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the School of Journalism and Mass Communication

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UNC MetaLab


James Boyle

James Boyle 

A Politics of Intellectual Property: 

An Environmentalism for the Net

Wednesday April 16 

2:30 - 3:30

Wilson Library Assembly Room

Professor of Law at the American University, Washington College of Law, where he has taught since 1982. He has also taught at Harvard Law School, Duke Law School, Boston University Law School and the University of Pennsylvania La w School. 

He is the author of the recently published book Shamans, Software and Spleens: Law and Construction of the Information Society (Harvard University Press 1996). Professor Boyle has written widely about the politics of intellectual property in the information age in articles such as "Sold Out," a New York Times op-ed, from March 31st 1996. He has also been a leading critic of the current plans to "reform" copyright on the Net. "Over-regulating the Interne t" Washington Times, Tuesday, November 14, 1995. The views put forward in the articles and books mentioned here are the author's alone and should not be attributed to American University or the Washington College of Law.   Some Recent Papers: 

Law and the Information Society  "This Article argues that we need a politics, or perhaps a political economy, of intellectual property. Using the controversy over copyright on the Net as a case-st udy and the history of the environmental movement as a comparison, it offers a couple of modest proposals about what such a politics might look like -- what theoretical ideas it might draw upon and what constituencies it might unite...."  "This is an article developed from my presentation to the Intellectual Property Online Panel at the Harvard Conference on the Internet and Society. The panel was a reminder of both the importance of intellectual property and the dangers of legal insularity. About 400 people attended the panel; 90% of them were not lawyers. Accor dingly, the is my attempt to lay out the basics of intellectual property policy and the counter intuitive economics of networks in as straightforward and non-technical way as possible. I have tried to keep the footnotes to a minimum and the analogies appr opriately geeky. This in other words, is what non-lawyers should know (and what a number of government lawyers seem to have forgotten) about intellectual property policy on the Net...".  "A debate over the Clinton Administration White Paper on Intellectual Property on the National Information Infrastructure-- including a letter from 100 law professors commenting on the draft, responses from Assistant Secretary of Commerce, Bruce Lehman, defending the White Paper -- and a legal analysis of the White Paper's analysis of current law, by James Boyle. This debate is also forthcoming in vo lume 10, Harvard Journal of Law and Technology 1996."  

Legal and Social Theory   "This is an article about political correctness and the attack on political correctness. Alongside the silliness of PC and of the conservative attacks on PC lies deeper and worthier motif -- an issue that appears in everything from the argument over speech codes to that over reading lists, from the critique of affirmative action to the laments over the soul of the humanities . Thus, although the debate as it currently exists is singularly free of intellectual nourishment, it has at its heart a profound philosophical and political issue. This issue could be described in its most abstract form as the conflict between universali sm and particularism. Admittedly, it is hard to imagine that anything in the skeptical, ironic world of the sound-bite, MTV and the Simpson's could merit such an exalted label. It is even harder to imagine that we would find such issues in a debate that h as been so firmly situated between the mediocre and the fallacious, between poor reporting and worse argument. The conflict is there nevertheless."  "This article is a contribution to the theoretical and historical literature about Lon Fuller, a figure who is of interest both for his own sake and because of his "iconic" role in the history of legal thought over the last fifty years. At the same time, the article aspires to make a broader argument about the relevance of legal realism to the social contract tradit ion in political theory..." 

A Random Sampling of Older Material  "Although this article was prompted by the publication of The Tempting of America, its subject is wider than that book alone. As I went further back into Mr. Bork's intellectual history, I discovered that the arguments in his most recent book followed a formula developed in his earlier writings. Like The Tempting of America, Mr. Bork's other work follows a lapsarian pattern -- a tale of a fall from grace, coup led with a strategy for redemption. A state of corruption and decay is identified in some institution or area of law. The rot is traced to a particular departure from the proper state of affairs, a wilful violation of an authoritatively decreed scheme oft hings. A method is prescribed by Mr. Bork which will allow us to escape our current fallen state and return to a condition of righteousness. Mr. Bork speaks strongly in favour of his method, pronouncing it "inescapable" or "unavoidable.&quo t; Yet it is obvious that Mr. Bork's panacea has all the same features as the disease it is supposed to cure. At first, Mr. Bork offers a lengthy and thunderous denial that the cure is indistinguishable from the disease. Eventually, he falls silent for a while, only to emerge in two or three years with some new, and newly ineluctable, redemptive method. The process then repeats itself. Readers familiar only with Mr. Bork's most recent writings will be surprised to find that in the past he has been, succes sively, a libertarian, a process theorist, a devotee of judicial restraint, a believer in neutral principles, a "law and economist" and an advocate of two distinct forms of originalism. At the time, each of these theories was offered as being th e only possible remedy to the subjectivity and arbitrariness of value judgements in a constitutional democracy and the other theories he had held, or was about to hold, were rejected out of hand. .. The Tempting of America is, in one sense, the wea kest and most obviously flawed of Mr. Bork's panaceas. He criticises contemporary liberal constitutional jurisprudence for being arbitrary, politically biased, indeterminate, and a-historical. Yet his prescription for cure -- the philosophy of original un derstanding -- is even more obviously possessed of these flaws. Indeed, as the quotation at the head of this page demonstrates, in an earlier incarnation he himself had dismissed it as "naive." Mr. Bork's rhetoric of denial must thus be correspo ndingly stronger and more thunderous. Yet in another sense, The Tempting of America may mark a departure -- albeit a fragmentary and contradictory one -- from the endless process of denial. Instead, it marks a shift to a different form of conservat ive thought, one that could be called either pre- or even post-modern. "  ".....There is a controversy over the true identity of Shakespeare, a controversy notable for the intemperate statements to which it gives rise. Three Supreme Court Justices agree to hear a staged oral argument on the issu e. Briefs are written, and replies. (These you have.) There is a televised oral argument. (This you do not have.) The court decides in favor of the traditional claimant to Shakespeare's laurels, each Justice rendering a separate opinion. (The opinions, to o, are provided.) The attorneys retire in some confusion, unaccustomed to the importance they are presumed by their audience to possess. The parties disperse, already arguing over the significance of the ruling. Apart from the rather bizarre subject matte r, the media attention and the eminence of the panel, it sounds like a typical piece of litigation. But behind this bare narrative lies another story, as full of strange personalities, unlikely arguments, and philosophical puzzles as Umberto Eco's, The Na me of the Rose -- a book about semiology masquerading as a murder mystery... My argument is that the Shakespeare debate has much to tell us about attitudes to textual indeterminacy and to the romantic picture of the author on which so much of our interpre tive tradition -- both constitutional and literary -- depends." 

All articles © James Boyle 
This page manufactured by Paul Jones  
Law and the Information Society: A Politics of Intellectual Property | Intellectual Property Policy On-Line| The Debate on the White Paper | Abstracts  Legal and Social Theory: Universalism and Identity Politics | Legal Realism and the Social Contract | Abstracts  Older Material: The Search for an Author: Shakespeare and the Framers | A Process of Denial: Bork and Post-Modern Conservatism | Abstracts