The framing of IP protection as a neutral policy proposal upholds racial myths embedded in the American psyche sustained through property discourse---only counterhegemonic education can destabilize these myths.

This is not to say that racialization does not occur within in the context of discussions of trademarks, patents, and copyrights individually. In fact, quite the contrary is the case. Rosemary Coombe, for example, argues that federal trademark laws actually created the means by which marketing firms were able to construct the American consumer. Trademarks became the texts through which American identity and racial hierarchy were articulated.42 Indeed, trademarks operate as much more than markers of brand identity, as they “provide symbolic resources for the construction of identity and community, subaltern appropriations, parodic interventions, and counterhegemonic narratives.”43 Trademark law developed, in part, as a means of creating an American identity, particularly one that normalized the superiority of whiteness and the inferiority of non-white Others. Images of Aunt Jemima, Uncle Ben, Black Sambo, and the Washington Redskins emerged as ways to both sell products and affirm the social significance of racial difference.44 Moreover, trademark infringers are commonly described as parasites, feeding off of the reputations of well-known trademarks.45 Kevin J. Greene reads copyrights as a means of excluding marginalized groups from access to the literal marketplaces of ideas, ensuring that only certain individuals, generally white, heterosexual males, are afforded access to the means of officially producing and protecting intellectual properties. For Greene, the very terms of trademark law are non-neutral, a “marketplace of racial norms” in which intellectual properties are protected along racial lines.46 Copyright infringers are labeled as pirates and criminals, condemned for their anti-social behaviors.47 Often they are represented as Asians who are represented as being unable to create, only steal.48 Jonathan Kahn addresses the naturalization of race in the patent context, demonstrating persistent links between the scientific study of genetic differences, particularly with respect to disease etiologies, and the belief in race as a biologically and not socially constituted category. Race-specific patents for drugs speciously suggest that racial identities can be reliably identified and medically treated.49 Moreover, patent infringers, like copyright infringers, are identified as imitators incapable of their own independent thoughts, calling upon Orientalist visions of China and India.50 These examples, particularly when read in light of contemporary political rhetorics on trademarks, copyrights, and patents suggest that there is a commonality in the type of person that commits “IP crime”—the intellectual property infringer is associated with a constellation of negative characteristics, including laziness, dishonesty, immorality, and disregard for human life. Moreover, intellectual property functions structurally and through representations to create a presumption of race-neutrality that erases histories of race. Just as the grouping of intellectual property into one category has a strategic utility in the context of policy decisions—most often to justify increasingly draconian penalties for infringement—it has significant cultural implications for racialization and the perpetuation of racial stereotypes. Specifically, the homogenization of “IP Crime” erases the individual relationships between copyrights, trademarks, and patents and race. As a result of this erasure, trademarks, copyrights, and patents receive the protection of a veil of race-neutrality, facilitating appeals to neoliberal economic principles of efficiency and profit maximization to judge the success of a policy proposal. 51 Not only does this promote unjust distributions of access to information but also understandings of race. The links between intellectual property infringement and racial difference in part derive from the relationship between trademarks, copyrights, and patents and Enlightenment thought and Western colonialism. James Boyle argues that the image of the “romantic author,” which originated with Enlightenment visions of progress, animates contemporary intellectual property law. Envisioned as the sole creator in a study or laboratory who, in a moment of creative genius, produces a new and masterful work of art or invention, the romantic author is the product of the Western imaginary.52 Trademarks gained popularity in America during a time of Westward expansion, as a means of solidifying white superiority.53 Increasingly, then, discourses of trademarks, copyrights, and patents reinforce a dichotomy of creators and infringers, with the former being white Westerners perceived to be capable of producing new and innovative knowledge and the latter being associated with racial Otherness. Moreover, the association of intellectual property infringement with characteristics of racial difference often functions as a contemporary racial project, or attempt to deploy narratives of race in a manner that justifies the racialization of social structures, political organization, and distribution of resources.54 Representations of race in the context of intellectual property discourses operate as a means of justifying structural decisions that negatively affect the material realities of marginalized groups and systematically demonize racial Others. To return to Mukasey’s comments, the articulation of counterfeit “AIDS medicine” with “theft,” “organized crime,” and “terrorism” erases global inequalities in access to life-saving drugs. Moreover, racialized portrayals of infringement become a means of justifying the criminalization of intellectual property crimes, often to the detriment of marginalized groups and the neocolonial periphery. Representing the Chinese as dishonest and lazy works as a justification for cracking down on intellectual property rights violations, not searching for alternate conceptualizations of the problem. Intellectual property, as it is discussed in contemporary public culture normalizes a “racial common sense,”55 or tacit understanding about racial difference, that presupposes the untrustworthiness, deviousness, and dangerousness of racial Others with respect to infringement of intellectual properties. The term “IP crime” systematically silences racial Others, using traits often associated with difference to justify the imposition of Western understandings of creation. Racial common sense originates with mythologies which are circulated throughout public culture and come to be normalized and accepted. Myths are implicit and explicit archetypal narratives, rooted in historical experience and ritual, which guide the values and actions of society. Burke underscores the archetypal and prescriptive/proscriptive aspects of myth in Language as Symbolic Action, arguing that the creation myth, for example, is “a way of propounding ‘principles of governance,’ by translation into terms of narrative rather than as they might be formulated in philosophy, metaphysics, or theology.”56 Robert Rowland and David A. Frank, like Burke, affirm the role of myth in guiding action. For them, myths “answer the basic questions of human life, setting forth the values in the form of sacred and transcendent stories that inform speech and induce action.”57 In essence, then, myths come to guide thinking about the world, defining the boundaries of common sense. Omi and Winant maintain that racial myths are inherent to the American psyche and system of social order. Because they have become so common and embedded in national culture, they have become racial common sense: The continued persistence of racial ideology suggests that these racial myths cannot be exposed as such in the popular imagination. They are…too essential, too integral to the maintenance of the US Social Order. Of course particular meanings, stereotypes, and myths can change, but the presence of a system of racial meanings and stereotypes, of racial ideology, seems to be a permanent feature of US culture.58 In the context of intellectual property discourses, racial myths inform understandings of the identities of creators/infringers, “disseminating images of racial minorities which establish for audiences what people from these groups look like, how they behave, and ‘who they are.’”59 Images of infringers define the “who they are” as chronic criminals, unable to control the impulses to steal the creative works of others and follow the morals established by society. These racialized understandings of infringement also suggest that racial Others are incapable of contributing to the public domain or processes of knowledge production.