Conceptual history of IPR and capitalism link together – however, IPR is different as it is not a ‘physical’ good, meaning attempts to confine it to such actually just entrench capitalism
Bracha 20 Oren Bracha is a professor of law at the University of Texas School of Law, Austin. He is one of the leading scholars of the history of Anglo-American intellectual property and has published extensively in the fields of intellectual property law and legal history. (“The History of Intellectual Property as The History of Capitalism” Case Western Reserve Law Review, Vol. 71 Issue 2 pp. 547-583, https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=4906&context=caselrev, DOA: 6/27/24)//LFS – LMH
The third distinctive aspect of intellectual property studied as part of the history of capitalism is conceptual. The context of ownership of information had been one where basic latent assumptions characteristic of a market society that usually remain silent were often challenged, wrestled with, or at least momentarily forced to the surface. In other words, ownership of information is where naturalization tends to burst at the seams. The reason for this is that ownership of intangibles destabilizes one widespread strategy of naturalization, meaning: physicalization. Physicalization is the representation of a social relation between people as a physical (and hence “natural”) relation between things or between things and people. 167 Property is an area where physicalization abounds, where legal relations between people masquer– ade as physical relations between people and things.168 But this has never worked smoothly with intellectual property. As the name implies, intellectual property, at least once understood as such, wears its nonphysicalism on its sleeve. In the words of Justice Oliver Wendell Holmes Jr., these are rights “in vacuo” that create “a prohibition of conduct remote from the persons or tangibles of the party having the right.”169 And this obvious intangibility of the object of property tended to disrupt the disguise of the property relation as a physical one. The upshot of this dynamic was that in some moments intellectual property’s disruption of the physicalist naturalization extended to all property rights170 and indeed to all legal relations.171 This is not to say that physicalization has ever been banished from the area of intellectual property. Nevertheless, it is less stable and more prone for disruption in the context of ownership of information. Thus, intellectual property has been an area where occasionally a window had opened offering a view beyond at least some of the naturalizing assumptions of a market society and forcing participants to wrestle with the questions that then came into view. It is therefore an opportune area of study for the historian of capitalism.