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The relationship between intellectual property law, secrecy, and disclosure has important consequences for the traditional knowledge debate. In the traditional knowledge context too, society as a whole benefits from the disclosure of commercially valuable information. If bark from a tree and a shaman's knowledge of its special properties can cure ulcers, then society has an interest in encouraging the disclosure of this knowledge to other entities that can improve upon it and bring it to the larger public.

At least some anecdotal evidence suggests that traditional knowledge holders are willing to share otherwise secret information with outsiders for research and commercial purposes, so long as they are afforded a degree of control over subsequent uses of the knowledge and, in some cases, a portion of the benefit. For example, traditional healers from indigenous communities in Uganda reported to WIPO IGC field researchers that they would be "willing to collaborate with modem health practitioners and the pharmaceutical industry to share information," but that "[p]rotective measures should be in place before [they] would be willing to collaborate with outsiders." 247

Trade secret law is possibly the best form of protection for the indigenous knowledge amongst the prevailing regimes of intellectual property rights. A trade secret can consist of any pattern, device, compilation, method, technique, or process that gives a competitive advantage.87 In corporate terms, even items or data such as customer lists, financial information, recipes for food or beverage products, and technical subject matter of a patent, marketing procedures, or a professional questionnaire can be protected by trade secrets. For example, trade secrets can vest an implied duty on a photographer not to sell or exhibit copies of a photograph without the consent of the photographed.88 Trade secrets are also the best form of intellectual property rights for protecting any kind of undisclosed information. The object is to lawfully prevent information (which is a secret having commercial value) within the control of a person from being disclosed to, acquired by, or used by others without consent, in a manner contrary to honest commercial practices.89

The first step towards trade secret protection of the knowledge of indigenous people is the realization of its value by the holders. The awareness of the rights and long term benefits that will be gained if protected as a trade secret is also essential. Normally, knowledge limited to and secured by an identifiable number of people is subject to trade secret protection provided there is a clear intention to treat it as a secret. Corporate trade secrets have been protected by well-drafted agreements with specific employees in a department, or the entire company may have knowledge of the confidential information. There are instances where indigenous people have also tried to adopt the same strategy. For example, a small tribe in Peru adopted this methodology to protect its property from the California based Shaman Pharmaceuticals Inc. Shaman is a company based in San Francisco. It focuses on isolating bioactive compounds from tropical plants having a history of medicinal use. The company’s research team collects information on the use of plant medicines to treat various illnesses. Shaman, as a part of its program, approached a particular tribe in Peru. The tribe or community demanded that they enter into an agreement with the company to get short and long-term benefits. The terms in the agreement addresses reciprocity from the company to the tribe in three stages. The short-term reciprocity addresses immediate needs of the community, like public health, forest conservation, and medical care. The medium-term reciprocity consists of benefits not immediately apparent, but nonetheless provides benefits before profit sharing might. These include providing equipment, books, and other resources. The long-term reciprocity involves returning a portion of the profits to the indigenous communities once a commercial product is realized.90 However, the company does not share the patents or part of the proceeds from the patents with the indigenous people who provided the initial material. Long-term benefits will accrue in absolute terms only from intellectual property rights and not from the facilities that may be provided to the tribes. Nevertheless this is a good approach involved in using trade secret to protect indigenous knowledge.9

While trade secret protection is not as "barrier"-like as patent protection, it can protect relatively secret traditional knowledge. Not only does trade secret law lack many of patent law's subject matter, temporal, monetary, and other constraints;140 it may also accommodate the concerns of those traditional knowledge holders who want to control particular uses of their knowledge, as well as those who are interested in obtaining a share of the profits from commercialization. 141

One point of clarification: as previously noted, the term traditional knowledge has been used to refer to a vast and varied body of information.42 It has been used, for example, to refer not only to knowledge possessed by specific indigenous and local communities. The term has also been used to describe knowledge that is indigenous to a particular region or country and is generally known by many segments of society-for example, certain aspects of Aryuvedic medicine. Trade secret law would not apply to such information. Toward the other end of the spectrum, however, traditional knowledge may be known within one particular indigenous or local group, or only by specific members of a particular group (e.g., healers), or, more commonly and complicatedly, by a discrete number of neighboring groups within a geographical area. It is this subset of traditional knowledge for which trade secret law has something to offer.

When President Donald Trump took office in January 2017, many tribal leaders took a wait-and-see approach, given his poor record on Indigenous affairs. Four years later, Indian Country has weathered a failed pandemic response, budget cuts and diminished environmental regulations.

Over the span of his administration, many leadership positions in the Bureau of Indian Affairs and the Interior Department were left empty or filled by appointees never vetted by Congress. The annual White House Tribal Nations Conference, held by President Barack Obama for eight years, ceased. Trump’s three Supreme Court justices include one with a solid understanding of federal Indian law and the U.S government’s responsibility to tribes, as well as one whose judicial perspectives are actively harmful.

The problem with succumbing to Putin’s demands is that doing so is not necessarily the best way to minimize the dangers of nuclear war. Because a rational leader would not undertake a policy whose costs outweighed the benefits, sometimes leaders bluff, feigning that they are willing to face costs far greater than warranted in order to intimidate their adversaries into surrender. Surrender here, however, can increase the prospects of nuclear war going forward.

One of the foremost advocates of this nuclear bluffing strategy was Richard Nixon. As he explained his approach to his White House chief of staff H. R. Haldeman, I call it the Madman Theory, Bob. I want the North Vietnamese to believe I’ve reached the point where I might do anything to stop the war. We’ll just slip the word to them that, ‘for God’s sake, you know Nixon is obsessed about Communism. We can’t restrain him when he’s angry — and he has his hand on the nuclear button’ and Ho Chi Minh himself will be in Paris in two days begging for peace.

That’s because “Trump 2.0” won’t be as bad as many think. It will be worse.

Over the course of the past two years, I’ve interviewed dozens of former officials about the ex-president’s undisclosed plans, including what Trump or a savvier successor would do in office next time. The picture was bleaker than I expected.

An assumption in Republican circles is that Kamala Harris can't win, and it is reasonable to think so. She becomes the carrier of the Biden economic burdens; her performance in office has been poor; her favorables are worse than Mr. Biden's; she is a committed woman of the left and likely no match for the ascendant, post-assassination-attempt Donald Trump.

All true. Focus, however, on another assumption: that this is Mr. Trump's election to lose. Also true, but the smart money won't skip past those last two words—"to lose."

Vice President Kamala Harris has scored her fifth polling win in 24 hours, narrowing former President Donald Trump's lead with just over 100 days left until Election Day.

A poll released on Friday by The Wall Street Journal found that Harris had all but eliminated Trump's lead, with the vice president trailing the former president by a 49 percent to 47 percent margin in a head-to-head matchup. The poll has a 3.1 percent margin of error.

Trump is surely watching what Israeli Prime Minister Benjamin Netanyahu is doing since his return to the premiership in Israel, in terms of “judicial reforms” that grant him greater authority to do away with his own indictment by an Israeli court. In fact, various media outlets are reporting that the former president is planning to do what it takes to solidify his power once he is back in the White House, including limiting the independence of federal agencies, deploying the military domestically, and cracking down on his detractors.

Trump appears ready to render the United States less liberal and more autocratic, as Netanyahu is doing now with Israel. The strong checks and balances of the American constitutional democracy may not withstand the vicious assault by Trump and his white nationalist and evangelical conservative allies. He would also find sympathetic ears in the US Supreme Court that has been dominated by conservatives, three of whom were appointed by him.

There are many reasons to fear Donald J. Trump’s return to the White House, but one remains especially worrisome. It stems from the former president’s conspicuous ignorance of international law and US foreign policy. Among assorted particulars of this debility, a previously failed Trump posture – “America First”  – would likely prove more injurious the second-time around.[1]

Prima facie, its restoration, thoughtless in the most literal sense, would dignify a numbingly vacant US president’s indifference to science, logic, history and law.[2]

Political apathy is one of the most persistent threats to the legitimacy of a democratic society and a constant source of concern in the post-war Western public sphere. Nevertheless, it has never become a concentrated or specific field of inquiry (see also General Introduction). A brief sketch of common approaches should illuminate the distinctiveness of Cavell’s approach and terminology. Political apathy is generally approached from one of two opposite directions that can be placed on a horizontal line (see figure 1).

[FIG 1 OMITTED]

Donald Trump’s Political Pessimism There are many ways that Donald Trump has broken with past presidential tradition and behavior. But an overlooked aspect of Trump’s worldview is how fundamentally pessimistic he is about America’s future. From the earliest moments of his campaign, Trump has consistently asserted that the United States is careening toward disaster. In a single address to the Conservative Political Action Conference, Trump said the United States was “a failing nation,” that it was “descending into a cesspool of ruin,” and that “we’re living in hell right now.” Such rhetoric represents a dramatic departure from the way his predecessors talked about their country. In Bill Clinton’s , he sought to celebrate American renewal, claiming that “There is nothing wrong with America that cannot be cured by what is right with America.” The central theme of Ronald Reagan’s 1984 reelection campaign was Prouder, Stronger, Better. His opening campaign ad began with the memorable line, “” and made a simple pitch to voters that things were getting better. In his at the Democratic Convention, then-Senator Barack Obama shared his feeling of pride in America and his vision for a hopeful politics: “In the end, that is God’s greatest gift to us, the bedrock of this nation. A belief in things not seen. A belief that there are better days ahead.” George W. Bush sought to convince Americans to embrace a vision of hope and progress, making the argument that “.” In the same ad Bush states simply, “I’m optimistic about America because I believe in the people of America.” Today, Biden is trying to reclaim this tradition of hopeful optimism. In his State of the Union address earlier this year, Biden struck a decidedly upbeat tone: “Our future is brighter,” he remarked, “The American people are writing the greatest comeback story never told.” It’s unclear whether the public is still listening. Fewer Americans feel optimistic about the country’s future. In a conducted by my team at the Survey Center on American Life, we found that 58 percent of Americans said the country’s best days were behind it. Only 40 percent of Americans said America’s best days lay ahead. This represents a stark shift over the past few years. The last time we asked this question, a majority (54 percent) said our best days were still to come. The shift was much more pronounced among Republicans who have embraced a grim view of America’s future. Seventy percent of Republicans now believe that the country’s best days are long gone. Although “doomerism” has become commonplace in American discourse, Trump is one of the chief purveyors of political pessimism. And the Americans most prone to negativity are the ones most strongly backing Trump’s candidacy. Pessimism is a stronger predictor of vote preference than trust. Voters who are optimistic about America’s future support Joe Biden over Donald Trump by an incredible 36-point margin (68 percent vs. 32 percent). Pessimists, meanwhile, prefer Trump by a wide margin. Trump’s triumph with pessimists cannot be written off completely as an artifact of partisan pessimism. Overall, Republicans express far more cynicism than Democrats about the state of the country, but the pessimism gap is found even among Republican voters. Hopeful Republican voters are most likely to defect from Trump in the 2024 election. Eighty-six percent of Republican voters who say America’s best days are behind it currently support Trump, compared to 76 percent of Republican voters who say the best days are yet to come. The American Dream is powered by optimism. But belief in the American Dream is faltering, and the dramatic shift in presidential rhetoric certainly does not instill confidence. Donald Trump’s unrelentingly negative and apocalyptic tone makes us smaller, more cynical, self-centered, and divided. It has undermined one of America’s core strengths – our shared belief that we have near-limitless potential to make things better for ourselves, our families, our community, and our country. American voters deserve to hear from both candidates not only what is wrong, but also what they believe is right with America.

There’s a surplus of despair in the American far left these days.

Between Joe Biden’s ongoing support for the mass slaughter in Gaza, the Supreme Court’s abysmally craven decision to grant Donald Trump near-total legal immunity, and the chaotic fallout from the first presidential debate, those who once might have voted for Bernie Sanders are finding quite little to feel hopeful about. As a result, more than a few people on the left are thinking about not voting altogether. I see the grim, burn-it-all-down sentiments stream past my eyes on my social feeds all day, every day.

72, no. 3 (Summer 2023): 359-414, dml) [language modifications denoted by brackets]

This article puts forward for consideration one classical property concept that has played an important role in patent law, 7 and which continues to perform conceptual work in the field: 18 the vested private right.19 The concept of vested rights helps make sense of patent law. It is also tied to claims of equal justice. In practice, vested rights are inherently anti-majoritarian, and therefore especially beneficial for the protection of minority rights. Doctrines of vested private rights have been used on several occasions in American history to secure the rights of former slaves, Native peoples, and other minority groups.

As a result of these fundamental differences between tangible and intangible resources, we must be especially cautious in extrapolating positive and normative precepts and ramifications from the realm of tangible resources to the analysis of intangible resources. Simple rules, such as full ownership and automatic injunctions, do not presumptively "carry over" to intangible resources. Policy analysis must address the protection of intangible resources based upon the underlying economic, social, and human effects. More complex tangible property rules--such as nuisance, servitudes, and trespass to chattels--provide some useful models for intellectual property regimes. Conventional property rules and institutions provide insight and useful metaphors, but they cannot substitute for detailed analysis of the particular characteristics of the resources; the human, cultural, social, technological, and historical dimensions of the communities in which the resources are situated; and the attributes and limitations of the full range of available institutions.

In sum, the previously linear creator/distributor/public dissemination conduit evolved into a relationship in the form of an isosceles triangle: the publisher/distributor occupies the apex point and from there it dictates business terms and market quality criteria downward to the creative and public audience base points.22 Throughout much of the twentieth century, the predominance of this IP commodification paradigm fostered an attendant and disproportionate emphasis on utilitarian "law and economics" perspectives of IP law. The gist of this viewpoint is that the prospect of economic reward provides an essential incentive to undertake IP production and dissemination, and consequently economic considerations should be given primacy in the IP eco-system. This rationale would dominate the IP scholarly and law policy discourse until the latter decades of the twentieth century.

C. Challenging the Status Quo: The Advent of "Deontological" IP Scholarship

The way forward fundamentally poses three alternatives: attempt to utilize existing IPR systems to systematically protect Indigenous peoples’ TK, amend such IPR systems to protect the TK of Indigenous Peoples, or seek to create a new Indigenous IPR system. Each of these paths has merit.

While the problems identified in this article regarding the usage of existing IPR systems are manifest, there remain ways they can be used. “Trade secret law” can be used to protect traditional medicinal or other arguably commercially valuable knowledge that is kept a secret within a certain group. “Copyright” may be filed for a version of traditional stories, songs and designs by a traditional knowledge keeper in their own words or creation that can then be subsequently assigned into communal ownership. Indigenous people can seek to protect and defend their key words of identification as “trademarks,” “service marks,” or “domain names.” Lists of the uses of traditional plants, minerals, animals, and traditional manufacturing methods may be kept as a means to identify “prior art,” which can be used to defeat patents being claimed on the same by non-Indigenous peoples.

But now, in the developing world, scholars, lawyers, and activists are turning the light on what they call “poor people’s knowledge.” 11 For them, this is “the other half of intellectual property”—the knowledge that is not protected by TRIPS, but perhaps should be.12 In this chapter, I consider how “cultural environmentalism” both bolsters and obstructs the project of protecting poor people’s knowledge and promoting development through intellectual property. I argue that although the metaphor spurred the invention of traditional knowledge as a political and legal category, the same metaphor may also inadvertently obscure the inventiveness of traditional knowledge. Reifying the public domain may have the unintended effect of congealing traditional knowledge as “the opposite of property,” 13 presenting poor people’s knowledge as the raw material of innovation— ancient, static, and natural—rather than as intellectual property—modern, dynamic, scientific, and culturally inventive. According to this view, traditional knowledge holders may receive remuneration for conserving biodiversity and contributing the raw materials of innovation, but they are not recognized as intellectual property holders in their own right. What’s more, a binary view of “intellectual property versus the public domain” rejects new claims for intellectual property in traditional knowledge on the premise that these rights would shrink the public domain.14 In truth, the line between what law considers “raw material” versus “intellectual property” is less stable and more fraught with bias than the binary approach would acknowledge. While politically effective, reifying the negative may have the perverse effect of reinventing these categories as real and stable, obscuring the degree to which they are constructed and insecure. If anyone understands this, it is Boyle himself. The author of “Foucault in Cyberspace,” 15 Boyle articulated in Shamans, Software, and Spleens one of his fundamental concerns: the contested concept of authorship. Why was the shaman’s lore unprotected “traditional knowledge” but W. R. Grace’s appropriation of that knowledge “innovation”? Why was the patient Mr. Moore’s spleen “raw material” but the UCLA researchers’ cell line derived from the spleen “intellectual property”? These were more than the sharp questions of a law professor challenging fi rst- year property students. Boyle off ered up the “romantic author” not to justify these categories but to deconstruct them. Boyle persuasively argued for the need to critically probe authorship and its premise of a “transformative originality more often assumed than proved.” 16 How is it, then, that the cultural environmentalism metaphor may now be inadvertently helping to reconstruct some of the very same false binaries that Boyle set out to tear down more than a decade ago? The answer, I believe, turns on the historical contingency of the work, its intellectual history. In Shamans, Software, and Spleens, Boyle was concerned about the morality of legally recognizing some members of society as authors and not others. He bemoaned the distributive eff ects of such intellectual property laws as “colossally unfair” 17 and boldly called for “a critical social theory of the information society” 18 that would consider these diffi culties. But by and large, Boyle’s own work did not stray far from intellectual property’s economic tradition. While Boyle acknowledged the broad social, cultural, moral, and distributive eff ects of intel lectual property, his primary prescriptions stuck to a law- and- economic analysis of intellectual property. Failure to protect a public domain was, above all, ineffi cient. Destroying the raw materials necessary for creation would stunt creation itself. This approach was admittedly strategic; Boyle openly stated that economic appeals “will sometimes convince when more frankly moral appeals do not.” 19 Boyle acknowledged that his approach was not radical, but rather that it evinced “a conservative strand,” advocating “a return to the rational roots of intellectual property.” 20 Boyle displayed a rare combination: postmodern acuity and political savvy. His analogy to the environmental movement was a brilliant move. But given the discursive restraints of the time, Boyle was not able to fulfi ll his ambition completely. He openly acknowledged “the dangers of embracing too closely a language that can express only some of the things that you care about.” 2.1 Boyle was fully aware of the contingency of his economic argument, recognizing that “our concerns with education and the distribution of wealth, with free speech and universal access to information, can never be fully expressed in the language of neo- classical price theory.” 22 Today, the space for discussing intellectual property’s distributive and social effects is expanding. Notably, a vast coalition of hundreds of intellectual property practitioners, scholars, and activists from around the world are calling for intellectual property to be approached in the context of broader societal interests and development- related concerns, and not just from the narrow lens of economic incentives for innovation.23 As ever, we are enriched by tradition, but not beholden to it. We are still in need of “a critical social theory of the information society” for which Boyle’s work off ers a foundation. But since then, the discursive space for crafting that theory has expanded beyond the narrow confines of understanding intellectual property rights as incentives alone. By foregrounding the important role of “raw materials” in the process of innovation, cultural environmentalism helped provide a theoretical and political basis for recognition and recompense for the purveyors of those raw materials—often indigenous peoples who have cultivated the earth’s biodiversity and who hold “traditional knowledge” about that biodiversity. The invention of the public domain helped to foster “the invention of traditional knowledge” as a political and legal category worthy of rights. But while theorizing the public domain provided intellectual heft to new claims for traditional knowledge protection, it has also proved a stumbling block. Today, the 1992 Convention on Biological Diversity (CBD) and more recently the 2011 Nagoya Protocol to the CBD promote an international legal regime that would reward traditional knowledge holders for their role in preserving biodiversity and ancient knowledge—that is, for their role in preserving the public domain. But these international legal documents do not expressly recognize the inventiveness of traditional knowledge, nor the attendant intellectual property rights claimed by the world’s poor as authors and inventors of new knowledge. In truth, traditional knowledge is much more dynamic and innovative—indeed evolving—than the “environmentalism” metaphor, with its connotations of conservation, acknowledges. A legal regime that recognizes poor people as agents—that is, as the subjects of intellectual property, and not just as the objects of intellectual property, offering up raw materials for others to transform—is premised on a broader view of the relationship between intellectual property and development itself. Here yet another side of intellectual property is revealed: its social and cultural face, not just its economic aspects. World actors are beginning to recognize that intellectual property is about more than incentives for innovation. Just like real property rights, intellectual property rights can promote freedom and security, potentially enabling knowledge societies in which the rich and poor alike may cultivate and materially benefit from their ideas.

The first step toward achieving Intellectual Property Empowerment is promoting pervasive adherence to the obligations of social justice in the development, interpretation and enforcement of intellectual property law. For decades, many courts and governing bodies have simply failed to correct or curtail institutionalized intellectual property injustice. For example, in the United States, African Americans and other marginalized groups have been systemically deprived of the commercial revenues and public recognition due from their intellectual property achievements.8 Even when confronted with uncontroverted evidence of intellectual property misappropriation and outright theft, courts have typically regarded these travesties as examples of the unwise or uneducated exercise of the freedom of contract, or “random” acts of race, gender or class exploitation, all beyond the purview of the intellectual property law. 9 Consequently American courts often fail to do equity or otherwise administer social justice, on the grounds that providing such redress would distort the structure and integrity of the intellectual property regime.

In the developing world, Western misappropriation of the traditional knowledge and cultural expressions (“TKE”) of indigenous peoples is as widespread as the pillaging of their natural resources. While Western intellectual property rights holders demand greater international protection for their own property rights, asserting them even in the face of health and education crises, many of these very same entities blithely ignore the rights and traditions of developing world communities, often relying upon Western precepts of intellectual property to justify their conduct. 10 Given their past and continuing experiences, it is not surprising that many historically marginalized groups and developing nations have little interest in participating in or respecting Western intellectual property regimes.

While some IP stakeholders portend a fundamental tension between the pursuit of IP social justice and fealty to the economic traditions of the IP regime, such apprehensions are revealed as largely overstated when assessed in the context of the overarching goals of IP protection. While circumstances can certainly arise in which the need to address a particular social problem or crisis will require some imposition upon private profit interests, such conflicts are neither unique to IP commercial enterprise nor especially abhorrent to the IP ecosystem.

Human beings often direct their intellectual energies toward creative and inventive endeavor as a matter of innate curiosity, aesthetic inspiration, or utilitarian needs.46 The human drive toward self-expression and useful innovation has been manifest since the first cave paintings and the invention of the wheel. Nonetheless, material incentives to undertake specific kinds of intellectual endeavor can further stimulate such activity. This, of course, is one of the principal aims of IP protection: to provide individuals with secular incentive to engage in various intellectual endeavors toward society's ultimate gain.47