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The Cultural Production of Intellectual Property Rights

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The Cultural Production of Intellectual Property Rights THE CULTURAL PRODUCTION OF INTELLECTUAL PROPERTY RIGHTS Sean Johnson Andrews THE CULTURAL PRODUCTION OF INTELLECTUAL PROPERTY RIGHTS Law, Labor, and the Persistence of Primitive Accumulation TEMPLE UNIVERSITY PRESS Philadelphia • Rome • Tokyo TEMPLE UNIVERSITY PRESS Philadelphia, Pennsylvania 19122 tupress.temple.edu Copyright © 2019 by Temple University—Of The Commonwealth System of Higher Education Published 2019 All material in this work is licensed under a Creative Commons Attribution-Non-Commercial-No Derivatives 4.0 United States License unless otherwise noted. A copy of this license is available at https://creativecommons.org/licenses/by-nc-nd/4.0/. Library of Congress Cataloging-in-Publication Data Names: Johnson Andrews, Sean, author. Title: The cultural production of intellectual property rights : law, labor, and the persistence of primitive accumulation / Sean Johnson Andrews. Description: Philadelphia, Pennsylvania : Temple University Press, 2019. | Includes bibliographical references and index. Identifiers: LCCN 2018030217 | ISBN 9781439914298 (cloth : alk. paper) Subjects: LCSH: Intellectual property. | Intellectual property—Cultural aspects. | Cultural property—Protection—Law and legislation. Classification: LCC K1401 .A959 2019 | DDC 346.04/8—dc23 LC record available at https://lccn.loc.gov/2018030217 The paper used in this publication meets the requirements of the American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI Z39.48-1992 Printed in the United States of America 9 8 7 6 5 4 3 2 1 To Jill Contents Acknowledgments ix Introduction: Intellectual Property, Neoliberalism, and the Trump-Branded Triple Movement 1 1 Culture, the State, and (Intellectual) Property Rights 41 2 Property, Primitive Accumulation, and the Liberal State 79 3 Law, Economics, and the Apolitical Culture of Capitalism 121 4 Culture, Commodification, and the Social Production of Value 173 5 Culture, Property, and the Ends of Progressive Neoliberalism 209 References 235 Index 253 Acknowledgments rom conception to publication, this book has taken more than a decade to complete. In that time, I have read and spoken with more people than FI can count about the issues and concepts I discuss here. I have also writ- ten another book (Hegemony, Mass Media, and Cultural Studies [2016]) and nearly a dozen articles and book chapters—again, with input and assistance, direct and indirect, from many other people, some of whom I thank below. Throughout this whole process, I am grateful to have had the support of my wife, Jill—from supporting me financially as a graduate student, to mov- ing across the country several times as I made my way along the tenure track, to yet again helping make time for multiple revisions, corrections, indexing, and more. And in the middle of all of this, we lost a son, the grief transform- ing us permanently: as I read back through the book, the words I have written touch the scars of wounds inflicted in adjacent moments of our history. But I am also reminded of the many joys we have shared: the main conceit of this book came to me while relaxing on a weekend trip with my wife. Whatever help the people below provided, there would be no book before you if not for Jill. So I thank her first. This project began its life as a dissertation, and I am grateful to my com- mittee—Tim Gibson, Peter Mandaville, and Paul Smith—for helping me turn it into a defensible project. Each of them helped me explore the ideas in this book in seminars, independent studies, and other conversations over many years. Likewise, Dina Copelman, Katrina Irving, David Kaufman, and x | ACKNOWLEDGMENTS Marilyn Mobley McKenzie at George Mason University; Anantha Babbili at Texas Christian University; and James Mittelman at American University aided my understanding of key texts, thinkers, and concepts. Denise Albanese pointed me to valuable resources and gave me essential feedback in the first revisions. I wish Peter Brunette were still here to thank for the same—espe- cially for an independent study where we read the early Birmingham Centre for Contemporary Cultural Studies work on media. Being any sort of leftist at George Mason University also allowed for quite a bit of opposition research. I learned much from attending several years of David Levy’s Summer Institute for the Preservation of the History of Eco- nomics and from speaking with Tyler Cowen, Peter Bottke, and Dr. Bottke’s colleagues on the Austrian Economics Blog. Chapter 3 bears on many of the debates and dialogues I participated in there, particularly around the time of the 2008 financial crisis. I also owe thanks to the other faculty, staff, and students in the Cultural Studies Program at George Mason. It was a fantastic crucible of ideas and arguments, and I appreciate all the conversations I have had with colleagues there over the years. Ludy Grandas, Michelle Meagher, Katy Razzano, and Lia Uy-Tioco all helped me work out the conception of culture in one way or another. Michelle Carr’s vital bureaucratic navigation and support—as well as her occasional stern word of motivation—also pushed this project to its first- level approval. Two fellowships from the College of Humanities and Social Sciences helped sustain the research and writing; before that, my experience teaching at New Century College helped me develop some of the basic ideas included herein. For that, I must thank Nance Lucas and Janette Muir, as well as Mick Beltz, Kelly Dunne, Sarah Sweetman, and Sue Woodfine. Since I moved to the tenure track, the faculty and students of the Cultural Studies Program and Humanities, History, and Social Sciences Department at Columbia College Chicago have offered me many questions to consider in relation to this concept and have helped me hone the general argument of the project, especially Carmelo Esterrich—who also provided feedback on the cover—Zack Furness, Ann Gunkel, and Robert Watkins. Jaafar Aksikas has been my constant comrade and collaborator, and I have benefited greatly from our work together, particularly in developing our collection on law and culture but also in our work with the Cultural Studies Association (CSA), where he served as president and I as treasurer for several years. I have had many fruitful conversations about ideas developed in this book at CSA meet- ings over the past decade, particularly with Andrew Culp, Lisa Daily, Rob Gehl, Zach McDowell, Gavin Mueller, and Gil Rodman. And I presented Acknowledgments | xi portions at the Union for Democratic Communications, aided by Lee Artz, Rob Carley, and Steve Macek. I also thank James Arvanitakis and Martin Fredriksson, who have been long-time supporters and collaborators, particularly on issues of piracy and my fusion of cultural studies, history, and political theory. I developed key ideas in conversations with Nick Couldry, Doug Henwood, Vincent Mosco, Janice Peck, Michael Perelman, Carol Stabile, Ted Striphas, and Siva Vaidhyanathan, as well as with various contributors to the lbo-talk and Pen-L Listservs. I also received extremely helpful advice from Jordan Hatcher, Jens Klenner, Chris Piper, Joel Rice, Robyn Ross, Lesley Smith, and Fan Yang; Bryan Alexander gave his stamp of approval to a recent draft, as well as essential feedback along the way. In Ecuador, Yury Guerra provided valuable, informative guidance through the intricacies of politics, culture, and property there. At Temple University Press (TUP), Micah Kleit was a long-time cham- pion of this project, and Sara Jo Cohen ultimately shepherded it—and me— through the process. I appreciate her help, feedback, and patience through- out. Assistant Editor Nikki Miller, Ann-Marie Anderson in the Marketing Department, and many others helped see this project to completion. Joan S. P. Vidal with TUP and Heather Wilcox with Second Glance Editorial provided indispensable guidance and improved this manuscript in innumer- able ways. The photo on the cover was taken by Solomon D. Butcher, an Ameri- can photographer who spent the bulk of his career documenting the life of U.S. pioneers. Taken from his collection Pioneer History of Custer County, this photo is a reenactment of “settlers taking the law in their own hands—cutting 15 miles of the Brighton Ranch fence.” I was struck by the fact that in addi- tion to touching on this book’s larger theme of the relationship between law, informal coercion, and cultural legitimacy, Butcher’s photograph includes a copyright claim, scrawled at the end of his caption. The event he describes is purported to have occurred in 1885, the year before the signing of the Berne Convention in Switzerland, which guaranteed copyright across national bor- ders. In keeping with the spirit of the pioneer wire cutters, the United States did not sign the agreement for more than a century, refusing to honor Euro- pean intellectual property rights. I elaborate on the analogy between copyright piracy and fence cutting in Chapters 3 and 4 and on the continuity between real property and intellectual property throughout the book. I thank Mary-Jo Miller, with the Nebraska State Historical Society, who helped facilitate the license for what I find to be a very fitting cover image. For their help and support, I also thank friends, family, and colleagues xii | ACKNOWLEDGMENTS who are not mentioned here. Their love, care, and occasional critique fostered the development of this project in untold ways. And I thank you, dear reader, for your thoughts and feedback on the ideas here. All errors and omissions are ultimately my own, but I hope our disagreements can be the site of an increasingly fruitful conversation on the topics herein. THE CULTURAL PRODUCTION OF INTELLECTUAL PROPERTY RIGHTS Introduction Intellectual Property, Neoliberalism, and the Trump-Branded Triple Movement began this study as a pirate, but I ended up more of a property abolitionist. I never used Napster, but BitTorrent permanently altered my feelings about Iintellectual property rights.
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