Counter-interpretation: the 1AC, not just the plan, should be the object of study of this debate. This means interrogating not just the outcome of the plan in a vacuum, but the epistemic grid of intelligibility that defines the plan’s desirability in the first place.

Intellectual property citizenship is more than a description of the ties between intellectual property and citizenship discourse: it is a grid of intelligibility that reveals how the American racial episteme operates by and through the ideals of citizenship around which copyright, patent, and trademark law are imagined. For Foucault, a grid of intelligibility is a schema that helps to make sense of social orders.23 In this context, intellectual property citizenship is a grid of intelligibility that aids in understanding how intellectual property and citizenship discourse coalesce to protect whiteness in copyright, patent, and trademark spaces. Thinking about citizenship as an ordering discursive formation through which intellectual property law is constructed reveals that race continues to be not just a superficial issue that determines the outcome of legal cases but an a priori racial ordering of the structures of knowledge production.

I argue that the outcome of individual legal cases involving creators of color is less important than how doctrinal standards were forged through epistemically raced conceptions of citizenship. The coalescence of intellectual property and citizenship produced doctrinal language that continues to systematically privilege whiteness even today. More specifically, America’s racial episteme is “the strategic apparatus which permits separating out from among the statements which are possible those that will be acceptable within.”24 Understanding citizenship as a “strategic rhetoric of whiteness,”25 in the words of Thomas Nakayama and Robert Krizek, transforms the object of study from the racial outcome in individual cases to the racial logics of doctrine itself. Though the race of the plaintiffs and defendants in intellectual property cases is helpful in locating moments of racial crisis, it is not dispositive in thinking about how race works in those moments.

The concept of intellectual property citizenship, as I have intimated through the binary of the good citizen/bad citizen, presupposes an actor, i.e., the intellectual property citizen. The remainder of the book contemplates how American public culture tends to imagine and implicitly invoke idealized intellectual property citizens as actors in narratives about the nation and its well-being. The good intellectual property citizen is shaped by invisible Euro-American norms of white masculinity and constructed in contrast to the bad intellectual property citizen. Familiar binaries of self/Other and good/evil transform intellectual property rhetoric into a tool for reinforcing structural inequality domestically and internationally.

Like the category of Romantic creatorship, the frame of the intellectual property citizen functions as flexible racial and (neo) colonial shorthand for determining, given the particular political and economic needs of the nation, who is categorized as creator. At one historical moment, as chapter 1 demonstrates, overtly racist restrictions on intellectual property ownership may be sufficient to protect whiteness as intellectual property. At another historical moment, as chapter 2 demonstrates, deploying colorblind understandings of creatorship may be useful in justifying racially exclusionary intellectual property practices. Within the narratives that structure intellectual property law, intellectual property citizens tend to move action forward, in familiar and predictable racial and (neo) colonial arcs.

Marouf Hasian uses the concept of “prudential characterizations”26 to describe how law draws upon and constitutes cultural myths about nation and identity to navigate the facts of individual legal cases. While “prudence” is the ability to use reason to make a judgment in legal contexts,27 prudential characterizations refer to the often enthymematic appeals to familiar myths and narratives to adjudicate cases. Hasian writes that characters in legal trials and legal narratives “provide us with enduring cultural exemplars that influence the ways in which we categorize trials, accept evidence, and apportion blame.”28 The Prerequisite Cases showcase how prudential characterizations operate in the context of citizenship, specifically by using race as a dispositive factor for predicting the work habits, integrity, and loyalty of prospective citizens. In doing so, the Prerequisite Cases employ familiar racial scripts as tools for marking the legal and ideological boundaries of citizenship.

In the context of intellectual property law, not only have courts and publics made similar prudential characterizations, but they have done so in ways that adhere to racial myths about creatorship, citizenship, and personhood. Intellectual property cases, then, do not simply mark the outcome of legal disputes over knowledge production and knowledge ownership; they also make explicit and implicit claims about, in the words of Benedict Anderson, the best ways to “think the nation.”29 Intellectual property’s “imagined communities”30 do not reflect America’s melting-pot ideal but instead systematically protect whiteness as (intellectual) property. In this respect, citizenship is more than a legal term. It is also a discursive one that shapes and is shaped by overlapping and deeply racially biased bodies of law.