as such. Instead, they were interested in what subjectivity might look like after the collapse of the arrogant humanist subject. They wanted to destabilize this subject, to undermine its sovereignty, challenge its autonomy, and dilute its agency. Yes, there was much talk about the subversion of the subject, desubjectivation, and even, in the case of Deleuze and Guattari, of pulverizing the subject. But, ultimately, there was also an idealistic reaching for an alternative, for a subjectivity that would be less sure of itself and therefore more capacious, creative, and open to otherness. Undoubtedly, some of this idealism persists in even the most negative of queer theories in the sense that their negativity usually contains utopian longings. However, I think that queer theory’s flagella tion of the sovereign, autonomous, and agentic subject is by now so ritualistic, undertaken in such a habitual manner, that it has become too predictable to be genuinely critical. I of course understand why it is happening. Particularly now that we are watching President Trump and his corporate allies parade on the political stage, it is easy to recognize the figure of the white-straight-masculinist, self-contained, self-satisfied, and self-confident subject that posthumanist theorists have criticized for decades. But I think that a distinction needs to be drawn between the Trumps of the world and the vast majority of the world’s population. In other words, I think that the call to annihilate (q uq) “the subject” misfires when it is indiscriminate, for when it is generalized, it becomes aimed at individuals who have never come anywhere near to approximating the sovereign subject. That is, it seems to me that the last thing that those who have been dispossessed by social inequalities such as homophobia, sexism, racism, poverty, or neocolonialism need is further dispossession; self-annihilation cannot possibly be a goal for those who already feel annihilated by structural violence, who already lead precarious lives. Likewise, I have a hard time imagining that those who have experienced various forms of Halberstamian failure, for instance those who are unemployed or cutting themselves, view these experiences as sexy forms of political rebellion. Halberstam’s queer art of failure is arguably written from the perspective of those who have already succeeded. Likewise, queer theory’s calls for self-annihilation assume that there is a self to annihilate to begin with. Against this backdrop, Darieck Scott’s Extravagant Abjection: Blackness, Power, and Sexuality in the African American Literary Imagination is an important corrective.

In constructing their arguments, Dolan and Muñoz both turn to philosopher Ernst Bloch's account of the 'anticipatory illumination' of art to theorise 'never finished gestures towards a potentially better future' (Dolan 2005: 8) that might help us to 'combat the force of political pessimism' (Muñoz 2009: 4). Variously translated as 'ontological anticipation' and 'pre-appearance', this concept expresses Bloch's belief 'that it is somehow possible to experience a kind of foreglow of future possibilities' (Geoghegan 2008: 37) in a manner which is both objective and open. Bloch's account of hope, in other words, evades the traps of both wishful thinking and leaden pragmatism to figure a realism which is not constrained by what has come before. In elaborating this idea, Muñoz draws on Agamben's extended exploration of potentiality as something which is 'present but not actually existing in the present tense' having instead the quality of ‘a trace or potential that exists or lingers after a performance' (Muñoz 2009: 99). For Agamben, potentiality 'conserves' itself even after an event is actualised: it is not 'used up' by any given iteration but extends beyond itself, much as thinking does not exhaust thought (see Cooke 2005: 184). Accordingly, reading for potentiality involves 'scouting for a "not here" or "not now" in the performance that suggests a futurity' (Muñoz 2009: 99) – that is, a willingness to look beyond what is most immediately present in favour of that which signals what might be in the future. A difficulty with this account is how Muñoz's emphasis on 'not here' and 'not now' and Dolan's insistence on transience as a condition of performative efficacy may serve to constrain recognition of what might be accomplished – and sustained – in the present, while effacing how potentiality's persistent trace may itself constitute the ongoing existence of different worlds beyond hegemonic order. Such an account lends itself to a worldview in which ruling conditions are given to be so overwhelmingly dominant as to make alternatives in the here and now an impossibility. Whatever we might glimpse as 'extra to the everyday transaction of heteronormative capitalism' (Muñoz 2009: 22) cannot be grasped in the everyday without falling into the trap of complacency, reinforcing hegemonic terms for being or investing in neoliberalism's promise of a 'better future' as grounds for privation and sacrifice in the present. This tendency is more sharply articulated in Lee Edelman's No Future: Queer Theory and the Death Drive (2004) where the susceptibility of queerness to normalisation through the logic of reproductive futurity becomes an inevitability and in which, as Michael Snediker observes, the ubiquity of 'always' and ‘every' in Edelman's argument would seem to make the world 'so irrevocably one thing that response to the world would amount to one thing' (Snediker 2009: 24). Are futurity and the possibilities of the here and now unthinkable except on these narrow terms? Might the potentiality of performance - and the 'certain surplus' that is for Muñoz peculiar to queer performance - indicate something other than or, crucially, as well as a vanishing over the horizon? In response, my readings of performance in this final chapter are informed by what Lloyd Pratt identifies in his analysis of novelist Eudora Welty as a 'condition of radical present-tenseness that subordinates to the future and the past, and which favors a committed attention to what is most clearly now' (2011: 200). Grounded in a close reading of the instant as it unfolds, such a stance is ‘neither unduly grim and retrospective nor jolly and hopeful without cause' but instead involves ‘a form of immanent particularity, which opens onto nothing other than the truth of the present' (Pratt 2011: 200). Beginning with Deborah Pearson's The Future Show, Ivana Müller's 60 Minutes of Opportunism and Duncan Macmillan's Every Brilliant Thing – each of which address the uncertain relationship between past, present and future - I consider how performance might elaborate an understanding of optimism's potentiality as a state of being and not-being, and doing and not-doing. While each work narrates an attachment to the possibility of a future, they also describe how the labour of making oneself present to and for others through performance involves a paradoxical vanishing act wherein optimism registers as an equivocal if not deeply ambivalent attachment to futurity. Structured by attempts to imagine the future in its relation to a persistent present, each of these works elaborates how the figure of the optimist might embody a critique of the conditions in which we find ourselves without reserving the possibility of alternatives to another where and another when. Such a critique does not privilege hope over hopelessness but draws attention to how the potential of what Robyn Wiegman describes as 'small worlds of sustenance that cultivate a different present and future' (2014: 11) involves the attempt to be present in the present, for the present. In the second part of the chapter I explore three further performances - FK Alexander's (I Could Go On Singing) Over The Rainbow, Rosana Cade's Walking:Holding and Nando Messias' The Sissy's Progress - as works which elaborate how the optimist's insistence on the here and now does not model heroic resilience but instead invokes vulnerability as the means by which an ethics of interpersonal relations might be forged apart from neoliberalism's preference for responsible future-oriented and ultimately paranoid prediction. Such an ethics centred on our constitutive exposure to one another – is not straightforwardly affirmative, and invites recognition of the contingent qualities of any claim on the future as a remedy to deleterious uncertainty, or social injustice. Characterised by an attentiveness to the possibilities and consequences of life lived beyond its most normative parameters, it articulates a politics which understands that the world as we know it can be different because other worlds already exist.

Alexander and Rhodes, Kopelson, and Waite’s observations about composition can be similarly attached to her big sister, rhetoric. That is, much like queer composition exists in an impossible relation to crystalized pedagogical norms, the rhetorical work of queers queering queerly similarly limits its attachments through resisting, by default, the often unnamed and dematerialized “normative.” And while I certainly do not discount the importance of resisting dangerously oppressive institutions and practices, what I find impossible about queer rhetoric is the discursive cage in which it has locked itself. For example, Anthony Slagle demands, “Any queer framework must pose critical questions that help us to understand the role of difference in the construction of messages” (131). In “Queer Rhetoric and the Pleasures of the Archive,” Alexander and Rhodes suggest, “Queer rhetoric names a constellation of discursive practices that emerge at different times for different groups in order to articulate resistance to regimes of sexualized normalization.” More recently, William P. Banks, Matthew B. Cox, and Caroline Dadas offer this definition: Queer rhetorics begin with the assumption that critique—the calling out of language as language—represents an initial and important destabilization of meaning, not to prevent meaning or to pretend that meaning cannot be made but to ask why this meaning at this time and under these circumstances: these are fundamentally rhetorical questions. (11) What do we do after we pose our “critical questions?” Who is responsible for identifying the “regimes of sexual normalization?” How do bodies survive beyond the hearing and feeling and experiencing of not violent languaging but the destabilization of reality which follows? Is there a there there beyond the resistance of the there that is said to be there? Much like queer theory—the formalized, interdisciplinary academic pursuit—queer rhetorics have bonded themselves so stringently to antinormative resistance vis-à-vis the discursive impulse that their actionability is dulled to inaction. And we know this. Across their oeuvre, Alexander and Rhodes acknowledge that scholarship in queer rhetoric, composition, literacy, etc. “remains relatively sparse and under-read” (“Impossible” 178; “Queer Rhetoric”). Looking at the discursive limitations in both academic and activist rhetorics, Erin Rand confirms the danger of fetishizing resistance and antinormativity: “Clutching resistance too tightly, we are in jeopardy of foreclosing the queerness that inhabits agency as its founding condition” (169). Nevertheless, such foreclosures are apparent through the still marginalized rhetorical scholarship that approaches queer. There is, of course, a further complication. Queer theory struggled, for the past two decades, between the antisocial/antirelational thesis and relational queer utopianism. The back and forth between scholars such as Lee Edelman, the posterchild of antisocial queer theory, and José Esteban Muñoz, queer of color ancestor, is so legendary and well-documented that a rehearsal of their debates seems superfluous. But, for those keeping score, Muñoz and the relational queer utopians won that war. The complication for queer rhetorics, however, is that so much of the work we do as queer rhetoricians is still dominated by the discursive tenets of the antisocial thesis that our invocation of Muñoz, other queer and feminist of color theorists, or any scholar challenging pessimistic critique becomes dematerialized. An issue, therefore, arises not because rhetoricians ignore relational queer utopianism—since Cruising Utopia’s 2009 publication, for example, queer rhetorics scholarship very rarely does not invoke Muñoz’s encouragement to think of queerness as horizon … not yet here— but that we leave the work of the then and there for another time and for someone else (often communities of color) … not yet here. Scholars like Karma R. Chávez and Eujung Kim, among others, warn us that aiming critique solely toward our pasts and action solely toward our futures collapses the much-needed material work of the present. Even so, many of us in queer rhetorics and queer studies, writ large, (yes, I’m including myself in this collective) continuously fall into paranoid readings that allow loud proclamations against, against, against normative structures without trying to (or perhaps knowing how to) turn our words into action. We, by nature of our pessimistic orientations, drown in critique. Thus, queer is an impossible subject for rhetoric precisely because of the ways we currently dematerialize and discursively limit both “queer” and “rhetoric” through pessimistic/paranoid scholarship. From this charge, let me suggest three supporting claims and, more importantly, corresponding questions for further inquiry. First, “queer” and “rhetoric,” in their historic and current formations, demonstrate different desires and are desired differently. Queer, as mentioned above and explained further below, is so tied up in discourses of antinormativity that nearly every political project can be deemed insignificantly queer if strategic essentialism or non-apparent disidentifications are engaged for communal advancement. Rhetoric, as the art of persuasion, is always about the work of normalization. Even radically progressive rhetorics rely on the power of normalization as a goal of persuasion insofar as any persuasive intention is the intention to make practices acceptable and common among communities. What might happen if we refuse, in the tradition of radical Black feminism, the binary of normative/antinormative (read: rhetoric/queer)? Second, “queer” and “rhetoric” are both de-materialized by discursive traditions of critique/criticism and a “hermeneutics of suspicion.” Eve Kosofsky Sedgwick famously outlines the paranoid tendencies of queer reading, and her observations can (should!) be mapped onto contemporary rhetorical criticism. Sedgwick—and those who continue her project suggest that the revelation of violent knowledges does not necessarily demand action on the part of the person to whom violence is revealed: “What is the basis for assuming that it will surprise or disturb, never mind motivate, anyone to learn that a given social manifestation is artificial, self-contradictory, imitative, phantasmatic, or even violent?” (141). Even when attempting to engage in the generative work of affect and relational queer utopianism, we too often find ourselves raging against the normative. In expending our energies on being against, against, against, queer rhetoricians are left with tepid gestures toward complex radical potentialities. What becomes possible if we reconsider material-discursive structures when attending to the rhetorical affects of queer? Third, queer (and most definitely its uptake in rhetoric/composition/literacy/etc.) remains enamored of the addressing/redressing/exploding the subject–object divide of Western liberalism. Tragically, this is another example of the us falling into either/or/and the most obvious trap, the second most obvious trap, or the third most obvious trap. Either we, like good poststructuralists, aim to identify and destroy the autonomous, liberal subject, or we ignore the subject to fetishize the proper objects of critique, or we completely overcorrect to the point of preserving the queer subject and their objects as articulated through neoliberal identity politics, neocolonial sovereignties, and state-granted rights. Sometimes we attempt all three. Is it possible to create a subjectless/objectless critique without engaging the predictable “bad habits” of critical theory?

There are varied articulations of what I am referring to as queer pessimism, but perhaps the best known of these is Lee Edelman’s queer negativity, as formulated in his 2004 book, No Future. 2 I will narrow my discussion of queer pessimisms to Edelman’s work because it best demonstrates the conceptual move that I will critique (and offer an alternative to) in this article: Edelman frames hope and refusal as mutually exclusive options that negate one another’s potency. Political hope, in his view, is always complicit with reproductive futurity and its violence. Refusal, on the other hand, is the hallmark of queer negativity, which is rendered the unintelligible outside of political discourse and imagination. In the following section, I will briefly lay out his argument and take up existing critiques among queer and feminist theorists who argue that, first, Edelman’s work presumes a white, male queer subject and, second, it is not useful or relevant for women, nonbinary people, and trans people of color. I build upon these critiques by arguing that these limitations are linked to Edelman’s perpetuation of a misleading binary between hope and refusal, which forecloses the radical possibilities for queer feminist theory and practice 2 The title of this section borrows a phrase from page 5 of Edelman’s No Future (2004). that their co-constitution opens up—possibilities that I explore in my engagement with Hartman’s work. Edelman argues that every intelligibly political movement today is structured by the teleological valuation of the future (and especially future generations) as the foundation and aim of politics—epitomized by the figure of “the Child.” The Child does not refer to literal children but is rather a symbol of possibility, futurity, and innocence that affirms and authenticates a given social order. This merely symbolic status and function of the Child in political discourse is evidenced by the fact that actual children are so often sacrificed in the name of the Child (Edelman 2022b, 100). As I write in November 2023, we are bearing witness to this sacrificial logic, as the Israeli state (with support from the US government) slaughters Palestinian children in the name of the future of Israel and its children—justifications that have been augmented with falsified claims (corroborated and then disavowed by US President Joe Biden) about Hamas beheading Israeli infants (Al Jazeera 2023).3 As Edelman points out, the centrality of the figure of the Child is not limited to fascist or conservative politics but also structures so-called progressive politics of the Left. Highlighting the stubborn persistence of this figure, Edelman points out the irony of pro-abortion campaigns that mirror their anti-abortion opponents by advocating on behalf of “our children—for our daughters and our sons” (2004, 3). This example, a rare moment in No Future where reproductive futurism encounters the discourse of reproductive rights, is used as evidence for Eelman’s argument that no matter the specific content of one’s politics, the logic of reproductive futurism persists. This leads to the opening insight of No Future: our contemporary political imagination is constituted such that it is impossible to take up a position that negates the centrality of the Child without being rendered unintelligible as political at all.4 To refuse the logic of reproductive futurism, to refuse to be on the side fighting for the children, is to occupy a position radically outside the politically imaginable and intelligible—and it is this space, which politics renders unthinkable, that Edelman proposes queerness occupies (3). For him, queerness names the antisocial opposition to the mandate of reproductive futurism—it is the social order’s death drive (3). K of Edelman Though Muñoz’s critique focuses primarily on whiteness, it is important to note that Edelman’s queer subject is also implicitly male. Despite a potentially fruitful alliance between queer and feminist refusals of reproductive futurism and its weaponization of the figure of the Child as a means of social control (especially for those with the capacity for pregnancy and birth), the possibility of co-conspiring in No Future falls short. Edelman’s account of reproductive futurity is decidedly monolithic; focused on the abstract and structural level of analysis, he does not carefully parse the disparate forms it takes and the ways it is deployed when it comes to those deemed, by normative default, “would-be” fathers or mothers. Instead, he speaks broadly of “parents,” and in his discussion of parental love, they are always presumed to be heterosexual (53, 59). The conspicuous absence of race, sex, and gender is intentional, as indicated in an endnote that expresses Edelman’s “refusal” to engage in what he dismisses as “identity politics” and his insistence that, despite the fact that most of his examples in No Future are men, his figuration of the queer “has no privileged relation to any sex or sexuality” (2004, 165). My training in feminist philosophy has made me deeply suspicious of any claim to conceptual neutrality; it is far too often in my discipline that abstract universality quietly smuggles in particularity (read: masculine subjectivity). But perhaps most telling and relevant to the context of this article is that Edelman suggests that while it’s possible that there could be a female sinthomosexual, the female characters from the film and literary sources he engages “are determined by socially legible desires—typically in the form of obsessive ‘love’—rather than by the refusal of sociality and desire,” so they are less useful for his argument (165). In the same breath that he declares further consideration of gendered differences “valuable” (for someone else to consider), he dismisses the relevance of sex and gender for an analysis of reproductive futurism and, at the same time, uncritically circulates a stereotypical binary wherein women are associated with love (and reproduction) rather than refusal (and negation), which for Edelman is epitomized by the male queer (165). While Edelman dismisses considerations of race, sex, and gender as irrelevant or even counter to his project, any robust and actionable account of reproductive futurism needs to do the work of carefully attending to lived experience. Reproductive futurism is not homogenous in its application or its effects; understanding how to refuse it requires attending to its complexity with care. As Penelope Deutscher has pointed out, what Edelman presents as reproductive futurism’s overvaluation of parenthood is an overgeneralization; racialized women (often fetishized as “figures of surplus pregnancy, of welfare benefit abuse or other kinds of irresponsibility”) are routinely devalued as parents/mothers (Deutscher 2017, 50). The long and ongoing history of forced sterilization of Black, Indigenous, and Latina women in the United States plainly evidences this. While this may not be in conflict with the heart of Edelman’s analysis, his account lacks important nuance—nuance that can be (and has been) offered by decolonial feminist scholarship.5 In failing to attend to the complexities of reproductive futurism as it is experienced by flesh-and-blood people rather than merely fictive and fetishized characters, he forecloses careful thinking about the forms of refusal most able to counter its logic and effects.

Early in its history, one of the founders of the Women’s Motorcycle Contingent coined the phrase “Dykes on Bikes.”68 The term became used in the press and in popular LGBTQ+ culture to refer to the group.69 In 2003, the group formally voted to change its name to the San Francisco Dykes on Bikes Women’s Motorcycle Contingent (“SFDOBWMC”).70 The “Dykes on Bikes” name was not only recognizable and catchy,71 but reflected the group’s purpose of promoting lesbian civil rights and resisting harmful stereotypes about the LGBTQ+ community.72 Like many organizations, SFDOBWMC applied to register its new name as a trademark with the PTO. 73 It had been used in commerce for at least two decades by this point and was widely recognized by the media and LGBTQ+ community in the Bay Area, which should have made for fairly standard approval of the trademark DYKES ON BIKES.74 But the use of the term “dyke” sparked controversy—it was an LGBTQ+ slur, even if used in a reaffirming way.75 This trademark launched a decade-long legal battle. The PTO examiner denied SFDOBWMC’s application because the proposed mark was derogatory towards lesbians and therefore unregistrable under Section 2(a).76 In response, SFDOBWMC’s legal counsel wrote a letter explaining how, while originally pejorative, the term “dyke” had become, by 2003, an accepted term of pride and identification for women within the LGBTQ+ community, and should be federally registerable as a trademark.77 In support of its argument, SFDOBWMC attached twelve documents illustrating how the term “dyke” was now used in an affirming sense by the LGBTQ+ community.78 Nonetheless, the PTO made its Section 2(a) refusal final, finding that some women still found the term derogatory.79 Historian Joan Nestle observed, “I cannot imagine a more ironic twist of thinking than to judge this reclaimed badge of honor as insulting to the very community who has created its power.”80 SFDOBWMC’s counsel then produced over three hundred pages of evidence and testimony from twenty-six experts showing that the mark was not disparaging.81 When the PTO relented and the mark was finally published for opposition in 2006, it was opposed by Michael McDermott, a resident of San Francisco, on the basis that the SFDOBWMC was carrying out an “Anti Male Hate Riot.”82 The Trademark Trial and Appeal Board (“TTAB”) rejected McDermott’s claim, holding that he failed to show that any other men would find the mark disparaging towards them and that he lacked standing for a lesbian disparagement-related claim because he was not a lesbian.83 The Federal Circuit upheld the TTAB’s decision.84 Shortly thereafter, the PTO finally registered SFDOBWMC’s DYKES ON BIKES trademark on October 30, 2007.85 The matter seemed to be settled once and for all in 2008—five years after SFDOBWMC had first applied to register its mark with the PTO—when the Supreme Court declined to grant certiorari to McDermott.86 The SFDOBWMC finally had their trademark registration and had achieved a symbolic victory for the LGBTQ+ community. But the legal challenges to the DYKES ON BIKES trademark were not yet over. In 2015, SFDOBWMC submitted another trademark application to the PTO—this time for its logo, a triangle with the letters “W,” “M,” and “C” in each corner and a gear design in the middle containing the words “Dykes on Bikes.”87 Like with SFDOBWMC’s wordmark application, the PTO rejected the new application on the basis that the proposed trademark disparaged lesbians.88 In response, SFDOBWMC filed hundreds of pages of evidence in opposition, including the history of the DYKES ON BIKES wordmark (which, of course, had eventually been registered by the PTO notwithstanding Section 2(a)) and new evidence showing how the term “dyke” was not being used derogatorily.89 For the first time, the SFDOBWMC also argued that the disparagement bar under Section 2(a) was unconstitutional, as the Federal Circuit had recently held in a case known as In re Simon Shiao Tam. 90 Nonetheless, the PTO rejected the SFDOBWMC’s arguments and affirmed the denial.91 Contemporaneously, the Tam case SFDOBWMC had referenced was now pending before the Supreme Court.92 The SFDOBWMC filed an amicus curiae brief in support of Tam, arguing that Section 2(a)’s disparaging bar unconstitutionally restricted political speech and was applied arbitrarily, citing its own trademark registration odyssey in support. 93 In 2017, the Supreme Court agreed with Tam and the SFDOBWMC, holding that Section 2(a)’s bar on the registration of disparaging trademarks was unconstitutional under the First Amendment.94 Following the decision in Tam, the PTO finally registered the DYKES ON BIKES logo, fourteen years after the SFDOBWMC first applied to register its wordmark.95 The DYKES ON BIKES saga demonstrated the extraordinary lengths to which LGBTQ+ individuals had to go to obtain federal trademark registration. The Section 2(a) bars on disparaging and immoral or scandalous marks could serve as bars on registering LGBTQ+ marks in general, as, for many, LGBTQ+ culture is synonymous with sex and therefore per se scandalous.96 Moreover, as mentioned above, LGBTQ+ persons have to create their own symbols and sources of identity,97 so these bars can be especially harmful to the LGBTQ+ community as they prevent registration of building blocks of LGBTQ+ identity.98 The removal of those bars, therefore, could have a significant impact on the LGBTQ+ community

Rather, the constraints imposed by patent performativity must form the basis for their own reform. Here we turn back to Judith Butler, who shows how the constraints of performative social norms may be turned to resist those same norms. In the context of performative gender, Butler famously offers the example of the [transgender]transvestite, who performs gender transgressively.214 “Drag” performances, according to Butler, appropriate the norms of gender, playing them against themselves to rework the possibilities of gender.215 Such observations point the way to parallel reworking of the social tropes associated with patenting and innovation. Transgressive re-orientation of patent isolation, elitism, hierarchy, dominance, extraction, and exclusivity might similarly expose the performance of inventorship to re-interpretation and open new possibilities for enacting innovation. To be sure, Butler cautions that, at least in the case of gender, enactment remains compelled, constrained, and effectively mandatory.216 Gender is a characteristic on which societies force individuals to take some stance. Even those who adopt non-binary or gender fluid performances must do so with reference to the concept of gender, and to the dominance of masculine or feminine norms. Society is perhaps less exercised with regard to inventorship than it is with regard to gender–one need not necessarily engage with innovation, although it should be noted that the failure to do so in effect takes a stand regarding innovation, by making a choice not to be defined as an inventor. But once the individual actively engages with the role of inventor, the reference points are constrained and largely fixed. The inventor must, for example, by definition be a person of extraordinary skill in the art, because if the invention could be developed by one of ordinary skill, it is by definition unpatentable. The choice to be an ordinary inventor is not currently accommodated within patent enactment. Thus, we cannot expect that the defining tropes of patent enactment can be avoided, but Butler’s analysis suggests that they can be subverted. Performative constraints may be repurposed to mark out a space for greater diversity. We see indications in recent scholarship of how patents might be “queered” in this fashion. Some commentators have begun to question the assumption that the promotion of technical progress is always beneficial.217 Others have challenged the notion of “progress” itself, asking whether innovation may be defined differently than the extractive purposes of current patent policy.218 In the copyright context, Severine Dusollier has similarly argued that intellectual property should be re-imagined as a set of inclusive, rather than exclusive rights.219 Geertrui van Overwalle has explicitly attempted to operationalize such inclusive rights for the patent system, outlining a system for inclusive, rather than exclusive patents.220 Such glimmers of resistance to the existing enactment of patents indicate the potential for defining more inclusive performances of inventorship and innovation.

This is not to suggest that queer creators, or that queer creativity, are necessarily oppositional to market forces. Rather, some queer creators work within the logic of the market to subvert or transform it in more nuanced ways. For example, RuPaul—an internationally famous drag queen—based their career on emulating and eventually stepping in for cisgender female models.138 RuPaul’s Drag Race, a successful reality television show hosted by RuPaul in which contestants compete to become “America’s Next Drag Superstar,” started out as a spinoff of Tyra Banks’s “America’s Next Top Model”139 but has now, arguably, matched or exceeded its global cultural influence. RuPaul’s Drag Race launched the successful careers of dozens of queer creators.140 The show can be seen as an example of strategic commodification and supplantation—creating a commercially successful product and bringing greater visibility to queer voices through the machinery of the market, while arguably shifting the politics around it.141

In a similar vein, it should also be noted that queer resistance to IP does not equate to a categorical rejection of proprietary entitlements in creative works, IP law, or resistance to artists who benefit from (and often rigorously pursue) IP rights. The picture, as is often the case, is nuanced. Indeed, some queer creators exercise their IP rights; many in the queer community admire or worship artists who pursue their IP rights (and even actively support them), and, as this Article itself demonstrates, many queer communities and creative spaces maintain clear proprietary norms around intellectual creations.

In summary, his application of social death is used as a reason why Black life cannot be oriented at any level of meaningful production within society. While Wilderson is correct that the material labor and symbolic currency born out of Blackness will always be consumed by whiteness, his conclusion is paradoxical at some level. If humanism is the grammar by which civil society determines the register of subjectivity, why then is that matrix appropriate in determining the state of Black life, if Black life is inherently the position of what is incommunicable? If social death theory’s application is one that concludes an impossibility of meaningful Black productivity, then Afro-Pessimism becomes nothing but a body of literature that echoes the same sentiments as those who would understand Black life as a state of nothingness in plain racist terms. Understanding Black ontology should definitely involve an understanding of the social deadness of the Black subject in relation to society, but it should not be used as the standard to measure internal liberation. The distinction here is important because too often Afro-Pessimists scholars like Wilderson conceptualize Black resistance as a singular orientation toward society. Indeed their work is important to understand the manner in which society operates upon Black subjects, but it is insufficient to describe an ethic that allows for the pursuit of meaning within Blackness itself. In this regard, scholars should understand Black resistance as occurring on two different levels: the ontological and the intra-ontological. The distinction being made is between the ontological state of Blackness as determined outside of humanity proper versus the life within the ontological state of Blackness as understood through social death. If social death is the state of the Black, what then speaks to the state of the Black amongst Blacks? It would be a mistake on the part of any scholar to concern themselves with one and not the other. This paper uses the term intra-ontology in reference to the varying ontologies within social death. This is the Black among Blacks. These are those spaces within Blackness that only the Black can ever understand or occupy. Though they exist outside of the production of the human (within the category of social death), there are Black affektual politics that have been with the slave since the ship. These are the emotional and spiritual ontologies within Blackness that connected slaves of different lands, languages, and religions into one community. Black intra-ontology can never achieve the plane of recognition because it can only be understood within Blackness, which by definition is the position of social death, but those affektual spirits and emotions ought not be neglected. Social death should guide Black resistance strategy in understanding the position of the Black within civil society, but it speaks not to the arrangement of Black intra-ontological questions. If this is measured by social death it only produces a cycle of endless internal psychic violence because the Black would only be met with the discovery of a violent reality of its existence through affirmations of social death. Intra-ontological resistance must not be a question of how the world understands Blackness, because the position of the slave is one that cannot be articulated in terms of hegemony. If it is so that the Black inherently experiences the world through a different ontological register, then measures of Black liberation cannot be articulated through the lens of humanist grammars. Jared Sexton, the Director of the African-American Studies School of Humanities at the University of California-Irvine, is another leading scholar in Afro-pessimism. He explains that there is indeed social life that exists within social death. There are many that condemn the invocation of social death as overly pessimistic, but “this acceptance or affirmation is active; it is a willing or willingness, in other words, to pay whatever social costs accrue to being black, to inhabiting blackness, to living a black social life under the shadow of social death. This is not an accommodation to the dictates of the antiblack world” (Sexton 2010). This is to say that it is indeed possible to both affirm the state of social death and actively pursue the social life that exists within Blackness. This is not the typical critique of social death, but rather it is a necessary specification of the social life within social death that Sexton speaks. Social death is adequate in terms of measuring the ontological state of the human versus the Black, but a different rubric is required in mapping social life within social death. One such rubric is fleshly politics. This concepts derives from the plantation in regards to the manner in which slaves would temporarily reclaim and weaponize their bodies as a site of political protest against their state of enslavement. Fleshy politics is an example of an appropriate rubric for measuring liberation within intra-ontological politics because these bodily resistances surely did not change the physical state of enslavement, but it did immeasurable good for the mental and psychological state of those in the master’s cage. Alternate orientations to the flesh “excavates the social (after)life of these categories: it represents racializing assemblages of subjection that can never annihilate the lines of flight, freedom dreams, practices of liberation, and possibilities of other worlds” (Weheliye 2014). In contrast to Wilderson’s line of flight away from bodily coding, it is important to reclaim the atrocity of the flesh as a means of agency within capture through the remapping of whiteness. The enslaved female flesh was the site of great violence, but there is a false “dichotomy between the material/political and the personal, in large measure [because even though the] body, so deeply personal, is also a political arena. Their work has demonstrated the extent to which women's bodies were unique sites of domination under slavery” (Camp 2002). Though the body was in the possession of the slave master, the enslaved found personal meaning in its temporary recapture in fleshliness which satisfied an innate desire for selfhood. The illegality of using the flesh as a site of pleasure became a political counter-investment. While conventional Afro-Pessimist would argue that this personal orientation does nothing in terms of the ontological position within Blackness, the personal victory the enslaved experiences as a result of that temporary reclamation is meaningful in both psychological and emotional terms. This is important because if there is never room for personal liberation, and Black resistance is only understood in terms of material questions within civil society, it reproduces the same sacrificial logic that social death explains. Resistance strategies that only take meaning in notions of full agency are recipes for failure because these only measure Black liberation on the register of civil society which can never grapple with the inherent confine in which Black life exists.

In part, Prince’s about face on music was related to industry-wide struggles over¶ copyright infringement, specifically music piracy. Prince redoubled his efforts to combat¶ piracy, including copyright infringement of his music and images, sometimes alienating¶ his fans with his zealousness. Yet in pushing for strong copyright protection, Prince¶ took aim at hundreds of years of theft and “racial plagiarism” (Pham, 2017) of Black¶ art, including music from Blues to jazz, and the underlying commitment to treating¶ Black people as property, not humans. Take, for instance, a statement that he made several years ago in an interview with the Guardian: “We made money [online] before piracy was real crazy. Nobody’s making money now except phone companies, Apple and¶ Google. I’m supposed to go to the White House to talk about copyright protection. It’s¶ like the gold rush out there. Or a carjacking. There’s no boundaries” (Lynskey, 2011).¶ Through his anti-piratical stance, Prince made clear that Black musicians, like their¶ White counterparts, deserve full property rights for their creative works. Prince’s call¶ for property ownership in the Rally 4 Peace was emblematic of his embrace of Black¶ capitalism as is his lyric in “Dear Mr. Man,” “Your thousand years are up; now you got¶ to share the land.” Prince crafted a narrative of Black entrepreneurship and Black communitarianism that celebrates the work of Black creators and values Black lives. In¶ Prince’s narrative, Black people are equal citizens who have a right to access the¶ American Dream, which James Baldwin argues in his famous speech “The American¶ Dream and the American Negro,” was never granted to them (Baldwin, 1965). Unlike¶ in the world of racial capitalism that Cedric Robinson pointedly noted has existed since¶ the beginning of colonialism, Prince’s Black capitalism imagines new and powerful labor¶ and commodity relations. Although Black capitalism, as Prince imagines it, is not radically invested in undoing the inequities produced by capitalism or intellectual property¶ law, it is invested in undoing the racist logics that make dispossession and disenfranchisement thinkable political and social options. Prince’s imaginings of commodity relations have formed the foundations for a popular cultural narrative of Black capitalism in which Black art merits respect and protection. For instance, Fox’s hit television show, Empire, takes up Prince’s piracy narrative¶ with surprising realism. In the first episode of the show, rap and R & B magnate¶ Lucious Lyon explains in a prelude to announcing that his company is going public, in¶ words almost identical to those that Prince used just a few years earlier before testifying¶ about copyright policy before Congress:¶ I started selling drugs when I was nine years old in Philadelphia. I did it to feed myself.¶ But it was the music that played in my head that kept me alive when I thought I was¶ gonna get shot … Times have changed, though. The Internet has destroyed the musician’s¶ ability to make money because our work is downloaded for free online. And now it’s¶ impossible for the disenfranchised kids growing up in the projects to overcome poverty the¶ way that I did. We are gonna change all of that. (Empire, 2015)¶ In Lucious’ fictional world, Empire Entertainment posits itself as the protector of the¶ Black urban poor, providing a way out of the confines of the structural oppression of¶ race and class. Lucious, in selling Empire Entertainment, asserts that Black musicians,¶ particularly during the rise of rap and hip hop, used music as a tool of racial uplift. The¶ realities of intellectual property ownership are more complicated than Empire would¶ have us believe. After all, for an artist to own their catalog is likely a necessary, though¶ not sufficient, means of undoing the structural inequalities that fuel systematic oppression. Nonetheless, the music mogul’s own success is represented in the show as a means¶ of empowering Black youth. In a scene later in the season, at Cousin Bunky’s funeral,¶ Lucious gives a child an advance on his first record, symbolically showing how he parlays¶ his success into support for the Black community. The micronarrative of copyright law¶ and creatorship that show creator Lee Daniels tells through Lucious is part of a notably¶ intersectional, though still quite imperfect, story of Black creatorship and Black entrepreneurism that the show weaves. In later seasons of the show, Cookie, not Lucious,¶ becomes the hustler extraordinaire that keeps the company and the family together. She¶ is coded as a Black woman with the intellectual prowess, street smarts, and esthetic¶ instincts to keep Empire Entertainment afloat. Yet there are no illusions that she does so¶ through government subsidies or small business loans. Cookie’s founding donation to¶ Empire Entertainment is drug money for which she pays—and ultimately profits.¶ Netflix’s series, The Get Down, reflects a similar narrative. Though crime is represented as endemic to the Bronx in the late 1970s, music, both disco and hip hop, offer¶ a way out of the deteriorating neighborhood in New York. In one of the show’s central¶ plots in the first season, DJ-in-training Shaolin Fantastic and his crew must demonstrate¶ their loyalty after getting caught with a Grandmaster Flash bootleg tape. Though the¶ show’s creator, Baz Luhrmann, had a history of collaboration with Prince, including on¶ Romeo þ Juliet and The Great Gatsby (Tribeca, 2016), The Get Down does not explicitly¶ echo Prince’s language in the same way as Empire. It nonetheless partakes in mythmaking around the American Dream and Black entrepreneurialism that echoes Prince’s thematic foci. Grandmaster Flash seeks only to protect his intellectual property, which as¶ we know from historical hindsight, gives rise to an entire new genre of music. The first¶ season sets protagonist Ezekiel on the road to success, confirmed in the shows frequent¶ flash forward moments. By preventing the circulation of bootleg tapes, Grandmaster¶ Flash ensures the value of the good he is selling. If it is only possible to consume his¶ music at his parties, he must profit. Many years later, Prince used the digital version of¶ Grandmaster Flash’s theory of preventing bootlegging to posthumously secure a record¶ breaking five spots in the Billboard Top 10. As such, The Get Down becomes part of a¶ larger metanarrative of Black creatorship. In a post-Prince world with post-Prince popular culture, there is public space in which to engage that question. Moreover, there is¶ greater ideological space than ever before for Black artists to think not only about¶ claiming their creative autonomy, just as Prince did over the course of his career, but¶ also controlling their (intellectual) property and personas, as creators, citizens, and¶ whole persons who are entitled to full property rights.

In his polemic book No Future: Queer Theory and the Death Drive (2004), Edelman challenges the politics of “reproductive futurism” and calls for a queer ethics that embraces the future-negating stance as which queer identity has been positioned within the heteronormative, future-positive order: “That Child remains the perpetual horizon of every acknowledged politics, the fantasmatic benefciary of every political intervention.”7 Cultural and political order, Edelman argues, thus always anticipates “the Child as the image of the future it intends”.8 Choosing not to have children or failing to reproduce or to live a life in which sexuality is not ordered according to a heteronormative reproductive regime thus becomes synonymous with the negation of the future. Thus, “queerness names the side of those not ‘fghting for the children’, the side outside the consensus by which all politics confrms the absolute value of reproductive futurism.”9 In The Promise of Happiness (2010), Sara Ahmed builds on Edelman’s thesis and interprets Alfonso Cuarón’s flm adaptation of P.  D. James’ novel Children of Men (2006) as a flm through which reproduction as the ideal of the promise of happy futures can be interrogated. The flm envisions a dystopic future in which humanity is struggling with the disastrous effects of climate catastrophe, refugee crises and human infertility. No new human has been born for two decades, and most people have succumbed to fatalism, numbness and despair. News of the fatal stabbing of the youngest person on Earth—tellingly referred to as “Baby Diago” despite Diago having been 18 years old at the time of his death—is met with collective shock and grief: “no future means no children”.10 For Ahmed, the flm offers ways to think about the future and hope in political struggle. Drawing on Edelman, she points out that Edelman’s “inhabiting the negative” offers possibilities which, seemingly paradoxically, can be hopeful and optimistic. Queer pessimism, Ahmed points out, “matters as a pessimism about a certain kind of optimism, as a refusal to be optimistic about ‘the right things’ in the right kind of way”.11 Much like the political pessimism of the intellect promoted by Adorno and Horkheimer, then, queer pessimism as outlined by Ahmed is not a default mode but a mode of critique which helps to challenge hegemonic forms of acceptable affect and attitude. Consequently, Ahmed objects to pessimistic attitudes as “a matter of principle”, which in turn might “risk being optimistic about. What particularly interests me here in Ahmed’s argument for a queer pessimism is what she calls “alien affect”.13 In the context of a politics which rests on refusing to be content with what is and on putting faith in the possibilities for a better world, queer pessimism as a negation of hegemonic forms of affrmation and as an “alien affect” can become a way to rethink the present. Queer pessimism as alien affect is the expression of a refusal to feel the “right” kind of emotions about the “right” kind of things—it is, as Ahmed says, a “being for being against”.14 Coming back to Edelman, queer pessimism as alien affect can become a queer opposition to a narrative of hope which “would only reproduce the constraining mandate of futurism”.15 Queer pessimism’s refusal to affrm this narrative of hope and futurity opens up new ways of thinking the future by challenging the “structuring optimism of politics”.16 It can question and refuse the politics of the “temporalization of desire”, its “translation into a narrative”17 that demands drives and desires to be in the service of socially meaningful teleological structures which culminate in the “pervasive invocation of the Child as the emblem of futurity’s unquestioned value”.18 The queer-pessimistic opposition to this notion of the Child as universal futurity, and therefore the demand of every desire to be aimed at the realisation of this normative vision of futurity, is thus an “appropriately perverse refusal” in that it “will register as unthinkable, irresponsible, inhumane”.19 Such a mode of opposition is “perverse” because its articulation of the unthinkable poses a scandal in a world dominated by the “compulsory narrative of reproductive futurism”.20 In a world which demands the sameness of sexual and heteronormative desire—a desire which always must serve a purpose for the future—such a “perverse” opposition registers as deviant. Consequently, Edelman provocatively champions the death drive as a queer mode of affrming the being against and thus appropriates the (mis)use of Freudian terminology in homophobic discourse in a gesture of subversive affrmation. Its pessimism is only truly pessimistic for those who buy into the dominant narrative of futurity. Its epistemological and ethical value, then, lies precisely in its potential for becoming a mode of critique which refuses to accept dominant narratives of the human future. Here, queer-pessimist futurity is close to Schopenhauer’s thinking about time and futurity

Queer theory thrives on suspending and reconsidering conventional normative judgments in recognition and enjoyment of the complex, uncertain, irrational, and paradoxical in law and society (Halley, 2004). Queer theory rejects the idea that law can neatly and nicely incorporate moral principles that give legal subjects the choice of obeying and disobeying, subject to our moral approval or condemnation (Halley, 2004, p. 31). Drawing on Duncan Kennedy’s work, Ian Halley (2004) explains that “the real action is not in law per se, but in wildly different interested players who participate in wildly complex social interactions” (p. 31) as they “bargain in the shadow of the law” (Mnookin & Kornhauser, 1979, p. #). The normative principles ostensively embedded in law are produced and implemented through power not dependent on that law or on those stated norms. As a result, legal theory is naive, arrogant, or deceptive when it focuses on perfecting and purifying law’s moral authority. Because the realm of politics cannot be ordered by will and intention, but is a complex domain of unintended consequences that follow the unpredictable collisions of human, historical, and natural forces, a politics of abstract principle risks missing its aim and indeed producing the opposite of the wished-for result. (Brown, 2001, p. 27) With this analysis, queer theory joins a wider body of legal realist and critical (including feminist) work devoted to digging beneath stated norms and rules to unearth the raw and messy dynamics of power. But queer theory also promotes a particular understanding of power that leads it to more directly challenge the normative approach common in other branches of critical 17 legal theory. Following Foucault, some queer theory analyzes power not as a problem of subordination and domination susceptible to moral judgments of good and bad, but as a process of subject production (Halley, 2004). The problem of law and intimacy, in this view, is not that the law unjustly reinforces external social power by privileging some and penalizing others in their expression of sexuality or relation to dependency. Instead, queer theory starts from the presumption that our ideas about morality cannot serve as a benchmark by which to measure and correct power imbalances. Power, whether inside or outside of law, inevitably shapes, grounds, and confounds ideas about morality. More specifically, queer theory emphasizes that in penalizing and privileging sex, law shapes our ideas about who we are, what we want, what counts as sex, and what counts as pleasure and pain. Queer theory takes an ideological position that affirms sex and diverse sexual performances, but it does not justify that position by arguing that sex is a moral good. Instead, queer theory affirms sex not just despite but because it involves moral ambiguity, contradiction, and even immorality—it especially affirms sex as bad (Halley, 2004). Queer theory explores the dynamics of sex to show that pleasure often comes from pain, power from prohibition, and that domination often is impossibly mixed up in subordination (Halley 2004). Queer theory sometimes takes that complexity and fluidity of the harmful and the beneficial in sex to question moral judgments in general. From this theoretical standpoint, Halley criticizes feminist efforts to prohibit sexual harassment for arrogantly claiming to “know” what forms of sexual interactions are good and which harmful, and for attempting to impose that vision on others. For instance, she chides feminism for knowing that “A husband who introduces his penis into the vagina of his sleeping wife has raped her and should be prosecuted,”or for “think[ing] that a man who would joke to a 18 female subordinate at work about pubic hairs appearing on his Coke can has shown himself unfit for higher office” (Halley, 2001 p. 89). Analyzing litigation ostensively aimed at gaining protection against sexual subordination, Halley (2003a; 2003b) argues that, the facts in the record are subject to multiple interpretations about who was dominating whom, and whether that domination was harmful or pleasurable to the dominated. From a Supreme Court case recognizing same-sex sexual harassment as actionable employment discrimination,2 Halley (2001) hypothesizes that the alleged harassment victim could instead be (in theory if not in reality) an agent of sex panic seeking to deny his desire for same-sex sadistic eroticism and to shift the blame for that activity to others. She suggests that this uncertainty shows that we should discuss questions of law and intimacy raised by such cases not on moral grounds, but on political grounds, as conflicts of interested power between (for example) those who prefer protection against the risk of sexual coercion in the workplace and those who prefer protection against the risk of sex panic in the workplace (Halley, 2001). Queer theory’s anti-moralism plays a tune familiar in contemporary theory and culture. In what has become a conventional formula of legal scholarship and public policy debate, “economic” analysis inverts the purported public values justifying liberal or progressive law and policy to show that what seems on the surface to protect the vulnerable against subordination instead promotes unjust domination by suspect and special interests. In the neoliberal ideology, as in the queer theory I have been discussing, public values always reduce to private interest, so that morality always reduces to power. For example, “economic” analysis of law has tended to reduce workers’ rights laws to race and gender privilege (Bernstein, 1997), and reduced civil rights laws to economic privilege (Bernstein, 1990). Turning to other common targets of law-and-economics, plaintiffs’ rights in 19 tort law become economic privilege for wealthy lawyers; regulatory protection for consumers become anticompetitive economic protections for elite businesses; rights to compensation for workplace injury become opportunities for fraud and malingering; anti-poverty programs become support for bloated bureaucracies and lazy bureaucrats and for future criminals. But, under the surface, this neoliberal anti-moralism ends up being thoroughly moralistic. It does not criticize the self-interested power behind certain normative principles (typically progressive or liberal) simply on the ground that these self-interested gains undermine the competing self-interested gains that critics prefer. Instead, “economic” arguments tend to criticize these “special interests” on the ground of their sinister motive and character (they are undeserving and elitist) and because they undermine some normative conception of the public interest (they are “inefficient” or contrary to some naturalized and normalized ordering). For example, legal rules enhancing consumers rights in tort law are bad in this view not because these rights hurt the competing political and economic self-interests of wealthy corporate shareholders. Instead, these free-market economic arguments challenge these rights on the ground that they enrich undeserving interests at the expense of overall welfare. Although economic calculations of the overall societal interest in maximizing efficiency sound neutral and scientific, they rest on thoroughly subjective and contestable moral judgments about, for example, whose interests (measured in what time and place) count as the aggregate interest, or what counts as a cost and what counts as a benefit (Kennedy, 1981; McCluskey, 2000; McCluskey, 2003b). Stripped of their technical veneer, these law-and-economics arguments against moralistic pursuit of the “public interest” are simply another version of arguments about what counts as the “public interest” versus “special interests.”

IP vocabulary: lastly, examining the vocabulary used in IP legislation, scholarship, and caselaw is helpful because terminology and textual narratives exert a great deal of power in entrenching epistemologies.207 Language is heavily involved in the construction of sexual identities and desire, and queer theory “takes very seriously the significance of words and the power of language.”208 Gendered nouns and pronouns and gendered speech styles are perhaps the more obvious examples of the normative association of language with sex and gender identities, yet discursive language and the use of stereotypically male or female genderlectal descriptions construct certain words and definitions as binary objects-subjects, male-female, hetero-homo.209 A notable example in IP is the use of the word “protection” to describe IP rights or the action of asserting IP rights. The word “protection,” as indicating what IP rights do or what they are about, is widely used in domestic American law and in international IP treaties and agreements. For example, the Berne Convention for the Protection of Literary and Artistic Works indicates from the outset that it is meant to protect works;210 the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) opens by stating that the agreement was established to “tak[e] into account the need to promote effective and adequate protection of intellectual property rights”;211 U.S. patent, copyright, and trademark laws all widely use “protection” to describe the action of IP rights, as do numerous court cases and academic texts.212 Scholars have long noted that the edifice of protector-protected is based on a masculine-feminine, object-subject divide.213 “The active roles of both protector and threat are masculinized—[control] and power being the foundations of masculinity.”214 Similarly, using “protection” introduces into IP vocabulary the themes of dominance and control. From a queer perspective, this can be seen as an ideological formation creating a linguistic construction of object-subject divides.215 Furthermore, a queer analysis would ask just what the “danger” is against which “protection” is needed. Is it, as common accounts would suggest, a competitor taking unfair advantage of others’ labor, or, rather, does the law provide “protection” to the masters of popular characters against alternative voices? After all, is Alice Randall, the author of The Wind Done Gone (an alternative account narrating the story of Gone with the Wind through the eyes of one of Scarlett O’Hara’s slaves) free-riding on the labor of Margaret Mitchell (the author of Gone with the Wind), or is Margaret Mitchell’s estate attempting to use copyright law to silence marginalized voices and control historical narratives?216 A queer analysis might even go further and suggest that in fact the intellectual works themselves might need “protection” against the rightowners. A copyright holder who controls reproduction or commentary may be damaging the work in significant ways—for example, by making the work inaccessible or out of commerce or limiting its social and cultural importance.217 The Disney corporation, for instance, may have a strong economic incentive to “protect” Mickey Mouse against sexualization in Air Pirates, but by doing so the corporation may be diminishing the character’s importance in American culture. There are fair uses, of course, but that is beside the point: the language used signifies the elemental values at the basis of IP law, providing right-holders with the edifice of “protector” when in many cases they may very well be anything but. Other examples of how IP vocabulary denotes a certain social order include “piracy” to describe the act of making copyright works available without permission, “trafficking” to describe the act of providing devices