A Theory of Law and Information: Copyright, Spleens, Blackmail, and Insider Trading
128 Pages Posted: 12 Dec 2017
Date Written: December 1, 1992
In this Article, Professor Boyle undertakes an analysis of the law's treatment of information across four apparently disparate realms: copyright, genetic information, blackmail, and insider trading. He argues that questions of information regulation, commodification, and access are shaped by two neglected processes of interpretive construction. First, such issues are often decided by pigeonholing them into implicitly contradictory stereotypes of "public" or "private" information. These conflicting stereotypes have their roots in basic assumptions about politics, the market, and privacy in a liberal state. Second, Professor Boyle argues that tension between these stereotypes is often apparently resolved by the use of a seductive image: the romantic author whose original, transformative genius justifies private property and fuels public debate. Thus, conventional wisdom, courts, and even economic analysts are more likely to favor granting property rights in information when the controller of this information can convincingly be ascribed the qualities of originality, creativity, and individuality, the defining attributes of romantic authorship. This is possible in the copyright domain and for manipulators, if not sources, of genetic information. Blackmailers and insider traders cannot so readily be fitted into the romantic author mold, and are classified instead as transgressors against, respectively, the "private" and "public" stereotypes of information. The Article concludes by assessing the impact of the implicit stereotypes on the politics of the "information age." Professor Boyle argues that an emphasis upon the ideology of authorship could be as important to an information society as the notions of freedom of contract and wage labor were to an earlier, industrialized society. This ideology of authorship, Professor Boyle contends, with its tendency to devalue the claims of sources and of audience, has the potential for strong detrimental effects on the political and economic structure of the "information age."
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