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A summary of our positions: 1. Cishetero patriarchy is counterrevolutionary. Radical feminism—whether Indigenous, Black, or Marxist—is our path towards revolution. 2. Land back happens through socialism and is not a form of exclusionary nationalism, but resurgence of Indigenous governance in solidarity with colonized and working class peoples. We make and steward the world together. 3. Communism is our horizon. Kinship is the path. 4. Indigenous and Black liberation are the spear for socialist revolution in Turtle Island and the forging of internationalist solidarity with global revolution. Indigenous and Black left feminism is the tip of that spear. 5. Black and Indigenous liberation struggles are abolitionist and, when attached to socialist projects toward full communism, seek the end of all logics of carcerality, including private property that warehouse people, cage animals, and enclose lands within borders.

It has become clear to us through praxis that the egalitarianism and emphasis on relations of care that lie at the heart of Indigenous traditions of kinship are, in fact, the very same as those that communism names. To be socialist revolutionaries facilitating the transition from capitalism to communism in the present means to be good relatives, caretakers, protectors, and fierce defenders of all living beings. The discrimination, exclusion, and domination at the heart of capitalist and settler heteronormativity have no place in the next world. The communist world we build will come not only from street revolts and guerilla actions against the settler state, but the previously obscured work that women, queers, and trans people of all genders have done in the realms of care. This is the labor of sustaining us, our basic needs whether these be for food, shelter, or pleasure. Care encompasses a set of practices for recreating the world and reimagining our relationship to all our relatives. We have already seen and experienced this under global pandemic with the rise of widespread mutual aid networks that have the potential to become caretaking infrastructures. The economies of our capitalist present are premised on abuse. The economies of our socialist transition and communist future will be premised on care.

Luther Standing Bear (Sičhą́ǧu Oyáte and Oglála Lakhóta Oyáte) also identified this human-nature antithesis as expressed in the difference between capitalist settlers and communalist Indigenous peoples: We did not think of the great open plains, the beautiful rolling hills, and winding streams with tangled growth, as ‘wild.’ Only to the white man was nature a ‘wilderness,’ and only to him was the land ‘infested’ with ‘wild’ animals and ‘savage’ people. To us it was tame. Earth was bountiful and we were surrounded with the blessings of the Great Mystery. Not until the hairy man from the east came and with brutal frenzy heaped injustices upon us and the families we loved was it ‘wild’ for us. When the very animals of the forest began fleeing from his approach, then it was that for us the ‘Wild West’ began. In the concept of “wilderness,” the human subject condemns a non-conformity of nature with the process of its own externalization of its subjectivity. The subject wishes to transform nature into an instrument, and insofar as nature does not revolve around them as its absolute center, they consider it something to be “struggled” against and “tamed.” The concept of “wilderness” is a disharmony of subject and object — in this case, wrought by the drive of capitalization.  Winona LaDuke (Mississippi Band Anishinaabeg) thus characterizes capitalism as an all-devouring, nature-destroying subject: Now, I’m an economist by training, and I refer to our current economic system as Wiindigoo Economics. In our Anishinaabe stories, the Wiindigoo is a giant murderous monster that used to rampage through the north woods, fueled by an insatiable greed and a relentless desire for human flesh. Fossil fuel era capitalism is like the Wiindigoo: a predator economics, the economics of a cannibal. It is a system based on colonization, wastefulness and ravenous greed, a system that destroys the very source of its own wealth and well-being, Mother Earth. This Wiindigoo metaphor is extremely insightful, and shows the deep independent creative value of Indigenous knowledge. This metaphor of ravenous cannibalism expresses the manifold moments of capital: capital emerges from a specific way of living among natural human beings, it becomes like a spell or disease compelling them towards destructive behavior, regardless of any opposing subjective desires, and it ultimately transforms into a domination and destruction of those very same natural beings.  Wiindigoo Economics is nature turned in on itself. It is a historical rather than a fundamental destiny. It is a disease which is a consequence of a certain way of life — devouring another human being, or what’s all the same, exploitation of human by human. 

The tribal value of Native American expression is much more cultural, and much more religious. Consider the plight of the Chilkat Indians who struggled to recover the "Whale House" artifacts.' The Whale House artifacts were actually wooden posts depicting various cultural scenes." The Chilkat Indians valued the artifacts not because of their economic value but because of their cultural and ceremonial value." Another example of tribal value of intellectual wealth is evidenced by the tribal claimants under the Native American Graves Protection and Repartition Act" who are seeking from museums, universities, and others, the return to the tribe of cultural and sacred objects (as well as funerary objects and human remains) because of the object's cultural value to the tribal community, despite economic loss to the museums and others. Although these Native American "expressions" themselves do not hold any intellectual wealth, the "expressors," retain the intellectual capital required to produce these economic, and of course cultural, expressions. Native American intellectual property assets also include those concepts created by innovation, that is, regarded not for its aesthetic or artistic value but for its utility. Native American innovation is most often evidenced in the agricultural and pharmaceutical industries. A classic example often cited by commentators is the innovation of the Hopi and Zuni tribes in developing and maintaining traditional crops, plants and seeds as part of its agrarian past.'3 Contemporary American society has drawn upon these innovations, creating an economic market for the Hopi and Zuni tribes in seed bank distribution and plant variety maintenance.'4 One common illustration of the Hopi and Zuni tribes' crop innovation is blue corn. Blue corn has become a popular ingredient used in regional foods, as well as in traditional restaurants.'" The intellectual wealth associated with these products is attributed to the tribe: their experience, persistence, and knowledge. Innovation and expression are protected by United States law in different ways - such as by patents, trademarks, and copyrights - primarily because of the difference in valuation discussed above, as well as the dissimilarities in the incentives that United States law presumes are required to further the constitutional mandates in furthering innovation and expression. As a result, the concept of maximizing innovation within the Native American community is beyond the scope of this comment; however, many of the discussions regarding the difference in societal values affecting expression are applicable to innovation as well. The bulk of this article discusses the U.S. framework for protecting Native American expression, and the ability of that protection to further Native American interests in economic development and cultural maintenance.

Smolinski 23 Smolinski, Ph.D., J.D., is a Professor of Computer Science at Delaware State University in Dover, Delaware, where he serves as the Head of the Computational Intelligence, Biological, and Legal Informatics (CIBiLI) research laboratory. (Dr. Tomasz G., “A Proposal for a Model Indigenous Intellectual Property Protection Tribal Code (MIIPPTC)”, Tribal Law Journal, 6-1-2023, , DOA: 6/24/24)//LFS – LMH

B. Incompatibility of the Western Cultural/Intellectual Property Protection Mechanisms with Traditional, Indigenous Cultural Values The incompatibility between traditional, Indigenous cultural values and the Western cultural/intellectual property protection mechanisms is multi-dimensional. First, traditional knowledge is typically transmitted through “songs, proverbs, stories, folklore, community laws, common or collective property and invention, practices, and rituals.”44 Given that physical recordings, in any form, of such practices or rituals are often entirely prohibited in Native American communities, meeting the hard copy fixation requirement of the Western IP protection regimes is virtually impossible.45 Second, while Western approaches “incentivize creation for a market economy,” and see intellectual property mainly as a means for an individual or a company to accumulate wealth, in the “communitarian, gift-based culture” of many Native American tribes, such property is considered a common good, to be shared in by all of the members of the community. 46 John (Fire) Lame Deer vividly explained this incompatibility by stating that while “[f]or a white man each blade of grass or spring has a price tag on it,” Indians generally refuse to live in the “Green Frog Skin World,” green frog skin meaning the U.S. dollar. 47 Accordingly, in the context of intellectual property protections, rather than achieving commercialization, the goal of many Indigenous communities is to “preserve the integrity of the knowledge and to keep it safe from appropriation, destruction, deformation, and extinction.”48 Obviously, the mainstream Western IP protection mechanisms fall short of this goal. Copyright law, designed to protect the expression of certain ideas, is of little use in protecting the knowledge itself. Trademarks, although arguably potentially useful for protecting genuine, Native-made handicrafts, are similarly of little help in sheltering traditional knowledge. Patents, due to their strict novelty requirements and short protection timeframes, similarly are ill-suited to protect the generations-old Indigenous knowledge. Finally, trade secret protections, although on the surface quite appealing (assuming that an argument could be made that only a few tribal members possess the relevant knowledge), in practice turn out to be quite powerless, especially against reverse-engineering; a technique which large companies certainly have at their disposal.49 C. The Need for Sui Generis Tribal Laws Governing Indigenous Intellectual Property Rights As the previous two sections demonstrate, the current, mainstream IP protection regimes are insufficient to adequately protect the uniqueness, vastness, and complexity of Indigenous traditional ecological knowledge. Accordingly, there undoubtedly is a need for sui generis legal regimes designed to protect Indigenous intellectual property rights that fall outside of the standard patent, trademark, copyright, and trade secret doctrines.50 Importantly, despite the otherwise valid criticisms about their potential unenforceability on outsiders, these intellectual and cultural protection regimes must be driven by tribal laws.51 After all, tribes “are in the best position to determine whether and/or how to reveal culturally sensitive information.”52 Importantly, not only would this “allow [I]ndigenous peoples . . . to finally control the integrity, disposition, and appropriation of their sacred knowledge,”53 but also to “exercis[e] their inherent authority to define tribal laws and be governed by them.”54 If properly implemented, such tribal laws could be incorporated into the Anglo-American jurisprudence, which would not only afford “weight and legitimacy to [these] tribal law[s],” but also “provide[] an opportunity to infuse the dominant legal system with [I]ndigenous conceptions of justice,” specifically in the context of the protection of Indigenous intellectual property. 55 The next part of the Article provides a survey of selected historical and contemporary IP protection mechanisms utilized by American Indian tribes.

Without such a massive transformation in the political economy of contemporary settler-colonialism, any efforts to rebuild our nations will remain parasitic on capitalism, and thus on the perpetual exploitation of our lands and labor. Consider, for example, an approach to resurgence that would see Indigenous people begin to reconnect with their lands and land-based practices on either an individual or small-scale collective basis. This could take the form of "walking the land" in an effort to refamiliarize ourselves with the landscapes and places that give our histories, languages, and cultures shape and content; to revitalizing and engaging in land-based harvesting practices like hunting, fishing, and gathering and/or cultural production activities like hide-tanning and carving, all of which also serve to assert our sovereign presence on our territories in ways that can be profoundly educational and empowering; to the reoccupation of sacred places for the purposes of relearning and practicing our ceremonial activities. A similar problem informs self-determination efforts that seek to ameliorate our poverty and economic dependency through resource revenue sharing, more comprehensive impact benefit agreements, and affirmative action employment strategies negotiated through the state and with industries currently tearing up Indigenous territories. Even though the capital generated by such an approach could, in theory, be spent subsidizing the revitalization of certain cultural traditions and practices, in the end they would still remain dependent on a predatory economy that is entirely at odds with the deep reciprocity that forms the cultural core of many Indigenous peoples' relationship with the land. What forms might an Indigenous political-economic alternative to the intensification of capitalism on and within our territories take? For some communities, reinvigorating a mix of subsistence-based activities with more contemporary economic ventures is one alternative. In the 1970s the Dene Nation sought to curtail the negative environmental and cultural impacts of capitalist extractivism by proposing to establish an economy that would apply traditional concepts of Dene governance--decentralized, regional political structures based on participatory, consensus decision-making--to the realm of the economy. At the time, this would have seen a revitalization of a bush mode of production, with emphasis placed on the harvesting and manufacturing of local renewable resources through traditional activities like hunting, fishing, and trapping, potentially combined with and partially subsidized by other economic activities on lands communally held and managed by the Dene Nation. Economic models discussed during the time thus included the democratic organization of production and distribution through Indigenous cooperatives and possibly worker-managed enterprises. Revisiting Indigenous political-economic alternatives such as these could pose a real threat to the accumulation of capital in Indigenous lands in three ways. First, through mentorship and education these economies reconnect Indigenous people to land-based practices and forms of knowledge that emphasize radical sustainability. This form of grounded normativity is antithetical to capitalist accumulation. Second, these economic practices offer a means of subsistence that over time can help break our dependence on the capitalist market by cultivating self-sufficiency through the localized and sustainable production of core foods and life materials that we distribute and consume within our own communities on a regular basis. Third, through the application of Indigenous governance principles to nontraditional economic activities we open up a way of engaging in contemporary economic ventures in an Indigenous way that is better suited to foster sustainable economic decision-making, an equitable distribution of resources within and between Indigenous communities, Native women's political and economic emancipation, and empowerment for Indigenous citizens and workers who may or must pursue livelihoods in sectors of the economy outside the bush. Why not critically apply the most egalitarian and participatory features of our traditional governance practices to all of our economic activities, regardless of whether they are undertaken in land-based or urban contexts?The capacity of resurgent Indigenous economies to challenge the hegemony of settler-colonial capitalism in the long term can only happen if certain conditions are met, however. First, all of the colonial, racist, and patriarchal legal and political obstacles that have been used to block our access to land need to be confronted and removed. Of course, capitalism continues to play a core role in dispossessing us of our lands and self-determining authority, but it only does so with the aid of other forms of exploitation and domination configured along racial, gender, and state lines. Dismantling all of the oppressive structures will not be easy. It will require that we continue to assert our presence on all of our territories, coupled with an escalation of confrontations with the forces of colonization through the forms of direct action that are currently being undertaken by communities like Elsipogtog. Second, we also have to acknowledge that the significant political leverage required to simultaneously block the economic exploitation of our people and homelands while constructing alternatives to capitalism will not be generated through our direct actions and resurgent economies alone. Settler colonization has rendered our populations too small to affect this magnitude of change. This reality demands that we continue to remain open to, if not actively seek out and establish, relations of solidarity and networks of trade and mutual aid with national and transnational communities and organizations that are also struggling against the imposed effects of globalized capital, including other Indigenous nations and national confederacies; urban Indigenous people and organizations; the labor, women's, GLBTQ2S (gay, lesbian, trans, queer, and two-spirit), and environmental movements; and, of course, those racial and ethnic communities that find themselves subject to their own distinct forms of economic, social, and cultural marginalization. The initially rapid and relatively widespread support expressed both nationally and internationally for the Idle No More movement in spring 2013, and the solidarity generated around the Elsipogtog antifracking resistance in the fall and winter of 2013, gives me hope that establishing such relations are indeed possible. It is time for our communities to seize the unique political opportunities of the day. In the delicate balancing act of having to ensure that his social conservative contempt for First Nations does not overwhelm his neoconservative love of the market, Prime Minister Harper has erred by letting the racism and sexism of the former outstrip his belligerent commitment to the latter. This is a novice mistake that Liberals like Jean Chrétien and Paul Martin learned how to manage decades ago. As a result, the federal government has invigorated a struggle for Indigenous self-determination that must challenge the relationship between settler colonization and free-market fundamentalism in ways that refuse to be coopted by scraps of recognition, opportunistic apologies, and the cheap gift of political and economic inclusion. For Indigenous nations to live, capitalism must die. And for capitalism to die, we must actively participate in the construction of Indigenous alternatives to it.

The gap that exists between Western intellectual property regimes and traditional works reflects, in part, a tension between a market culture and a communitarian, gift-based culture. 102 Western intellectual property regimes incentivize creation for a market economy. 103 In the Western system, intellectual property rights "connote that the property has value as a means to accumulate more wealth or money." 104 In this way, works protected by Western intellectual property laws are useful in any context; they possess a market value separate and distinct from [*88] culture. 105 In contrast, indigenous peoples' traditional knowledge is borne of a community economy, which emphasizes qualities such as sharing within the community, where members benefit from reliance upon others. 106 Rather than seeking to commercialize traditional knowledge, indigenous groups generally desire to assert ownership and control over it in order to protect it. The goal is to preserve the integrity of the knowledge and to keep it safe from appropriation, destruction, deformation, and extinction. 107 Thus, transplanting a truly Westernized system of intellectual property to an indigenous community will likely "lead to economic transformation or adoption of the market form exactly among those people whom it is said to protect." 108 This could mean, for many indigenous groups, an unwanted departure from tribal culture and tradition. Moreover, indigenous intellectual property need not be "incentivized" in the same sense as Western works because, in part, much of the traditional knowledge that indigenous communities seek to protect already exists. 109 This is not to say, of course, that traditional knowledge need not be incentivized at all. Traditional knowledge is not static, but exists as a living, breathing entity within the indigenous world. 110 Its constant recreation is necessary to keep the works alive and relevant to the changing circumstances of the tribe. 111 The keeper of sacred songs or stories may infuse that knowledge with new meaning to keep the ceremonies strong. Thus, holders of traditional knowledge, though not motivated by the same incentives at work in a market economy, are nevertheless inspired by unique, community-based goals to constantly [*89] re-create and re-envision their works. 112 Another reason why tribal law, rather than top-down models, should supply the framework for protecting intangible cultural property is that controversial proposals for the protection of traditional knowledge are now being introduced at the international level. For example, there is currently a strong push to create databases for the protection of traditional knowledge. 113 One author contends, for example, that knowledge from communities wishing to participate in the project should be catalogued and deposited in a restricted access database. Each community would have its own file in the database. The system would serve many purposes. Checks would be made to see whether each entry is not already in the public domain and whether other communities have the same knowledge. 114 While the efficacy of such databases is apparent - there is a value, after all, to articulating, organizing, and putting others on notice of protected materials - such proposals have been met with opposition in some indigenous communities. 115 Opponents believe that databases will only make it easier for those who wish to exploit cultural heritage and appropriate secret and sacred traditions. 116 They question how the disclosure of a tribe's sacred or confidential knowledge could possibly protect it from infringement, with one scholar calling the proposal "entirely wrong-headed." 117 The idea of disclosing traditional knowledge within a public forum - even one with controlled access - represents a risk of exploitation and destruction that is, for many, far too great. 118

The third distinctive aspect of intellectual property studied as part of the history of capitalism is conceptual. The context of ownership of information had been one where basic latent assumptions characteristic of a market society that usually remain silent were often challenged, wrestled with, or at least momentarily forced to the surface. In other words, ownership of information is where naturalization tends to burst at the seams. The reason for this is that ownership of intangibles destabilizes one widespread strategy of naturalization, meaning: physicalization. Physicalization is the representation of a social relation between people as a physical (and hence “natural”) relation between things or between things and people. 167 Property is an area where physicalization abounds, where legal relations between people masquer– ade as physical relations between people and things.168 But this has never worked smoothly with intellectual property. As the name implies, intellectual property, at least once understood as such, wears its nonphysicalism on its sleeve. In the words of Justice Oliver Wendell Holmes Jr., these are rights “in vacuo” that create “a prohibition of conduct remote from the persons or tangibles of the party having the right.”169 And this obvious intangibility of the object of property tended to disrupt the disguise of the property relation as a physical one. The upshot of this dynamic was that in some moments intellectual property’s disruption of the physicalist naturalization extended to all property rights170 and indeed to all legal relations.171 This is not to say that physicalization has ever been banished from the area of intellectual property. Nevertheless, it is less stable and more prone for disruption in the context of ownership of information. Thus, intellectual property has been an area where occasionally a window had opened offering a view beyond at least some of the naturalizing assumptions of a market society and forcing participants to wrestle with the questions that then came into view. It is therefore an opportune area of study for the historian of capitalism.

One last structural role of intellectual property worth mentioning here pertains to trademark law. In this area, the structural role with respect to general patterns of economic activity is exactly the line dividing traditional trademark law as a form of anti-fraud protection from its gradual propertization, meaning its becoming truly a branch of intellectual property (which is still contested even today). 162 Goodwill, that elusive asset that shrewd businessmen began to sell and license around the mid-nineteenth century,163 is a double abstraction. It is the commodification of business success. Commodification took here its usual two-step course: first, reducing the dynamic and evanescent character of everything that made a business successful into an object, securing it in place by mooring it to a symbol; then, making this new object the subject of market exchange. Through the market exchange of a new object called goodwill, commodification came to be applied not only to informational consumer goods and various elements of capitalism’s infrastructure, but to business success itself. Trademark law built around goodwill supplied the constitutive legal forms. The somewhat younger cousin of goodwill—the brand—and its legal form further extended this process to encompass a particular key feature of business success: the power to cultivate and channel human desire. To succeed, businesses needed to harness human desire to buy. A major development of capitalism, embodied in the rise of the adver– tisement industry, was erecting a systematic mechanism for cultivating and channeling preferences or “needs.”164 Brands emerged as semiotic receptacles for the product of this mechanism: petrified crystals capturing and mooring down the dynamic process of channeling human desire. The (incomplete) extension of trademark law to protect the value of brands and facilitate their market exchange was the process of commodifying the value of molded human desire as embodying selling power.165 Commodifying selling power as captured by semiotic commer– cial devices laid, in turn, the foundation for yet another business organization form heavily reliant on intellectual property: the modern franchise.166

A second element of situating the history of intellectual property within the history of capitalism is uncovering the development of how this area came to play a constitutive role in important junctures of the structure of modern economic relations. The rise of intellectual property was not limited to the creation of a mechanism for the market exchange of information as a consumer good. In various ways, intellectual property rights acquired a deeper structural role in the organization of economic relations. As Michael Zakim observes: “The knowledge economy is not . . . a ‘post-industrial,’ and certainly not a ‘postcapitalist,’ development.” 146 In other words, the growth and transformation of business in the nineteenth century was, in fact, the first information age with “the capital of mind” playing a major role in it.147 This was true of applied knowledge pertaining to the material world that was the basis of the physical infrastructure of capitalism: everything from innovations such as railroads, telegraphy, and telephony that constituted the transportation and communication revolutions, to the designs of the new machines and chemical processes that powered factories.148 It was also true of new knowledge of manip– ulating the social and commercial spheres such as accounting and filing systems, business statistics, or financing schemes that constituted the business revolution.149 Ownership under intellectual property rights was potentially relevant for all of those infrastructural assets. In some cases, this meant straightforward extension of proprietary rights, most commonly patents and trade secrets.150 Other cases, such as business statistics 151 or accounting systems, 152 involved struggles, sometimes resulting in incomplete commodification. The point is that intellectual property rights came to play a structural role on this deeper level of the system’s knowledge infrastructure. Commodification of information unfolded not just with respect to consumer markets but also as a regulative principle of the system’s infrastructure. Intellectual property rights also played a structural role with respect to business organization. Until after the Civil War, assignment of patent shares played a major role in structuring business partnership around innovative technologies. 153 In the absence of general incor– poration that became available only around the mid-century, assigning patent shares was the direct vehicle for molding business structure.154 Similarly, geographical licensing supplied the foundations for a form of territorial franchising in an age where nation-wide operation by a single business entity was rare.155 Somewhat later, patent pools that created schemes for licensing a multitude of rights necessary for particular technologies began to play a broader organizational role in shaping and regulating the operation of entire industries.156 Both share-assignments and pools, rather than limited to being mechanisms for overcoming transaction costs in transferring ownership or permissions from sellers to buyers, were more fundamental important instruments of structuring business. Around the turn of the twentieth century, business organization mushroomed dramatically in scope and scale with the corporate R&D lab becoming a central mode of innovation.157 In this context, patents, which now were often held in portfolios, became instruments of corporate security.158 Firms used such portfolios to try to obtain predictability and “rationality,” draw the borderlines of their zones of operation and negotiate industry-wide arrangements.159 As a top official of an AT&T subsidiary put it in 1926, referring to patent licensing arrangements: The regulation of the relationship between two such large interests as the American Telephone & Telegraph Co. and the General Electric Co. and the prevention of invasion of their respective fields is accomplished by mutual adjustment within “no man’s land” where the offensive of the parties as related to these competitive activities is recognized as a natural defense against invasion of the major fields.160 In copyright, the structural role of rights in business organization was developed later. As relevant industries as well as the applicable copyright framework grew more complex, this structural role became more significant. One early example is the music industry, where early in the twentieth century right portfolios were the vehicle of maneuvers to try to control the industry161 and where later organizational patterns of businesses and intermediaries came to revolve around the copyright framework.

Most fundamentally, the history of intellectual property should be understood as part of the process of commodification. The appearance of the set of legal relations we call today intellectual property was, first and foremost, part of the relentless and all-encompassing process of expanding the commodity form, as applied to various kinds of infor– mation. This process happened on the ground in changing practices of increasingly subjecting information to general market exchange. But it also involved a conceptual change—a new specific way of understanding information. Both the practice and the concept had a distinctive structure consisting of three different conceptual elements. First, to become a commodity, information had to become a “thing” or an object. In premodern times, various kinds of information were understood in fluid terms as living human knowledge, a dynamic process, or even as an aspect of persons.139 Before information could become an object of market exchange, a thing to be bought and sold, this dynamic character had to be wrestled to the ground—it had to become an object. The first phase of creating intellectual property then was constructing the relevant informational objects. Second, these informational objects had to be “first transformed into bars in the head and in speech before they are exchanged for one another.”140 In other words, informational objects had to be understood as reducible to their abstract and commensurable exchange value and as produced in order to extract this value from any possible market. A third and last aspect was the question of drawing borders: what kinds of information were to be subjected to this form and what kinds had to be left outside it? The distinctive structure of commodified information gradually came to be embedded in the applicable legal forms. It is this embodiment of the commodity form as applied to information which distinguishes the unique phenomenon of intellectual property. Information was far from completely unregulated prior to the appearance of intellectual property, as attested by many premodern institutional arrangements such as guild regulation of craft secrecy, restrictions on the immigration of skilled craftsmen, patronage, and censorship. 141 What separates these and many other forms of regulating the production and dissemination of information from the later-coming intellectual property is exactly the commodity form. Commodification, then, is a powerful concept for understanding the development of the distinctly modern phenomenon of intellectual property. At the same time, commodification was neither a preordained uniform structure nor an unchanging, static one once appearing. The process of development was rife with contestation and negotiation, rather than the progressive extension of a readymade structure. Each of the three conceptual dimensions of commodifying information gave rise to many puzzles such as what exactly was the object of exchange, how was its value to be measured, what exactly could be owned or bought and sold, and what constituted interference with property rights. There was also friction with deeply held ideological commit– ments, most prominently various forms of aversion to ownership of knowledge. And often there was resistance from various interested groups who resorted to both the conceptual loose ends and countervailing ideology. The result was specific and unique patterns of commodifying information, patterns that were not identical in all contexts or places and remained dynamic over time. This history accounts for both the conceptual unity and the internal diversity of the area of intellectual property: the field’s overarching principle is the commodification of information while its different subfields are marked by the different patterns of commodification as those developed historically (with further variation within each field). The development of these patterns is a rich vein to be mined by historians. And the story to be told is threefold, encompassing the emergence of: the general, distinctively modern, framework of commodifying information, i.e., intellectual property; the carving out of the general sub-areas within it; and also the phenomenon of incomplete commodification. The latter refers to the fact that, in some contexts, ideological resistance and interest groups’ tussles produced incomplete commodification: the demarcation of certain kinds of information as residing outside the domain of commodification.142 Some examples of this include news,143 basic scientific research, 144 and what came to be known as “moral rights” that in the continental tradition emerged as extra-territorial islands deliberately designed to insulate certain human interests from market commodification. 145 Again, these different patterns of incomplete commodification, their negotiation and dynamic shift over time, as well as their geographical migration and cross-influence, holds promising prospects for historical exploration.

Leanne Betasamosake Simpson (Michi Saagiig Nishnaabeg) noted that her people traditionally: […]have no such thing as capital. We have relatives. We have clans. We have treaty partners[…] Resources and capital, in fact, are fundamental mistakes within Nishnaabeg thought, as Glenna Beaucage points out, and ones that come with serious consequences — not in a colonial superstitious way but in the way we have already seen: the collapse of local ecosystems, the loss of prairies and wild rice, the loss of salmon, eels, caribou, the loss of our weather. This is of course not to say that exchange was or is alien to Indigenous traditionalism — the pre-colonial continental Americas thrived with networks of exchange such that the Mississippian Mound Building peoples had items from coastal Mesoamerica. Rather, exchange of equivalent values was not the heart of their societies. Marx spoke of this distinction of communal ways of life from capitalism as one where the former puts humanity as the aim of production, while the latter makes production and the accumulation of capital as the aim of humanity. This humanist, or perhaps more accurately life-affirming, ethic remains at the heart of Indigenous communities and their identities as specifically distinct from the mainstream of Western bourgeois society. They are not apart from it, as after all colonization was and is itself a capitalist encroachment and domination. The global system of our world is capitalism, this is a fact. Insofar as they are not assimilated — that is, insofar as they are Indigenous, as long as they remain in continuous ties with their ancestral relations and as distinct peoples, capital has not penetrated into and reconstructed their very hearts in its image. Indigenous identities are community identity, and their coherence depends on principles alien to that of capitalist identities. Indigenous peoples have successfully resisted the debilitating capitalization of their subjectivities for 500 years and counting. Simpson and other Indigenous critics of capital recognize that it represents a quasi-autonomous, impersonal power which corrodes all community-based ways of life in the name of its vampiric drives.

However, creating intellectual property rights for indigenous knowledge extends a device of early European capitalism to societies that are often in part precapitalist. Ironically, proponents of these rights seek to address problems caused in part by the expansion of capitalism by employing a tool of capitalism. The idea that more capitalism is needed to cure its own problems is certainly not novel, but it is one that anthropologists and indigenous people should approach with caution. The severity of the obstacles to implementing intellectual property rights suggests two conclusions. First, the direct route to using these rights, as outlined in the bottom-up and middle-ground approaches, is less tenable than the more indirect top-down approach. This conclusion stems from the fact that intellectual property depends on state support and intervention to achieve balance between the interests of scientists, industry, consumers, groups who are recognized as having indigenous status, and groups who are not. Indirect compensation for indigenous rights appears to be palatable to states with biological resources, as shown in the FA0 agreement on farmers’ rights. On the other hand, nation-states are likely to be reluctant to allow indigenous people to have a monopoly on rights to biological resources. Nations that must enforce these rights will weigh the increased cost of biological resources and more difficult access to them against the needs of the majority urban populations for cheap food and medicine. States are unlikely to accept either the goal of equity for indigenous interests or the burdens of managing direct compensation. The second conclusion is that a great deal of applied and basic anthropological research is needed in this area. Achieving the conservation and/or equity goals for indigenous knowledge will require the enlightenment of states and users of biological resources in industrial countries, and anthropologists can play a critical educational role. The basic research agenda is perhaps even more challenging. Any internationally sponsored effort to meet conservation or equity goals for indigenous people will require the transfer of funds from the industrial users of genetic resources (Barton and Christensen 1988). Such a transfer may be accepted by industrial users if it promises conservation and continued access to biological resources. However, these users and sponsoring agencies are likely to ask some hard questions that only better ethnobiological research can answer: 1. How are resources and knowledge distributed among indigenous people and others in a biologically diverse region? 2. How are biological resources managed by indigenous people and others, and how is management affected by social change? 3. How will the increased costs of implementing indigenous intellectual property rights benefit indigenous people and others? 4. What local means regulate access to knowledge and resources? Are these compatible with intellectual property? A large percentage of ethnobiological research has been descriptive and qualitative ,and analysis has emphasized the structure and evolution of folk knowledge as something isolated from the ecology and management of biological resources. More ecological and process-oriented ethnobiology faces the severe problem of lack of historical data. More quantitative data would be useful, but quantitative research methods for these ethnobiological questions are not readily available or applicable on a broad scale. Conventional ethnobiology has generally not taken advantage of new biochemical tools for describing the diversity and structure of plant populations. The failure of intellectual property rights to meet their economic goals in fully capitalist, industrial societies invites skepticism about the ability of these rights to achieve either conservation or equity goals in less developed countries. This skepticism is amplified by the four obstacles noted above. Intellectual property rights are but one means of advancing the cause of indigenous interests. Intellectual property is attractive because of its ubiquity in the expansion of world capitalism, but other ways of constituting rights, such as guaranteeing human, cultural, or land rights, might be more effective in meeting the goals of conserving indigenous knowledge and providing more equitable treatment for indigenous people who have been generous with their knowledge and resources.

At their core, United States intellectual property regimes are “designed to help individual authors profit, not to help collective cultures survive and develop.”72 Courts have been adamant in their “conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.’'”73 In most cases, American IP law does not concern itself with the personality interests, or “creative soul,” of an artist or work.74 Instead, United States intellectual property regimes are shaped and directed toward the ultimate end of providing economic “rewards commensurate with the services rendered.”75 A conflict immediately arises between the goals and assumptions of United States intellectual property law and the nature of the intangible resources that tribes often seek to protect. Typical Western focus on “the lone originator, the free agent, the creative genius often conflicts with the more communal focus of native peoples, in which identity and rights derive from membership in clan, kinship and tribal networks.”76 Copyright law, for example, protects “original works of authorship fixed in any tangible medium of expression.”77 It envisions artistic expression as the product of a lone, profit-motivated creator and uses a limited-duration monopoly to incentivize creative production. American copyright law does not recognize the fact that “some forms of artistic expression may not be nor were ever intended to be set down in a fixed medium.”78 It does not distinguish between works that entered the public domain after purposeful commercial exploitation by their creators and works that were recorded, shared, or published without their creators’ consent.79 This reality is painfully apparent for indigenous artists such Ami elder Lifvon Guo, whose performance of the Ami Song of Joy was digitally incorporated into Enigma’s 1994 hit, Return to Innocence.80 Lifvon Guo’s performance of Song of Joy was recorded and incorporated in Return to Innocence entirely without his (or the Ami’s) knowledge, but the song itself is a communally created chant passed down by the Ami for generations.81 As a consequence, Guo and the Ami have no power “determine the fate of the recordings, reap the rewards of their own creation, or control resulting violations of tribal law and blatant distortions of their work.”82 So far as indigenous cultural resources remain intangible, unfixed, or communally owned, no copyright protection is available. Patent and trademark protection for Native American cultural resources suffer a similar fate to copyright. The novelty requirement in 35 U.S.C. § 102 means that “patenting [for] centuries-old cultural knowledge is unavailable.”83 Time bars for public use deny patent protection to techniques and practices “considered new by the larger world, yet long used within the confines of" Native American communities.84 The utility of trademark protection for tribes is likewise limited by “its commercial basis and focus.”85 To bring a trademark claim, “a party must be a competitor in the market.”86 Native communities that wish to keep intangible cultural resources out of the market are left with self-contradictory claims: they are asked to demonstrate commercial harm when the real harm felt is commercialization itself. Their primary remedy has been to petition the United States Patent and Trademark Office (USPTO), challenging the registrability of an appropriated mark rather than its actual use.87 Even when a tribe is victorious before the USPTO, however, an appropriator need not stop using the now-unprotected mark: the Washington Redskins, for example, continued to sell Redskins gear for years despite cancellation of their trademarks in 2014 as “disparaging to Native Americans.”88

Zukerfield 17 National Scientific and Technical Research Council (CONICET), Buenos Aires, Argentina and Science, Technology & Society Center, Maimonides University, Buenos Aires, Argentina (Mariano, “The tale of the snake and the elephant: Intellectual property expansion under informational capitalism”, The Information Society, 33:5, 243-260, 6-17-17, DOI: 10.1080/01972243.2017.1354107, DOA: 6/29/24)//LFS - LMH

Liberalism was opposed to both monopolies and property rights for intellectual works. Monopolies were seen as obstacles to free markets, as the remnants of monarchical arbitrariness. Nevertheless, private monopolies on knowledge for a limited period were accepted— often reluctantly—for the enrichment of the public domain in the long run. But labeling copyright and patents as “property” was rejected. This rejection was grounded in a particular belief: that the essence of ideas was quite different from the essence of physical goods.14 Further, the opposition to property rights for intellectual works can be found in another kind of liberal argument, which has persisted to the present day: Intellectual property inhibits the full exercise of physical private property. For instance, if a person buys a book, this owner would not be able to exert certain rights on the goods she bought because of the copyright: She is not allowed to copy, translate, or base a movie on it. Thus, certain rights are retained by the seller herself, which turns the property into an incomplete property for the buyer.15 Summing up, at least five arguments show that copyright and patents have long been opposed to the liberal notion of property: (i) They were monopolies; (ii) their duration was limited; (iii) the rights were granted only to enlarge the public sphere of knowledge; (iv) entities subject to them (the ideas) had a different nature from those goods subject to property; and (v) arguably, exercising them precluded the full realization of private property. If this is so, why have copyright, patents, and other related rights become property nowadays? In the transition from industrial to informational capitalism, a deep institutional change took place. The privileged position that once was occupied solely by physical property is now shared and even contested by a set of monopoly rights on knowledge. Labeling monopoly rights on knowledge as “property” gives these rights prestige and legitimacy. Moreover, this move makes the trappings of monopoly less salient.

The United States, alone, and on a daily basis violates every principle of international law ever envisioned: unprovoked wars of aggression; unmanned drone attacks; tortures and renditions; assassinations of our alleged “enemies”; sales of nuclear weapons; destabilization of unfriendly governments; creating the largest prison population in the world – the list is virtually endless.

Obviously one would wish that there existed a body of international law that could put an end to these abuses, but such laws exist in theory, not in practice. Each time a legal scholar points out the particular treaties being ignored by the superpowers (and everyone else) the only appropriate response is “so what!” or “they always say that.” If there is no enforcement mechanism to prevent the violations, and no military force with the power to intervene on behalf of those victimized by the violations, what possible good does it do to invoke principles of “truth and justice” that border on fantasy?

Many norms of international law, especially international human rights law, are widely violated. The international legal system as a whole may suffer as result.

International human rights law has changed international law. The two primary sources of international legal obligations—treaties and custom—have become more expansive and looser so as to bring more human rights norms into the ambit of international law, despite wide-spread non-compliance with those norms. In one sense, the success of the effort is clear: international law now regulates a vast array of human-rights-related conduct. Whether the expansion is an effective way to promote human rights is widely-debated.

The biggest problem, from the perspective of international law advocates, has been the United States. Long the champion of international legalization and the richest and most powerful country, the United States was a laggard in the 1990s. During treaty negotiations, the United States consistently worked to weaken treaty language and create exceptions. It ended up opposing the International Criminal Court and has cajoled dozens of countries into entering bilateral immunity agreements, which require them not to turn over Americans on their territory to the ICC. It refused to enter the Kyoto Global Climate Change Treaty. It refused to enter a treaty that banned landmines. It has refused to enter several human rights treaties, and it has entered others only subject to reservations that ensure that they do not change American policy. It led the illegal intervention in Kosovo. Although many other states have been recalcitrant about these and similar international institutions— including Russia, China, India, and other major powers—it has come as a shock to many American internationalists that the United States acts more like these countries than like western European countries. From their perspective, matters only became worse after 9/11. The American military response to the al Qaeda threat has raised grave questions of international law. So has both the invasion of Iraq—arguably, in violation of the UN Charter—and the conduct of the war there. The Bush administration also has forcefully reiterated American opposition to the ICC and to Kyoto, and withdrawn from the ABM treaty with Russia; and many of its officials have shown skepticism about the value of international law for American foreign policy. International law advocates now regard the United States as a rogue state but have no ideas about how to change American behavior. Defenders of American foreign policy sometimes argue that nobody pays attention to international law, and so therefore the United States should not; and, at other times, they argue that weak states are using international law to prevent the United States from acting in its national interest. The partisan debate is hampered by lack of understanding about how international law really operates.

The role of international law in international relations and American foreign policy has received a great deal of attention since the end of the Cold War, and even more attention since 9/11. The end of the Cold War generated extraordinary optimism about the ability of international law to prevent war, preserve peace, and regulate economic and cultural relations among states. The UN Security Council became much more active and, notably, authorized the use of force against Iraq in the first Gulf War. Nations entered new, ambitious treaties governing the environment, human rights, and economic relations, including the creation of the World Trade Organization. These treaties created the first major international criminal tribunals since World War II, including tribunals to resolve cases arising out of civil war in Yugoslavia and the genocide in Rwanda; and, then, a permanent International Criminal Court with jurisdiction over a broad range of international crimes. Europe made great strides toward integration, thanks in part to the successful operation of its European Court of Justice. As the twentieth century ended, optimism about international law was as high as it had ever been—as high as it was at the end of World War I and World War II, for example. We can conveniently use 9/11 as the date on which this optimism ended, but there were undercurrents of pessimism even earlier. The UN played a relatively minor role in bringing the conflicts in the Balkans to the end. Members of the Security Council could not agree on the use of force in Kosovo, and the NATO intervention was thus a violation of international law. The various international criminal tribunals turned out to be cumbersome and expensive institutions, they brought relatively few people to justice, and they stirred up the ethnic tensions they were meant to quell. Aggressive international trade integration produced a violent backlash in many countries. Treaty mechanisms seemed too weak to solve the most serious global problems, including environmental degradation and human rights abuses.

As a rejoinder to Mead’s Foreign Affairs piece, John Ikenberry argued that these actors are not “”—they are, at best,  In any case, we are just now beginning to see the effects of this challenge.

For example, China is coercively presenting “new,” competing political and economic systems to actors in their region, saying, essentially, “embrace the Chinese way,” or else. Russia has been engaged in a similar effort for years, presenting a similar proposition to other states: “Do not turn towards Western institutions and systems,” or else. North Korea and Iran, for their part, have taken this regional, coercive approach to a whole new level—by holding population centers at risk through conventional weapon systems.