We can use IP against itself through making performance copyrighted. That prevents government surveillance crackdown which is key for movement efficacy

Vizoso and Byrnes 23 (Julia Choucair Vizoso was editor in chief of the online journal, Sada. Her research interests include Middle Eastern politics, authoritarianism, and identity politics. She is a Ph.D. candidate in political science at Yale University. Chris Byrnes joined RPX, where he served as a patent-risk advisor and patent-litigation insurance-claim manager. He has advised clients of all size czs on hundreds of patent litigations involving non-practicing entities (i.e., “patent trolls”) and worked closely on several of RPX's headlining transactions (e.g., a nine-figure deal in 2020 with Intellectual Ventures). In 2016, Chris co-founded Corporate Accountability Lab (CAL), a human rights non-profit organization, to experiment with new ways in which IP commoning and international trade laws could be used by communities and IP producers as tools for collective liberation., Abolitionist creativity How intellectual property can hack digital power, 9 February 2023, https://www.tni.org/en/article/abolitionist-creativity//ATW)

Plot #1: Protest as copyrighted performance

Protest is increasingly criminalised across democracies. During peaceful rallies against climate inaction, racial injustice, police brutality, or war, security services arrest and violently repress protesters, journalists, and human rights monitors. Police commanders send out orders to ‘take back the streets’, transforming individuals exercising a fundamental democratic right – the right to protest – into criminals. More countries are introducing laws to hold protesters criminally and civilly responsible for property damage that occurs during protests.

Digitalisation has become a crucial component of states’ enhanced surveillance and coercive capacity, and they deploy it with little regulation or transparency. Journalists, civil rights advocates, and protesters have documented government use of surveillance, social media monitoring, and other digital tools – warning that it could take years after a protest to learn all of the ways that security forces surveilled organisers. Governments are also coordinating with tech-savvy private security forces who got their start as contractors in the ‘war on terror’. The ‘overlapping interests of government and industry that use surveillance, policing, and imprisonment as solutions to economic, social, and political problems’ is what abolitionists refer to as the prison-industrial complex.

During the Dakota Access Pipeline protests at Standing Rock, for example, leaked documents exposed that state and federal military forces were working alongside a private military contractor, TigerSwan, hired by owners of the pipeline, Energy Transfer Partners. Working with police in at least five states to attack the Indigenous-led movement Water Protector, TigerSwan was using military-style counterterrorism measures and digital surveillance to monitor protesters’ movements, including a live video feed from a private Dakota Access security helicopter.

Here is where intellectual property comes in. What if we legally protect the creativity inherent in protest as copyrightable performance art? Protests routinely incorporate performative innovations into their repertoire, from Standing Rock to Mexico to Iraq to the United Kingdom. We know that for communities in resistance, ‘the rituals, dances, protocols and songs that characterise these struggles are not merely the cultural ephemera of activism; they are an intimate and constitutive part of Indigenous world-making, a means to coordinate and align the collective imagination so as to facilitate and enrich the cooperation of those involved’. Scholars have long recognised the performativity of protest, studying the use of visualisation and space or arguing that ‘choreography, movement and gesture are not peripheral but central to the politics of protest’. What if protestors acknowledge that these key features of protest also have legal rights that can help them challenge the prison-industrial complex?

Imagine if protestors wore the © ‘all rights reserved’ on their bodies or adorned themselves in barcodes that linked to their copyright terms and conditions, specifying that images and audio could not be used for commercial use, including privately contracted surveillance. Imagine if protesters then demanded in court to know how private security forces were using any recording of their art, visual or audio? Imagine if legal discovery (the pre-trial procedure in which each party can obtain evidence from the other party through requests for documents) then revealed the secret commercial interests between police departments and private security companies, or between a private mercenary firm and its employer, an oil company. Imagine if these companies then had to compensate protesters for copyright violation, or if courts threw out evidence because companies had obtained it unlawfully with copyright infringement. Copyright law is not going to get protestors out of jail for criminal charges, but it can help to ensure that the prison-industrial complex cannot profit from policing.

How would the creators of a copyright-protected performance by Extinction Rebellion, Black Lives Matter, BP or not BP, #NoDAPL, and countless other fearless activists want to condition the use of their performance? What kinds of legally enforceable exclusions would further the goals of their direct action or community response? Should protestors allow police departments (and the private security companies they increasingly work with) to use video and sound recordings of a scripted performance (i.e. a protest) or of visual art such as graffiti – and any other copyrightable material – without any conditions? What should anyone who seizes or destroys an encampment-as-art installation have to pay in reparations?

We inhabit systems that afford more legal protection to performing outrage at injustice than to claiming justice as a right; systems that value the sanctity of property more than the sanctity of Black and Indigenous lives, more than protecting biodiversity. There is no reliably enforceable international human rights regime, but there is a powerful international legal regime associated with intellectual property. We can radically repurpose this power. We can jailbreak the codes and the legal technology of IP from its intended use.

The possibilities are intriguing. Might we be better able to occupy physical property by occupying intellectual property, refashioning the absurd powers given to intangible property into furthering our ability to hold physical space? Can copyright protection complicate how digital power increasingly oppresses protest or acts of preservation, whether they be about environmental issues or dignified living?

Anyone can participate. Every protestor is a performance artist. For those who already identify as socially engaged artists or artivists, here is an opportunity to rethink the political agency of your art. Can a work of art have direct political agency, not through debates over the righteousness of its political aesthetic or content, but through artists occupying the legal and economic scaffolding that surround it?