Feminism K Supplement - Michigan 2024 BDKLS

Neg
Framework
Cultural Silencing DA
(x) CULTURAL SILENCING DA
Sonia K. Katyal 06, Associate Professor, Fordham University School of Law, 2006, “Performance, Property, and the Slashing of Gender in Fan Fiction,” Journal of Gender, Social Policy & the Law, (14(3)), pp. 461-518., https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1265&context=jgspl, eb
At the same time, intellectual property law is uniquely poised to govern the most intimate aspects of the representations of human life, including the depiction and commodification of racial, sexual, ethnic, and political identities. Indeed, far from being a value-neutral regime, the history of intellectual property law reveals an astonishing number of incidences where the laws of copyright, trademark, and patent have been used—often with great success—to silence transgressive depictions of sexuality, sexual identity, and gender expression. Earlier in the history of intellectual property law, protection for patented inventions did not extend to so-called “immoral” innovations.3 Today, within the realm of trademark and copyright law, courts have routinely protected the rights of intellectual property owners to enjoin expressive uses of their works under the argument that sexualized depictions “tarnish” the wholesomeness of the original.4 More specifically, recent cases demonstrate an increasing interest in prohibiting suggestions of homosexuality in appropriated works.5 Consider the recent series of cease-and-desist letters sent by DC Comics to a New York art gallery and web site over a series of paintings that showed the superheroes “Batman and Robin” in homoerotic poses.6 Other examples involve a series of legal threats levied against the maker of a film, Ernest and Bertram, which depicted the two Sesame Street characters “Ernie and Bert” in a same-sex relationship,7 as well as against the makers of a series of greeting cards that featured John Wayne and Clark Gable with gay themes.8 Mattel also protested a film’s depiction of its sterling commodity Barbie engaging in a sexual relationship with a female servant.9 A variant of this issue even reached the Supreme Court in a case that held that the United States Olympic Committee (USOC) could enjoin the use of the term the “Gay Olympics” on similar grounds.10
As these events demonstrate, queering mainstream works, while endlessly entertaining, can also be construed as a brazen act of civil disobedience against the frameworks of intellectual property.11 While depictions of sex and sexuality have always been fraught with cultural controversy, these incidents demonstrate how such incidences of “semiotic disobedience” increasingly personify an underlying tension between our legal regimes of intellectual property and free speech, revealing how issues of distributive justice are invisibly intertwined within the interstices of commodified representations.12 While constitutional speech frameworks tend to treat expression as part of an ongoing contribution to layers of democratic dialogue, intellectual property frameworks tend to honor expression as an excludable, privately owned resource. Even though fair use defenses are meant to mediate the boundaries between property and speech, their inherent lack of predictability sometimes contributes to the ongoing instability within the field at large. Often, as these cases show, the resolution of these conflicts results in the exclusion of certain types of recoding over others.
In sum, there is much more to be said about the relationship between intellectual property—as a governing body of law—and its distributive implications for the particular identities that it governs. As these examples suggest, intellectual property law plays significant roles in regulating the marketplace of speech. Depending upon its vantage point, the law can either empower or disable creativity, while also having a powerful impact on who actually receives access to and protection within the marketplace of cultural products. Further, as these examples might suggest, propertizing expression benefits some authors and artists, often within the mainstream, sometimes at the cost of chilling other types of artistic expression and commentary, often from “outsider” groups like women, people of color, and sexual minorities.13 Ignoring this result matters. If we construe a marketplace of copyrighted cultural products as akin to, or at least reflective of, the rich diversity of the marketplace of ideas itself, then the denial of the privileges of authorship to some suggests that we are missing an important and illuminating facet of the relationships between production, representation, and consumption within copyright law. Consequently, we must consider how the inability to access these markets can yield a lasting impression, one that relates to and fosters a greater and more permanent exclusion from the marketplace of speech itself.
Social Audience DA
(x) SOCIAL AUDIENCE
Kara W. Swanson 15, Professor of Law, Northeastern University School of Law, 2015, “Intellectual Property and Gender: Reflections on Accomplishments and Methodology,” Journal of Gender, Social Policy & the Law, (24(1)), pp. Article 4, https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1675&context=jgspl, eb
3. Analyzing IP Doctrines as Gendered
Perhaps the most fundamental work that these symposia have begun is to bring a critical lens to intellectual property as a legal system, mapping not just the connections between IP and gender, but also the ways in which IP perpetuates power hierarchies based on gender and heteronormativity in ways that are so opaque to much of the legal community that simply naming the problem raises anger and requires careful persuasion.44 As more than one participant in these symposia has noted, when it comes to women’s ways of creating or knowing – food or fashion in copyright, or tending sick cats as the basis for invention in patents – the expansive doctrines of intellectual property subject matter suddenly narrow, and the definition of authorship and invention are revealed to assume masculinity.45 Facially neutral IP law is not neutral, but imbued with the assumptions of those who wrote it and interpret it, including assumptions about sexual orientation and gender identity. Identifying this problem is a first step toward addressing the problem.
This final category of scholarly contribution brings me to my second axis of analysis, via the classic feminist insight, the personal is political. I want to reflect on my own experience writing, speaking and teaching about IP and gender in order to consider our project for the next ten years, not just in suggested research topics, but also in terms of assessing the value of the scholarship generated thus far in illuminating and communicating the connections between IP and gender to others who use and craft IP doctrines. The audiences created by IP/gender scholarship in law reviews are important, but the scholarly community created by these symposia has and can continue to create more opportunities to foster social justice by reaching other audiences as well.
Knowledge DA
(x) KNOWLEDGE DA
---could be an alt card as well.
Debora Halbert 06, Associate Professor of Political Science at the University of Hawai`i at Manoa, 2006, “Feminist Interpretations of Intellectual Property,” Journal of Gender, Social Policy & the Law, (14(3))pp. 273, https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1264&context=jgspl, eb
Arguments about feminist epistemologies are not meant to suggest that women as women will always see creative work as collective or an act of care. Women can be as motivated by profit-making as men.76 However, the feminist standpoint does suggest there are alternatives to intellectual property that can be used by both women and men who seek to escape what is often considered the only possible path to protect creative work—intellectual property law.
The relational attitude becomes quite revolutionary when applied to the “products” of knowledge called “intellectual property.” Once one stops privileging the abstract and rational and seeks out the relational in cultural creation and innovation, it is clear that a paradigm of intellectual property that creates rigid boundaries to sharing stands in the way of a relational approach to knowledge creation, one in which care and the work of the heart can play a role. A feminist critique from this perspective is a quite radical critique of the boundaries established by intellectual property law, which typically are boundaries that seek only to divide and control instead of facilitate exchange.
The applicability of these epistemological standpoints highlights possible feminist interpretations of intellectual property. If the very construction of knowledge is masculine, then it follows that the rules protecting the ownership of knowledge, such as patents and copyrights, emerge from a system of knowledge production that does not recognize reciprocity, but rather emphasizes the abstract and individuated male.77 Both women and men are alienated within such a system because the framework itself remains invisible. However, the structure privileges masculine forms and disregards the type of labor and knowledge practiced by women until the time, as is the case with knitting, that a commercial value might be found.78 Both men and women can profit from the system of knowledge that feminists argue is a masculine construction, but the feminist standpoint allows us to build a bridge to an alternative understanding of knowledge and the types of knowledge that become valuable.
Feminists argue that women’s labor “relieves men of the need to take care of their bodies or of the local places where they exist, freeing them to immerse themselves in the world of abstract concepts.”79 Thus, when a feminist lens is applied to the construction of knowledge, it becomes clear that isolated, original, and individual works of authorship are impossible—they come at the price of a gender dualism. The move away from this particular social construction of knowledge requires us to understand these underlying principles.
Academy DA
(x) ACADEMY DA
Dan L. Burk 06, University of California, Irvine School of Law, 09/01/2006, “Feminism and Dualism in Intellectual Property,” JOURNAL OF GENDER, SOCIAL POLICY & THE LAW, (15(2)), pp. 06-43, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=928421#, eb
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.
Spillover/Subject Formation
Failure to question the epistemology behind the 1AC has real implications on women’s lives.
Foster 11 [(Laura Foster, Associate professor at Indiana University Bloomington with a Ph.D. in Women’s Studies from University of California) “Situating Feminism Patent Law and The Public Domain, Colombia Journal of Gender and Law Volume 20 Number 1, Pages 306-307, Jan 1 2011” https://journals.library.columbia.edu/index.php/cjgl/article/view/2614] hwkm
Emerging scholarship contributing to the field of women’s studies examines the relationship between intellectual property and gender. Scholars from a range of disciplines ask how intellectual property law relates to gendered social relations. Historians analyze nineteenth century patent activity in the United States to show how female patent ownership increased when laws of coverture were abolished.157 Sociologists provide empirical evidence that female life scientists hold fewer United States patents than their male colleagues and are less likely to disclose inventions to their university technology transfer office.158 In addition, legal scholars question the epistemological foundations of intellectual property law grounded in Enlightenment notions of an individual inventor creating and molding through faculties of disembodied reasoning and objectivity associated with conceptions of masculinity.159 Legal scholars also warn that patent law can threaten women’s health care, for example, in the case of breast cancer gene patents.160 This is exciting and important work. Intellectual property has become a site for feminist inquiry. An aim of this section is to discuss and analyze this emerging scholarship further in order to bring it firmly into critical intellectual property scholarship.
Epistemology First
Flawed knowledge produces flawed results – without critically analyzing the epistemologies behind the 1AC women remain underrepresented.
Bartow 21 [(Ann Bartow, Cornell Graduate and Former Professor of Law at the University of New Hampshire School of Law) “Chapter 47 of ‘Handbook of Intellectual Property Research: Lenses, Methods, and Perspectives by Irene Calboli and Maria Lillà Montagnani’ Feminist Methodologies and Intellectual Property, Pages 775-776, Oxford Academic, May 20 2021” https://academic.oup.com/book/41122] hwkm
Viewing patents, copyrights, and trademarks through careful observation, the most important feminist methodological tool, presents clear data that women are underfunded and underrepresented in patents, copyrights, and trademarks, even as some of those trademarks are clearly gendered. Analyzing IP through the lens of feminist legal theory allows a clearer view of the problems of gender disparities within each of the IP fields.
If we fail to look critically at the patriarchal forces operating within our culture, they grow stronger in the shadows. When discreet groups are excluded from inventorship, authorship, or the marketing and branding channels that traffic in trademarks, everybody loses except for the inferior industry players who try to use IP law as a means to repress competition. We forfeit the missing inventions and creative works that people shut out from the necessary tools and resources cannot produce. And we lose the businesses they might have started, and the mentorships that could have followed their successes.
Women especially suffer when men are the default, and everything is planned and developed around them: Software developed by men may not anticipate hacking abuse from angry online trolls whom they, unlike most women, may not have experienced on the internet; innovative furniture that is built for men may be too high, large, or heavy for most women; medical studies that do not include women jeopardize our health; and artificial intelligence that uses biased data will bake discrimination into everything it interacts with. Identifying gender imbalances in IP contexts is only a beginning, but it is a necessary one.
Antitrust
A lens of feminist politics is crucial to examine the violence undergirding the logic of concentrated economic power
Kati Cseres 2024 “Feminist Antitrust” https://competitionlawblog.kluwercompetitionlaw.com/2024/01/12/feminist-antitrust/ Kati Cseres is an Associate Professor of Law at the Amsterdam Centre for European Law and Governance (ACELG) and Program Director of the EU Law Masters at the University of Amsterdam. She is the Co-Director of The Good Lobby Profs inititiave, which monitors the respect of the rule of law by holding the EU and national institutions and leaders accountable. Kati is Editor of the Journal Legal Issues of Economic Integration. //stobo
In 2021, an insightful interviewer asked Margrethe Vestager, EU Commissioner for competition law and policy, whether it was “time for a feminist antitrust policy”. The interviewer noted at “feminist policy has been used to denote not just gender equality, but an approach that is more inclusive of all underrepresented people”. In her answer, Vestager set out a number of important ways in which current (EU) competition law enforcement takes gender prominently into account. However, the gist of this question, namely what role feminism and its rich and multi-faceted scholarship could play in competition law and policy, remained unanswered. Feminist approaches go beyond adding gender to the analysis and investigate the deeper layers of legal rules, economic models and enforcement practices that entrench gendered power structures, dynamics, and institutional arrangements and (re)produce various forms of inequalities. By investigating markets’ embeddedness in social relations and relations to other non-market sectors, feminist economists and feminist political scientists point out how markets are underpinned by gendered biases, for example, in the case of pink taxes that involve gendered price discrimination, or how concentrated economic power can be a reflection of social dynamics and existing structural economic inequalities. As Nancy Folbre compellingly argued “[a] narrow definition of the economy leads to a narrow definition of exploitation” something that directly speaks to concerns competition lawyers have with regard to analysing market power. Feminists’ analytical lens is, in fact, intimately related to the analytical lens of competition law. The focus of their analysis concerns power structures and dynamics, and they investigate how various social and economic actors are impacted by these power inequalities and strive to control excessive power and change existing social, economic, and political structures. Howeve

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