Search the archive.

Anjali Vats, “The Color of Creatorship”, Stanford University Press, Pages 55-57, 2020

Trademark law, which existed at only a state level until the mid-1900s,139 both amplified and quelled national desires and anxieties associated with race, national identity, citizenship, and economic prosperity. Passed in 1946, the nation’s first federal trademark statute, the Lanham Act,140 played a central role in perpetuating and reinforcing the whiteness of U.S. citizenship as well as racial hierarchies from the Antebellum Era that Emancipation disrupted.141 Yet unlike copyright and patent law, trademark law did not explicitly exclude certain groups from protection. Instead, it produced a legal framework through which racial hierarchies could be normalized and managed visually, in consumer spaces

Michael Kwet, “Digital colonialism: US empire and the new imperialism in the Global South”, Institute of Race Relations, 14 January 2019, https://journals.sagepub.com/doi/abs/10.1177/0306396818823172?journalCode=racb

The control of code is foundational to digital domination. In Code: and Other Laws of Cyberspace, Lawrence Lessig famously argued that computer code shapes the rules, norms and behaviours of computer-mediated experiences in ways similar to architecture in physical space (e.g. imperial railways designed for colonisation).21 ‘Code is law’ in the sense that it has the power to usurp legal, institutional and social norms impacting the political, economic and cultural domains of society. This critical insight has been applied in fields like copyright, free speech regulation, Internet governance, blockchain, privacy, and even torts. What has been missed, however, is how US dominance of code – and other forms of digital architecture – usurps other countries’ sovereignty.

Anjali Vats, “The Color of Creatorship”, Stanford University Press, Pages 63-65, 2020

At a basic level, the Doctrine of Consumer Confusion evolved in the context of racial capitalism in the United States. In the 1920s, as Fordism was taking root in the nation with the production of the assembly line, capitalism remained fundamentally racialized. Manning Marable observes that at the heart of economic prosperity in the United States was a fundamental anti-Blackness, one that ensured the systematic underdevelopment of Black communities.178 Similar arguments can be made of Native American and Latinx peoples, who were objects, not the subjects, of capitalist growth. In this context, trademark law developed to protect the real property interests of a new class of capitalist producers and consumers, who were never contemplated to be people of color.

Malini Ranganathan, Anne Bonds, “Racial regimes of property: Introduction to the special issue”, , 7 April 2022,

Property is generally understood as a “self-evident category” (Blomley, 2004: 2)—intuitively speaking, property is that which belongs to someone or something. Conjured though legal and extralegal enactments, property is deeply embedded in social and cultural life and is taken for granted in liberal modes of thinking. It operates as an unquestioned universality. Indicating the right to own something, and the right to enjoy that thing, legally recognized forms of property include real and tangible property, such as privately and publicly owned land, as well as intellectual property. Yet this commonsense notion of property as a “thing” obscures the web of social and power relations that must be performed to produce property as legitimate. Modern property, then, is not only an essential component of capitalist political economy but is also a shifting social formation animated by contextual assemblages of race, class, ethnicity, gender, and citizenship. Theorized this way, property is far from fixed, but rather is an unfolding and continuously enacted set of relations that necessitates and in turn shapes the hierarchical valuation of bodies and places.

Anjali Vats, “The Color of Creatorship”, Stanford University Press, Pages 32-34, 2020

Michael Perelman and Lateef Mtima note that protectionist motives were evident across areas of intellectual property law, as were understandings that white plunder was an acceptable means of securing Manifest Destiny, global power, economic might, and domestic labor.23 Mtima further contextualizes this argument vis-à-vis national identity, writing “America’s leaders and populace were not overly concerned with the trivialities of foreign rights in intangible property, especially if such rights stood in the way of nation building . . . the misappropriation of a few stories and songs was hardly an affront to the national conscience.”24 In a time period when the Chinese were identified as part of a barbaric, machinistic, “Oriental” nation whose values were “incompatible with the United States and threatened to corrupt the nation,”25 and other racial groups were scripted in similarly racist ways, intellectual property’s legal and economic decisions were inseparable from whiteness itself. Despite formal equality, copyright law and conceptions of citizenship constructed a domestic and racialized version of Americanness, which privileged white intellectual properties using familiar and established racial scripts.

Anjali Vats, “The Color of Creatorship”, Stanford University Press, Pages 67-70, 2020

Unsurprisingly, laws, policies, and discourses that “did not see race” did not remedy the persistent structural inequalities that had resulted from centuries of racism and dispossession. They only created an appearance of equality that operated as a perpetual alibi to claims of race discrimination. In part, as Jodi Melamed argues, racial liberalism refers to the transition from “mesmerizing narratives of the white man’s burden”2 that informed openly racist and colonial policymaking to “liberal antiracisms—of reform, of colorblindness, of diversity in a postracial world—that explained (away) the inequalities of a still-racialized capitalism”3 as official state policy. No longer did the management of race entail grappling with structural racism. Instead, anti-racism required citizens, policymakers, and lawmakers to adopt colorblind universalism, a form of thinking that identified racism and the effects of racism as individual matters, not structural ones, and emphasized individual rights and formal equality as the paths to racial justice.

Anjali Vats, “The Color of Creatorship”, Stanford University Press, Pages 51-53, 2020

Because the values of patent law and human progress also underpin understandings of the American Dream, the latter is laced with racialized understandings of meritocratic achievement.120 The figure of the citizen creator was not an incidental or identity-neutral element of the American narrative but an essential and raced one. Inventorship, the American Dream, and economic prosperity were mythically co-created, in order to shape and manage the desires and anxieties of the nation and its citizens. The values of the American Dream—inventiveness, rugged individualism, self-reliance, hard work, honesty, and perseverance—were associated with a particular kind of whiteness, that was intertwined with masculinity, progress, and nation-building. Inventorship thus became the exclusive domain of white men, who were imagined to be the economic and technological engines of the nation.

Anjali Vats, “The Color of Creatorship”, Stanford University Press, Pages 15-17, 2020

In responding to arguments about race, intellectual property scholars often appeal to economics as an explanatory framework for the outcomes in question. Despite Zahr Said’s optimistic observation that critiques to it are flourishing,49 law and economics has and continues to be the predominant lens for theorizing intellectual property law. Often, as Mitu Gulati and Devon Carbado argue,50 Critical Race Theory and law and economics go so far as to offer competing instead of complementary explanations for macro and micro institutional practices that produce inequality. Yet investigating the relationships among (intellectual) property, citizenship, national identity, and personhood calls for considering how race and capitalism are coproduced, particularly in a world in which former attorney general Michael Mukasey referred to intellectual properties as America’s most “precious commodities.”51

Anjali Vats, “The Color of Creatorship”, Stanford University Press, Pages 3-6, 2020

Tracing “racial scripts” is a tangible method for understanding America’s racial episteme and how it informs citizenship and creatorship/infringement as discursive formations. Racial scripts are historically grounded and flexible racist logics about racial groups that can be accessed at any time to exclude the original or other people of color.5 They operate as shorthand mechanisms for calling upon dominant American ideals of national identity, patriotism, political economy, and personhood without necessarily explicitly invoking racial categories or colonial logics. In this way, racial scripts can be baked into the seemingly colorblind ideals of American citizenship that, in turn, inform intellectual property law. Examining how intellectual property law operates as a space of racial formation in which the meaning of racial categories evolves over time is a prerequisite to undoing entrenched white privilege and democratizing knowledge production and ownership.6

Anjali Vats, “The Racial Politics of Fair Use Fetishism”, LSU Law Journal for Social Justice and Policy, 2022, https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=1007&context=jsjp

Some might wonder why an article critiquing fair use as a tool of racial justice is necessary when so few scholars and activists make the explicit case for using the affirmative defense. From where I sit, the reason is structural. Continuing to put faith in fair use to support artists of color diminishes the value of their artistic works as standalone products of brilliance, especially given that fair use still tends to disproportionately benefit corporate entities over individual ones. Rosenblatt writes that “the framework of fair use is not a free-for-all.”51 I build on this observation about the limitations of fair use by showing how its mere rhetorical invocation can operate as a tool of racial and (post)colonial domination and distraction. At the heart of this claim are two arguments: that intensely focusing on fair use suggests that it can solve more problems of selfexpression than it actually can, particularly vis-à-vis race, and that it is more than a fantasy script for creators of color. Embracing fair use as a concept without attending to its potentially detrimental impacts on cultural understandings of Black brilliance may indeed create more problems for the long term protection of innovative artistic works than it solves. Rosenblatt’s Bakhtinian reading of fair use gets at some of the implicit hierarchy established by fair use, e.g. that “an ‘original’ creator gets not only enhanced rights, but also enhanced stability.”52 David Hesmondhalgh’s examination of Moby’s Play, an album sonically marked by the sampling of audio recordings collected by folklorist Alan Lomax, suggests a similar argument in , highlighting how fair use necessarily cuts both ways by making it easier for white musicians to engage in sampling.53 A CRTIP approach to thinking about fair use can sharpen conversations around copyright and infringement, as well as advance goals of racial justice. Such an approach also likely requires divesting from the doctrine and its remedial tendencies in favor of more radical interventions that center epistemologically inclusive notions of protectability, originality, and infringement. .

Anjali Vats, “The Color of Creatorship”, Stanford University Press, Pages 195-198, 2020

Enlightenment conceptions of colonial subjects as barbarous, childlike, innocent, and without higher intellectual capacity came to be embedded not only in intellectual property law in the eighteenth and nineteenth centuries, but in the very logics of global copyright, patent, and trademark law as well. Ruth Okediji observes that, historically speaking, intellectual property law from the nineteenth century onward discriminated against the developing world, centrally building upon the idea that colonial subjects lacked the intellectual sophistication to produce knowledge. She contends:

Arun Saldanha, “A date with destiny: Racial capitalism and the beginnings of the Anthropocene”, Environment and Planning D: Society and Space, 5 September 2019, https://doi.org/10.1177/0263775819871964

Another option presents itself: simply continue using “Anthropocene” in an informal and capacious manner and accept there are many environmental and sociological markers which together point to North England at the end of the 18th century as its beginning. Between earth science and other practices, we can inhabit the impasse instead of ignoring it. If it turns out the Anthropocene officially starts in 1964, those outside earth science will have to accept that conclusion. But explaining the radioactive stratum will still require explaining Mutually Assured Destruction, industrial technology, and empire, and these have their roots in the racializing capitalisms of early modernity. What after all is the Great Acceleration an acceleration of? The destructive apparatuses of the World Wars and then the Cold War are culminations of geopolitical, technological, and legal processes which first took form much earlier (think of the papally backed Treaty of Tordesillas between Portugal and Spain of 1498 dividing the world for colonization). But this essay has argued it is the transition to an economy of perpetual speeding-up that is definitive, more than either the beginnings of colonial arrogance or the mad resort to nuclear arsenals. The military–industrial complex has been spectacularly wasteful and dangerous, but it is instigated by the growth imperative, by the “miracle” of the conjoining of primitive accumulation, gendered wage-labor, and commodification in little North English towns (compare Alliez and Lazzarato, 2018; Jones, 1981). The political upshot is that to avoid this system’s catastrophic exponentialities, it will not be possible to simply slow it down.

Similar factors apply to the issue of patents. Much university research in economics is funded by companies with interests in patents. These companies may not do anything as crass as ordering professors to take a particular position, but influence can work more subtly, as stated by Edward Said:

Nothing in my view is more reprehensible than those habits of mind in the intellectual that induce avoidance, that characteristic turning away from a difficult and principled position, which you know to be the right one, but which you decide not to take. You do not want to appear too political; you are afraid of seeming controversial; you want to keep a reputation for being balanced, objective, moderate; your hope is to be asked back, to consult, to be on a board or prestigious committee, and so to remain within the responsible mainstream; someday you hope to get an honorary degree, a big prize, perhaps even an ambassadorship.50

The framers of the U.S. Constitution were not wrong. Patents did serve an important purpose during the days when technology advances happened over decades or centuries. In today’s era of exponentially advancing technologies, however, patents have become the greatest inhibitor to innovation and are holding the United States back. The only way of staying ahead is to out-innovate a competitor; speed to market and constant reinvention are critical. Patents do the reverse; they create disincentives to innovate and slow down innovators by allowing technology laggards and extortionists to sue them.

A new paper, Does Patent Licensing Mean Innovation, by Robin Feldman, of the University of California-Hastings Law School, and my colleague Mark Lemley, of Stanford Law School, dispels what doubt there may have been about the innovation value of patents. They analyzed the experience of real companies to see how often patent licenses actually spur innovation or technology transfer when patent holders assert their patents against companies. They found that almost no new innovation resulted. When patents were licensed, regardless of whether they were licensed from companies, patent trolls, or universities, they were practically worthless in enabling innovation.

Patents discourage innovation. When Steve Jobs and Steve Wozniak started developing the first Apple computers in a garage, they did not worry much about patents. They shared and borrowed ideas from their network of fellow geeks. If they had had to pay royalties on all the software they borrowed, today we would have no email, no smartphones, no What’s App, no Google. The most important software innovations in the US happened before the US began allowing software patenting (in Europe, software patents as such are not possible.) More recently, the pace of innovation slowed.

Today, patents are often used as weapons. In the 1950s, an American inventor filed so-called “submarine patents” to claim an early form of machine vision technology; when others decades later developed bar code and other machine readers he sued to protect his previously unnoticed patents and collected more than $1 billion – even though the real development work had been done by others.

VI. An Alternative Model for Patent Law at the 3A Era - Incentivizing Stakeholders Within the AI Multiplayer Model

A. Rethinking the Incentive Effect of the Current Patent Regime

A second widely cited benefit of patent systems – although not so much in the economics literature – is the notion that patents are a substitute for socially costly trade secrecy and improve communication about ideas. From a theoretical point of view the notion that patents are a substitute for trade secrecy fails even in the simplest model. If a secret can be kept for N years and a patent lasts M years then an innovator will patent exactly when N ≤ M. Hence, only those things will be patented for which the secret would have emerged before the patent expired, while those for which the secret can be kept will not be patented. The same remains true in more complex and realistic models such as that of Boldrin and Levine [2004], see also Ponce [2007]. It is also the case that modern “disclosure” in patents is negligible – it is essentially impossible to build a functioning device or software program from a modern patent application, a fact which is especially clear since some patented ideas do not – and cannot – work. A case in point is the patent for moving information through the fifth dimension.2

A more subtle point is that secrecy may bias the type of inventive activity away from innovations that are not easily kept secret to those that can be, vice versa for patents. There is historical evidence from Moser [2004, 2005] in this direction. In 19th Century expositions of inventions, while countries without patent systems had overall rates of innovation similar to those with a patent system, they did specialize in innovations which were more easily kept secret. How strong this bias would be if no countries had patent systems – that is, whether it is true that patents encourage innovations that would not otherwise be made, or if they just shift the location of innovation from country to country – is not known.

This Article thus argues that using patents to combat patent risks may not be a viable long-term solution for open innovation communities because many of their innovations may not be practically or legally patentable. In- deed, so long as the patent system retains its bias in favor of centralized in- novation at the firm level, open, decentralized models of innovation will remain at a distinct disadvantage in terms of patent protection.

According to many in open innovation communities, patents are not only unnecessary to trigger inventive activity, they are the avowed enemy.64 In the free and open source software world, for instance, many free and open source software luminaries argue vociferously against software being patentable at all.65 The “computational ideas” for which patents are often sought and obtained are the basic building blocks of software programs;66 they are mathematical formulas, in essence “laws of nature,” that should fall outside of patentable subject matter.67 Taking them out of the public do- main through a patent grant prevents others, including specifically those in open innovation communities, from using these basic concepts to create ad- ditional technology. Consequently, future developers, users, and society in general suffer.68

Other patent-related risks to open innovation communities may arise based on how the patent system is administered. For instance, those in open innovation communities have long voiced concerns over the breadth and indeterminate scope of issued patents, especially in the software and infor- mation technology industries.69 Richard Stallman, the founder of the free software movement, argues that in many contexts it is impossible to deter- mine what software any given patent covers; nor is it feasible to read all rel- evant patents, even if they were understandable.70 Consequently, avoiding the patent by simply designing around it becomes nearly impossible.71 Other options, such as licensing the patent or seeking to overturn it in court, also come with significant challenges such as an unwilling licensor and, in many cases, resource constraints on the part of the developer.72 As a result, for some developers opting out of inventive activity may be the only ration- al route.

One potential consequence of granting DABUS the right to invent and patent its own inventions is that this decision could open the floodgates of AI inventing. As more AI systems enter the patent scene, they theoretically could invent thousands of speculative ideas and have the right to sue anyone who accidentally stumbles across the same idea in the future. The heart of patent law is to encourage and protect innovation, not to patent thousands of speculative ideas just for inventing’s sake. Those against AI being given the rights of an inventor say this would only worsen the power of the tech elite – people who already have an inventing advantage and use that to profit off of smaller inventors who unintentionally infringe.