There are ideas of a "similar and racialized category of creatorship" when one uses the concept of "intellectual property."

Intellectual Property, Race, and the Making of Americans”

Understanding the racial scripts embedded in intellectual property law requires treating the legal regime as both a collection of individual bodies of law and a mass noun. While Richard Stallman is correct that intellectual property is a “seductive mirage”44 through which policy differences between copyrights, trademarks, and patents are obscured, the term “intellectual property” has rhetorical properties that when used in public culture require study, especially with respect to race. Discursive deployments of intellectual property as a single concept facilitate the creation of a homogeneous and racialized category of creatorship as well as the mobilization of public feelings about knowledge production. Moving between intellectual property law as a mass noun and as a collection of bodies of law is useful in teasing out the structural and rhetorical implications of the racialized practices through which racial hierarchy is sustained.

With the exception of a few works, such as Madhavi Sunder’s From Goods to a Good Life: Intellectual Property and Global Justice, scholarship on intellectual property and race tends to address case studies within individual bodies of law. This approach is important and valuable, as it investigates in depth the racial implications of particular intellectual property policies. However, as Silbey argues, “[t]he origin stories that circulate about intellectual property protection span all three forms. The repetition of these stories of consent through the case law, the litigation that becomes case law, and the statutory and constitutional history behind the law, serves to further reinforce the message of consent.”45

Intellectual property law’s narratives about race span all three forms of law as well. In the colonial period, knowledge production was structured through overt racism, with whites presuming they had superior capacity to create and know. That overt racism evolved over time. With the rise of corporate content ownership and neoliberalism, types of intellectual property became increasingly blurred. This blurring also facilitated the securitization of intellectual property, by linking infringement and counterfeiting with national security threats, such as terrorism and organized crime. From the late 1970s onward, Jack Valenti, former president of the Motion Picture Association of America (MPAA), came to be known for associating intellectual property infringement with terrorism, comparing it to rape and sexual assault, and racializing its perpetrators.46 Valenti’s rhetorical moves facilitate the treatment of intellectual property protection as a racialized mass noun. His discursive strategies, which others in the film and music industry have modeled, deploy intellectual property strategically in ways that are legible only through study of the term’s use to describe and read across multiple bodies of law.

Because, in the context of law and public culture, all forms of knowledge production are often treated together, as a chain of creation, marketing, and circulation—particularly under the streamlined economic model of neoliberalism—narratives of race move across the permeable boundaries of copyright, patent, and trademark law.  From the late 1970s onward, Jack Valenti, former president of the Motion Picture Association of America (MPAA), came to be known for associating intellectual property infringement with terrorism, comparing it to rape and sexual assault, and racializing its perpetrators. Different types of intellectual property protection operate in tandem with one another, racially and rhetorically, with copyrights and patents forming the basis for the production of valuable commodities, which circulate through global economies, licitly or illicitly.

Here, Stallman’s argument proves the theoretical need to study the rhetorics deployed in discussions about copyrights, patents, and trademarks together. He argues that legislative debates and lobbying around intellectual property always already appeal to “creativity” and “innovation” even though those ideas do not operate across areas of law.47 Studying intellectual property’s racial scripts demonstrates that ideals of ingenuity are not only consistently invoked concepts used in copyright, trademark, and patent discourses, among others, but also serve as rhetorical shorthand for constructing a white male knowledge citizenry.48 While important and valuable in thinking through the policy implications of copyrights, patents, and trademarks, Stallman’s insistence that we consider each area of law separately encourages us to elide the implications of race. The full strategic benefits of flattening of knowledge policy, particularly vis-à-vis race, are legible only as we consider racial scripts and racial capitalism across types of intellectual property, while attending in detail to the structures of feeling underlying copyright, patent, and trademark law.