New APPS

Art, Politics, Philosophy, Science. Mostly Philosophy.

recent posts

about

    • Radical White Terrorism

      By Gordon Hull

      Although they murdered one person, injured 19 others, and celebrated two governments, one of which systematically exterminated over 6 million people in the name of white supremacy, and another that systematically murdered and enslaved millions more, also in the name of white supremacy, members of the far right somehow managed to proudly act like newly liberated victims of something or another (“cultural Marxism?”).    It’s not like Charlottesville should have been a surprise; the FBI and DHS warned about the threat from white supremacists months ago.  White supremacists had been nursing fantasies of running over liberals with cars for quite some time, and racist hate crimes – including, as in Portland, the murder of those who try to stop racist hate crimes – have (unsurprisingly) been on the rise since Trump came to power.  Moreover, what happened last weekend was not about free speech and marches.  It was much more about political violence and intimidation: they showed up in Charlottesville looking for a fight, toting semi-automatic weapons and militia groups so that they might not just exercise their First Amendment rights, but deprive others of their First Amendment rights.

      (more…)

    • Limitless Home Surveillance by your Vacuum Cleaner

      By Gordon  Hull

      The expansion of the Internet of Things is going to provide a lot playspace for highly intensive and granular corporate surveillance – which is to say it’s going to be a catastrophe for privacy.  Sure, sure, everything will come with a “click here to accept” or comparable “notice and consent” privacy policy that “empowers” individuals to make a rational decision about whether their fridge should communicate with their grocery store when they are running low on milk.  But as Allesandro Acquisti and coauthors note:

      “Uncertainty and context-dependence imply that people cannot always be counted on to navigate the complex trade-offs involving privacy in a self-interested fashion. People are often unaware of the information they are sharing, unaware of how it can be used, and even in the rare situations when they have full knowledge of the consequences of sharing, uncertain about their own preferences. Malleability, in turn, implies that people are easily influenced in what and how much they disclose. Moreover, what they share can be used to influence their emotions, thoughts, and behaviors in many aspects of their lives, as individuals, consumers, and citizens. Although such influence is not always or necessarily malevolent or dangerous, relinquishing control over one’s personal data and over one’s privacy alters the balance of power between those holding the data and those who are the subjects of that data.”

      Indeed, one strongly suspects that’s the point.

      In the meantime, Burger King ran an ad that tried to trick Google Home into running a search for the Whopper.  And now there’s this:

      “High-end models of Roomba, iRobot’s robotic vacuum, collect data as they clean, identifying the locations of your walls and furniture. This helps them avoid crashing into your couch, but it also creates a map of your home that iRobot is considering selling to Amazon, Apple or Google.”

      That’s right: if you have one of those robot vacuum cleaners, it might very well be constructing a highly granular map of your home that will be able to interpret things like what kinds of furniture you have and whether (and how many) kids you have, and so forth.  Expect targeted ads to follow if the data leaves the Roomba.

      Oh, and depending on how courts interpret third party doctrine, that detailed interior map of your home may be freely available to law enforcement. As Justice Sotomayor warns, “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties” in the “digital age.”

      In the meantime, I recommend a broom.

    • Intellectual Property Theory Wars (Part 2): IP as social power

      By Gordon Hull

      Last time, I introduced the exchange between Mark Lemley and Robert Merges on IP theory, and made the initial case that Lemley is essentially arguing for the theoretical primacy of neoliberal biopower in intellectual property.  Merges, as will hopefully become evident below, is more interested in grounding IP in juridical notions of rights-bearing subjects.  Lemley finds such grounding not just wrong but incoherent and irrational, on the grounds that it is a refusal to use empirical evidence.  What I want to do here is dig out some of the textual evidence to support my argument, specifically by looking at some of the work Lemley puts in the “faith-based” camp.  That is, the way Lemley critiques other efforts at IP theory seems to me to exemplify the hold that Chicago has on IP scholarship.  I want to look at his treatment of three such competing views: he finds them completely unintelligible when they use a non-utilitarian form of reason (Merges), he ignores it when they argue from an economic perspective that rejects the basic assumptions of the Chicago school’s development of IP (Amy Kapczynski), and he contorts them into an unpersuasive utilitarian frame when they challenge wealth aggregation as the appropriate standard for evaluation (Madhavi Sunder).  Let’s look at these in reverse order.

      (more…)

    • Intellectual Property Theory Wars (Part 1)

      By Gordon Hull

      A couple of years ago, Mark Lemley, one of the most influential and prolific of intellectual property scholars, published his “Faith-Based Intellectual Property,” a manifesto against what he characterizes as non-utilitarian or non-empirical theories of intellectual property.  In other words, “participants on both sides of the IP debates are increasingly staking out positions that simply do not depend on evidence at all” (1336).  He adds, “I call this retreat from evidence faith-based IP, both because adherents are taking the validity of the IP system on faith, and because the rationale for doing so is a form of religious belief” (1337).  He treats Robert Merges’ Justifying Intellectual Property (2012) as the paradigmatic example of this phenomenon, though he cites others.  A couple of months ago, Merges’ response, “Against Utilitarian Fundamentalism” appeared, arguing that it was the militant utilitarian position – which as Merges reads it assumes that “to abandon the solid world of empirical foundations is to automatically commit to a stubbornly irrational set of foundations” – that “commits precisely the error that [it] attributes to others” which “takes an extreme position, cutting off conversation and debate” (n5)

      The point I want to make here (in this post and a follow-up) – and I should say that I absolutely agree with Lemley both that IP protections are too strong now, and that there is a good-sized body of evidence that supports this proposition – is that Lemley’s argument presupposes that IP is a form of biopower (or perhaps biopolitical governmentality) insofar as it sets policy, the aim of which is to optimize the welfare of the bios by pushing the “conduct of the conduct” of individuals within it toward higher levels of creative productivity (if you are uncomfortable calling that “biopower,” then it’s fine to stick with “governmentality” here – the point is the contrast with other kinds of thought).  I would also argue, though again not a lot hangs on the distinction here, that Lemley’s framework is almost entirely dependent on law and economics, as it developed out of the University of Chicago from the 1960’s onward.  In this, he is accepting what one might call a neoliberal understanding of intellectual property (on the move to law and economics, see especially William Davies).

      (more…)

    • More self-promotion: “Toward a critical theory of corporate wellness”

      By Gordon Hull

      Frank Pasquale and I have a new paper forthcoming in Biosocieties, "Toward a critical theory of corporate wellness."  Here is the abstract:

      In the U.S., “employee wellness” programs are increasingly attached to employer-provided health insurance.  These programs attempt to nudge employees, sometimes quite forcefully, into healthy behaviors such as smoking cessation and exercise routines.  Despite being widely promoted as saving on healthcare costs, numerous studies undermine this rationale.  After documenting the programs’ failure to deliver a positive return on investment, we analyze them as instead providing an opportunity for employers to exercise increasing control over their employees. Based on human capital theory and neoliberal models of subjectivity that emphasize personal control and responsibility, these programs treat wellness as a lifestyle that employees must be cajoled into adopting, extending the workplace not just into the home but into the bodies of workers and entrenching the view that one belongs to one’s workplace.  At the same time, their selective endorsement of health programs (many scientifically unsupported) produce a social truth of wellness framed as fitness for work.  We conclude by arguing that the public health initiatives occluded by the private sector’s promotion of wellness programs would be a much better investment of resources.

      Springer puts an embargo on the final version of the paper so it can't go up on SSRN yet, but they do invite authors to share a link to the final version  on their site.  Apparently you can read it there for free, and can download if you have institutional access.  The Biosocieties link is here, if you're using a connection with institutional access.

    • Shameless Self-Promotion: “The Subject and Power of Bioethics”

      By Gordon Hull

      I have a new paper up on SSRN, "The Subject and Power of Bioethics," which was invited to a forthcoming issue of the Journal of Ethics, Medicine and Public Health.  The abstract is:

      The present paper argues that late work of Michel Foucault is helpful in understanding contemporary bioethics.  Specifically, Foucault’s writings on biopower and subjectivity are increasingly relevant as we consider the intersection of public policy and clinical ethics in a socio-political context increasingly structured by the demands of neoliberalism.  Although Foucault’s earlier work on the clinical gaze has been important to bioethics, that is no longer as important as his later, incomplete research into power and subjectivity. 

      The paper develops this argument in four steps.  In the first, I look at a classic phenomenological approach to clinical bioethics by Richard Zaner, starting from which I develop a Foucauldian perspective.  In that section I also offer a basic outline of what I take Foucault’s primary theoretical contributions to be by way of an initial explication of the biopower-subjectification nexus.  The following two sections of the paper present exemplary applications of Foucauldian theory to two areas at the intersection of public policy and clinical bioethics.  The first is the procedure for testing women for the BRCA1/2 mutations, mutations that impose on carriers a significant risk of developing breast and ovarian cancer.  A comparison between American and Dutch practices underscores not only the new ways that genetic testing interpret the body, but also the importance of local political and cultural contexts for understanding how the test is presented, administered and managed.  The second is a consideration of the intersection of employee wellness programs and wearable technologies.  In it, I develop Foucault’s thought that subjects in the Christian West have long been encouraged to understand themselves confessionally, offering to authority figures the “truth” about themselves.  I then interpret the compulsory use of wearables as a verification strategy for compliance with wellness programs as exemplary of such confessional strategies.  The final section ties the discussion back to the clinical encounter as Zaner formulates it as an inherently moral encounter structured by vulnerabilities that matter for understanding the selfhood of patients.  Based on the preceding examples, I make the case that American understandings of selfhood are increasingly separated from any sense of publicness, and that this structuring of selfhood is of increasing importance in framing and adequately understanding bioethics today.

    • Travel Ban 2.5, the Camp, and the Airport

      by Gordon Hull

      On Wednesday night, the Trump administration implemented as much of its long promised Muslim Ban as it thought the Supreme Court would allow.  Travelers from a list of six countries who did not have a “bona fide” connection or “close familial relationship” to someone in the U.S. would be banned.  The administration interpreted the Supreme Court’s ruling as restrictively as possible – the Court said that a mother-in-law would be an example of a close familial relationship, but didn’t mention grandparents – so having a grandparent here (or being a grandparent there) isn’t a close familial relationship.  The ruling smacks of arbitrariness and was rolled out as secretly as possible, and it’s not even clear that it actually does much at all. Then again, the original ban also was a poorly-worded, arbitrary mockery of the rule of law.  For example, the “policy” began with zero warning, leaving travelers stranded in airports with no legal options.  So too, the six countries were allegedly named because of their propensity to breed terrorists, but no one from any of them has committed a terrorist act in the U.S. since 2001.  Countries from which terrorists have come – Saudi Arabia – are not on the list.  Some of the countries have no functioning governments, but Iran does.  And so it goes.  That’s what happens when you promise to get rid of Muslims and then realize that you can’t get away with just making that so by campaign promise.

      In Homo Sacer, Agamben declares that the camp (the paradigmatic case of which is the Nazi concentration camp) is the archetype of modern power, suggesting that “the camp as dislocating localization is the hidden matrix of the politics in which we are still living” (175).  He proposes that the model of the camp can be seen in all sorts of institutions: the stadium at Bari where the Italians herded Albanian immigrants, the track where the Vichy herded the Jews before deporting them, and the halls at airports where foreigners asking for refugee status are detained, “all equally [are] camps” (174).  As someone who has read a lot of Adorno, I found this assimilation of airport waiting halls and the Holocaust somewhere between uncomfortable and offensive.  I am still uncomfortable with the comparison, but I do think some of the logic that Agamben is identifying is at work here.  That logic is one in which “the normal order is de facto suspended and in which whether or not atrocities are committed depends not on law but on the civility and ethical sense of the police who temporarily act as sovereign” (174).

      (more…)

    • Another week, another unanimous SCOTUS IP Decision – this time, disparaging Trademarks

      The Supreme Court ruled unanimously today (well, an opinion and a concurrence) that a provision in the Lanham Act banning “disparaging” trademarks violated the First Amendment. In the case in question, an Asian-American musician named Simon Tam had attempted to register his band’s name, “The Slants,” in a clear effort to reclaim the slur.  The PTO had refused the registration, on the grounds that it was a disparaging term. The Federal Circuit ruled in favor of Tam (my thoughts on that decision are here).  Writing for the Supreme Court, Justice Alito declined to resolve whether the case required strict or intermediate scrutiny, on the grounds that the disparagement clause failed the weaker, intermediate scrutiny standard.  Alito found two asserted government interests: one was protecting against speech that offends, and he dismissed that argument on the grounds that the “the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate’” (citing a 1929 dissent by Justice Holmes).  The second interest was in the protection of the orderly flow of commerce.  Here, he pointed out that the statute was in no way narrowly-drawn, as intermediate scrutiny would require.  In the first of a series of reductios, he argued that:

      “The clause reaches any trademark that disparages any person, group, or institution [emphasis original; he is quoting statutory text]. It applies to trademarks like the following: “Down with racists,” “Down with sexists,” “Down with homophobes.” It is not an anti-discrimination clause; it is a happy-talk clause. In this way, it goes much further than is necessary to serve the interest asserted.”

      (more…)

    • Exhausting Patents

      In another chapter of its ongoing battle with the Federal Circuit (and the second in a week), the Supreme Court (SCOTUS, I will refer to the Federal Circuit as the CAFC) ruled last Tuesday in Impression Products v. Lexmark International that the sale of a patented product “exhausts” the patent-holder’s claim to derive patent revenue from that particular article.  First, a brief background.  Printer toner is like razor blades: companies charge extravagant prices for the toner without which their printers will not operate, while selling the printer itself fairly cheaply.  Such a strategy creates secondary markets in toner, either in third party cartridges that are designed to be compatible with the printer, or in strategies for refilling used cartridges.  Naturally, printer companies hate this, and so engage in all sorts of strategies to stop it.  They warn consumers that using non-proprietary cartridges will cause poor print quality and void their warranty.  They design their devices to try to detect off-brand toner, and refuse to operate if one is installed. These strategies tend to fail in court.  In 2004, the 6th Circuit ruled that efforts to circumvent the cartridge-detection system did not violate the DMCA (= copyright law).

      In last Tuesday’s case, Lexmark had sued a manufacturer of aftermarket ink cartridges, which had been taking used cartridges from either overseas markets or from consumers who had emptied them, refilling them, and then selling them.  Lexmark argued that its exclusive rights should extend to the resold cartridges.  The SCOTUS threw cold water on that argument, citing settled common law on property: when you sell something, you don’t get to derive revenue from subsequent sales.  If Lexmark wanted to try to extend its patent rights, the company could contractually forbid users to give their spent cartridges to companies like Impression, for example, but that would be a matter of contract law, not property.  But patents are a species of property, and patent rights are “exhausted” – i.e., end – when the patented product is sold.

      (more…)

    • Biopower, Juridical Power, and Patent Trolls

      Patent law seems like an easy place to talk about biopower.  After all, it has been possible to patent life forms for some time now, and large numbers of patents are issued for products that directly affect life, as in the case of pharmaceuticals and other medical innovations.  Biopolitical implications of patent law are thus easy enough to adumbrate, even if one wants to construe “life” in narrow, biological terms.   There is, however, another angle that needs to be considered, which is the institutional structure of patent law.  If one effect of the emergence of biopolitics is the rise of the regulatory state and the decline of judicial power, we see in the case of patent law an ongoing struggle between institutions representative of those forms of power.  Two Supreme Court decisions in the past week illustrate this conflict; this post will deal with the first (TC Heartland) and I will have something to say about the second in a follow-up post.

      (more…)