Racial Scripts Kritik - Georgetown 2024

Racial Scripts Critique – IPR Topic
Notes
Resolution
The United States federal government should significantly strengthen its protection of domestic intellectual property rights in copyrights, patents, and/or trademarks.
Important Explanation
This critique follows two main trajectories, both coming from the racial capitalism literature base. The first focuses on racial scripts. These are the underlying histories, logics, and methodologies that characterize the world and more importantly, intellectual property rights. The argument is simple, intellectual property rights cannot be conceived absent their racist legacies. As a result, they should not only be rejected as a knowledge practice, but also as a symptom of a destructive racial capitalist system with materially horrible impacts. The second argument focuses on capitalism itself. In my opinion, one cannot critique intellectual property regimes without critiquing the nature of property, the cornerstone of capitalism. Resultantly, the critique says that the property logic and its consequences (widespread devastation) should be rejected and new forms of living/resistance should be endorsed. The cards included in this file are both specific and general, and can be used anyway one would like. I would recommend delving into the cases listed below in the section titled “Further Reading”, as those cases come up as examples for each topic link argument. If you have any questions about the file or general strategy, please email me at mpg94@georgetown.edu.
-Michael Greenberg
Further Reading
Cases: Chaplin v. Amador (1928), Supreme Records v. Decca Records (1950), Aunt Jemima Mills Co. v. Rigney & Co. (1917), Gardella v. Log Cabin Products (1937), Grand Upright Music, Ltd. v. Warner Bros. Records, Inc. (1991), Campbell v. Acuff-Rose Music (1994), Suntrust Bank v. Houghton Mifflin Co. (2001), Diamond v. Chakrabarty (1980), Moore v. Regents of the University of California (1990), Matal v. Tam (2017), Assn. for Molecular Pathology v. Myriad (2013), Bowman v. Monsanto (2012), Novartis v. Union of India and Others (2013), Golan v. Holder (2012).
Top Level
1NC – Critique
Racial capitalism is terminally unsustainable and reaching its fascist tipping point leading to global instability, ecological devastation, and systematic collapse – the question to avoid extinction is not how to “slow down”, but how to move on
Saldanha 19 – Assistant Professor of Geography at the University of Minnesota
Arun Saldanha, “A date with destiny: Racial capitalism and the beginnings of the Anthropocene”, Environment and Planning D: Society and Space, 5 September 2019, https://doi.org/10.1177/0263775819871964
Another option presents itself: simply continue using “Anthropocene” in an informal and capacious manner and accept there are many environmental and sociological markers which together point to North England at the end of the 18th century as its beginning. Between earth science and other practices, we can inhabit the impasse instead of ignoring it. If it turns out the Anthropocene officially starts in 1964, those outside earth science will have to accept that conclusion. But explaining the radioactive stratum will still require explaining Mutually Assured Destruction, industrial technology, and empire, and these have their roots in the racializing capitalisms of early modernity. What after all is the Great Acceleration an acceleration of? The destructive apparatuses of the World Wars and then the Cold War are culminations of geopolitical, technological, and legal processes which first took form much earlier (think of the papally backed Treaty of Tordesillas between Portugal and Spain of 1498 dividing the world for colonization). But this essay has argued it is the transition to an economy of perpetual speeding-up that is definitive, more than either the beginnings of colonial arrogance or the mad resort to nuclear arsenals. The military–industrial complex has been spectacularly wasteful and dangerous, but it is instigated by the growth imperative, by the “miracle” of the conjoining of primitive accumulation, gendered wage-labor, and commodification in little North English towns (compare Alliez and Lazzarato, 2018; Jones, 1981). The political upshot is that to avoid this system’s catastrophic exponentialities, it will not be possible to simply slow it down.
Concluding thoughts: Life through the Trumpocene
Since their inception in the Enlightenment, both the humanities and left politics have a lot to offer the science of nonhuman processes insofar as all three study the conditions of possibility of human life itself. The anthropos has always been an open question, a site of fundamental antagonism not a monolithic agent, defined by multi-layered and conflicting temporalities. The most promising premise of the Anthropocene concept is that it comes from such unlikely allies of the left, not just ecologists and epidemiologists but geochemists, paleontologists, oceanographers, astrobiologists, and complexity mathematicians. Few scientists, environmentalists, or diplomats follow a simplistic neo-Malthusian line for which it is overpopulation as such that is responsible for ecological devastation (Angus, 2016). Unwittingly, earth scientists in fact provide the Marxian, decolonial, and feminist critiques their most rigorous and affective impetus ever. Critical theorists have an opportunity for pushing scientists and laypeople further to acknowledging racial capitalism as what explains the Anthropocene and its stark inequalities and technologies of mass destruction. That can be done by co-claiming the term while respecting that the scientific rules governing its definitional procedure have their own consistency. It is true that as part of their habitus most physical scientists are unwilling to interrogate their ideological presumptions, but it also behooves the humanities and activists to be alert to the sharp and reasoned disagreements within science. In any case, stratigraphy can no longer proceed without intervention from the humanities, because the strata discussed can only be fully explained and responded to through the concepts the humanities have so long argued over. Just like with previous debates about human destiny, but unlike with most other geological periodizations, the Anthropocene debate has immediate political implications.
Let us recapitulate the argument about race and capital. This essay has argued globalization is based on racial capitalism as brought about by slavery and genocide, but partially overcoming them through the Industrial Revolution. If colonization was essential to the emergence of capitalism, today’s retrospection allows us to identify a “proto-racist” sense of privilege to others’ ecosystems and cultures that inflected the colonial projects (Saldanha, 2013). Liberal and conservative historians argue it was mutual competition, supposedly an inevitable fact amongst all human groups, that drove Western European powers to expand (Crosby, 1986; Jones, 1981). The discords of early modernity are undeniable, of course, but the question is how Europeans could transpose their conflicts anywhere they wanted on the globe, starting with the Crusades and the Treaty of Tordesillas. One can only imagine if competition between China, Japan, and India were to be played out by carving out Europe as Europe did Africa. The aggressive usurpation of land, labor, and resources that colonial capitalism necessarily consists of corresponds with annihilating anthropogenic ecologies that had developed over generations. Following critical race scholars (Wynter, 2013), such annihilation cannot but be termed racist, as it was and is based on the certainty that some people, somehow, have a divine, legal, or rational “right” to appropriate other social formations and landscapes for the enrichment of their fatherland.
Public discourse is changing. Carbon inequality and climate justice are becoming mainstream progressive terms. Even lifestyle magazines like Essence now decry the structural racism inherent in the climate denialism of tycoons like Donald Trump (Sanders, 2017). Indeed, Trump embodies, in however contradictory a fashion, the coming-together of reactionary forces that had been accruing for decades, or rather centuries. As evinced by the spread of the word “Trumpocene,” the president’s cynical selfishness is likely to become more prevalent in the Anthropocene than humanitarian interventionism and the erstwhile calls for universal human rights and cooperation (see Kaplan, 2016; Myer, 2016). When Trump designates countries in the Global South as “shitholes,” attacks brown and black Congresswomen, and refuses to criticize white fascists, he provides a lucid formulation of the logic of racial capitalism: the material positionality of a power elite obsessed with self-enrichment, a denial about the US’s own catastrophic levels of gun violence and plutocracy, and a paranoia about immigration from the areas of poverty this elite causes elsewhere, as a kind of excrement of the capitalist system. With the election of Jair Bolsonaro, Trumpism has been replicated in Brazil, its president openly imagining exterminating Indigenous Amazonians to make room for export beef. From Europe’s far-right parties to corrupt elites in the Global South, the global growth of Trumpism will no doubt deepen the racialized dimensions of capitalism.
One should not be blinded, however, by the abrasiveness of authoritarians like Trump and Bolsonaro: they are the condensation of a liberal-democratic order in crisis. An irony of Trump’s slogan “Make America Great Again” is that just when the most openly racist and sexist US president ever comes to lead the last white-supremacist empire—which, though crumbling, or perhaps because of that, has been most responsible for the world’s catastrophic state—he accelerates that empire’s decline and nefarious effects with as much bravado as ineptitude. The desperate anti-environmentalism and heteronormativity of the US Republicans and Bolsonaro must be seen as part and parcel of a fascist turn which, as history show, accompanies states of profound collective malaise. With the Industrial Revolution, the formal abolition of slavery, the welfare state, mass consumption, neoliberalism, and now a crypto-fascist turn, capital requires drastic axiomatic transformations for its own survival. Trump and Bolsonaro show that Nick Mirzoeff (2016) has a point in calling the Anthropocene “the White-Supremacy-Scene,” but racial capitalism operates through more than violence, and its start date is the late 18th century not the 16th.
The global system of race constantly has to restabilize itself across the centuries and across locations and scales. This article revisited processes whereby capital aggressively remade the earth in its own image and hence posited the white bourgeoisie as explicit standard for the entire species. But capital is a force uncontainable by any one racial or ruling class. If by the year 2120 on a viciously hot planet China turns out to be the dominant superpower, Arab city-states have successfully navigated peak oil, Europe is riven with separatist warfare, and US cities are burnt-out and flooded wastelands, inequalities in life expectancy will most probably still be indexed on phenotypical differences. Sinocentric or Arab-centric versions of structural racism and ecological destruction might be less genocidal than the white-supremacist ones—indeed, the truculent policies of the “emerging economies” often justify themselves as different from Europe’s arrogance even while they import the same methods—but that could render them more effective. Even if in this scenario white supremacy is superseded, it is certain the inhuman vortex of capital would continue to wreak havoc on racialized others, animals, and ecosystems. As a broadening coalition of activists, theorists, and scientists is showing, the time is now for conceiving and struggling for an Anthropocene freed from capital’s axiomatic of growth. Whenever the Anthropocene started, whether it engenders collapse, slow degradation, or a different system altogether is a political question of unprecedented magnitude
[Insert Specific Links]
In the face of an intellectual property regime intrinsically sited in neocolonialism and racial capitalism, you should vote negative for a decolonization of intellectual property – this praxis rescripts racial logics and articulates new resistance outside the confines of the racial contract
Vats 20 – Assistant Professor of Communication and African and African Diaspora Studies and Assistant Professor of Law at Boston College
Anjali Vats, “The Color of Creatorship”, Stanford University Press, Pages 195-198, 2020
Enlightenment conceptions of colonial subjects as barbarous, childlike, innocent, and without higher intellectual capacity came to be embedded not only in intellectual property law in the eighteenth and nineteenth centuries, but in the very logics of global copyright, patent, and trademark law as well. Ruth Okediji observes that, historically speaking, intellectual property law from the nineteenth century onward discriminated against the developing world, centrally building upon the idea that colonial subjects lacked the intellectual sophistication to produce knowledge. She contends:
In essence, the extension of intellectual property rights was not directed at the inhabitants of the governed territories at all, but instead to facilitate commercial relations among colonial powers as trade between European powers occurred on and among the various territories on behalf of foreign sovereigns. Intellectual property law was not merely an incidental part of the colonial legal apparatus, but a central technique in the commercial superiority sought by European powers in their interactions with each other in regions beyond Europe.12
Similarly, Edward Said observes that “[o]n the one hand, there are Westerners, on the other there are Arab-Orientals; the former are (in no particular order) rational, peaceful, logical, capable of holding real values, without natural suspicion; the latter are none of these things.”13 Philosophers and political theorists in the pre-American era made similar claims as well, increasingly marking whiteness as a signifier of the capacity to engage in fully formed thought as well as qualify for the rights and entitlements of citizenship.14 Colonial subjects, the objects of the production of European knowledge, could not be its creators. Instead, they were categorically excluded from the imaginary of the Romantic author, which crystallized in the eighteenth century.15 In Rudyard Kipling’s words, colonial subjects were “half devil and half child,”16 suitable only to be taken up as part of the white man’s colonizing burden. Because Europeans treated colonial subjects as other than citizen, colonized peoples had little ability to protect traditional knowledge. Intellectual property law was thus not simply an incidental means of protecting creators; it was an important element of colonial structural power and domination.17
While these arguments retread some of the ground I have covered earlier, they also raise a much larger problem in intellectual property law than that of even American racial scripts. They demonstrate that concepts such as true imagination, human progress, and the male consumer gaze are embedded within the ideologies of modernity and coloniality. The central organizing philosophies of intellectual property law—a body of legal regulation that protects the Enlightenment creator—have persisted for centuries. Martha Woodmansee observes that the figure of creator has been remarkably inelastic, not changing even as postmodern theorists have argued for its reconstruction.18 The inflexible ideal of the creator is also an important nexus of the modernity/coloniality binary in intellectual property law, one that is, as earlier parts of the book have demonstrated, often tied to conceptions of national identity in the United States.
For Grosfoguel, (neo)colonialism is necessarily linked with a hierarchal understanding of knowledge production that is also fundamentally racialized. He writes: “This epistemic strategy has been crucial for Western global designs . . . European/Euro-American colonial expansion and domination was able to construct a hierarchy of super and inferior knowledge and, thus, of super and inferior people around the world. We went from . . . ’people without writing’ to . . . ’people without history’ to . . . ’people without development.”19
Intellectual property law, without attentiveness to modernity itself, is a mechanism for maintaining, not undoing, the racial and epistemic hierarchy that Grosfuguel identifies. Traditional knowledge remains largely outside the scope of protection of intellectual property law because epistemic domination is deeply embedded within legal theory and doctrine. Adherence to Enlightenment conceptions of authorship and inventorship continues to decenter the knowledge of people of color while advancing purportedly universal Western development agendas. Larger-than-life global brands reinforce the epistemic domination that authorship/inventorship produce by signifying quality in raced ways and exploiting labor in a global, selfdestructing system of racial capitalism.
Rewriting the racial scripts that undergird intellectual property law requires grappling with legal and economic structures but also fundamental orientations toward knowledge itself. In this sense, decolonial theory’s emphasis on epistemology offers inroads into undoing intellectual property law’s racial and (neo)colonial exclusions. The project of decolonization emerged from the Bandung Conference of 1955, which took on critiquing the epistemological foundations of modernity as a justification for (neo)coloniality as its central agenda.20 As former colonial states gained their independence, they were corralled into international regimes of free trade and economic harmonization, which also created international intellectual property rights. TRIPS, in particular, operated as a predominantly Western project of international law, one in which “white men of letters and science . . . were the gatekeepers of Western and modern knowledge.”21 The conversations in Bandung laid the groundwork for future critiques of neoliberal colonialism, particularly as realized through international governance.
Reading intellectual property law through the lens of decolonization— as well as the related lenses of postcoloniality and dewesternization—allows for historical and structural engagement with (neo)colonialism, from its dismissal of particular forms of creatorship to its alignment with the Doctrine of Discovery. Decolonial theory offers a means of using modernity and coloniality as the fulcrums for theorizing intellectual property inequality and articulating resistive practices. Decolonial theory also offers insight into how and why racial capitalism developed, as part of colonial exploitation of physical labor, which was articulated in opposition to intellectual labor and how and why individuals might undo those linkages. Through the lens of decolonial theory, intellectual property law can be read as part of a larger system of advancing particularly Western development agendas under the aegis of protecting knowledge as a valuable commodity, in ways that definitionally marginalize people of color and their capacity to think original thoughts.
Alexander Weheliye’s work implicitly underscores the need for such decolonization in undoing the violence of racism. He writes: “Apportioning personhood . . . [through citizenship] maintains the world of Man and its attendant racializing assemblages, which means in essence that the entry fee for legal recognition is the acceptance of categories based on white supremacy and colonialism, as well as normative genders and sexualities.”22 When read alongside th

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