(x) ACADEMY DA

In 1993, legal scholar Richard Epstein challenged the value and the utility of feminist scholarship in the academy, posing the question whether feminism had something, anything, to say about a variety of legal doctrines, including intellectual property.3 The question is somewhat surprising, especially in hindsight. Even at the time that he posed the question, feminist scholars had already begun addressing most of the topics Epstein recited in his litany of legal subject matter,4 and the literature on these topics continues to grow. Thus, the question might seem to have been answered even before it was posed or certainly in the years following; the substantial body of feminist literature exploring these subjects might be answer enough.

But the query was an obviously rhetorical question, evidently intended to imply that even if feminist theory is good for understanding anything in the law, it has little applicability outside a relatively small set of “women’s issues,” such as equal employment compensation, definitions and defenses in rape, and matters of family law.5 The substantive answer to this more serious, implied indictment was perhaps best articulated in the recent comment above by Donna Haraway, observing that feminist inquiry is fundamentally about determining who has power and how it is being used.6 Thus, feminist studies of law should be applicable not only to considerations of the impact of tax, contract, property, copyright, patent, trademark, tort, corporate, and business law on women, but also to exposing within these bodies of law the foundational cultural assumptions that affect both women and men.

Of the subjects Epstein recited in his jeremiad, feminist exploration of copyrights, patents, and trademarks has taken somewhat longer to emerge, but recently feminist commentators have begun to say something, indeed many things, about the law of intellectual property.7 In this essay I attempt to add somewhat to this growing body of scholarship, suggesting a new set of inquiries into the social roles played by intellectual property. In doing so, I point out certain conceptual and rhetorical structures in the law of both patents and copyrights that resemble those previously identified by feminist scholars in other contexts. These structures take the form of oppositional pairs that define much of the philosophical framework of intellectual property law. I first take up the dualism of mind and body that pervades both patent and copyright law. I then turn to the related dualism of nature and culture that is similarly found in both bodies of law. I argue that the feminist literature investigating such oppositional pairs can illuminate their function within the law of intellectual property, showing how intellectual property law contributes to determining and maintaining a pervasive set of power relationships in society.