Trademarks are a conception of “moral aims” that is nothing but a racialized script of international inequality.

Sometimes, then, intellectual property law can be a net bad. An intel- lectual property good, like a copyright or trademark, can be implicated in systems of inequality, which can reinforce specific social identities, and promote discrimination and violence based on that social identity. A trade- mark can be registered for a stereotyped image; Aunt Jemima stands as a probably. . . will endeavour to take [the S/R mark] out, or deface them." But other horrors are present as well. Peter, a human, was a good; he, a human, was used in commerce, that is, a nationwide marketplace that was organized around the sale of human bodies. In fact, we only can under- stand the fugitive advertisement as a genre-this story was replicated over and over again because these advertisements were a considerable source of revenue for newspapers during the antebellum period. famous example of this reality.

The Ku Klux Klan copyrighted its Constitution and Laws in 1921,27 and in Article V, Section 3 of the Constitution, granted the Emperor of the Invisible Empire the ability to "create and cause to be promulgated all countersigns, passwords, ritualistic or kloranic work and secret signs, symbols and work of this Order."

Indeed, as intellectual property goods are often conceived, the moral aims of the intellectual property good may not be part of the assessment. For instance, in Juicy Whip, Inc. v. Orange Bang, Inc. ,29 a case which ex- amined a potentially deceptive patented slushie machine, Judge William Curtis Bryson of the United States Court of Appeals for the Federal Circuit wrote:

Of course, Congress is free to declare particular types of inven- tions unpatentable for a variety of reasons, including deceptive- ness. Cf 42 U.S.C. @ 2181(a) (exempting from patent protection inventions useful solely in connection with special nuclear mate- rial or atomic weapons). Until such time as Congress does so, however, we find no basis in section 101 to hold that inventions can be ruled unpatentable for lack of utility simply because they have the capacity to fool some members of the public. Beyond the fact that intellectual property protection can be offered when its goals are immoral, even intellectual property "done right" can still be a "net bad." Anjali Vats asserts trademark and copyright law relies on resonant racialized scripts to draw lines between creators and infringers within each field. 1 Kevin Greene and Tuneen Chisholm have identified the ways doctrinal components of copyright law have fostered systematic discrimination.

I add to this scholarship that emphasizes the potential net bad of intel- lectual property by advancing two claims. First, our understanding of intellectual property law, in both its historical development and its current forms, should be situated against other potential legally protected forms of information. I have contended in other work, that intellectual property law both absorbs and reacts to other areas of information law, including: prop- erty, free speech, classification regimes, and right to information law. Sec- ond, understanding this process of absorption and reaction can be deepened not only through juxtaposition of intellectual property to other doctrinal ar- eas, but also thinking about intellectual property law as a doctrinal space where we can examine other issues fundamental to understanding political and constitutional theory, such as the provision of social goods or in con- tests over the equality within in a political order. I am not alone in this project; the work of Madhavi Sunder and Janewa Osei-Tutu examines how intellectual property goods serve to achieve the goal of human dignity and development, and Jessica Silbey explores the ways in which intellectual property law is in dialogue with fundamental constitutional values such as possession of African-Americans within the musical industry. equality, privacy, and community welfare.