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2024 Michigan Kritik
Links › Topic Links › Trademarks

Trademarks produce a parasocial relationship between the brand and the consumer relying on the capital slave perpetuating and venerating these brands leading to the fetishization and submission to the trademark.

Manning 10, Paul Manning is an Associate Professor of Anthropology at Trent University, Canada, June 14, 2010, “ANNUAL REVIEW OF ANTHROPOLOGY”, “The Semiotics of Brand”, Annual Reviews, Accessed July 3, 2024, PW

THE DEMATERIALIZATION OF BRAND Because brand is thus everywhere, and yet nowhere, the phenomenon comes to be represented as an essentially immaterial form of mediation, a kind of globalized interdiscursivity, an indexical icon of the virtual nature of the global capitalist economy itself, which is often compared with virtual worlds on the Internet (Lury 2004, Arvidsson 2006). This virtualized brand starkly contrasts the messy materiality of “messages on bottles” as they are often encountered on the individual token level, illustrating a tendency toward what Robert Moore has dubbed the “dematerialization of brand” (R. Moore, personal communication). This tendency erases the “semiotic vulnerabilities” of brand, Moore argues, that come into view when the semiotic ideology of brand is confronted with the contingent world of its materializations (Moore 2003, p. 336). Because of the metaphysical expansiveness of brand discourse and its tendency toward dematerialization, it becomes difficult to decide where brand lives as a semiotic phenomenon: How should a semiotic analysis of branding take account of the seemingly quite different ontological statuses of brands as such, versus branded products (as types), versus individual instances (tokens) of branded products, these last being what actual people engage with in activities of consumption, use, enjoyment, display, and so on? How can the concrete sensuous reality (e.g., color) of such tokens in use act as a relay for the more abstract associations (Young! Fresh! Edgy!) that branding professionals try to “encode” in consumer experience. (Moore 2003, p. 332) The tendency for brand to be conceived as an immaterial form of mediation essentially identical to semiosis as such is partially due to the way that brand is defined in opposition to the product. “The product and the brand” (Gardner & Levy 1955) form a privileged doublet, expressed in popular marketing mantras such as “a product is made in a factory: a brand is bought by a consumer” (Wang 2007, p. 23; Lury 2004, pp. 31, 72). As mantras such as this show, the definition of brand develops over time by a kind of mystical via negativa, defining itself not so much by saying what brand is as what it is not: the product. By degrees, brand moves from being a “symbolic extension” of a product (Arvidsson 2006, p. 95; Askegard 2006, p. 100), as brand guru David Ogilvy put it in 1955, the “intangible sum of a product's attributes, its name, packaging, and price, its history, reputation, and the way it is advertised” (cited in Wang 2007, pp. 23–24), to leaving behind the dull, passive, generic, inert utility and materiality of the product entirely, taking on an “enchanting, sometimes religious character,” adding a “spiritual dimension to what used to be ‘merely a product’” (Askegard 2006, p. 96). The opposition brand/product condenses a folk-ontological opposition between immaterial/material, form/function, distinctive/descriptive, decorative/functional, symbolic/technical, properties of subjects/properties of objects; the pervasive dematerialization of brand recapitulating in broad outlines the dematerialization of meaning itself in western secular and religious discourse (Irvine 1989, Pfaffenberger 1992, Masuzawa 2000, Keane 2003, Manning & Meneley 2008). In addition to the complementary schizmogenesis in which brand drifts away from the product, leading to a dematerialization of brand, brand undergoes several other parallel semiotic shifts. Earlier, primarily legal, discourses tend to treat brand as an arbitrary and distinctive trademark indexing a producer, whereas more recent marketing discourses tend to treat the essence of brand as a set of associations held in the minds of consumers (Hanby 1999, Moore 2003). This treatment is sometimes linked to an opposition between an earlier “positivistic,” “mechanistic” view of brands as “lifeless manipulable artefacts,” “inert physical objects,” which serve primarily as differentiating marks for products and which are “owner-oriented, reductionistic and grounded in economics” (Hanby 1999, p. 9; Csaba & Bengsston 2006, p. 121), and more recent quasi-animistic discourses that treat brand as a “person” (Lury 2004, p. 75) in which the pervasive associations based on the role brands play in consumers' lives are transformed into actual anthropomorphic characteristics imputed to brands understood as holistic, organic, living, growing entities with which consumers can form actual social relationships directly (Hanby 1999, Csaba & Bengsston 2006). We also see historical changes in which trademarks and brands move from being a category of communication to objects of property (Lury 2004, Bently 2008a). The discourse of brand is much addicted to epochalism so that in the 1960s we move from the “product era” to the “image era,” and in the 1980s the “brand image” gives way to a financially quantifiable “brand equity” (Arvidsson 2006, pp. 41–65; Wang 2007, pp. 23–25). All these shifts broadly recapitulate moves away from earlier Saussurean structuralist semiotic theories privileging the arbitrariness and distinctiveness of the sign to later poststructuralist accounts in which the omnivorous associationism of brand (for homologies between semiotic theories and trademark law, see Beebe 2004), not to mention rampant anthropomorphism, comes to approximate the fetish (Beebe 2004, p. 681; 2008, p. 52; Hearn 2008). However, the brand fetish is not easily assimilated to the Marxian “commodity fetish” to which it is frequently compared (Manning 2009, p. 926n6). Rather, I am taking the fetish here as a general semiotic figure “standing for an amorphous collection of ‘hybrid’ semiotic phenomena united only in their inability to be assimilated to the Saussurean ‘purification’ of the sign” (Manning & Meneley 2008, p. 292; on the semiotic polysemy of the fetish, see also Pietz 1985, Masuzawa 2000). Whereas these different views of brand are often presented in epochal shifts globally affecting the imagination of brand, mechanistic views of brands as lifeless signs and organic views of brands as living persons are often mixed in contemporary marketing discourse (Hanby 1999, Csaba & Bengtsson 2006). As with other dichotomies such as nature/culture (Latour 1993 [1991]), if brand discourse seems preoccupied with ontological purification of brand from its connection, inter alia, to products, brand practice confronts us with a phenomenal proliferation of semiotic hybrids. Given these difficulties of analytic specification, I follow Moore (2003) by presenting the various semiotic moments of brand on the model of the communicative act itself, replacing speakers with producers, consumers with addressees, referents with products, and messages with the brand itself.

2024 Michigan Kritik
Links › Topic Links › Trademarks

Trademarks have overridden our subconscious through semantic imagery that dilutes our emotions forcing us to be capital slaves to the state of consumption

Zakharov 09, Katya Assaf is from the Hebrew University of Jerusalem - Faculty of Law, 28 July 2009, “Journal of Intellectual Property Law & Practice 643”, “Protection of trade marks against dilution: a semiotic perspective”, Oxford University Press Journals, Accessed July 3, 2024, PW

The influence of trade marks is not limited to cases in which an existing cultural sign is chosen to serve as a mark. A culturally meaningful trade mark must incorporate certain ideas and values. In order to reach this goal, the trade mark should be linked to cultural signs that denote these ideas and values. For example, to invest a trade mark with the spirit of romantic love, advertising can, among other things, display it together with the word ‘love’, flowery hearts, a diamond ring, or a romantic couple walking on a beach. All of our society’s ideals—happiness, freedom, love, and professional success—are eventually exploited by advertising which attempts to link them to commercial trade marks. This process strengthens the cultural significance of promoted trade marks and of consumption in general. However, the significance of the social ideals exploited by advertising is also affected. Although each advertisement pulls a given sign towards another product or service, all have a common message: the way to happiness, freedom, love, professional success, etc. lies through the consumption of commercial goods and services. Even if not every single advertisement succeeds in fastening the promoted trade mark to the desired cultural ideal, their cumulative effect successfully links consumption to important social values, giving it a central place in modern society. People attribute great importance to consumption and associate it with happiness, pleasure, freedom, and self-reward.14 However, because of the existence of reciprocal forces in the semantic field, this process has a flip-side, since cultural ideals to which consumption has been linked start incorporating materialistic values. If consumption denotes happiness then, necessarily, happiness also denotes consumption to a certain extent. If a luxury cruise, dinner in a restaurant, or an expensive piece of jewellery symbolize true love, then the notion of true love also includes these consuming practices to some extent. Constantly linking cultural ideals to the banal context of consumption dilutes and hollows their distinct meaning. As Andrew Wernick notes, even in church, it is hard to hear the word ‘paradise’ without thinking on the multitude of goods to which this idea has been promotionally linked.15 Frequently, cultural signs with a strong and distinctive significance, cultural icons, are chosen to serve as rhetorical figures in advertising.

2024 Michigan Kritik
Links › Topic Links › Patents

The proliferation of patents is a tool of cognitive capitalism that necessitates the privatization of social services, resulting in the subjugation of those in the Global South

Asimakopoulos and Gilman-Opalsky 18 (John Asimakopoulos  is Full Professor of Sociology at the City University of New York and executive director of the Transformative Studies Institute (TSI), an educational think tank. Richard Gilman-Opalsky is Associate Professor of Political Philosophy in the Department of Political Science at the University of Illinois. “Against Capital in the Twenty-First Century”, Temple University Press, February 23 2018, //LF

Enclosures makes reference to a decisive moment in the social and economic history of England: the final eradication in the eighteenth century of customary rights that bore on the use of communal land, the “commons.” These lands were “enclosed”—that is to say, appropriated in an exclusive manner by their legal owners—and that with tragic consequences, because use of the commons was essential to the life of peasant communities. A frightening number of people were stripped of all means of subsistence. “The Tragedy of the Commons” is, moreover, the title of a widely read essay that was published in 1968, but its author, Garrett Hardin, misappropriates the association between the destruction of the commons and tragedy. The tragedy is in fact supposed to be the overexploitation (postulated by Harding) of the communal lands themselves, linked to the fact that each user pursued his self-interest without taking into account the fact that the outcome of this self-interest would be the impoverishment of everyone. This fable evidently met with great success, as it allowed not only the enclosures to be legitimated as “unfortunately necessary” but with them the ensemble of privatizations of what had been of the order of collective management: the interest of private property owners is also selfish but it pushes them to turn a profit on their capital, to improve their returns, the increase productivity. Another classic narrative—that of [Karl] Marx—associates the expropriation of the commons with what he calls the “primitive accumulation” of capital.3 The great mass of the poor, now stripped of any attachment, will be mercilessly exploited by the nascent industries, because there is no need to take into account the reproduction of labor power: the poor can collapse on the job as there will always be others. In this sense, the enclosures prepare the capitalist appropriation of the labor of those who, deprived of their means of life, will be reduced to being nothing but their labor power. However, Marx did not celebrate this expropriation in the manner in which he celebrates the destruction of the guilds and of the ensemble of what attaches humans to traditions and ways of life: like the elimination of an old order, an elimination which the future socialism will be indebted to capitalism for. Perhaps it is because of the pitiless brutality of the operation, or because what was destroyed was a form of “primitive communism,” bringing resources and means into common use, the fact remains that he saw in it a “theft,” or the destruction of the right of the poor to ensure their subsistence. If, today, the reference to enclosures matters, it is because the contemporary mode of extension of capitalism has given it all its actuality. The privatization of resources that are simply essential to survival, such as water, is the order of the day, as well as that of those institutions which, in our countries, had been considered as ensuring a human right, like education. Not that the management of water has not been a source of profit, and that capitalism hasn’t largely profited from the production of well-trained and disciplined workers. What has changed is that henceforth it is a matter of direct appropriation, under the sign of the privatization of what were public services. And privatization doesn’t stop there. The reference to enclosures is very directly activated by this “knowledge economy” to which I have already alluded, because what the latter promotes is nothing other than the disappearance of the line separating public and private research and the direct appropriation of what had, until now, benefited from a (relative) autonomy. The production of knowledge today is considered as a stake that is too important to allow this minimal autonomy to researchers, who are now subjected to the imperative to establish partnerships with industry, to define acquiring a patent as the desirable success par excellent, and the creation of “spin-offs” as the glorious dream. All that with public money, which gets sucked up into multiple spin-offs that fail, while those that succeed will be purchased, without too much risk, together with their patents, by one or another consortium. In short, the distribution between what the state lets capitalism do and what capitalism gets the state to do has changed. The state lets capitalism appropriate what was defined as falling within from the public domain, and capitalism gets the state to endorse the sacred task of having to hunt down those who infringe the now sacrosanct right to intellectual property—a right that extends over practically everything, from the living thing to knowledges previously defined as freely accessible to all their users. A right to which WTO [World Trade Organization] intends to subject the entire planet, in the name of the defense of innovation. From the conceptual point of view, the fact that in the name of competition workers are exploited today with a rare intensity, without even talking about the sweatshops reserved for poor countries, or about the appearance in our countries of “poor workers” who aren’t capable of making ends meet on their salaries, doesn’t count for much. But above all, as in every theater of concepts, we are functioning here in the long, even the indefinite, term.

2024 Michigan Kritik
Links › Topic Links › Patents

The 1AC’s understanding of patents serves not only as a technique of commodification but is the capital used in the international network of information. The 1AC is zeroed by the technologies structured by the World Computer which uses patents as data to fuel the systems proliferation and the endless digitization ideas through the databases of digital networks that patent law relies on.

Kang 23(Hyo Yoon, Associate Professor of Law at the University of Warwick. She studies legal forms and techniques in their political, cultural and social contexts by drawing on scholarship in social and literary theories, historical epistemology, political economy, and science and technology studies. “Patents as Capitalist Aesthetic Forms”, Law and Critique, 6/1/2023. Accessed 7/1/2024)//jliu

There are incongruous representations of patents circulating today, both in the medium of text and of a pictorial image.1 On the one hand, there is an increase in the popular aestheticization of patent drawings. A patent drawing decontextualizes and simplifies an abstract legal monopoly right into a pictorial representation of an inventio-n. But an isolated patent drawing removed from its original document context has no legal meaning or force in the sense of ascertaining, codifying or even understanding the contours of a patent as an intellectual property right. Patent drawings seem to be valued mainly for the aesthetic pleasure or familiar ‘novelty’ factor that they may generate (as seen in Fig. 3). On the other hand, in contrast to patent drawings’ popularity, efforts towards the full digitization of patent bureaucracy are continuing with networked distribution of patent documentation and examination practice (Kang 2019). Patent law drives and relies upon databases of digital documentation and networks. These have also engendered a tertiary service of information provision. These comprise private providers such as Clarivate, which merged  the leading private IP ‘intelligence’ services, such as Derwent and CompuMark, as well as the free, publicly available databases of the World Intellectual Property Organization, European Patent Office, or the US Patents and Trademark Office.2 Such an international network of digital patent ‘information’ is the possibly the largest legal networked bureaucratic information infrastructure, and it remains below the public radar. In contrast to public imagination of patent with geeky inventions depicted in technical drawings, the legal system is not particularly concerned with patent drawings. Its primary mode of representation of an invention is that of a text. The main genre of a patent’s representation is that of a document. The document in turn serves as a medium in the form of an identical file in the overall system of patents as data management (Kang 2012). Such a wide gap between the cultural representation of patents and their legal form remains underdiagnosed and underexplained. Analyzing IP’s effects on cultural significance and practices, Rosemary Coombe wrote her influential book, The Cultural Life of Intellectual Properties: Authorship, Appropriation, and the Law in the 1990s. The book’s analytical gaze was socio-legal by foregrounding the inquiry on law’s effect on society and culture, and not so much the other way around. The proliferation and adoption of patent drawings as cultural artifacts, however, indicates novel cultural imaginaries of patents, which shape the ways in which patent law is understood and legitimized. Furthermore, the realm of science, associated with patents in modern IP law’s subject matter division between arts and sciences, remained underexamined in Coombe’s treatment, perhaps because it was seen as being separate and/or extraneous to the cultural realm. The stipulated division between arts and sciences in modern intellectual property law runs along the legal divisions of copyright and patent laws. They conceal how sciences occupy a central role in contemporary cultural imaginaries of development and progress (Kim 2017). Sciences are not outside their cultural and social environments.3 University and industrial sciences, financial capitalism, and economic nationalism are closely intertwined with the privatization of sciences (Mirowski 2011). Close links between university technoscience, understood as interrelated scientific, business and cultural practices, and financial speculation underpin the Silicon Valley culture of venture capitalism and its adoption at a national(ist) scale by authorities through their ‘high tech’ and ‘start-up nation’ agendas (Daub 2020; see Stadler, Steuwer, Wulz 2021, for a historical contextualization of university policies and right-wing knowledge politics).4 In such a context of speculative, finance-driven capitalism, patent law has not only acted as techniques of commodification, but also of financial assetization: patents are not only used for raising capital, but also act as capital themselves (Kang 2015, 2020).

2024 Michigan Kritik
Links › Topic Links › Copyright

Copyright is no longer a means for creative structure but to reproduce content that’s only seen as mainstream, which incentives us to relinquish culture in the name of profit. These copyright holders then sell our senses through semiotic advertisements geared to force us to gorge on capitalistic pleasures of consumption

PESSACH 16, GUY Associate Professor, Hebrew University of Jerusalem; Affiliate Fellow, Information Society Project, Yale Law School. A prior draft of this essay was presented at the McGill University Centre for Intellectual Property Policy (CIPP). I am indebted to Professor Pierre-Emmanuel Moyse the director of the CIPP for hosting me and for excellent insights on the topic of this paper, Fall, 2016 “Beyond IP--The Cost of Free: Informational Capitalism in a Post-IP Era”, Osgoode Hall, Accessed July 3, 2024, PW

Critical copyright scholarship also emphasizes the copyright's role in shaping the political economy of corporate media. 4 Control over the means of production and distribution is gained through a mixture of government-issued entitlements in creative resources (e.g., copyright) and distribution platforms (e.g., telecommunications licenses). 5 Within this framework, the traditional corporate media model is based on producer-consumer relationships and the copyrighting of culture--that is, the commodification of content through proprietary protection. 6 This economic model pivots around the extraction of revenue from the distribution of and provision of access to content. 7 At the same time, a market-oriented media system fails to provide the public with the whole array of media products that the society desires. 8 Media markets tend to produce a wasteful abundance of content that responds to mainstream tastes while neglecting civically, educationally, and culturally pluralistic content. 9 Additionally, [*228] the nature of corporate media as advertising-supported favours media products that have a wide appeal and are suitable for selling the advertised products over media that attends to the diversity of people's actual needs and interests. 10 The emergence of the Internet is perceived by critical copyright scholars as a unique opportunity to significantly improve society's informational and cultural ecology, if only the right regulatory and legal choices are made. 11 In broad strokes, the argument is that new information technologies make it easier for individuals, groups and communities to collaborate in producing and exchanging cultural content, knowledge, and other information goods without requiring the involvement of commercial, profit-motivated media entities. 12 New, cheaper methods of producing, storing, and distributing content provide fertile ground [*229] for the emergence--and constant demonstration of the existence--of enhanced schemes for sustaining culture and knowledge beyond IP. 13 From this perspective, the traditional distributor-centric, proprietary-based cultural and informational industries appear both unjustified and counterproductive in terms of the public interest in cultural diversity, decentralization of media spheres, and individuals' self-fulfillment. It seems only natural that a shift from producer-consumer cultural industries to civically engaged cultural spheres would be feasible, if one could only dissolve the strong attachment of cultural production to intellectual property protection as a governing institution. 14 Critical copyright scholarship does not stop at criticizing the traditional corporate media model, it also offers an alternative model of creative activities that rests upon concepts of free content, free access, and openness. 15 This scholarship shows that there is much to be looked for beyond intellectual property, particularly in light of persuasive evidence and arguments that authors' [*230] and creators' incentives are far more diverse than intellectual property's direct economic incentive. 16 The purpose of this article is to untie the seemingly Gordian knot between proprietary intellectual property protection and capitalist structures of corporate media. I argue that media environments based on free distribution of content are no less vulnerable to corporate market powers. 17 Free content and departure from traditional proprietary intellectual property regimes do not necessarily lead to true, effective freedom for individuals. Recent scholarship in the areas of communications studies and critical Internet studies examines the emergence of a new political economy in which networked information industries are built upon free flow of information and content. 18 This literature describes what many of us experience on a daily basis: a highly concentrated industry in which revenues are extracted mostly from selling advertisements and users' personal data. 19 The scholarship focuses on informational capitalism, which uses data, information and content as means of production and circulation to make profit and accumulate wealth. 20 [*231] The key features of this networked environment include a strong tendency towards selling "eyeballs" (audience attention) to advertisers; utilization of big data; and the use of information flows about consumer behaviour to target advertisements, search results, and other content. 23 Similar such features include stealth advertisement; sophisticated systems of predictive analytics; 24 commodification of consumers' data; 25 and free utilization of content. 26 These features represent a brave new world that is the opposite of what one anticipates when looking beyond intellectual property protection. In such "beyond IP" realms, industrialized corporate structures, media concentration, content biases, abridged creative diversity, and deflated authorial welfare may outweigh the drawbacks of traditional corporate media. 27 A second, related aspect of informational capitalism is its growing dependence on free content and information as elementary means of production. In a political economy that does not extract revenues through the direct commercialization and sale of content, but rather from the commercialization of personal information and users' attention, free content and free information are the main bait for obtaining and monetizing both audience attention and users' personal information. [*232] Spheres beyond intellectual property thus represent a social contradiction between their empowering functions and their vulnerability to exploitation and commodification. Free flow and distribution of content undoubtedly stimulate social conditions that empower individuals, promote innovation, and advance cultural democracy. Yet, at the same time, they provide no safeguards against patterns that imitate the logic and drivers of proprietary cultural industries. In fact, they simultaneously create new opportunities to make profits and accumulate property through the commodification and commercialization of users' attention and personal information. Although the emergence of networked informational capitalism is well addressed in the academic literature, there is hardly any reference to the linkage between networked informational capitalism and components, both legal and ideological, that are derived from and associated with free distribution of content in cultural and informational zones in which intellectual property's governance is less salient. I argue that informational capitalism is linked not only to elements of proprietary control, but also to elements of free flow and non-proprietary modes of content circulation. This argument questions the conventional wisdom of critical copyright scholarship, which tends to pair proprietary protection with informational capitalism and the commodification of culture.

2024 Michigan Kritik
Links › Topic Links › Copyright

Copyright and other industries capture our data to sell which produces a harmful competition over our attention. This attention economy creates new profit possibilities for industry conglomerates.

Cohen 23, Julie Georgetown University Law Center, December 17, 2023, “Informational Capitalism as Phase Shift: Challenges for Digital Constitutionalism”, Oxford University Presss, forthcoming 2024, Accessed July 5, 2024, PW

A final set of strategies for multi-dimensional commodification involves skimming, or appropriating the data traces generated by an underlying resource, by natural phenomena, or by commercial or social activity. Once converted into streams of data, the information can be combined and processed to identify underlying patterns and devise services that exploit the patterns to generate profits. As noted in Part 2, one type of skimming strategy that features prominently in the political economy of informational capitalism involves data harvested from people and populations. A related strategy, pioneered by social media companies, appropriates the data traces from user generated content posted online. Notably, this model leveraged widespread resistance to early enforcement efforts by the major copyright industries, which sought to transpose their own slicing-based strategies for clearing rights at scale to public-facing online environments.15 As an alternative, online intermediaries developed a different model that leverages large amounts of highly granular viewing and listening data collected from the very same users who sought open access to online content.16 That model, however, looks very different than the one that the original open-access activists envisioned. In its mature form, it combines advertising revenues with slicing and tethering strategies targeting different user and right holder populations. Multi-dimensional commodification strategies merit careful attention from scholars of constitutionalism for two reasons, both involving the ways that such strategies redistribute economic power. First, multi-dimensional commodification arrangements bite with special force on fictitious commodity resources—the resources whose status within a system of political economy has such profound implications for human and social wellbeing. Land, labor, money, natural resources, and people may not have been created by or for the market, but data about them appears to suffer from no such deficiency. When generated and extracted in an environment offering sufficient flexibility and processing power, it can be manipulated to generate seemingly infinite new profit possibilities.17 Multi-dimensional commodification strategies enable the isolation and perfection of interests in old and new fictitious commodities that are more neatly amenable to economic exploitation than the underlying resources would be. Often, the new ventures can be designed to operate in ways largely unconstrained by preexisting protective regulation—for example, by substituting gig work arrangements for formal employment arrangements that would be subject to protective labor regulation, by devising new instruments for extracting rents from land and those living on it, or by concocting complex mechanisms for profiting from underlying financial dealings without engaging the various forms of banking, investor protection, and consumer protection regulation to which those dealings are subject.18 Such ventures can appear to be appealing investments for a variety of reasons. As capital flows into arrangements for layering, slicing, tethering, and skimming, however, the apparent economic imperatives surrounding configuration and exploitation of such arrangements grow commensurately, creating powerful new pressures on distribution and control of the underlying resources—and on the human beings and human societies that they affect. Second, multi-dimensional commodification strategies, and the scaled-up information processing and service delivery operations upon which they increasingly rely, tend to engender specialized intermediation arrangements—and those arrangements, in turn, can come to embody large concentrations of economic power. (The exceptions tend to involve multi-dimensional commodification ventures operated by large, sophisticated entities that can provide scaled-up information processing and service delivery for themselves.) For these reasons, moreover, multi- dimensional commodification strategies tend to elicit and thrive within a particular set of structural and organizational logics, to which I turn next.

2024 Michigan Kritik
Links › Topic Links › Intellectual Property

To manage intellectual property is the distinction between the original and a copy. The legal institutions of IP are built on an intellectual quicksand of semiotic value where there is neither an original nor a copy.

Ted Striphas 9, Associate Professor in the Department of Media Studies at the University of Colorado-Boulder. I am also Editor-in-Chief of the journal Cultural Studies. "Harry Potter and the Simulacrum: Contested Copies in an Age of Intellectual Property", P. 295-311, Published 12 Oct 2009. Critical Studies in Media Communication, Volume 26, Issue 4. ,JDiang

But this is only half of the story. The magic of Harry Potter also resides in how competing claims about the young wizard's authenticity open up and help to answer the question: what happens when the boundary line dividing originals from copies becomes indeterminate, so much so that it becomes untenable to speak of originals and copies at all? This question, it should be pointed out, poses a significant quandary from a legal standpoint. Because courts of law are in the business of adjudication, they cannot resolve it by celebrating the play of difference. From the vantage point of intellectual property law, cultural artifacts cannot be permitted too much semiotic leeway, especially in cases where competing claims about their priority cannot be definitively reconciled. The litigious life of Harry Potter-related doubles thus lends insight, I want to argue, into how courts of law manage the critique of representation (i.e., the growing diffuseness of the categories “original” and “copy”) within the context of increasingly recombinant media and cultural production (Hebdige, ; Jenkins, ; McLeod ,; Vaidhyanathan, ). Lurking behind all this sorcery is a disquieting figure, the simulacrum. It emerges first in Plato's meticulously gradated universe, where it occupies the lowest rung in the hierarchy of the arts of making (poiesis). Plato's simulacrum is neither model nor exact replica, but rather a distant semblance of whatever it doubles—the figure of the same, only different, and thus of fidelity corrupted. It is also a term he associates with the Sophists, that itinerant group of orator-pedagogues whom he likens to “conjurers” for having despoiled rhetoric with their falsely imitative arts (Plato, , pp. II.64–II.68, II.26). More recently, Jean Baudrillard (1983, ) and Gilles Deleuze (, , ) each has reimagined the simulacrum, in his own way, as that which causes bright-line distinctions between originals and copies to blur. However conceived, the simulacrum would seem to wield a certain, unsettling power. But what happens when theory interfaces with law? That is, what happens when the simulacrum enters into determinate legal contexts? I contend the litigation involving Harry Potter-related doubles stages these questions; it throws into relief the simulacrum's theoretical and political limits for scholars in and beyond media studies; and it sheds light on the legal thaumaturgy by which those limits get imposed. Analogy: My Fetish is to Your Aura … I am hardly the first to speak of the magical character of cultural goods. More than a century ago, Karl Marx () referred to a “fetish” character that commodities assume under capitalism, while in 1936, Walter Benjamin () explored the mysterious “aura” surrounding “original” artwork. These qualities, which are immanent to and a product of the realm of people and things, nevertheless mystify cultural goods, imbuing them with other-worldly characteristics. Both Marx and Benjamin took magic seriously, perhaps even literally, seeing it, albeit in somewhat different ways, as intrinsic to modern social life. Marx's Das kapital is an exemplary work of modern political economy. Yet, inasmuch as Marx provides a “scientific” account of social and productive relations under capitalism, his methods nonetheless reveal a society deeply enchanted in its own right. To read Das kapital is to enter into a world not unlike the one readers will find in Harry Potter. Charmed objects, deadly magical creatures, and ghosts populate Potter's world just as they do in Marx's magnum opus, which is replete with dancing tables, thirsty vampires, and phantom orchestras. (So, too, is Marx and Engels’ [1848/] The communist manifesto, in which the authors liken the bourgeoisie to “a sorcerer who is no longer able to control the powers of the nether world whom he has called up by his spells” [p. 14].) Perhaps it is no surprise, then, to hear Marx (1867/1976) speak of commodities in Das kapital as “abounding in metaphysical subtleties and theological niceties” (p. 163). The commodity fetish takes center stage in this drama precisely because of magic's centrality to the world Marx describes. The fetish character of commodities arises, according to Marx, from the peculiar form these objects assume under capitalism. Here, commodities come to be valued not only, or even primarily, for the uses to which they can be put, but perhaps more importantly for their capacity to be exchanged for other commodities. This privileging of exchange- over use-value obscures the vast stores of human labor power embodied in any thing, with two principal results. First, whether mediated by money, the universal (abstract) form of equivalence, or not, commodity exchange comes to stand in for more direct forms of human relation. “It is nothing but the definite social relation between men and women themselves which assumes here, for them, the fantastic form of a relation between things,” writes Marx (1867/1976, p. 165). Second, to the extent that commodities appear to be severed from the realm of human affairs, they would seem to be produced autochthonously and solely for the sake of exchange. Marx again: “the products of the human brain appear as autonomous figures endowed with a life of their own, which enter into relations both with each other and with the human race” (p. 165). The strange magic of the commodity fetish thus is both cause and effect of inanimate objects assuming a “life of their own,” seemingly independent of human praxis. If the commodity fetish is a multifarious form of epistemological magic, which disguises human labor power, then what of Benjamin's (1968) notion of the aura? I pose this question with some trepidation, given the almost compulsive ality that surrounds the essay from which the term is drawn, “The work of art in the age of mechanical reproduction.” To say this is not to reduce its import, but rather to point out that Benjamin's essay and its attendant concept, aura, have spawned something of an industry when it comes to engaging industrially reproduced cultural goods. As Udi E. Greenberg () observes: Walter Benjamin claimed that the democratization of art, brought about by mechanical mass production, would sharpen the critical faculties of the masses. The popularization process to which Benjamin himself was subjected, however … reveals that the dynamics encompassed in it are far more complex, and are at times paradoxically based on a structural tradition that contradicts the goals of the Benjamin industry's agents themselves. (pp. 67–68) Indeed, despite Benjamin's (1968) argument about forms of reproduction undermining the aura, or the sense of authenticity specific to a given artifact after which reproductions are fashioned (p. 223), the social life of his essay belies a different story. In publication after publication, in conference after conference, in classroom after classroom, both the main argument and the text of Benjamin's essay are extensively reproduced. The result is that the piece accrues ever more social, theoretical, and intellectual capital. Ironically, then, the essay's mass reproduction would seem to be what is imbuing it with authority and authenticity—with luminescent aura—despite Benjamin's claim about the waning of the aura in the age of mass reproduction. So what story can the social life of Benjamin's essay tell about the nature of mass reproduction and the magical work of aura, beyond what the essay explicitly says? In the preceding example, doubles do not degrade the original's aura. To the contrary, they are a necessary condition of the aura of originality, the magic of authenticity. Or, to say it even less equivocally, copies produce originals as such, not the other way around (c.f. Chang, , p. 188; Deleuze, 1994, p. 289; Sterne, , pp. 217–221). Tucked away in the hinterlands of “The work of art in the age of mechanical reproduction” is a footnote in which Benjamin (1968) suggests as much: Precisely because authenticity is not reproducible, the intensive penetration of certain (mechanical) processes of reproduction was instrumental in differentiating and grading authenticity.… To be sure, at the time of its origin a medieval picture of the Madonna could not yet be said to be “authentic.” It became “authentic” only during succeeding centuries and perhaps most striking during the last one [i.e., the 19th century]. (p. 245 n. 2) Some people undoubtedly perceived the Madonna to be a unique artifact prior to the advent of new technologies of mass reproduction in the 19th century. The possibility of seeing it as authentic or original only arises, however, within the context of reproducing the image on a mass scale.2 The magic of the aura is precisely this, then: the concept's spellbinding capacity to conjoin original and copy and to invert their priority, so that “derivative” works appear to be a function of a putative “original.” Indeed, the derivative or copy would seem to be the most original, perhaps the only original, assuming we still feel compelled to hold on to that terminology at all. Gilles Deleuze (1994) affirms this point when he speaks of “a perfect independence on the part of each presentation” or instance of a mass-produced object (p. 70). Deleuze's project in Difference and repetition and elsewhere is to overturn Platonic mysticism, and more specifically to undo its most enduring set of distinctions: between essence and appearance; original and copy; the thing-in-itself and its simulacrum. Plato and his followers erred, Deleuze argues, in their claim that a repeated thing always must refer to some “concept” outside of itself, which is to say, to a set of epistemological conditions that posit (to the point of demand) an existential link between the repeated thing and that which it doubles (p. 13). This collapse of the ontological into the epistemological mobilizes Platonism's moral claims about the primacy, even sanctity, of essence over appearance, such that the repeated thing or “copy” comes to represent an existentially degraded version of the vaunted “original.” But what would happen, Deleuze asks, were we to think repetition ontologically, that is, in itself? The result, Deleuze argues, would be a renewal of our ability to appreciate difference in repetition, which is tantamount to our not conflating the repeated with the Same, or even the Similar. “It seems … that, with Plato, a philosophical decision of the utmost importance was taken, that of subordinating difference to the supposedly initial powers of the Same and the Similar, that of declaring difference unthinkable in itself and sending it, along with the simulacra, back to the bottomless ocean” (p. 127). Perhaps it is no surprise, then, that simulacra take on a renewed importance for Deleuze. In contrast to those of Jean Baudrillard (1983, 1994), Deleuze's simulacra refer not to phantasmic copies of copies, each of whose appearance bears a recursively diminishing degree of resemblance to a furtive original. They refer, rather, to “the act by which the very idea of a model or privileged position is challenged and overturned” (Deleuze, 1994, p. 69; see also Deleuze, 1990, p. 262; Massumi, ). In this reading, which is at once more and less faithful to Plato, simulacra unravel the ontologically moribund original-copy distinction. They do so by compelling people to acknowledge the singularity of every repeated thing. In more concrete terms, simulacra challenge normative juridical and political-economic understandings of repeated things as they arise within capitalist relations of production, given the doubt they cast on the rubrics by which the art-law-culture nexus sustains itself: “In every respect, repetition is a transgression. It puts law into question, it denounces its nominal or general character in favour of a more profound and more artistic reality” (Deleuze, 1994, p. 3). The point of all this looking up the magician's sleeve is to identify some of the ways in which capitalism works its epistemological magic. It is also to think through some philosophical conditions by which to articulate a more deeply politicized aesthetics of daily life, given the peculiar prestidigitations by which two or more social artifacts become existentially linked, temporally prioritized, and thus morally hierarchized. Hence the simulacrum—outlaw art, which in Deleuze's account would seem poised to break the spell. But to what extent can it be counted on to do that? The Muggle Struggle The struggle over commodities, copies, and the magic of capitalist production comes to a head in the intellectual property dispute, Scholastic et al. v. Stouffer. The suit's foundations were laid in August 1999, when Stouffer and her attorneys initiated talks with Scholastic, Inc., Potter's U.S. publisher, over ownership rights to specific copyrighted and trademarked materials associated with J. K. Rowling's by then wildly popular book series. In addition to the aforementioned physical similarities between the Potters Larry and Harry, and among other allegations, Stouffer contended that Rowling willfully had borrowed from her, with neither permission nor compensation, the word “Muggle.” In Harry Potter's universe, Muggle refers, in its noun form, to persons without magic and, adjectivally, to things associated with those persons. Stouffer alleged she had introduced Muggle to the literary community in 1984 at a New York City toy fair with the debut of her children's book, The legend of Rah and the Muggles—that is, more than a decade prior to the first Harry Potter volume's publication in 1997. Stouffer also claimed to have copyrighted and trademarked Muggle around that time. As such, she insisted that only she—not Scholastic, not Rowling, not Warner Bros., nor any party connected with the Harry Potter series—could assert ownership rights over and thus license the lucrative word (Scholastic et al. v. Stouffer, 2000). All that might seem straightforward enough, but the story only grows odder as we venture down the rabbit hole and enter the enchanted realm of the “legal real” (Gaines, , p. 90). There, doubles, copies, frauds, and unexpected reversals rule the day. After talks between the parties stalled, the Muggle struggle came to a head in November 1999 with the filing of the complaint that resulted in the aforementioned legal action. Now, given Stouffer's contentions, one might reasonably expect her and her attorneys to have filed suit against Scholastic and its associates. In fact, it happened the other way around; Scholastic and company filed suit against Stouffer, seeking “a declaratory judgment that they have not infringed and are not infringing any of … Nancy Stouffer's copyrights or trademarks” (Scholastic et al. v. Stouffer, 2000). Stouffer thus became the defendant in a case in which others were alleged to have violated her intellectual property rights. Preemption such as this is not uncommon in the realm of the legal real, however, especially in contests over high-stakes financial concerns. Compelled to mount a formal legal defense, Stouffer submitted six key pieces of evidence to prove she was the legitimate rights-holder of the word, Muggle. She also hoped to show, in the process, that Rowling might have had access to, and thus opportunity to pilfer, her words and ideas in the process of conceiving of Harry Potter. The evidence Stouffer submitted to the Court included:

Stouffer's 2000 countercomplaint detailed a series of further coincidences that, taken together, led her to suspect Rowling had unlawfully taken additional proprietary material from her. Despite these coincidences, Stouffer still lacked a smoking gun by which to prove Rowling had willfully lifted her intellectual properties. Her insinuation, that Rowling may have stumbled across her work while visiting briefly in the U.S. and living in Europe, was thin at best (Stouffer v. Scholastic et al., ). Nevertheless, the long list of apparent similarities probably would have given any reasonable person pause to consider whether Rowling had represented her much-heralded work fraudulently, thereby violating the intellectual property interests that Stouffer insisted were her own. That Rowling reportedly could produce few documents attesting to the originality of her work, most notably manuscript drafts of Harry Potter and the philosopher's stone (Stouffer, ), added further cause for speculation. Presiding Judge Allen G. Schwartz effectively concurred (Scholastic et al. v. Stouffer, 2000). Stouffer's contentions about Rowling's fraudulence and illicit copying doubled back on her, however, when Scholastic et al.'s team of expert witnesses showed that the bulk of Stouffer's evidence must have resulted from, of all things, fraudulence and illicit copying. Take the booklet, The legend of Rah and the Muggles, for instance. In a virtuoso feat of reverse-engineering, Scholastic et al. demonstrated that the words “The legend of” and “and the Muggles,” which appeared on the volume's title page, must have been printed in 1991 or later. The volume couldn't have been an original Andé edition, or if it were, the all-important Muggles must have been added retroactively. Stouffer's 1984 copyright registration supported the plaintiff's contention, given that it listed the title of the work merely as, Rah. The Playthings advertisement? Scholastic et al.'s attorneys tracked down the magazine, and although the ad copy indeed referred to Muggles, the ad they found lacked the boldly declarative “Muggles™ from RAH™” logo that figured so prominently in the version Stouffer had provided to the Court. Larry Potter fared about as well. The lone paragraph mentioning the youngster's last name, Scholastic et al.'s experts testified, was rendered in a font different from that of the remaining text. It wasn't even clear, by the time the dust settled, whether original B.C.I. editions of The legend of Rah and the Muggles and Larry Potter and his best friend Lilly ever existed at all. Former employees of the short-lived publishing house testified to never having produced a book whose title referred to Muggles. And although Stouffer claimed that the color photocopies of Larry she had provided to the Court came from originals published in 1988, the plaintiffs countered by showing that the technology used to produce the supposed originals didn't exist until 1993. Finally, with regard to the invoices Stouffer hoped would document the market strength of her work: neither B.C.I. salesperson Joan Korban Wright, nor Great Northern president Randolph Slaff, whose names appeared on the documents, recalled ever having brokered a deal to distribute B.C.I. books. Slaff, for his part, testified that the signatures bearing his name were not his own, while Wright went a step further to assert that Slaff's signature must have been forged by Stouffer, whose handwriting she knew well (Scholastic et al. v. Stouffer, 2002). The Scholastic et al. v. Stouffer decision was devastating to the defendant. Given Stouffer's scant sales (she never sold more than 6,000 copies of any of her books, compared to the 400-million-and-counting Harry Potter volumes sold [Flood, , n.p.]) and what the Court described as her “pattern of intentional bad faith conduct,” it concluded: Plaintiffs’ publication, distribution, and exploitation of the Harry Potter books does not violate any of Stouffer's intellectual property rights. Stouffer is permanently enjoined from making false representations to third parties indicating that she owns all rights in the “Muggle” and “Muggles” trademark and copyrights, or indicating that plaintiffs have violated her intellectual property rights. (Scholastic et al. v. Stouffer, ) The Court proceeded even further, granting Scholastic et al.'s motion to sanction Stouffer for her “perpetration of a fraud upon the Court.” In addition to fining Stouffer US$50,000, the Court ordered her to pay the plaintiffs’ attorneys’ fees and costs, which they claimed totaled nearly US$1.65 million. Judge Schwartz reduced that amount by about two-thirds, however, citing “discrepancies” in the law firms’ billing procedures and “a large volume of duplicative work” that had run up the plaintiffs’ tab unnecessarily (Scholastic et al. v. Stouffer, ; see also Scholastic et al. v. Stouffer,). A Precession of Simulacra It may be tempting to read the Scholastic et al. v. Stouffer decision as a kind of karmic outcome, the product of a get-rich-quick scheme gone bad. Given Stouffer's questionable maneuverings and the expert testimony presented in court, there is good reason to suggest, on one level, it probably was. On another level, though, the case shows just how strangely enchanted this world of ours is, given the peculiar but still completely routine twists and turns that occurred during the litigants’ dizzying dance of claim and counterclaim. The genius of this case lay, really, in Scholastic et al.'s decision to file a preemptive suit against Stouffer, who was compelled then to defend the originality of her work to an extent that J. K. Rowling was not. In fact, the plaintiffs had to prove very little to secure their trademark and copyright interests, other than to show the false—and falsely derivative—nature of the evidence that Stouffer had presented to the Court. Schwartz (1996) is right on the mark, then, when he states: “It is within the exuberant world of copies that we arrive at our experience of originality” (p. 212). Rather than copies and frauds affirming the substance or plenitude of purported originals, the case shows how the latter arise, empty and ghostlike, in the negative outline of the former. And what of the evidence? Surely there is compelling proof of wrongdoing on Stouffer's part. What is also compelling, however, is the more legitimate evidence that, owing to the dazzling display of dupes and doppelgängers, the Court downplayed in deciding the case. Among the most persuasive facts is Stouffer's having successfully contested trademark registration of the word Muggle in 1992. Here, the offending party was a mouse named Muggle, who, assisted by the voice talents of comedian Bobcat Goldthwait, starred in the American Broadcasting Company's short-lived, animated primetime television series, Capitol Critters. While it is not clear whether producer Steven Bochco withdrew his application from the federal trademark office because of Stouffer's claim, the series’ cancellation, or both, the fact remains that Stouffer asserted trademark rights publicly, and with a federal agency, five years prior to the first Harry Potter volume's debut (“‘Harry Potter’ book lawsuit,” 2000; Stouffer v. Scholastic et al., 2000; Stouffer, ). Stouffer officially copyrighted an illustration of the Muggle characters in September 1986, moreover, referring to them as such on the application, and in June 1987, she copyrighted a song she had penned called “Muggle-bye.” The former was linked explicitly to the Rah book, whose copyright she had registered with the U.S. Library of Congress in 1984 (Stouffer, ,). Despite holding these copyrights and having taken action against Bochco's mischievous mouse, Stouffer's Muggles still were not what the law would consider to be a “strong mark,” given her languid book and merchandise sales. The situation was compounded by the fact that she had failed to register the word Muggle with the federal trademark office until February 2000, asserting until then a less weighty, common-law trademark (Stouffer, ). The Court's ruling in Scholastic et al. v. Stouffer meant that, in an ironic twist of fate, her Muggles no longer would be entitled to the very intellectual property protections she had pursued and defended for years. In political-economic terms, the meager economic capital Stouffer's Muggles had generated resulted in the diminishment of the legal capital conferred on her by intellectual property law. Here, then, is an operant tautology at work in the Scholastic et al. v. Stouffer decision: Stouffer's Muggles were not a strong mark, nor were they entitled to become one, because they were not, after all, a strong mark. Odder still is how the contested copies at the heart of this case compelled the Court to evacuate the word Muggle of any sense of originality or distinctive meaning for purposes of preserving Scholastic et al.'s trade rights. Rowling claims to have drawn her inspiration for the word Muggle from “mug,” a British colloquialism meaning “easily fooled” (Bone, ). Stouffer, for her part, maintains that Muggle was a nickname she had used for her son when he was growing up (Stouffer v. Scholastic et al., 2000; “‘Harry Potter’ book lawsuit,” ). As the Court observed in its decision, however, there was “no indication that ‘Muggle’ or ‘Muggles’ could be viewed as ‘truly distinctive,’ especially given the fact that these words have been used in commerce by third parties long before Stouffer [or Rowling, presumably] created any of her works” (Scholastic et al. v. Stouffer, 2002, n. 8). The Court then presented an inventory of artistic works, supplied to it by the plaintiffs, that refer at one point or another to the word Muggle. The list included two children's books: Johnny Gruelle's Raggedy Ann in the snow white castle (1946) and Carol Kendall's The gammage cup (1959), both of which feature a character named Muggle. The list also referred to a 1928 Louis Armstrong song called “Muggles,” in which, according to the Oxford English dictionary, the Muggle in question referred not to characters but to cannabis—that is, to marijuana cigarettes. Still, the list of Muggle-doubles does not stop there. Both the plaintiffs and the Court overlooked Lewis Carroll's 1867 short story “Wilhelm von Schmitz,” in which “the euphonious title of Muggle” is conferred on one of the characters (Thomas, ). Surely there are other Muggles lurking about the cultural realm. In any case, lost amid the Muggles’ rampant proliferation is the claim that any one Muggle reference might be said to be originary; however, what must vanish then, too, is an abiding, existential link that would conjoin some or all of these Muggle references as copies. Absent an origin, that is to say, their status as copies grows more and more diffuse. What remains is a series of Muggles that are the same … only different. The Scholastic decision begins by summoning a fairly clear-cut sense of originals and copies, therefore, only to muddy that distinction later on. This is not altogether uncharted territory, however. As Jane Gaines (1991) observes about the case Onassis v. Dior, which revolved around the legitimacy of using celebrity look-alikes in advertising: “Copyright law, having seen so much of similarity, is unimpressed with it.” She adds that because similitude is such a potentially pliant state of affairs, “copyright law … cannot be based on the commonsense notion of absolute uniqueness or a one-of-a-kind ideal. It recognizes claims based on firstness in order to break ties when two objects of culture appear to be identical or, in legal terms, ‘substantially similar’” (pp. 96–97). Intellectual property cases need not be adjudicated on the basis of unqualified originality claims, in other words, an insight Scholastic et al. v. Stouffer reinforces only too well. But in this respect the Onassis and Scholastic cases also part company. In Scholastic, the Court determined that the Muggles in question were so substantially different from one another that the criterion of firstness would not—indeed, could not—apply. Thus, the Court was forced into what could have been—or, theoretically, what should have been—a precarious position. It admitted that there were no originals or copies, at least, where Muggles were concerned; there were only simulacra. The Court thereby embraced those nettlesome bits of outlaw art whose purpose is to exorcise the world of its Platonic inheritances, beginning with originals and copies. To put this even more pointedly: simulacra conceivably should have no business in the realm of intellectual property law, except maybe to cause trouble. After all, intellectual property law historically has been spellbound by matters of duplication and derivativeness. As such, simulacra would seem to be nothing if not threatening to the foundations of its jurisprudence. Copyright, in particular, is “an institution built on intellectual quicksand: the essentially religious concept of originality, the notion that certain extraordinary beings called authors conjure works out of thin air” (Rose, , p. 142). Nevertheless, in Scholastic et al. v. Stouffer, simulacra ran rampant. Not only that, they propped up rather than undermined the plaintiff's claims to intellectual property rights! What this suggests is that simulacra may not only operate outside of or against the law to trouble intellectual property (both the legal right and the broader concept); they may operate inside the law as instruments to secure exclusive proprietary claims as well. Conclusion In an age in which corporate media giants like Scholastic, Warner Bros., and others increasingly define the parameters of human creativity and expression through aggressive assertions of intellectual property rights (Borah, ; Jenkins, , pp. 185–198), Stouffer's challenge, whatever her intentions, deserves a certain modicum of respect. What was once a “culture industry” is fast becoming a “copyright industry” (Horkheimer & Adorno,1944/1997, pp. 120–167; Lessig, , p. 252). This shift threatens not only to restrict legitimate cultural production to an already enfranchised (and well-attorneyed) few, but also, in the longer term, to create unreasonable terms of access to the cultural commons—the publicly accessible resources by which culture is constantly made over again, anew. This essay thus complements and extends the recent work of Jarrod Waetjen and Timothy A. Gibson (). They have shown how corporations such as Time Warner, which are involved in the production and distribution of Harry Potter, “activate” specific aspects of the Potter texts in advertising and other promotional venues, hoping to eclipse their potentially progressive political messages (e.g., anti-consumerism). The struggle over trade rights to “Muggle” and related Potter indicia show how media institutions can marshal the law and legal categories so as to further consolidate the terms of media reception and use. Still, Scholastic et al. v. Stouffer is about more than individual and corporate greed in an age of ascendant intellectual property. Implicit in the case are additional theoretical lessons that bear directly on how one might imagine intervening in this emergent articulation of art, law, and culture. First, while it is true that simulacra might go a long way toward dispelling the bedazzling aura of originality, it is also the case that the politics of their doing so are not guaranteed. When Deleuze (1990) describes simulacra as “the edge of critical modernity” (p. 265), one might surmise that they stand opposed to institutions such as intellectual property law. After all, the idea of intellectual property has roots deep in modernity, with the advent of printing and other technologies of mass reproduction, along with the subsequent exaltation of the author as lone, creative genius (Foucault, ; Johns, ; Rose, ; Woodmansee, , pp. 35–56). Scholastic et al. v. Stouffer shows how the law does not always shrink from simulacra, however, and how it can in fact summon their critical capacities at decisive moments to achieve specific ends. In this case, the simulacra in question, Muggles, became instruments whereby the plaintiffs and the Court attenuated a vexed matter of creative priority (i.e., of originals and copies) by displacing it into a more clear-cut matter of political-economic power. Legal entities therefore are capable of wielding simulacra in ways that may break the spell of representation, only then to cast an even stronger one in which capital comes to express itself more immediately than ever through the law. Second, the case suggests how the experience of culture is mediated increasingly by law and legal categories. Beyond the book world, this phenomenon is dramatized by the music and movie industries’ penchant for suing enthusiasts who trade copyrighted materials online. These and other examples point to the diminishment of culture's “relative autonomy” from matters of law, economics, and so forth at the turn of the 21st century (Althusser & Balibar, ), and perhaps, then, to a sense in which cultural politics on its own is becoming less viable or efficacious today. “Culture is not where change is being organized and experienced, and it is not where resistance is being viably organized,” Lawrence Grossberg () asserts. “This need not be taken to mean that culture does not matter but that the ways in which it matters—and hence, its effects—have changed in ways we have not yet begun to contextualize or theorize” (p. 17). This essay constitutes an effort to begin this work of resituating culture, theoretically, in addition to a plea to take an even more active interest in the ways in which law and jurisprudence bear on what otherwise might be mistaken for straightforwardly cultural concerns. What might critical media scholars do, exactly, to further this project? Our touchstone ought to be this observation, put forth by the Soviet legal scholar Evgeny Pashukanis (): “commodity fetishism is complemented by legal fetishism” (p. 79). Pashukanis suggests here that we investigate not only how specific legal codes, decisions, and authorities prop up capitalist relations of production, and vice-versa, but also how the law, like commodities, can assume an almost mystical character. Apropos, legal fetishism results when one approaches the law as a sacrosanct body of rules and regulations, transcendent to human affairs, as in a natural rights tradition. Hence, it is incumbent upon us to resist such a narrow conception. Instead, we should treat the law as an affirmative expression of a particular community's norms, and more importantly, as “an invitation to consider whether, in fact, things ought to be different” (Lessig, , p. ix). Legal fetishism also results when one assumes this invitation is meant exclusively for jurists. Matters of law do indeed belong in their hands, but not strictly so. As media scholars, we should apprentice ourselves to the arcana of legal argumentation, so that we may in turn participate more effectively in a domain where, today, the politics of culture are getting worked out despite us. Finally, legal fetishism crops up in the absence of relays that would connect juridical institutions with agents whose bailiwick historically has been the politics of culture, more narrowly construed. Nurturing these types of relays thus will be essential if critical media studies wishes to have uptake well into the 21st century.

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The expansion of intellectual property rights as a vehicle of capital locks in the rise of the vectoralist class – ensures the commodification of information

Wark 4 (McKenzie Wark is is known for her writings on media theory, critical theory, new media, and the Situationist International, “A Hacker Manifesto”, Harvard University Press, October 4, 2004, ) //LF

Capital is the secondary form of property. The privatization of productive assets in the form of tools and machines and also of working materials gives rise to a class of interest among its owners, the capitalist class. Dispossessed peasants, with nothing to sell but their capacity to work, create this vast stock of capital as private property for the capitalist class, and in so doing create a power over and against themselves. They are paid in wages, but the return that accrues to the owners of capital as property is called profit. The instrument of profit puts capital into play as a form of property that has a greater degree of abstraction inherent in it than that of land. All physical resources now become comparable on the basis of this abstract plane of property. However, capital, unlike land, is not in fixed supply or disposition. It can be made and remade, moved, aggregated, dispersed. A much greater degree of potential can be released from the world as a productive resource once the abstract plane of property includes both land and capital. Where the value of land arises in part out of natural scarcity, the scarcity of things made by productive industry requires the abstraction of property as an artifice to maintain and reproduce scarcity. The possibility of revolt against scarcity arises for the first time at this point in the abstraction of property Capital as property also gives rise to a class interest among its owners, sometimes opposed, sometimes allied, to that of pro p erty [186] [187] [188] pastoralists. Capital threw its political energies into the overthrow of the patchwork feudal class relations, but also found itself sometimes opposed to the pastoralist class that consolidated the feudal property system into the abstraction of land. What capital opposed was the pastoralist ability to exploit its monopoly over land rent to secure the lion’s share of the surplus. Capitalist and pastoralist interests struggle over the partition of the surplus between rent and profit. The pastoralist has the natural monopoly of land, but capital usually prevails, as it has a greater capacity for abstraction. History makes a qualitative leap when the capitalist class liberates itself from the fetter of the pastoralist interest. The capitalist class recognizes the value of the hack in the abstract, whereas the pastoralists were slow to appreciate the productivity that can flow from the application of abstraction to the production process. Under the influence of capital, the state sanctions nascent forms of intellectual property, such as patents and copyrights, that secure an independent existence for hackers as a class, and a flow of innovations in culture and science from which history issues. Capital represents private property to itself as if it is natural, but comes to appreciate the artificial extension of property into new, productive forms under the impact of the hack. Information, once it becomes a form of property, develops beyond a mere support for capital and for a pastoralist class belatedly aware of the value of increased productivity for its rent rolls. It becomes the basis of a form of accumulation in its own right. Just as farmers and workers find themselves confronting a class owning the means of production, so too hackers find themselves confronting a new class of owners, in this case of the means of producing, storing and distributing information—the vectoralist class. The vectoralist class struggles first to establish its monopoly over information—a far more abstract form of property than land or capital— and then to establish its power over the other ruling classes. It secures as much of the surplus as it can as margin—the return on ownership of information—at the expense of profit and rent. Viewed from the current stage of historical development, each of these ruling classes appears to develop out of the productivity of the hack. The pastoralist class develops out of the productivity of private land ownership, a legal hack. The capitalist class develops out of the productivity, not just of private property, but of technical innovations in power and machinery. The vectoralist class develops out of further technical innovations in communication and control. Each in turn competes with its predecessor. Each competes for the capacity to extract as much of the surplus of total productivity as possible for its own accumulation. Each struggles with the productive classes over the disposition of the surplus. But that there is an ever-expanding surplus to struggle over is the product of the application of the hacker’s abstraction to the invention of new forms of production, or new desires for consumption, all within the framework of property. Those dispossessed by the capture of a resource by property come to conceive of their interests in terms of property. They may struggle individually to become owners of it, or they may struggle collectively to reappropriate a portion of it. Either way, property becomes the stake in the struggle for the producing classes as much as for the property owning classes. Land, capital and information all appear as domains of struggle between possessors defending or extending the claim of private property, and the dispossessed, who struggle to extend or defend public property. Farmers struggle against their landlessness. Workers struggle against their dispossession, to claim a social wage. Hackers struggle to socialize a portion of the information stocks, flows and vectors on which the hack depends. The hacker class, which has some sliver of ownership conferred on it by the instrument of intellectual property, finds its rights challenged again and again by vectoralist interests. Hackers, like farmers and workers before them, find that their ownership of the immediate tools of production is compromised both by the market power of the possessing class confronting them, but also by the influence that class can have over the state’s definition of the representations of property. Thus hackers as individuals are obliged to sell out their interests, and hackers as a class find their property rights diminished.

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Intellectual property regimes controls the development of subjectivities through accumulation by erudition – makes neoliberal exploitation and sacrificial logics inevitable

Solomon 14 (Jon Solomon is a professor at the Université Jean-Moulin in Lyon, France who has been working on a project on the biopolitics of translation based on the theory of translation elaborated by Naoki Sakai, “The Postimperial Etiquette and the Affective Structure of Areas”, A Transdisciplinary Journal, Spring 2014, https://www.academia.edu/10219075/The_Postimperial_Etiquette_and_the_Affective_Structure_of_Area)//LF

The third element in the affective structure of area to which I would like to draw attention is erudition. In the meaning to which I would like to ascribe to this term, it refers not just to the problems of access and class mobility, but also more generally to the socially meaningful qualification of “knowledge” and the distribution of it among bodily bearers. Erudition operates through division—the division of labor, to begin with, but also the disciplinary divisions of knowledge, the economic divisions of affect, and finally the individuating divisions of the body. Translation and address play an important role here, too, as erudition excludes or devalorizes certain kinds of knowledge that cannot be “translated” into the quantitative forms and standardized denominations to which the definition of “knowledge” is limited. In today’s neoliberal regime, such exclusion is exercised through the standards set by financially motivated evaluation bureaucracies. In today’s neoliberal regime, such exclusion is exercised through the standards set by financially motivated evaluation/surveillance bureaucracies, intellectual property regimes, and disciplinary boundaries. Erudition is time-consuming. It signals both an unprecedented expropriation of the intellectual worker’s time, such that one is never fully off work, as well as a consumption of time by making affective experience a direct source of value (“consumers hungry for new experience”). Working-too-much, often under precarious conditions, is fast becoming the main way in which subjective disavowal, a fetishism of the object under the sign of erudition, is instituted, even among those of us who would otherwise like to be alert to the problem of disavowal. The technical term that Marx uses for “working-too-much” is absolute surplus value, typically produced by extending the worker’s labor time. Several decades ago, Gayatri Spivak used Marx’s technical term globally to characterize relations between the West and the non-West in the postcolonial era (Spivak 2009b, 123). Today, it would appear that the extraction of absolute surplus value through excessive labor time is fast becoming one of the principal ways to assure not just a hierarchy of relations but the unquestioned acceptance of the field of oppositional terms through which hierarchies are constructed and reversed. What is being forgotten is that the terms of specific difference, such as the West and the non-West, always contain a core component of negativity, freedom, indeterminacy, and antagonism, and are never simply given. Due to a Cartesian habit, we might not think of erudition in terms of affect, but under the definition that I would ascribe to it, affect “sneaks” into erudition through the particular way it individuates the body. Erudition constitutes a singular appropriation of the relation between body and knowledge by granting exclusive legitimacy to the abstract, accumulational form that we call, in English, the body of knowledge. The affective form that is closely related to this appropriation of the multiplicity of the body is the sense of knowing. Nationalism is precisely the modern political form that turns knowing into affect. While foreigners can know about the other nation, they cannot understand it in the same way as nationals; they cannot, in other words, partake in knowledge as an affective structure of feeling that is based in “experience” and shared among members of an imaginary community. Yet the category of experience-that-can-be-shared-sympathetically is determined in advance by the arena that capitalism, in the process of appropriating the state, establishes for the process of valorization. This is the arena of exchange value. Sympathetic knowledge, or national knowledge, is the form of exchange value that is being applied to the act of knowing understood in terms of fantasy—the fantasy of shared experience reflected in knowledge. As an apparatus of fantasy, erudition’s most important role is found in recoding the body. It is not simply that distantiation, based on the Cartesian stance of objectivity, becomes the principle mode of relation, with all of its known symptoms. Erudition is also a means of maintaining an attitude of indifference or disavowal. The most common form of this attitude of indifference with regard to knowledge in the postimperial configuration can be seen in the institutionally sanctioned assumption that issues related to anthropological difference fall under the purview of specific disciplines or fields within the human sciences—what are commonly termed “area studies” in North America. The matrix of anthropological difference per se as an organizing principle for the human sciences must never be brought into question at an organizational level. The organization must be naturalized so that participants never see their own disciplinary commitments, including language and object choice, in terms of the history of social relations under conditions of colonial population management. It is not simply that objects reflect the desires and tastes of certain kinds of subjectivity (forming in effect a socially instituted form of prejudgment or simply prejudice), but rather that objects become means of disavowal by which people can ignore and forget the mediations and negations that constitute subjectivity as a social practice. As an affective form, erudition is thus characterized by object-obsession and subjective disavowal. It is globally institutionalized and legitimized through the supposedly “natural” correspondence between disciplinary divisions in the order of knowledge and various social divisions in the order of political organization. And while it may look as if the university institutions in North America, in which greater anxiety about the status of objects is often seen (accompanied by all kinds of institutional innovations to accommodate interdisciplinary approaches), has an advantage in this respect, the truth is rather that an imperial nationalism, such as seen today in the United States, invariably calls forth performative gestures, such as transdisciplinary object-anxiety, in order to garner the sacrifice of minority populations for the benefit of the capital-state nexus. Disciplinary rigidity and obsession with the legitimacy of “pure” objects as seen in the other nations today outside North American high academia is not a sign of their “backwardness,” but simply the function of cultural nationalism formed in relation to imperial nationalism. In short, the regime of erudition oversees the silent articulation of the reproduction of cleavages (reason vs. myth, speech vs. writing) and identities inherited from the imperial/colonial modernity to the neoliberal production of value through affect. The bearer of various forms (racial, ethnic, national, gendered, sexual, linguistic, et cetera) of social domination and exploitation that have accompanied modernity, erudition is above all concerned with bodies of accumulation. Whereas capitalist accumulation produces the bodies coded by political economy and translational accumulation produces bodies coded by civilizational and anthropological difference, erudite accumulation produces normalized bodies of knowledge as well as bodies normalized by knowledge.

2024 Michigan Kritik
Links › Topic Links › Intellectual Property

Intellectual Property Law facilitates the creation of an immaterial surplus of labor through unconscious generation of desires that lead to endless cycles of exploitation and semiotic exchange

Douglas 19, (Dillon Douglas, 6-6-2019, “A Geology of the General Intellect”, The University of Western Ontario, https://www.proquest.com/openview/ef0e1fcc83b32a21ff5914b87f8f125a/1?pq-origsite=gscholar&cbl=18750&diss=y) #GayFrog

So, what then is a parasite, the creature who siphons off the surplus? Serres describes the parasite in terms of an unequal exchange of energy, the way in which one organism extracts more energy, labour or time from another organism than it gives back in return, the way one stratum extracts more from layers beneath or beside. Serres explains how organisms are always stealing energy from each other. From this simple thesis, Serres develops a “universal economy of unequal exchange”: The parasitic relation is intersubjective. It is the atomic form of our relations.136 Man is a louse for other men. Thus man is a host for other men. The flow goes one way, never the other. I call this semiconduction, this valve, this single arrow, this relation without a reversal of direction, “parasitic.”137 To parasite means to eat next to...The country rat is invited by his colleague from town, who offers him supper. One would think that what is essential is their relation of resemblance or difference. But that is not enough; it never was. The relation of the guest is no longer simple...There is no exchange, nor will there be one. Abuse appears before use.138 We parasite each other and live amidst parasites. Which is more or less a way of saying that they constitute our environment.139 Pasquinelli gives the parasite a Marxian inflection and picks up on the aprioristic feature of “abuse” and “exploitation.” Before there is use-value or exchange-value there is abuse-value (i.e. primitive accumulation, enclosure and proletarianization). Capital requires a surplus in order to reproduce itself - living labour, ecosystems, and “externalities” of all sorts. In terms of tracking asymmetrical tensions and arrows cutting across, dividing and splitting the semiotic-libidinal domain of the mediasphere, we have to constantly throw ourselves into the energetic surplus of the offline in order to account for exploitative absorptions that pass through a continuum of organisms, strata and workers. The mediasphere is an energy system constituted by a complex of non-mediatic “outsides.” As a kind of caveat, Pasquinelli will also make clear that the “parasite” is not one- dimensional. The parasite does not want its host to die but generates a symbiotic relationship with it and is not simply an insidious leech (although, keeping the host alive can, at times, be all the more sinister); there are moments of alliance and non-hostility immanent to the parasitic relation that exceed direct exploitation and extortion.140 Parasitism is not a moralism. Rather, it flickers between two determinations or poles¾cruel exploiter and friendly symbiont. What the “libidinal parasite” opens up in terms of an “uneven ontology of desire,” then, rather than regarding desire as “a boundless positive energy” or a force that can “endlessly erode all structures of control” (as the relentless Spinozisms of Deleuze and Negri do), is a more radical understanding of how semiocapitalism and neoliberalism divide, cut up, structure, accumulate and siphon flows of desire.141 With the parasite, we supplement the “enchanted universe of production” (Spinoza, Negri, Deleuze, Virno) for the “dark universe of consumption” (Serres, Bataille, Pasquinelli, Parrika). Pasquinelli uses mediatic phenomena such as Internet porn videos, the simulacra of pop icons and other spectacular machines to explain the function of libidinal parasites as seductive gravitational attractors that “channel and accumulate our libido in a highly physical way. Media parasites absorb our libidinal energies as a surplus and condense it in the form of attention and fetishism towards brands, technology, material and immaterial commodities.”142 But there are other, more complicated forms of libidinal surplus value at work within the geology of media and the planetary divides of global labour that subtract our libidinal bandwidth away from secluded processes of how “desire” is manufactured in the first place. Take, for instance, “the residue products from the processes of fabrication, like the minuscule aluminum dust residue released from polishing iPad cases to be desirably shiny for the consumer market.”143 Or, even, how immaterial labour functions on the international stage: “in Vietnam or Thailand a famous designer buys for three dollars a shirt conceived in Paris or Zurich. The shirt will be sold in the West for forty-five dollars in the name of the ‘immaterial designer’” and thanks “to patents, trademarks and intellectual property - that is, to the much higher remuneration commanded by knowledge with respect to material-applied labor - wealth is in fact redistributed to the North.”144 Creativity is ontologically, fetishistically and economically restricted to the commons of the global North. It belongs (legally) to the intellectual and aesthetic consciousness of the cognitariat. We do not often talk of desire in strictly material or “corporate” terms (businesses desire profit and deterritorialize enormous parts of the earth in order to make commodities¾from computers to Ikea furniture¾so they can realize that desire). Desire typically has a phantasmagoric texture, egocentric connotation and anthropogenic locus. It seems to be an immensely polished, exfoliated and diaphanous subjective revelation, intersubjective relation or even machinic relationality¾a cupidinous arrow, machinic coupling or personal inner movement exorcised from all molecular negativity, grit or material support.145 We forget that desire has to traverse supply chains before it gets to the consumer or enters the “psychosphere” in the form of an “abstract” object of enjoyment. When speaking about “desiring-machines,” it is better move away from the “residual consumer” or “larval subject” (and its nomadic and ephemeral identity) found in Anti-Oedipus and emphasize the machine in “desiring-machines,” insofar as it enables us (without denying the “dynamic composition of heterogenous elements” or “transversal relationality”) to think about how corporate technicity (i.e. factories, data centers, fixed capital, financial computation) operates as a major force of geological exhaustion, extortion and destruction. Even beyond the desire to produce surplus value, in so far as a desiring flow functions to disrupt a molar or arborescent configuration of the socius (e.g. centralized financial systems) but plugs into a technological infrastructure that gives it a cyborg dimension it becomes problematic: the “cryptocurrency Bitcoin, which is intended to disrupt hierarchical and centralised financial systems, requires the energy of nine US homes to perform a single transaction; and if its growth continues, by 2019 it will require the annual power output of the entire United states to sustain itself.”146 As Cubitt viciously demystifies for us, the “[f]antasy cyborgs look like human beings with technological implants,” whereas “[a]ctually existing cyborgs are huge agglomerations of technologies with human implants. Corporations like Enron and FirstEnergy are such cyborgs, composed of non-human actors with human biochips embedded to carry out specialist tasks” (like public relations and human resource management), and whose sprawling machinic agency has at is disposable “electrical grids connecting aggressively active users (who can scarcely be caught in the term consumers), the unmanaged turbulence of deregulated and automated markets, and the inhuman drive for corporate profit.”147 Again, it seems necessary to turn to the provocative formula of Anti-Oedipus and read it in geological and corporate terms: “we always make love with worlds.” How does capitalism produce desire, insofar as the desire for surplus profit demands immense material consumption, a 145 Even for Lacan and Žiźek, desire is animated by a primordial “lack” (loss or void in Being) that is then determined and constituted by the signifiers of the “Other” or symbolic order, that is, through the “immaterial” organization of signs and never contaminated by the heterogeneous flows that condition its possibility or production. Desire is, in some degree, an auto-animating force beyond the realm of patriarchal code but, nevertheless, the constellation of objects around which desire is organized are always these phantasmal or “imaginary” objects. Psychoanalysis does not understand production but only structures. consumption that has nothing to do with the “individual”? What material elements does it use, abuse and discard of in the process of “desiring-production”? Desire has a constellation of material traces, minerals and chemicals (from psychopharmaceutic SSRIs to aluminum dust used for polishing Ipads, from serotonin to silicon) grafted onto its quasi-spiritual stomach lining: “plagued by worker suicides, and indexical of the wider health issues having to do with aluminum dust that is a side product of ensuring our iPads are shiny and properly polished, such places are the murky unconscious of gadget culture.”148 Parikka continues the link between desire and materiality: aluminum “itself is one of the primary chemical and metals of technological modernity: its fetishlike shininess defines Italian futurism as much as post-World War II automobile culture” and exposes a paradox in that “the residue of the utopian promise is registered in the soft tissue of a globally distributed cheap labor force.”149 This is an “entanglement” between structured regimes of desire and the materiality of technology that new materialists and cyborgs brutally shy away from. Desire is a complicated parasite that is forever predicated on unequal exchanges. It passes through objects (relations, machines, parts and people) in order to realize and express itself¾at the same time things pass through it, supporting or sabotaging it to varying proportions. The extent to which this relationship is extortive or enrichening, of course, depends on the material honesty of our social relations.

2024 Michigan Kritik
Links › Topic Links › Intellectual Property

Intellectual property rights act as a regime of enclosure under cognitive capitalism, ensuring the re-assertion of hegemonic communication

Karakilic 19 (Emrah Karakilic holds a PhD in sociology from Goldsmiths, University of London and 20. His research revolves around work, employment and society and cognitive capitalism. “Rethinking intellectual property rights in the cognitive and digital age of capitalism: An autonomist Marxist reading”, Elsevier Inc, October 2019, )//LF

The “distinctive quality” of the Marxian limit which is tried to be overcome by capital through the strategies of ex-novo separation pertains to the tendency of workers’ open-direct access to social wealth that is not mediated by the natural laws of capitalist mode of production. When capital’s eternal desire to colonise and accumulate is constrained or threatened by the workers, capital encounters with an alarming situation. In cognitive capitalism, the becoming-centrality of the common provides a political opportunity for workers to invert the essential separation and claim their autonomy in relation to capital. In this context, capital strives to separate people ex-novo from the growing common forms of wealth by mobilising aggressive commodification strategies such as intellectual property rights. A Structural Contradiction: The Enclosure of the Common through Intellectual Property Rights From the standpoint of classical economics and property law, the system of private property (be it real estate or intellectual property) rights is based on two levels of provisions. The first level concerns the rules, norms, conventions, laws, etc. (these are the forms of obligations in differing intensity) that establish the usus (the delimitation of uses), fructus (the exclusive right to enjoy), and abusus(the alienability; the ability to exchange at mutually agreeable terms) of goods, where good is understood to be anything that is recognised as an object of economic, symbolic or social value (Alchian, 2019). The second level concerns the institutional arrangements, that is, the 18 conditions for the enforcement of those laws, rules, and so forth. These two levels are interrelated inasmuch as if the forms of obligation are ignored, they fall into disuse and the character of enforcement is rendered obsolete. In industrial capitalism, on the whole, the jurisdictional and institutional arrangements which inform the nature and execution of private property rights in general, and intellectual property rights in particular were not a subject of major debate for two reasons. First, in industrial capitalism ‘the production of wealth and value is [largely] based on material production and manual labour’ (Morini and Fumagalli, 2010: 235) and, accordingly, the volume of “intellectual” products such as knowledge(s), designs, ideas, codes, images along with the artefacts which are innately not separable (divisible), rival, and excludible was quite limited. Second, the formation of monopoly with regard to the trade of intellectual products was firmly established and regulated by the system of i) patents, ii) trademarks/branding, and iii) copyrights. These mechanisms secured the unity of usus, abusus and fructus of intellectual goods and enabled the transformation of them into scarce goods on the market, thusly providing the tenant of IPR legal right to have monopoly. The evolving technical means of reproduction surely challenged the IPR enforcement by overstepping the legal apparatuses, which was followed by a new writing of the law(s). In cognitive capitalism, the issue of IPR, has become a central topic. The legal proceedings and the increasing court cases over the conflicts of IPR are indeed everywhere (Reuters, 2014). It is not a coincidence that in 1996, a journal was launched which was dedicated to this subject (i.e. Journal of Intellectual Property Rights). Here, we may underline two main interrelated reasons. Firstly, as discussed in the previous sections, the value and wealth have increasingly come to rest on immaterial production (and its intellectual products) which is increasingly conducted within and through the common. This corresponds to the tendency of workers’ re-appropriation of intellectual powers of production, reversal of workers’ separation from the means of production, 19 and hence their increasing autonomy in terms of production relations; a tendency which creates a distressing situation from the perspective of capital. This “distressing” situation, secondly, was raised to an “alarming” situation with the tendential breakdown of the strong links between usus, fructus, and abusus, which was engendered by the force of digital revolution. The new information and communication technologies transformed the results of immaterial production (i.e. intellectual products) into a sequence of binary digits via, for instance, software compression and encryption. In the digital world, the reproduction which is based on meta-data is virtually identical with the original, whereas in the analogical world the latter is always distinguishable, for it is necessary to utilise a physical medium (e.g. tape recorder) for the process of its reproduction. Since the digital data could be coded in the digital media, reproduced, and delivered virtually at zero marginal cost, the inversion of scarcity of creative, social, knowledge commons in relation to intellectual goods has come to the forefront. The rise of ‘digital multitudes’, the elimination of the limits to reproduction, the inversion of scarcity of commons, the developments in the capacity for the repository of intellectual goods have culminated in the ‘limited user rights, conditional fructus, and non-alienability’ (Boutang, 2011: 106) of intellectual goods. As a response to this “alarming” situation, we have witnessed an aggressive plan directed towards enclosing the commonality of immaterial production through IPR. To mention a few, some strict measures [i.e. laws and treaties] were set out, via the World Trade Organisation (WTA), in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), as finalised at the Marrakesh Agreement in 1994. The measures were then strengthened in Doha Development Rounds. In 1998, Digital Millennium Copyright Act (DMCA) passed in the United States, followed by the European Union Copyright Directive in 2001. The final version of the Directive on Copyright in the Digital Single Market by EU was approved on 26 March 2019. According to the World Intellectual Property Organisation (WIPO), there are currently twentysix international intellectual laws, treaties and conventions, binding 191 member-states legally . In cognitive capitalism, nevertheless, the process of enclosure through enforcement of IPR manifests a paradox or, using Marxian terminology, a structural contradiction in two ways. First, capital’s attempts to enclose the commons through IPR in order to (re)establish hegemony over intellectual powers of production actually inhibits the development of productive forces, and thereby capital prepares its own social crisis in terms of established relations of production. Second, the enclosure through IPR curtails the business opportunities in terms of innovation, profit-making, and growth. In what follows, I will discuss these two critical points.

2024 Michigan Kritik
Links › Topic Links › Intellectual Property

Digital information from capital subjects is being used on platforms to dictate our social, political, and economic activities

Cohen 23, Julie Georgetown University Law Center, December 17, 2023, “Informational Capitalism as Phase Shift: Challenges for Digital Constitutionalism”, Oxford University Presss, forthcoming 2024, Accessed July 5, 2024, PW

Intangible resources—defined, extracted, and exploited at scale—play central roles in informational capitalism’s logics and production processes. Such resources include the patents, copyrights, and trademarks upon which industrial-economy actors relied, now routinely assembled into portfolios and leveraged in combination with each other. Also, and notably, they include other categories of intangible informational and economic constructs, such as datasets and algorithms, that are more fluid. Datasets, algorithms, and data-driven algorithmic processes both work to produce and are themselves produced by emergent economic arrangements. In particular, as we will see in Part 3, they have emerged as powerful strategies for extracting rents in ways that underlying physical constraints did not permit. Not coincidentally, another signal aspect of the political economy of informational capitalism is the increasingly pervasive datafication of categories of resources that have long been thought both essential to capitalist production and resistant to full commodification. As conceptualized by Polanyi, resources such as land, labor, and money are fictitious commodities because they are not produced by or for markets, and attempting to subject their supply and demand to market governance produces profound disruptive effects—including human suffering, social dislocation, and consequent social and political unrest—that reverberate far beyond markets.3 Datafication of fictitious commodity resources has begun to produce comparably far- reaching consequences.4 In the era of informational capitalism, moreover, a new basic factor of production with fictitious commodity attributes has emerged. A particularly significant new resource category has become people themselves, as new data-extractive strategies and practices targeting populations underwrite surveillance-based business models.5 A third signal aspect of the the political economy of informational capitalism is an organizational logic based on platformization. Platformization is a form of nonmarket ordering that relies on intermediation of information flows configured for scaled-up interconnection using modular protocols. Whereas the market was “an idealized site of encounter between buyers and sellers within which the characteristics, quantities, and prices of goods and services were regulated autonomically by the laws of supply and demand,” the platform is “a site of encounter where interactions are materially and algorithmically intermediated.”6 Platformization has pervasively reshaped patterns of resource appropriation and extraction and, in so doing, has also pervasively reshaped a wide range of other economic, social, and civic activities, including information transmission, social interaction, political discourse, entertainment, and the consumption of goods and services. Much as a thermodynamic phase shift acts on the nature and structure of molecular interactions, producing large-scale change in the behavior of chemical substances, so the three constitutive transformations of information capitalism have acted on the nature and structure of transactions and interactions, producing large-scale change in the behavior of economic, social, and political systems. Parts 3 and 4 explore two systemic changes that have particularly significant implications for digital constitutionalism movements.

2024 Michigan Kritik
Framework › FW offense › Reps shape reality

Discourse shapes reality --- only through the development of a new collective logos based on deeper social-ontology can we actualize new realities.

Mensch 23 (Ivo J. Mensch is London based expert generalist without titles but many practices. He’s currently working with Rebel Wisdom, Emerge and Perspectiva in various roles. “The Solipsistic Society: from stuckness to collective unfolding”, Perspectiva, 3/31/23, //LF

Another big task in sourcing our new subjectmatter and to let it take new shape, I believe, requires the capacity of practising a new logos into being as a community. As consciously as possible, so we can weave the web Bourgeault speaks of. Historically, a logos formed around a charismatic figure, like a Jesus or Buddha, who could breach their imaginaries and give people the teaching based on a new logos to rework its subjectmatter. But I believe a practice of ‘Logoics’ should primarily be a collective effort from the start this time, given the context, complexity, geography and temporal nature of our challenges. One observation, having practiced deeply in two wisdom traditions, is that the way reality shows up in our experience, depends on the logos and transmission of that teaching, not just the surface concepts our mind rejects or entertains. As a Buddhist I had spot-on Buddhist experiences; while practicing in the Diamond Approach (the same?) reality manifested in ways that would never arise in a Buddhist context. The teachings, concepts and practices we engage in at various depths of reality determine how it unfolds and is what I term dispositional realism – how we engage reality determines how it shows up. That’s why we must take great care when using and developing our psychoactive theories, models, methods, images, metaphors and other concepts. That mastery is where I believe true agency can be developed, in dialogue with the Real and its constraints. We may find that we’re not passive subjects to any bottom-up emergence, but that the influence of our sincere inquiry actually shows that reality is responsive. A.H. Almaas: ‘The logos is responsive to situations and actual needs of real people, and these are determined by historical epochs, culture, language, forms of logic and psychology, major events, and so on. Therefore, how it unfolds its wisdom as a teaching will have to take into consideration all these factors, and many others. This is an expression of its optimising and loving intelligence, and its total freedom. This amounts to recognising that the logos can unfold experience through different and varying logoi.’[xlv] We can learn to become logos-aware, exploring how the attitudes, dispositions and questions we bring to reality yield certain responses and different kinds of knowing and afford us new perceptual capacities not available to the modern enculturated humans of today. Just as reason made itself available to humanity at a moment in history and was spun into the collective atmosphere, so can other qualities of being and guidance be discovered. Much can be learned by moving in and out of the existing logoi of wisdom traditions or indigenous ones while not forgetting the logos of technology and its imagination that now increasingly shapes our lives. Each of these logoi offers a view on reality’s deep continuity, a participatory potential to work the subjectmatter and an expressive potential that holds a piece of the puzzle, but when taken alone leads to more solipsisms. Collective unfolding requires drawing energy and information from many sources, consciously cultivating openness, working with constraints, permeability and diversity. The latter may serve to be a good preventative of dogma and partial views of reality that risk being mistaken as the only truth, turning into another version of capitalist realism. The logoi that animate all wisdom traditions originate from the deep continuity of Origin and are an expression of the intelligence in the dynamic unfolding of reality itself. A sympoietic society is always participating in this creative dynamism. A journey of discovery is not about doing and controlling things according to an outcome-focused strategy or an ideology, but about cultivating our inner states, developing perceptual potential and getting out of our own way – working the evolutionary potential of the present moment. This is implicitly building with the subjectmatter of trust and courage, living into new imaginaries that are in harmony with all life and in support of our collective unfolding through the mystery that we share.

2024 Michigan Kritik
Framework › FW offense › Fiat bad

Identifying and rejecting the illusions of the Imaginary is necessary for the creation of a psycho-political subject capable of transcending the biopolitical.

Mensch 23 (Ivo J. Mensch is London based expert generalist without titles but many practices. He’s currently working with Rebel Wisdom, Emerge and Perspectiva in various roles. “The Solipsistic Society: from stuckness to collective unfolding”, Perspectiva, 3/31/23, //LF

The tech world uses the term ‘technical debt’, which means that a legacy system has grown so large and dysfunctional over time that it no longer pays to keep patching it up. At some point it is better to build something completely new. The same principle applies to our imaginary and structure of consciousness as its operating system. We don’t need another quick fix upgrade, or ‘a new story’ as many insist, but a new architecture that is built out of a different matter altogether. Julian Reid is onto this: ‘How to navigate the relation between the imaginary and the real? A politics of resistance to liberalism, today, requires more than ever a psychopolitical subject capable of transcending the biopolitical horizons of liberal modernity; one that will free us from its biologisms, and enable us to dream and imagine in ways that are proper to the human psyche. But in order for an imaginary to continue with enough persistence such that it produces a revolutionary manifesto with a new literary constitution, for it to be more than the vacuous pastime of poets, the imaginary must find its matter, its reality. A material element must give the imaginary its own substance. Note it is not the question of which material precedes the imaginary, but how the imaginary finds its material, such that it is able to realise itself.’[xliii] I think his insight is profound and is pointing in the direction we need to be headed. We are still largely living in a materialist imaginary – yet to culturally integrate the insights of quantum sciences and what it tells us about the reality of matter. There is the obvious kind of physical matter, whose depleting resources and resulting constraints will play a leading role in shaping our new subjectivity.[xliv] Then there’s our quest to discover new matter from which to crystallise our new imaginaries. To avoid falling back into the solipsism that arises from our sense of separation from the real, whatever its qualities or symbolic interface we use, I propose to call the material Reid speaks of ‘Subjectmatter’. I see it as a pragmatic imaginal move in service of deepening care for our inner states, heeding the truths of entanglement and co-enactment of reality we engage in as conscious agents. Enacting new imaginaries can’t be limited to work on ‘ourselves’ as we saw. We’ll need to expand our focus; not just go ‘in’ to work on our personalities, but get real and look ‘out’ at our entanglements with matter, beyond the surface and include the ‘in-between’ of our interpersonal relations, including interspecies ones. Then identify which constructions turn out to be mere Demi-real illusions (such as colonialist white supremacy, patriarchy, anthropocentrism etc.), rid ourselves of them and finally perform the alchemy on the material of our social structures. Practicing in this reflexive way means forging a bodymind capable of accessing the deeper processes of reality, all the way from the surface of our fixed egoic, mental-rational perspective to Origin, including different kinds of nonduality. Only from deeper places, like the imaginal, will you be able to participate in its unfolding so it can manifest in new ways. In my opinion, it is the only way we can be truly novel and start from scratch to build , a , or a new system that replaces the old, as Buckminster Fuller instructed. Cynthia Bourgeault points to the attitude it requires to enter into the liminal and not immediately run the familiar modern malware of control when things feel a little uncertain and shaky: ‘The first step is the hardest. Lean into the emptiness! Don’t immediately rush to fill up all the available space. Lean into the darkness and let your eyes adjust. Little by little you’ll discover that you’re actually seeing a new landscape, seeing in a slightly different way. The deeper clues of connectedness begin to fill in for you, announcing their presence in small and often surprising ways. As your imaginal vision gains strength, that strength flows back into the web, and the web itself gains strength and presence enough, eventually, to begin to hold healing and even prophetic force within its collective atmosphere.’

2024 Michigan Kritik
Framework › FW offense › Epistemology first

Only via an examination of the metaphysical can we develop counter-systemic approaches to destabilize the collective, neoliberal conscious.

Mensch 23 (Ivo J. Mensch is London based expert generalist without titles but many practices. He’s currently working with Rebel Wisdom, Emerge and Perspectiva in various roles. “The Solipsistic Society: from stuckness to collective unfolding”, Perspectiva, 3/31/23, //LF

What then, oh Ivo, wise one? Tell us what we should do! That attitude of giving up power to experts or gurus (whether Buddha or Boris Johnson) to save us, is more modern malware. True, this age is screaming out for wisdom and it is there, but wisdom schools are often insular, generally unconcerned with social issues and often stuck in tradition. And teachings and practices are primarily focused on the individual’s suffering and realisation. That’s fine, but it is limited and excludes deep inquiry into other realms, the ontology of social reality for example. On the other side, the social sciences generally lack this deeper ontology, is either materialist or constructivist, and mostly reasons through linear-causal views of reality, seeing issues through modern mental-rational frameworks. The change-the-individual-to-change-society-approach leaves out both the elephant in the room and much of the room itself – the social imaginary and its causal powers. When it comes to changing, we’re generally no match for it. The imaginary ‘has us’. Spiritual warriors who come back from retreat know all too well the experience of re-entry into society and the rapid loss of whatever state of expanded identity was acquired. Give it a day and we’re back to our old self. Retreat spaces and monasteries are set up for this reason, so you are out of the social imaginary with its pressures of entrainment. These spaces are designed on a principle of functional ignorance, so other perceptions can foreground themselves in consciousness. It works, but it’s analogous to doing science in a box. As soon as we leave the closed retreat system and enter the open one of society, the blissful results of our spiritual experiments prove unsustainable. So alternative approaches are needed to step into the practice gap of social ontology and to inquire into the structures, our agency and effect of our culture’s narratives. I do not see that work as spiritual, it merely relies on methods and insights that are found in spiritual traditions. Nor is the aim individual realisation, but merely to become a better perceiver of the real when we are trying to effect change in the world and to prepare people that they will be changed by doing it. Thus, it demands we drop our self-obsessed neoliberal work-on-ourselves stance, or our spiritual trophy hunting and go straight into what I call The Messh – the entangled, extended, enacted, embedded, embodied, nondual and nonlinear dynamic totality. That may sound overwhelming. But, says the independent scholar Bonnitta Roy:[xxxvii] ‘we are not so much working for greater systemic reach or to identify all the links in an enormous causal chain; rather we need to closely examine the metaphysical operating system of our minds, and participate in the creative emergence of a new structure of consciousness.’ She adds that the metamorphosis needed is driven by pressures that run counter to the modern mind’s ‘upward path’ and argues that: ‘it operates through what David Chandler calls “counter systemic approaches” which destabilise the modern imaginaries of “progress”, “civilisation” and “development” while challenging our “fixed and empty framework of time and space with ourselves at the centre”.’[xxxviii] Roy brings much together here. Just as we can’t work purely on ourselves, we also can no longer continue to work ‘on’ the world. That means further widening the infamous subject–object divide, placing humans further away from others, matter and nature. It means fueling the mechanisms that are driving the Meta-crisis. It also means that we need to reimagine what we consider to be a human being. This imagining cannot be done rationally. It must be done experientially, reflexively and iteratively; and without self-concern. As Octavia Butler said: ‘All that you touch, you change. All that you change, changes you.’

2024 Michigan Kritik
Framework › FW offense › Subject formation

The AFF is a construct of a uniform social imaginary resulting in the captivity of our collective conscious as parts of The Machine --- developing new modes of imaginary is necessary to escape a collapsing Anthropocene

Mensch 23 (Ivo J. Mensch is London based expert generalist without titles but many practices. He’s currently working with Rebel Wisdom, Emerge and Perspectiva in various roles. “The Solipsistic Society: from stuckness to collective unfolding”, Perspectiva, 3/31/23, //LF

Subject formation ? As I proposed above, our society is avoiding reality by keeping our awareness fixed within a social imaginary that is no longer taking cues from the Real, but mostly from within itself. It has become a collection of memetic bubbles; a mix of comforting stories, misinformation, cognitive dissonance, bias, magical and tribal thinking, confusion, habits of mind, social conventions, constructed illusions and ideology. It recycles tons of bullshit[x] thrown at us, primarily by politicians, pr-companies and advertising. It’s not hard to imagine that this symbolic load on our minds has only increased with the advent of the internet, the appearance of the smartphone and our cultural shift online. Our lives are increasingly mediated by screens and algorithmic governance. Have a look at the amount of worldwide. Today it is 50-fold of what it was in 2010 and is set to almost double again between 2022 and 2025. A large portion of that data is behavioral and used to train bots that send us targeted, personalised advertising to turn us into perfect consumers or the right kind of voter, if the goal is to swing an election.[xi]The social imaginary, powered by invasive technology, using insights into our behavior and a convergence with capitalism, has become a powerful teacher of desire. Some commentators have called this total system, in which culture, technology and capitalism have merged, The Machine.[xii]This name captures it quite well if we realise that the invasive nature of the system has turned our own bodies and minds not only into machine parts, but also into its fuel and product. Our minds and imagination, and therefore our approaches to change and visions for the future are its products too. To free ourselves, it seems like we’ll have to dismantle our inner machine – the internalised version of the imaginary of late-capitalist modernity that commodifies our attention, steers our behaviour and constrains our imagination. Why do I keep dropping the term social imaginary? Why not just say culture? Because culture is still kind of in your face, whereby the imaginary is more in the background and out of view, but it has real causal impact. It’s the difference between weather and climate, or emotion and mood. The imaginary is more temporally extended and colours our lives with a diffuse sense of meaning, helping us to make sense of and to ‘feel’ situated in our lifetime. It employs grand narratives such as ‘progress’, and allows for a host of social practices that uphold these narratives and our faith in them. Before moving on it’s helpful to ground the notion of the social imaginary, using some quotes from influential thinkers who developed the term in various ways. The German sociologist Jurgen Habermas wrote of: ‘the massive background of an intersubjectively shared lifeworld. Lifeworld contexts that provided the backing of a massive background consensus’.[xiii] The sociologist and philosopher Charles Taylor wrote extensively on the social imaginary, mostly from a social practice perspective: ‘Our social imaginary at any given time is complex. It incorporates a sense of the normal expectations we have of each other, the kind of common understanding that enables us to carry out the collective practices that make up our social life. This incorporates some sense of how we all fit together in carrying out the common practice. Such understanding is both factual and normative; that is, we have a sense of how things usually go, but this is interwoven with an idea of how they ought to go, of what missteps would invalidate the practice.’[xiv] The Greek-French philosopher Cornelius Castoriadis arguably has done the deepest work on developing the notion of the social imaginary: ‘The imaginary of the society creates for each historical period its singular way of living, seeing and making its own existence’. And: ‘The central imaginary significations of a society are the laces which tie a society together and the forms which define what, for a given society, is “real”.’[xv] An imaginary affords us to act and collaborate more easily, by offering a consensus view of what reality is and what a shared future should be. It mediates our sense of time and the rate of cultural change, while giving the experience of continuity, predictability and familiarity. It is the reason why we walk through life thinking we know what the world is and how we should act in it. It is energy efficient and it makes belonging easier too – by adopting a ready-made story about reality and not having to debate daily with your tribe members about what is true, real and important. If you did propose new views, it often meant losing your head. These descriptions of the social imaginary already feel as though they are from a different age, when imaginaries really were backgrounded, quietly holding human societies together. The Italian cultural critic and media theorist Franco ‘Bifo’ Berardi does a good job of capturing the feeling of conditioning and sense of agency the modern Western imaginary brought about. (Note also his reference to the linear temporics we’ll explore later) ‘The future of the moderns had two reassuring qualities. First, it could be known, as the trends of human history could be traced in linear directions, and science could discover the laws of human evolution, which resembled the motion of the planets. Second, the future could be transformed by human will, by industry, economic technique, and political action. The emphasis on the future reaches its peak when economic science pretends to be able to foresee human action, its conflicts and choices. The twentieth century trusted in the future because it trusted in scientists who foretold it, and in policy makers able to make rational decisions.’ He continues: ‘My generation grew up at the peak of this mythological temporalization, and it is very difficult, maybe impossible, to get rid of it, and look at reality without this kind of cultural lens. I’ll never be able to live in accordance with the new reality, no matter how evident, unmistakable, or even dazzling its social planetary trends. These trends seem to be pointing toward the dissipation of the legacy of civilization, based on the philosophy of universal rights.’[xvi] Bifo’s lament gives a good sense of what it means to be the product (or hostage?) of an era and of the deep-rooted effects an imaginary has on the formation of our individual and collective subjectivity. ‘In short’, says the Italian philosopher Chiara Bottici, ‘if imagination is an individual faculty that we possess, the social imaginary is, by contrast, what possesses us.’[xvii] We are immersed in it. It is becoming clearer that we are not at all like Kuhn’s scientist. The opposite is the case: we didn’t change the paradigm while the world remained the same – we are in another world and are failing to change the paradigm. With the material world reasserting its existence, the denial of the Real by our solipsistic imaginary is now an existential threat. The idea that we can have infinite growth on a finite planet is perhaps the best illustration of our solipsism – an imaginary divorced from the reality and truths of matter. But we’re failing to install the Anthropocene upgrade because our Wi-Fi connection is busy downloading TikTok marshmallows. Some have accepted the new reality of entanglement and are giving words to the emergent paradigm and its implications. Thinkers on the Anthropocene, such as Timothy Morton, Bruno Latour and Isabel Stengers, have argued that what was once experienced as background, such as climate, is now presented to us as foreground. The canvas upon which our experience happens, that of time and space, has collapsing into immediacy. Everything is here, happening now – in your face. It turned out that we’d never conquered nature as moderns, nor were we ever separate from it. We just retreated into our minds and the imaginary, entranced by the belief that our mental models were somehow more powerful than reality itself. Now we’re forced to live the ‘Revenge of the Real’, as media theorist Benjamin Bratton coined our harsh waking up to the reality of biological bodies and viruses sharing the same space with us during the Covid-19 pandemic. It turned out that a virus is not a mental construct.[xviii] We find our cozy imaginary bubble increasingly being punctured by the reality of floods, wild fires or heat waves, whose increasing occurrence are firmly anchoring a dystopian narrative in our minds.[xix] As the Real keeps mercilessly breaching through the veils of our modern solipsism, it forces us to perform frantic mental (as well as economic, financial and political) patchwork to keep despair at bay and our identities intact in the hopes of remaining comfortably held by modernity’s master narratives, such as progress and development. No, we won’t give up our familiar ways of control just like that. We’ll double down on more of the same failing action-logics like top-down control, more growth or financial innovation, be wowed by the latest technosolutionist promise to clean up the mess from the party we just threw. It won’t work. The party’s over. The hangover called Reality is here. Zak Stein, in his seminal piece ‘A War Broke Out In Heaven’, drives the point home: ‘Socially constructed realities are exactly what begins to slip away when biology obliges you to enter the liminal. Living between worlds means dealing (again) with reality itself, which is not some featureless totality of oneness, but a complex non-dual whole in which every choice counts and has causal impact.’[xx] Entering the liminal means living unfoldment, always honoring the reality of entanglement and change. It marks the end of the dualistic logic: the separation of mind and body, human and nature, between cause and effect, distance and linearity. It is the end of modernity as we know it. The entire edifice of the metaphysics of separation on which this modern worldview was built is crumbling. The Anthropocene is the age of entanglement and immediacy and we are called upon to give up our addiction to comforting teleologies like progress and development that allows us our spiritual bypassing.

2024 Michigan Kritik
Framework › Top Level › Counter Interp

2---Identifying and rejecting the illusions of the Imaginary is necessary for the creation of a psycho-political subject capable of transcending the biopolitical.

Mensch 23 (Ivo J. Mensch is London based expert generalist without titles but many practices. He’s currently working with Rebel Wisdom, Emerge and Perspectiva in various roles. “The Solipsistic Society: from stuckness to collective unfolding”, Perspectiva, 3/31/23, //LF

The tech world uses the term ‘technical debt’, which means that a legacy system has grown so large and dysfunctional over time that it no longer pays to keep patching it up. At some point it is better to build something completely new. The same principle applies to our imaginary and structure of consciousness as its operating system. We don’t need another quick fix upgrade, or ‘a new story’ as many insist, but a new architecture that is built out of a different matter altogether. Julian Reid is onto this: ‘How to navigate the relation between the imaginary and the real? A politics of resistance to liberalism, today, requires more than ever a psychopolitical subject capable of transcending the biopolitical horizons of liberal modernity; one that will free us from its biologisms, and enable us to dream and imagine in ways that are proper to the human psyche. But in order for an imaginary to continue with enough persistence such that it produces a revolutionary manifesto with a new literary constitution, for it to be more than the vacuous pastime of poets, the imaginary must find its matter, its reality. A material element must give the imaginary its own substance. Note it is not the question of which material precedes the imaginary, but how the imaginary finds its material, such that it is able to realise itself.’ I think his insight is profound and is pointing in the direction we need to be headed. We are still largely living in a materialist imaginary – yet to culturally integrate the insights of quantum sciences and what it tells us about the reality of matter. There is the obvious kind of physical matter, whose depleting resources and resulting constraints will play a leading role in shaping our new subjectivity. Then there’s our quest to discover new matter from which to crystallise our new imaginaries. To avoid falling back into the solipsism that arises from our sense of separation from the real, whatever its qualities or symbolic interface we use, I propose to call the material Reid speaks of ‘Subjectmatter’. I see it as a pragmatic imaginal move in service of deepening care for our inner states, heeding the truths of entanglement and co-enactment of reality we engage in as conscious agents. Enacting new imaginaries can’t be limited to work on ‘ourselves’ as we saw. We’ll need to expand our focus; not just go ‘in’ to work on our personalities, but get real and look ‘out’ at our entanglements with matter, beyond the surface and include the ‘in-between’ of our interpersonal relations, including interspecies ones. Then identify which constructions turn out to be mere Demi-real illusions (such as colonialist white supremacy, patriarchy, anthropocentrism etc.), rid ourselves of them and finally perform the alchemy on the material of our social structures. Practicing in this reflexive way means forging a bodymind capable of accessing the deeper processes of reality, all the way from the surface of our fixed egoic, mental-rational perspective to Origin, including different kinds of nonduality. Only from deeper places, like the imaginal, will you be able to participate in its unfolding so it can manifest in new ways. In my opinion, it is the only way we can be truly novel and start from scratch to build , a , or a new system that replaces the old, as Buckminster Fuller instructed. Cynthia Bourgeault points to the attitude it requires to enter into the liminal and not immediately run the familiar modern malware of control when things feel a little uncertain and shaky: ‘The first step is the hardest. Lean into the emptiness! Don’t immediately rush to fill up all the available space. Lean into the darkness and let your eyes adjust. Little by little you’ll discover that you’re actually seeing a new landscape, seeing in a slightly different way. The deeper clues of connectedness begin to fill in for you, announcing their presence in small and often surprising ways. As your imaginal vision gains strength, that strength flows back into the web, and the web itself gains strength and presence enough, eventually, to begin to hold healing and even prophetic force within its collective atmosphere.’

2024 Michigan Kritik
1NC › Semiocapitalism › 1nc

Semiocapitalist forces us to exhaustive workings of our minds and our bodies. Vote neg to preserve our wealth in time and refuse to work for productivity.

Bray 15, Karen Chair, Religious Studies and Philosophy Department. B.A. (Liberal Arts), Eugene Lang College of New School University 2005; M.Div. Harvard Divinity School 2010, “The Monstrosity of the Multitude: Unredeeming Radical Theology”, October 19, 2015, “Palgrave Communications, Vol. 1, 2015”, , Accessed June 28, 2024, PW

While similarly drawing on (both to embrace and move beyond) the work of Antonio Negri as well as the radical thought of others in the 1960s and 1970s Italian Workerist (Operaismo), Autonomist and Compositionist movements, Franco “Bifo” Berardi resists a rhetoric of productivism and questions the political potency of the concept of the multitude. In both The Soul at Work and After the Future, Berardi explores the affectual effects of post-Fordist modes of production and communication (SemioCapitalism) on our individual and social psyches. In doing so he not only diagnoses the toxic effects of neoliberalism, but also elaborates a politics and poetics of the refusal of work. The unproductivity on offer by Berardi exposes the affectual and ethical issues raised when we remain within the logic of productivism, even that which claims a revolutionary and counter-imperial stance. According to Berardi (2009: 21), SemioCapitalism “takes the mind, language and creativity as its primary tools for the production of value”. Under SemioCapitalism the soul is not left out of work, but rather becomes the very mode of production and thus the tool of its own estrangement. Hence, while the resistance to alienation through the reassertion of the importance of one’s mind and soul was at the heart of organizing workers on the factory floor, under post-Fordism acts of resistance must take on a different character. The goal of autonomy or what Berardi rewrites as out-onomy becomes not how to overcome alienation, but rather how to increase the estrangement between the soul and capitalist labour relations. As Berardi notes: The working class is no longer conceived as a passive object of alienation, but instead as the active subject of a refusal capable of building a community starting out from its estrangement from the interests of capitalistic society … Alienation is then considered not as the loss of human authenticity, but as estrangement from capitalistic interest, and therefore as a necessary condition for the construction—in a space estranged from and hostile to labor relations—of an ultimately human relationship.(Berardi, 2009: 23) To become increasingly estranged from labour relations involves for Berardi a multistep process: first, we must understand the way in which SemioCapitalism has redefined value; second, we must identify the affectual effects of SemioCapitalism on our individual and social psyches (effects that Berardi names as exhaustion and depression in After the Future and the panic-depression cycle in The Soul at Work); and third we must engage Deleuze and Guattari’s schizoanalysis as a political therapy that helps us to reorient the field of desire and thus reframes the concept of wealth, re-engaging us in authentic human relationships. Each of these steps happens not through reasserting our productive capacity, but rather through refusing to participate in the systems of production on offer by SemioCapitalism’s labour relations. Under SemioCapitalism value has been divorced from all referent points. When Richard Nixon cancelled the direct convertibility of the US dollar to gold the referential logic of value was discarded in favour of what Berardi (2009: 148) calls “generalized indeterminacy”. From a radical theological point of view a sense of generalized indeterminacy may sound ideal in that, like radical theology, it denies a determinate telos. It might resonate, for instance, with Robbins’s call for a radical democratic resistance to all forms of hegemony that will come by way of an immanent exodus, one that, Robbins notes quoting Negri, is an “exodus from obedience, that is to say, from participation in measure, i.e., as the opening to the immeasurable” (Robbins, 2013: 191). Or it might resonate with the indefinite or infinite eschatology proposed by Crockett (2011: 102). Yet as Berardi notes, the indeterminacy of value and the process of economic deregulation brought on by SemioCapitalism did not result in anarchic freedom. It remains tamed and obedient to a certain eschatological vision: “Deregulation does not mean that society is freed from all rules, not at all: it is instead the imposition of monetary rule on all domains of human action. And monetary rules are in fact the sign of a relationship based on power, violence and military abuse” (Berardi, 2009: 148). In other words, as Philip Goodchild (2009: 188) has noted, neoliberal deregulation has trapped us in the eschatological shadow of money, within which spending time is subordinated to saving it. While this eschatological promise may be indeterminate because money no longer refers to a stable referent, it serves not as a source of freedom, but rather as one of entrapment. To counter this mode of violent entrapment Berardi (2009: 140) redefines wealth as time (or in Goodchild’s framing, spending time): “time for pleasure and enjoyment”, which includes time to travel, learn and make love. This wealthy time is not a time that asks, “What have you done for me lately?” Rather it is unproductive time, it is a time to be lazy, to be pleasured, to just be. It is not discipleship in action; it is not worth in productivity; it is not a man who is a worker or nothing at all; rather, it is a soul who is wealthy because she is much more and much less than her labour. To be sure, there is political work to be done to democratize the availability of this wealth of time,6 but by reorienting wealth and worth away from work, indeed in finding it in the refusal of work, Berardi rejects hegemonic structures of value. Both SemioCapitalism’s rejection of wealth as time and its degradation of unproductive time lead to a mental and soulful breakdown in individual and social psyches. Berardi diagnoses this breakdown as a panic-depressive cycle (Berardi, 2009) and exhaustion and depression (Berardi, 2011). Acknowledging Baudrillard’s prescience, Berardi (2009: 179) further notes that “The dominant pathology of the future will not be produced by repression, but instead by the injunction to express, which will become a generalized obligation”. The constant demands to be expressive and productive combined with the overwhelming flow of information and signs without stable referents lead to panic, which eventually leads to depression. Elsewhere, Berardi (2011: 135–138) marks the panic-depression cycle with Baudrillard’s concept of exhaustion. Exhaustion sets in because, “In semiocapitalist hyperreality, the brain is the market. And the brain is not limitless, the brain cannot accelerate indefinitely” (Berardi, 2011: 136). Rather than, or perhaps as both counter and supplement to, an emphasis on the plasticity of the brain (an emphasis embraced by followers of Catherine Malabou),Footnote4 Berardi asks us to look to the limits of the brain—to our exhaustion—for the rethinking of how we might come to be differently.

2024 Michigan Kritik
1NC › Semiocapitalism › 1nc

Semiotics comes first---signification overdetermines intellectual property.

Tan 21 [David Tan, Associate Professor at the University of Washington, 05 -2021, "Intellectual Property and Semiotics: The Signs of the Times," No Publication, https://academic.oup.com/book/41122/chapter/350441689]//陈静值

Cultural perspectives on law are a growing part of contemporary legal scholarship and, in particular, semiotics has been argued in interdisciplinary legal scholarship on IP to be helpful in illuminating some of the intractable issues encountered in the laws governing copyright, trademarks and the right of publicity. The use of semiotics to interrogate IP laws is a relatively new concept that caught the attention of mainstream legal scholarship just over a decade ago when Barton Beebe published his seminal article ‘The Semiotic Analysis of Trademark Law’ in the UCLA Law Review.2 Prior to this, other legal scholars such as Rosemary Coombe, Rochelle Cooper Dreyfuss, Keith Aoki, and Michael Madow have applied a cultural studies critique to IP laws, but had not distinguished semiotics as an independent perspective in their writings.3 More recently, there is a healthy trend in US law reviews and the International Journal of the Semiotics of Law publishing articles that apply a semiotic approach to IP laws.4

Semiotics is fundamentally the study of signs.5 Semiotics seeks to understand the operation of a given system or process by observing the function of signification, expression, representation, and communication.6 Generally, semiotics has followed two independent lines: the ‘linguistic’ tradition of Ferdinand de Saussure, and the ‘logical’ tradition of Charles Sanders Peirce.7 The Swiss linguist Ferdinand de Saussure, widely credited as the most influential scholar in the field of semiotics, emphasized the nature of the sign as the coded association of a material signifier, such as the sound of a word, with a signified or preconceived meaning.8 The purely linguistic formulation of a sign is best illustrated in de Saussure’s dyadic model where a linguistic sign comprises two parts: a concept (signified) and a sound-image (signifier). For instance, the word ‘cat’ is a signifier; when it is spoken, it triggers the signified in the listener’s mind, namely the mental image of a cat. According to the Peircean conception of the sign, a third subsign element is adopted to complete Saussure’s model: the referent. In situations where language is used to alert the listener to a specific physical object, a triadic model is necessary. Thus, in the above example, the word or sound ‘cat’ is the signifier, the mental image evoked is the signified, and the actual cat being discussed is the referent.9

2024 Michigan Kritik
1NC › Semiocapitalism › 1nc

Semiocapitalism’s ever increasing pace of stimulation alienates us from all real political and environmental solutions – locking in extinction through anthropocentric dissociation from reality

Emmelhainz 21, (Irmgard Emmelhainz, 11-09-2021, "Chapter 23: Visuality conditions under the Anthropocene," Elgar Online, "Chapter 23: Visuality conditions under the Anthropocene," Elgar Online, https://doi.org/10.4337/9781800884298.00038) #GayFrog

One of the show’s early episodes, “The Entire History of You” (2011), imagines a world in which almost everyone has a “grain” implanted behind their ear. This grain has the capacity to transform human eyes into cameras that record reality and projectors that can reproduce it, thereby amalgamating lived experience, memory, and image. In a later episode, “Be Right Back” (2013), a woman is able to revive her dead partner with a program that rebuilds him—first his writing habits, then speech patterns, and eventually his very self via a cloned, synthetic body—solely from the proliferation of information he uploaded on the internet when he was alive. The deathless and bodiless information, images, and signs—the inert map of a life—becomes embodied by an avatar that exists in actual, not virtual, reality, and that has the (albeit limited) capacity to exist and interact directly with humans. In the episode, the fabrication of subjectivity from data—which implies the automatization of subjectivity—foreshadows the relationship between determinist automatisms and cognitive activity, which, according to Franco Berardi, is the core goal of the Google Empire: to capture user attention and to translate our cognitive acts into automatic sequences. The consequence is the replacement of cognition by a chain of automated connections, seeking to automatize the subjectivities of users (Berardi, 2014, paras. 21‒23. Aside from the fact that images and data are taking the place of or giving form to experience, automating our will and thought, they are also transforming things into signs by welding together image and discourse, bringing about Visuality conditions under the Anthropocene a tautological form of vision. With the widespread use of photography and digital imaging, all signs begin to lead to other signs, prompted by the desire to see and to know, to document and to archive information. Thus, the fantasy that everything is or can be made visible coexists with the increasing automa- tion of cognition, which, following Franco Berardi, is the basic condition of semiocapital (the valorization and accumulation of signs as economic assets) (Berardi, op. cit., par. 3). In the pilot episode of Black Mirror, “The National Anthem” (2011), an alleged terrorist group kidnaps a nationally beloved British princess in the early morning hours. In order to free her, the anonymous group demands that the prime minister have sex on live television with a pig at four o’clock that same afternoon. The video in which the princess announces the “price” of the ransom goes viral and the whole nation pressures the prime minister to fulfill the kidnappers’ demands. At the end of the episode, postcoitus, it is revealed that the kidnapping was a singular artist’s gesture, intended in its successful implementation to point critically to the obscenely inflated role the media has in shaping public opinion and official policy. The artist’s action, in other words, illuminates the highly visceral shift in power brought on almost instantaneously by the ransom video’s circulation in the infosphere. Insofar as the episode unfolds montages of the whole nation glued to televisions in the pub, workplace, and waiting room at four o’clock, the artist highlights how connec- tive interfaces actually govern, as they have the direct capacity to manipulate and coordinate behavior on almost every level (Berardi, 2012, p. 15). Under the conditions of semiocapitalism, images and signs acquire value and/or power by means of being seen, largely through “likes” and retweets. The fact that sign-value has supplanted exchange-value means moreover that we no longer consume material things, but rather swallow cognitive signs embedded in and around them. Aside from consuming “experiences” or “moods,” we buy immaterial commodities (in the name of lifestyle and branding) and consume signs for “equality,” “happiness,” “wellness,” and “fulfillment.” In Don Delillo’s White Noise (2002), Jack Gladney describes a trip to the supermarket and makes clear how the signs found in the brands and labels of products that he and his wife buy have the power to relieve them of the mysteries and anxieties brought about by everyday life: It seemed to me that Babette and I, in the mass and variety of our purchases, in the sheer plenitude those crowded bags suggested, the weight and size and number, the familiar package designs and vivid lettering, the giant sizes, the family bargain packs with Day-Glo sale stickers, in the sense of replenishment we felt, the sense of well-being, the security and contentment these products brought to some snug home in our souls—it seemed we had achieved a fullness of being that is not known to people who need less, expect less, who plan their lives around lonely walks in the evening. (Delillo, 2002, p. 20) What becomes evident in this paragraph is Baudrillard’s assertion that objects are no longer commodities whose message and meaning we can appropriate and decipher, but rather, tests that interrogate us. For him, commodities are a referendum, the verification of a code, circularity as well as sameness and homogeneity: here the commodities bring a well-being that reflects the well-being of the consumer and his or her lifestyle (Baudrillard, 1976). Furthermore, the acceleration in proliferation of cognitive signs since the time of Delillo’s novel is another of the features of communicative capitalism’s subjugation, submitting the mind to an ever-increasing pace of perceptual stimuli, and in so doing generating not only panic and anxiety, but also destroying all possible forms of autonomous subjectivation. Under communicative capitalism, images transformed into signs embody the current concatenation of knowledge and machines—that is, the technological organization of capitalism to produce value. With the enabling of the visualization of data by machines, images have become scientific, managerial, and military instruments of knowledge, and thus of capital and power (Bratton, 2013, para. 16). In this context, seeing means the accelerating perception of the fields of everyday experiences, or rather, the field of trivial visual analogies of experience: a kind of groundless, accelerated tautological vision derived from passive observation. This is for Berardi another of communicative capitalism’s forms of governance, as this kind of vision generates technolinguistic automatisms by carrying information without meaning, automating thought and the will (Berardi, 2012, p. 41). Images circulating in the infosphere are also charged with affect, exposing the viewer to sensations that go beyond everyday perception. Hollywood cinema, for instance, delivers pure sensation and intensities that have no meaning. In Alfonso Cuarón’s Gravity (2013), the main characters try to survive in outer space by solving practical and technical problems. The movie repudiates a point of view and a ground for vision in favor of immersion, transforming images into physical sensations mobilized by the visual and auditory (espe- cially in its 3-D version), and thus into affect. The becoming-affect of images derives from communicative capitalism’s ruthless conversion of sensation and aesthetic experiences into cognition: its transformation of these experiences into information, sensations, and intensities without meaning is precisely what enables them to be exploited as forms of work and sold as new experiences and exciting lifestyle choices (Shaviro, 2010, para. 14). One of the problems that arises is that affect cannot be linked to a larger network of identity and meaning. Gravity also presents itself as a symptom of the normalization of a groundless seeing brought about by modernity’s decentering of the subject parallel to our Visuality conditions under the Anthropocene 291 exposure to aerial images (for example, Google Earth). The hegemonic sight convention of visuality is an empowered, unstable, free-falling, and floating bird’s eye view that mirrors the present moment’s ubiquitous condition of groundlessness (Steyerl, 2011, para. 6). According to many thinkers, this groundlessness characterizes the Anthropocene. The current fragmentation and transience of sociopolitical movements attests to the fact that we are first of all lacking ground on which to found politics, our social lives, and our relationship to the environment. Second, as Claire Colebrook put it, with the Anthropocene we are facing human extinction, as well as causing other extinctions, thereby annihilating that which makes us human. We are thus all thrown into a situation of urgent interconnectedness, in which a complex multiplicity of diverging forces and timelines that exceed any manageable point of view converge (Colebrook & Wolfe, 2013). In this context, criticality is both in trouble and spinning on its head. Many questions arise: How do we redefine the ground of deterritorialized subjectivation beyond the subsumption of subjectivity by the modes of governance of accelerated tautological forms of vision and communicative capitalism? How can we transform our relationship to the indeterminacy of deterritorialization and the multiplicity of diverging points of view in order to provide a heightened sense of place, giving way to the possibility of collective autonomous subjectivation and thus a new sense of politics and of the image? In an era of ubiquitous synthetic and digital images dissociated from human vision and directly tied to power and capital, when images and aesthetic experience have been turned into cognition and thus into empty sensations or tautological truths about reality, the image of the Anthropocene is yet to come. The Anthropocene is “the age of man” that announces its own extinction. In other words, the Anthropocene thesis posits “man” as the end of its own destiny. Therefore, while the Anthropocene narrative keeps “man” at its very center, it marks the death of the posthuman and of antihumanism, because there can be no redeeming critical antihumanist or posthuman figure in which either meta- physics or technological and scientific advances would find a way to reconcile human life with ecology. In short, images of the Anthropocene are missing. Thus, it is necessary to transcend our incapacity to imagine an alternative or something better. We can first do this: draw a distinction between images and imagery, or pictures. Although it is related to the optic nerve, the picture does not make an image (Daney & McMahon, 1999). In order to make images, it is necessary to make vision assassinate perception; it is necessary to ground vision, and then perform (as in artistic activity) and think vision (as in critical activity) (Didi-Huberman, 2007, p. 17).