Alt solvency + perm fails

Some intangibles can be owned. Some cannot. Decisions about the scope of protection are usually described as the outcomes of economics, special interest politics, or history. Economic relationships, special interest groups, and political power, however, have long been dominated by men. Furthermore, economic efficiency through individual ownership is an inherently male approach to the world, especially when the central prong of ownership is the right to exclude others. The history of intellectual property is a history of expansion of both the subjects protectable and the rights given individuals over their property. Nevertheless, a few res are not yet protected, at least in the United States. In copyright, the most prominent are clothing, food, and folklore. In patent, the most prominent are one's own body and traditional knowledge. Also unprotected is the general right to share in what shapes the community, the public domain. This article argues that all of these exclusions are gendered in an anti-feminist manner. One might argue, however, that modern changes to the United States copyright regime are pro-feminist. The Copyright Revision Act of 1976 moved the general line of protection from the point of publication to the point of fixation.' In combination with the Berne Implementation Act,2 it eliminated most of the prior need for copy- right formalities. These changes eased individual access to federal copyright protection, including access by women. This increased ease of protection, however, detracts from the feminization of the

legal world by undermining the public domain. The seeming contradictions in this introduction rest on the multiple dimensions of the terms 'gendered' and 'anti-feminist.' Participants in a struggle for betterment commonly differ not only on how to theorize their struggle, but also on whether to focus on the short term goal of improving living conditions or on the long

term goal of changing basic social structure. If the long term goal is impossible, following it wastes the possibilities for improvement. If the short term goal is chosen, however, the underclass obtains a stake in the status quo, thus undercutting, perhaps fatally, any possibility of deep change. "Assimilation in an unworthy society is an unworthy goal. ' This article does not assert that all women are interchangeable or live some universalizable 'female' life. Any middle- class feminist should openly acknowledge that more disadvantaged women face much more pressure to prioritize immediate goals.4 In the intellectual property wars, however, all so-called con- sumers5 (and many producers) have a stake in the endangered

public domain. Women are not alone.6 Therefore, the goal of deep change is sufficiently realistic to warrant choices to forego short term benefits. This article discusses each of these claims in relation to the type of feminism affronted by its non-protection. Liberal feminism under- lies the complaint about the exclusion of clothing and food from copyright protection. Essentialist feminism objects to providing patent protection to medical researchers for inventions derived from patients' body parts, but not recognizing the contributions of the patients. Communitarian versions of feminism object to the requirement of identifiable individual authors or inventors, which makes folklore unprotectable by copyright and traditional knowledge unprotectable by patent. Feminism's most utopian form, humanist feminism (which includes strains of socialist, radical, and Marxist feminism), supports protection and expansion of the public domain. This article's core claim is that the public domain is inherently feminist, especially for those who recognize that "both women and men are oppressed by the 'sex role system"' of western capitalism.7 By enlarging and protecting the public domain, society would move towards a more feminine, and therefore more humanist, culture. The final part of this article discusses the difficult relationship between traditional communitarianism and feminism. It suggests that one theory of the public domain may serve as a model for a more acceptable view of community: the owned public domain where each person has a right not to be excluded, as contrasted with a community where individuals are bound by unchosen duties and lack realistic abilities to exit.