A Theory of Law and Information

Copyright, Spleens, Blackmail, and Insider Trading

Abstract

[Purpose] In this article, Professor Boyle analyzes how the law treats information in four seemingly disparate areas: copyright, genetic information, blackmail, and insider trading. He argues that issues of information regulation, commodification, and access are shaped by two neglected processes of interpretative construction.

[Methodology/approach/design] First, such issues are often decided by categorizing them into implicitly contradictory stereotypes of “public” or “private” information. These conflicting stereotypes are rooted in basic assumptions about politics, markets, and privacy in a Liberal State. Second, Professor Boyle argues that the tension between these stereotypes is often apparently resolved using a seductive image: the romantic author whose original and transformative genius justifies private ownership and fuels public debate.

[Findings] Thus, conventional wisdom, courts, and even economic analysts are more likely to favor granting property rights over information when the controller of that information can convincingly be attributed to the qualities of originality, creativity, and individuality—defining attributes of romantic authorship. This is possible in the domain of copyright and for manipulators, if not sources, of genetic information. Blackmailers and whistleblowers, on the other hand, do not easily fit the mold of the romantic author and are instead classified as transgressors against the “private” and “public” stereotypes of information, respectively.

[Practical implications] The article concludes by assessing the impact of implicit stereotypes on the politics of the “information age.”

[Originality/value] Professor Boyle argues that the emphasis on the ideology of authorship may be as important to an information society as notions of contractual freedom and wage labor were to a previous industrialized society. This ideology of authorship, he asserts, with its tendency to devalue the claims of sources and the public, has the potential to seriously harm the political and economic structure of the “information age.”