Shamans, Software, and Spleens: Law and the Construction of the Information Society.

• Author: Samuelson, Pamela

INTRODUCTION

It has become a truism, if not a cliche, that developments in information technologies are causing a fundamental transformation in society, taking us out of the industrial era and into an information age.(1) The last few years have witnessed the appearance of an ample literature exploring this theme.(2) Some may think that too much has already been written on this subject. Yet more books on this theme keeps rolling off the printing presses, including those by James Boyle(3) and M. Ethan Katsh(4) that are the subject of this review. The continuing popularity of printed books on this subject seems rather ironic, for books are artifacts of a supposedly declining era.

Katsh and Boyle concern themselves with the impact of information technologies on law and the legal profession.(5) Despite some overlap in the topical coverage in these two works -- both, for example, give some attention to developments in copyright and privacy law -- the books hardly could be more different. Boyle pays relatively little attention to the digital medium or to digital technologies.(6) His focus is on the contradictory assumptions underlying justifications for decisions about the commodification of information. He points out that information is sometimes regarded as likely to be underproduced unless the law confers property rights on its producers; other times, information is regarded as something that must be freely available for the economy and democracy to operate in an optimal manner (Boyle, Chapter Four). Boyle explores how these contradictory conceptions about information play themselves out in particular legal decisions. He questions whether legal authorities and commentators have provided principles bases for invoking "property rights" or "public domain" rationales in those cases. Katsh, on the other hand, regards digital technologies as the driving force behind major transformations in law and the legal profession. Information as such is of only incidental interest to him. Katsh primarily hopes to help lawyers understand and adapt to coming changes so that they can avoid the obsolescence likely to overtake lawyers who resist these changes.

The books are also starkly different in tone. Boyle raises alarm about the course our society will likely chart in the absence of a social theory well-suited to promoting democratic values, justice, and efficiency in the information age. Katsh is more sanguine about the trajectory of the law in the information age, which causes Boyle to characterize him as a vague optimist.(7) While Katsh does appear generally optimistic about the changes underway, just under the surface of his text lies a warning that lawyers must either change the way they practice law or risk being put out of business. Ultimately, however, Boyle explores the potential dark side of the information age in much greater depth than does Katsh.(8)

Despite differences between the two books, they have at least one pervasive theme in common. Both authors are deeply concerned about the disabling consequences likely to attend hanging on to metaphors of the waning era. Both are in search of enabling metaphors suitable to the new era. Each has, of course, a different metaphor to offer as bete noire.

For Boyle, the disabling metaphor that should be discarded is the romantic concept of the creative author. This concept is asserted often to justify a broad grant of property rights in works of authorship. Boyle asserts:

[W]e are driven to confer property rights in information on those who come closest to the image of the romantic author, those whose contributions to information production are most easily seen as original and transformative. I argue that this is a bad thing for reasons of both efficiency and justice; it leads us to have too many intellectual property rights, to confer them on the wrong people and dramatically to undervalue the interests of both sources of and audiences for the information we commodify. [Boyle, pp. x-xi]

He hopes to elevate concerns for efficiency, justice, democratic values, and privacy to an equal status with concerns about creator interests so that judges and legislators who formulate legal rules about rights in information will do so in a more balanced manner.

Katsh seeks to overcome the disabling metaphor of print. He shows how much current legal doctrine and lawyering rely on printed material (Katsh, p. 8). He explains how and why digital technologies will fundamentally change the framework in which lawyers think about the law, substantive legal doctrine, and the manner in which lawyers will practice their profession (Katsh, p. 16).

This review will assess the success of each author's effort to enable readers to overcome disabling metaphors of the past and to aid in the emergence of new metaphors that will better serve the information society of the future.

1. MOVING BEYOND THE AUTHOR METAPHOR

   A. Of Shamans and Spleens

   Boyle's book is less about shamans and spleens than its title might suggest. In fact, Boyle does not explain what shamans have to do with his thesis until Chapter Eleven. Spleens appear in Chapter Nine, but even then spleens are less the issue than the DNA borne in one man's spleen (Boyle, pp. 97-107). Boyle intends for his title to pique the curiosity of prospective readers about what shamans, software, and spleens could possibly have in common. Few are they who would find Law and the Construction of the Information Society as compelling a title as Shamans, Software, and Spleens. But Boyle does not use his title merely to grab the reader's attention. He also uses it to signal that his work will not be yet another dreary academic dissertation. Boyle delivers on the promise of his title: His book proves an enjoyable read; and he also explores the connection among shamans, software, and spleens.

   So what do shamans have to do with the construction of the information society? To answer this question, one must understand a few basic principles of the intellectual property laws of Western industrialized nations. These laws typically grant exclusive rights to individual creators who develop certain kinds of intellectual products. Authors of original writings are eligible for copyright protection, and inventors of new machines or technological processes may qualify for patent protection.(9) Boyle regards these laws as embodiments of romantic concepts about individual creators. The romance lies in the idea of individual genius authors and inventors who are said to deserve property rights in the creative products that spring from their minds without regard to what has come before (pp. 16, 52-54).

   Boyle argues that romantic entitlement theory yields laws that ignore creations that do not conform to the romantic creator model. For example, creations emanating from collective effort, such as the knowledge of shamans, are ineligible for protection under such laws because there is no one individual author-inventor to designate as the rightsholder. Armed with romantic entitlement notions, Westerners traveling to the outback of Australia or other exotic climes may regard as freely appropriable aboriginal designs, folklore, or shamanic knowledge that they find attractive or useful. After all, these creations do not derive from a particular author or inventor whose rights the Western appropriator would be violating. Consequently, Western explorers perceive the designs, folklore, and shamanic knowhow of undeveloped or underdeveloped nations as raw material just waiting for Western creative discovery and exploitation. By mixing their labor with the appropriated subject matter and thereby refining it, Westerners could become romantic author-inventors entitled to intellectual property rights under their own culture's laws.(10)

   Boyle makes both justice and efficiency arguments against the unfettered appropriation of shamanic and other collective creations from undeveloped nations. Boyle argues that justice requires Westerners to accept the rights of non-Western cultures to control the commercial exploitation of their collective creations (pp. 125-28). He urges Westerners to abandon -- or at least moderate -- the ideology that has blinded them from appreciating the valuable sources from which they draw products or understanding the justice claims of non-Western cultures.(11) Predictably, Boyle approves of the efforts undertaken by some countries to protect their collective creations against Western exploitation.(12) He also favors international recognition of intellectual property rights in collective works.(13)

   Boyle's efficiency argument focuses on the potential shortsightedness of failing to compensate indigenous cultures for their knowhow or other collectively generated creative artifacts. Compensation may prevent destruction of resources necessary for the development of new products. Boyle considers the plight of Madagascar, "the unique home of perhaps 5 per cent of the world's species[:] It is the biological equivalent of an Arab oil sheikdom. Yet, without an income from its huge biological wealth, it has chopped down most of its forests to feed its people."(14) Boyle responds with a quip and a more general observation:

   Now there's a public goods problem. Precisely because they can find no place in a legal regime constructed around a vision of individual, transformative, original genius, the indigenous peoples are driven to deforestation or slash and burn farming. Who knows what other unique and potentially valuable plants disappear with the forest, what generations of pharmacological experience disappear as the indigenous culture is destroyed? [pp. 128-29]

   Boyle urges the West to realize that compensating indigenous cultures for appropriations of their biological resources will serve the long-term interest of the West in the continued availability of those resources. Boyle leaves to others the job of addressing the complex questions that arise once one accepts the general...