The extent of biopolitical power has exceeded its original limits to create a state of exclusion and otherization--it has formed a new power--neoliberal biopolitics. Intellectual property is at the center of this transformation.

A quick look at the US Constitutional text suggests that IP exists at the nexus of juridical and public biopower.10 The goal – progress in the arts and sciences – is clearly biopolitical, but the mechanism – property rights – is juridical. It is my central contention that IP has shifted markedly (if unevenly) in the last twenty years or so in the direction of neoliberal biopolitics. Even when they were economically justified, earlier iterations of IP functioned much more along the public biopower model, attempting to improve the welfare of the public as a whole, with provisions such as limits on term length designed to ensure that the public benefited as much and as quickly as possible. Neoliberal IP maintains the idea of welfare enhance- ment, but it grants many more rights to producers, and instead of benefiting the public at large, it increasingly targets individuals in the public directly, reconcep- tualizing them as consumers and their welfare in strictly economic terms.

At the same time, the expression of power in IP is deeply contested within the very institutions through which it operates. For example, the Supreme Court’s patent jurisprudence has repeatedly insisted that IP is to be treated juridically, through standard judicial norms and vocabularies. Similarly, §1201 of the Copyright Act, which prohibits the circumvention of copyright protection technologies, has oper- ated in practice to allow copyright owners to regulate how copyrighted material is consumed, strongly nudging individuals to approach this material only as paying customers, not as members of a more amorphous public. At the same time, the Copyright Office carves out periodic exemptions to the law for such public func- tions as education.

I thus trace, primarily through a series of studies of IP litigation, the contours of both the shift in statutory IP toward a neoliberal biopolitics and the various forms of resistance and contestation that it has produced. The book’s case studies cross a range of interdisciplinary sites, from the permissibility of music sampling, to whether association with sex damages the brand of Victoria’s Secret lingerie, to the meta- physical status of isolated gene fragments. Drawing on the resources of law, philoso- phy, and critical social theory, I develop the vocabulary and theory for a more nuanced understanding of both IP law’s development and what it actually does. As it moves unevenly toward expressing neoliberal biopower, IP becomes more immedi- ately involved in producing and directing the lives of individuals. Specifically, it moves toward fostering forms of subjectivity that take market-relations as normal, that approach issues of culture and life as appropriately mediated by markets, and that treat the appropriate relation to cultural goods as that of consumer. This is in sharp contrast to earlier understandings of IP, which spoke in terms of the rights of creators, or of the need to remove obstacles to markets, or which worried about the deleterious effects of artificial monopolies. IP, then, makes people. Its current, neoliberal version increasingly tries to make people conform to the image of idealized economic agent, always and already participating in a society which is intelligible only in market terms.