IP laws are rooted in commodification and capitalistic approaches

I argue that there is a strong drive in this subfield for producing scholarship within a frame of origin history. Origin history is geared toward uncovering the true and accurate meaning of a legal rule, concept, or practice at one discrete moment in the past. This may seem to be pure and simple history writing: discovering “what things were really like.” Nevertheless, origin history, like all history writing, has a specific orienting frame. Its guiding principle is locating true and genuine meaning in a privileged past moment. Such perspective assumes constancy—that things are or at least should be as they were—or at the very least, takes little interest in change. The tacit claim of origin history is twofold: to explain and justify. The assumption is that the meaning discovered in the relevant past moment both offers a historical explanation and justifies present choices. Both are false, but my focus here is on the failure of the former. Laying origin history aside, I discuss an alternative frame for writing intellectual property history: the, so called, new history of capitalism. Taking root in American history departments in the last two decades, this approach is fueled by a renewed interest in studying the history of economic relations with an emphasis on the new and distinct system of capitalism.2 There is a close fit between this approach and historical research of intellectual property. This fit is rooted in the fact that the appearance of the field of intellectual property, a distinctly modern construct, coincided with and was an element of the rise of capitalism.3 There is, however, also danger lurking in a common under– standing of several central features of the new history of capitalism approach. The danger is that overemphasis on contingency and constructivism is likely to lead to the conclusion that capitalism is simply whatever random collection of features that political struggles and historical accidents happened to produce. This, in turn, reduces history into description and denies it any explanatory force. By reducing a dynamic and developing set of relations into a constant thing, origin history reifies its object of study. By reducing it to a list of historical accidents, contingency history causes its object to disintegrate. This essay concludes by suggesting that an attractive frame for studying the history of intellectual property is the history of capitalism shorn of its strong contingency drive. Within this frame capitalism, rather than seen as a random collection of accidental forms, supplies a structured and orienting framework. The rise of intellectual property was part of the creation of a new and distinctive set of social relations based on the commodity form and market exchange as a pervasive type of human interaction that radically transformed all aspects of society. I discuss three features that make intellectual property a particularly fitting, as well as somewhat distinctive, object of study within the organizing frame of the history of capitalism: the history of intellectual property understood as the study of the process of commodification applied to the unique subject matter of information; the structural role played by intellectual property in the development of capitalism; and intellectual property as an area where some of the naturalizing assumptions of a market society are prone to float to the surface and occasionally be challenged.