This chapter assesses the neoliberalization of copyright law.It begins with the historical emergence of copyright as a form of public biopolitics.It then looks at three areas where copyright has become neoliberal.The first is incentives theory, which treats all creation as an economic calculation geared toward market rewards.I outline the theory, and show how it works not just to model, but to produce a certain kind of creator, to the exclusion of other forms of creativity.The second is litigation around hip-hop sampling.Here the demand for licensing works to nudge music into commercial channels, where all cultural borrowing is mediated through market transactions.The third is the recent expansion of copyright into what scholars have termed “paracopyright”: a prohibition on circumventing copyright protection technologies, which generally function as forms of “digital rights management” (DRM). Through a detailed examination of how DRM technologies (such as the regional restrictions on DVDs) function, I show how this addition to the law clearly marks a move in the direction of copyright into training individuals that they are consumers of the products of culture.

This chapter introduces and outlines the structure of the book and its argument.It begins with an extended look at litigation between two rival religious sects – the Worldwide Church of God and the splinter group Philadelphia Church of God – over access to doctrinal texts that the WGC owned the rights to, but that it had renounced.It thus provides a good example of how intellectual property can matter even in the most basic and intimate aspects of our lives.I then situate the book in the context of current literature on the expansion of intellectual property (IP) rights.Rather than note their expansion, I argue that the kind of power expressed in IP is subtly shifting.The chapter then offers a brief synopsis of the core Foucauldian theory behind the book – that power can operate according to different logics. It concludes with an outline of the remainder of the text.

This chapter treats developments in trademark in the context of the development of brand capitalism.Traditional trademark analysis displayed the features of a public biopolitics; developments around branding push it in a neoliberal direction.I focus on three developments.The first is trademark dilution, which protects brands as valuable in themselves. An extended analysis of Victoria’s Secret’s successful attempt to shut down a sex-toy shop that called itself “Victor’s Little Secret” shows how dilution also functions as a kind of subjectification.The second is a recent Supreme Court case ruling that, PTO rules against registration of disparaging trademarks violated the First Amendment.The result transfers power to brand owners.The third is the use of Geographic Indicators to protect “traditional” cultural indicia.This resistance strategy is a difficult one, as it risks entrenching conservative and stereotypical views of cultural groups, often at the expense of dissident forms. It thus illustrates an unexpected way that branding can function as a form of subjectification, and the potential limits of using trademarks and branding as strategies of resistance.

This chapter both provides a condensed case for why the analysis of intellectual property (IP) through differing regimes of power is a fruitful one, and details a couple of its implications. One is that we need to be attentive to the way IP law creates certain kinds of subjects, and to be willing to critique it on those lines.The other takes the form of a brief discussion of alternatives proposed to IP, in such areas as “low IP” zones and in creative commons-style proposals.I conclude that the degree to which these alternatives fundamentally challenge the neoliberalization of IP and its move away from public biopower, is essential in assessing the extent to which they actually are alternatives.The goal is not to be strongly prescriptive, but, in the manner of Foucault, to help figure out what are the right questions to ask.

This chapter develops the theoretical framework for the book.Using Foucault, the chapter introduces three models of power: juridical (sovereignty and rights-based), public biopower (promoting the productivity and health of the population in a general way), and neoliberal biopower (same objective as biopower, but working on individuals and treating everything as part of the economy).With neoliberal biopower, the emphasis is on subjectification and the development of homo economicus as a type.I then trace intellectual property (IP) from its emergence at the intersection of classical liberalism and juridical power to the current neoliberal form.My focus is on the contrast between the early, public biopower version of IP with the current, neoliberal one.The earlier version relies on the notion of benefits to an amorphous public and worries about the effects of monopolies; the newer version drops the aversion to monopoly and attempts to use property rights to capture and internalize public benefits, while putting pressure on individuals in the public to view their interaction with culture economically.I then analyze the current, Demsetzian theorization of IP as neoliberal.

Patent law is where the messy evolution of intellectual property into neoliberal biopower is most contested.I begin with the emergence of a new model of medicine in genomics and show how that model functions as a form of neoliberal subjectification insofar as it conceptualizes health as a form of risk management.I then turn to litigation surrounding the patentability of isolated gene fragments, which offers a nearly ideal case study of the stakes in how one models the form of power underlying subject-matter patentability, and how patentability encourages the development of neoliberal agents who model their health in terms borrowed from financial risk.I then turn to two other areas where the Supreme Court is pushing back against an expansive notion of patentability: its revival of patent exhaustion doctrine, and a series of decisions on subject-matter patentability.The chapter concludes by studying the Court’s ruling upholding the PTO’s inter partes review process.The administrative state is a key feature of public biopolitics, and the opinion, concurrence, and dissent clearly illustrate what is at stake in the intersection of differing understandings of power and intellectual property law.