IP/Gender at AU, panel 2

Interrogating Theory

Kevin Collins, Indiana University School of Law

Software, Wetware and Cyborgs: Recent Cases on Patentable Subject Matter

Collins used Donna Haraway’s Cyborg Manifesto to interpret his proposal in patent law for denying patentability to processes carried out through mental operations: his proposal embraces the mind/world dualism. He characterizes himself as an unreformed old-world thinker. He isn’t interested in whether mental processes are actually physical, but he does think there are reasons to treat the mind differently than we treat the rest of the world.

Haraway argues that the boundaries of our skin no longer capture who we are; we have machines within us and our capacities are highly contingent on our technological environments. Collins might just be missing the boat: establishing a boundary at the unassisted human mind is imperfect. In an ideal world, some extra-mental conduct should be beyond the scope of patent law, and some mental conduct should be patentable if it’s sufficiently machine-like. After reviewing Haraway’s critique, he concludes his proposal is still okay, though not perfect.

Ian Kerr, University of Ottawa Faculty of Law

Identity Thefts of the Third Kind

Discussed a previous conference: “W(h)ither the Middleman?” It was unsurprisingly, not about gender. He took up the challenge to integrate gender into his work (and more people—ahem, men—should). His topic is ID theft: (1) limited, used to steal goods and services. (2) Extended over time: a continued impersonation; hacking email, causing danger to reputation—not merely financial but identity harms and anxieties—it is an appropriation of personhood.

(3) Transgressions of (2) becoming institutionalized. What if your entire credentials or identity was strongarmed away from you as a part of a single and permanent transaction? What if the only way to ensure your safety required you to forfeit your identity and all your credentials? Hundreds of women have found themselves facing a “coercively attractive offer” from the government of Canada: New Identities for Victims of Abuse. Fleeing violence, these women have to choose to give up who they are—names, vocations, hometowns, families, friends, commitments, everything else—in the hope that a flimsy set of new credentials will allow them to begin their lives again. It’s really about new identifiers, not identities.

Is there a (mis)appropriation of personality? We usually think about taking/using, not removing. The harm isn’t in the taking, it’s in the precluding. Your associational interests—family, friends, business/social networks; credentials; permissions; trust; etc. We could think about this as a kind of intangible property. Property is never about things; it’s about relationships. What sort of remedies might there be for this harm? Criminal law, restitution, perhaps a general cause of action.

Laurence Rassel, Constant

Legal Tools as Feminist Narrative: Act as if Author was your Location

Author is a performative term. Rassel is a painter and artistic director of a Brussels nonprofit linking theoretical and artistic thinking.

Is the death of the author good? Killing the big man has feminist potential, but it happened just when women were struggling to make female authorship visible. (Mackinnon again: just when you are agitating for new rights, we tell you those rights are mirages and not worth having.) Authors as vampires and zombies, dead-alive.

Within the concepts of unalienability is the concept of an alien. She showed an image from Alien Resurrection, in which Ripley is part alien and the Alien is part Ripley. This is a cyborg-type identity, incorporating parts of the author and parts of the other. This role is a construct, not natural. But one does not become an author; rather (according to copyright law), one is an author at the moment of creation. (Contrast with de Beauvoir’s “one is not born, but rather becomes, a woman.”) Women, however, have to fight to be recognized as authors. We have to work with the zombies, recognize the aliens inside of us.

Rassel emphasized the role of lineage, history: we have to be conscious of the prior limits on women’s capacities: holding property, voting, etc. This is why we have to question our positions now: they are not natural or immutable. Free Art Licenses, for her, are not about being outside the system, but about changing it from within: allowing others to use the works, but requiring attribution and thus preserving genealogy.

Artists as feminists need ownership of the tools of production of art, which these days means control over the software. (And, as Francesca Coppa says, the servers.) Microsoft determines what you can do with PowerPoint. (And just you wait until Viacom gets Microsoft to put the same filters in PowerPoint that it wants YouTube to adopt.) Free software is not (just) about free licenses, but about relationships and connections in communities. Freedom to use prior materials allows you to connect your work to the past, to make it part of a cycle of knowledge and exchange. A feminist server would also allow control over privacy, identity, the choice of anonymity where that seems like a good thing. (This to me is a description of what the Organization for Transformative Works is about.) We can “slash” the concept of authors—we can reconnect authors to “becoming.”

Ann Bartow, University of South Carolina Law School

Comments

Different types of feminism keep popping up in these papers. Bartow sees Mackinnon as a sort of Rawlsian. Haraway criticizes her very strongly as essentializing, but Haraway does so by essentializing Mackinnon. What does it mean to be a woman? At a certain point, lawyers have to take a definition and move forward, engaging in some dualism, and it can even be necessary and helpful to do so.

The expectation that women have to be ornamental; but then women are never good enough, and ornamental status means you’re not taken seriously. And this is a common experience, but to talk about it as something that is part of “being a woman” means accepting the inevitability of some essentializing—at least in terms of what “being a woman” is now.

When you get to creativity, there is no upper limit: men aren’t forced to write fewer books if women are also writing books. So what is going on in the competition to limit honor and respect? Bartow recommends Writing a Woman’s Life as a supplement/alternative to the Cyborg Manifesto, as situating women’s lives in constraints and in the choices they made to mitigate those constraints. Heilbrun writes by controlling for her own essentialism.

Coppa: The papers shared a focus on the importance of the network: Virginia Woolf said women were inhibited from writing because they lacked a canon of forebears to draw on. Copyright seems always to be applied to individuals, but we need to see it as attached to a network and how it works across the network.

Collins: Haraway might say that thought itself is distributed among people, computers, networks: distributed cognition.

Rassel: For her, copyright is inherently about the network. Copyleft is problematic because it turns to law to structure relations rather than asking people to interact with each other.