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Copyright: Legal and Cultural PerspectivesINF 390N.2Doty

SHAMANS, SOFTWARE, & SPLEENS BY JAMES BOYLE (1996):INFORMAL STUDY GUIDE

Preliminary thoughts

What follows are some general comments about one of this semester’s textbooks:

Boyle, James. (1996). Shamans, software, & spleens: Law and the construction

of the information society. Cambridge, MA: Harvard University.

We will read and discuss the book out of chapter-by-chapter order, and the study guide is arranged in the order of our reading:

January 27 Preface and Chapter 1

February 3 Chapters 6, 10, and 11

February 17 Chapters 3, 4, and 5

May 5 Chapter 13, Conclusion, and Appendix A.

Discussions of the Notes (pp. 201-259) are included under the appropriate chapters of the text. These notes are essential to Boyle’s book and very useful for your own study, so do not just gloss over them.

The final part of this informal study guide is a glossary of some terms that may not be familiar to all of you but are important to Boyle’s argument – you may want to read the glossary before you look at the study guide for the individual chapters. The “definitions” there are also informal and are not intended to be comprehensive or canonical – instead they are intended to help you understand their use in Boyle’s discussion and in the context of the rest of the semester’s work. I encourage you to follow your interests with regards to these and other concepts that you find engaging. I encourage you especially to share whatever you learn about them with your colleagues in the class and the instructor.

Although Boyle’s book is superb, as is the rest of his written work, there are a few general caveats that you should keep in mind as you read the book; here are some of the most important:

1. As indicated by the sub-title of the book, Boyle freely uses “information society” rhetoric. While his take on this concept may be at least partially ironic, it is not entirely so – and that stance is problematic for a number of reasons that we do not need to rehearse fully here, e.g., information has been essential to all societies, the so-called “information society” might be better seen as late capitalism, the concept smacks of free market and globalist triumphalism, there are serious social costs of increased “informatization,” and so on.

Philip Doty Version 2.012/2004

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2. Boyle, like most speakers of English, peppers his argument with references to a “content/conduit” distinction, e.g., talking about “content,” “information content” [HUH???], information “flows,” information “transmission,” and so on. This metaphor is a troublesome reification and reductionism, especially when he talks about so-called genetic “information.”

3. Boyle’s fundamental approach is in opposition to his sometimes surprising use of the terms “objective” and “subjective.” These terms are out of place in a work that is justifiably suspicious of the valorization of information as a thing and of epistemology that posits a subject/object dichotomy.

But these are only caveats – Boyle’s book is terrific and well worth close and careful readings.


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January 27

Preface, ix-xvi

ix Boyle reminds us that we need to examine what he refers to as “a significant but unexamined process of rhetorical and interpretive construction” now taking place (emphasis in the original) – that’s one of the major goals of his book.

x he aims to provide us with a “social theory of the information society” – what does he mean? Why would it matter (please keep in mind my reservations about “information society” rhetoric).

xii especially important to this theory is his contention that the “discourse of authorship” only appears to solve problems that the concepts of information and ownership of information present – this is, perhaps, the major contention of the book.

further, he aims to tell the story of the “imperial author” and what contribution the “ideology of authorship” might make to the information society (emphasis in the original).

202 in note 7, concerns about information dystopias as well as utopias appear – as you know, the literature related to these two, opposing visions is large and growing apace; see, e.g., Rob Kling’s edited volume on Computerization and Controversy (2nd ed., 1996).

201 n. 1 his characterization of “problems” as conflicts in which “both ends and means are contested and contestable” is a very useful one.

202, n. 8 if you don’t know their work, definitely look at Foucault, Jaszi, Bolter, and Poster as your interests and time allow.

Chapter 1: The Information Society, pp. 1-16

2 Boyle provides some cogent examples of how the idea of information has “colonized” a surprisingly wide area of activity and organizations – do you agree or disagree? Why? More importantly, why might it matter if he is right or wrong?

9-10 Boyle emphasizes a theme you will hear again and again this semester, especially from Lessig and Vaidhyanathan – why do we so often simply assume that more and more stringent protection of copyright means more “progress”?

12 Boyle reminds us of an important component of the policy/technology dynamic – “Technological change shapes and is shaped by ideology and legal form.” In other words, the simplistic assertion that policy “always trails” technological change and, therefore, that policy should “just get out of the way” is wrong-headed. Policy leads technological change, as do ideology, conceptual structures, and (shared) beliefs.


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13 despite the fact that his book is immersed in legal concepts, terminology, and history, he is quite careful to warn us (implicitly) of the limitations of “the legalistic language we use to describe our imaginary political topography.” This concept looms large as his argument develops.

14 he asks how we can avoid the “totalizing tendencies of grand social theory or the limitations of functional explanations” – see the glossary for some hint of why this question is a very important one. Also, do you think that Boyle avoids these two dangers?

Boyle says that “law should be seen as a complex interpretive activity, a practice of encoding and decoding social meaning.” Do you agree? Disagree? Why? Why might it matter if he’s wrong or right?

15 he reminds us that he strives not to “concentrate on ‘innovation’ . . . [that repeats] the paradigm of the original transformative genius.”

who’s Joseph Schumpeter? Why does he appear here?

203, n. 3 Boyle refers to the “pervasive Enlightenment discourse of information” – a useful and increasingly widely used insight

204, n. 9 Susan Stewart’s Crimes of Writing: Problems in the Containment of Representation (1991) is a very evocative and strange book.

206, n. 12 he says that “there is a common need to offer a plausible language of entitlement and incentive” – why would there be?

n. 13 Boyle critiques copyright and patent law for the “same structural pattern of internal binary division” – what does that mean, and why do these regimes assume that form? More generally, of course, this pattern is one of the primary weaknesses in modernist thinking that post-modernist thought critiques.

207, n. 15 here’s one of the primary emphases of the book that bears repeating in Boyle’s own words:

In this book, I stress that the fixation on authors, inventors, and entrepreneurs tends to obscure the importance of continuity, indebtedness, and evolution and to overemphasize that of transformation, originality, and revolution.

February 3

Chapter 6, Copyright and the Invention of Authorship, pp. 51-60

51 Boyle notes that the difficulties our society has with intellectual property, especially between rights-oriented and utilitarian systems, reflects the difficulties that our (classically liberal) society has with property as a whole.

52 what do you think of Boyle’s use of Christian Sigmund Krause’s work of 1783?


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53 Boyle reminds us that “our notion of ‘authorship’ is a concept of relatively recent provenance.”

54 he describes the growing import of originality [and what some have called the cult of genius] and its rationale as the warrant for intellectual property rights

56 you might want to keep this chapter in mind especially when we read other authors and their critique of too strong a belief in so-called romantic authorship

and also pay special attention to the supposed idea/expression dichotomy essential to most conceptions of copyright

60 “Copyright offers the idea of romantic authorship as a way of reconciling the demands of private property and the public realm.” Does it? Can it?

230, n. 7 he refers to the work of Carla Hesse on (Revolutionary) France – her work is very widely cited by scholars in many and disparate disciplines (law, cultural studies, history, information studies, organizational studies, and more) and is first rate.

Chapter 10, Stereotyping Information and Searching for an Author, pp. 108-118

108 “The legal system commodifies, refuses to commodify, or makes illegal the commodification of certain kinds of information.” This process is one of the most important roles of the law, especially in a society like ours so dependent on the liberal ideology of property.

109 Boyle reminds us of the importance of that ideology throughout the book, with the concept of (creative) authorship as a primary justificatory means of supporting the ideology.

110 throughout the book, Boyle wrestles with how it is that our culture “types” particular questions or problems – this “typing” perspective is one of the most important conceptual vantage points that Boyle occupies. How useful is it?

111 typing depends implicitly as well as explicitly on analogies and metaphors. This insight is one of the places where we can see how literary studies, politics, and the law can converge: as interpretive systems and, concurrently, as textual systems.

112 his somewhat surprised warning here is well-taken: the study of information has been “curiously immune” to the critique of reification of metaphors that “has a long and distinguished history in other areas of legal doctrine.” Perhaps this weakness is one of the primary symptoms and causes of the contentiousness of copyright. But why would the study of information exhibit this difference? A question worth asking . . .

116 after an extended and thoughtful discussion of the Gordian knot of Romantic authorship, originality, and the idea/expression dichotomy, Boyle says that


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“the values of romantic authorship seem to seep – consciously or unconsciously – into economic analysis.”

among the ill effects of this seepage is that “those who do not look like authors find that their property claims are disfavored.” Thoughts?

248, n. 4 Boyle gives us a very useful reminder of the “profoundly contingent, socially constructed nature of our notion of ‘public sphere’ and ‘privacy.’” One of the goals of a course like this is to help us all de-naturalize, de-bracket such categories.

251, n. 15 In the context of the controversy related to (patient) John Moore’s claims to property rights in cell lines developed from his tissue, Boyle says that Moore is claiming property rights in his “genetic information.” I would energetically disagree, but Boyle makes an excellent point in characterizing the conceptual foundations of the legal argument used to “resolve” the conflict: “The ideal of authorship first identifies the researchers as the relevant parties and then justifies their property rights.”

Chapter 11, The International Political Economy of Authorship, pp. 119-143

119 Boyle notes that he wants to use this chapter to examine how the author paradigm as a global regime has affected us all.

his two major critiques will be the regime’s failure according to political morality and its failure according to its supposed foundation, (neo-classical) economic rationality.

121 throughout the chapter, often using a developed/developing country perspective, he warns us about the hysteria surrounding much talk of “piracy” and how such talk will lead to “an intellectual land grab to rival the colonial land grab of the nineteenth century.”

122 a very useful reminder is that “[t]his hard line over intellectual property is a relatively new phenomenon.” You may want to think about some of the glossary terms, e.g., ahistorical and bracket.

124 he notes TRIPS – what’s that? Why does it matter?

in this part of the chapter, Boyle explores the self-serving and contradictory claims made by representatives of countries rich in “intellectual property” that increased IP protection will benefit developing countries.

126 one of Boyle’s continuing themes (e.g., p. 127), and an important theme of this course, is that “an authorial regime values the raw materials for the production of intellectual property at zero” (emphasis in the original). We can ignore the fact that the term “raw material” is more than a bit misleading for cultural production but still recognize the profound and lingering effects of this regime and its conceptual foundations. See, e.g., p. 130 on the public domain.

127 a growing area of scholarship and negotiation involves the interests of so-called indigenous peoples and the status of their knowledge and technologies


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in an increasingly “owned” world. And he continues by noting the criticism of “the way that tribal lore and biological largesse find no place in the language of intellectual property” (p. 129). Of course, we might ask “How can they?”

129 as mentioned above in the reservations about Boyle, his stress on so-called genetic “information” is not only contestable, but it also tends to undermine his own argument.

130ff Boyle takes on fair use in the specific context of copies for classroom use.

131 as you will see in Lessig, Vaidhyanathan, and elsewhere, Boyle believes that the best way to conceptualize fair us is not as an agonistic contest where authors can be “trumped [only] by other authors” (emphasis in original). Instead, “it is a better interpretation of the fair use exception to assume that it allows for socially beneficial uses in general, but also maintains the availability of a public domain for future creators.”

132 here he identifies one of his most important conceptual critiques of strong intellectual property protection: “It starts with a circular argument: ‘the intent of copyright law has been the protection of intellectual property.’” Think about why Boyle, and others, find this argument circular.

133 a quick mention of “copyleft.”

134 a useful discussion of what we might loosely call “incumbents’ advantage” in patent disputes and how that advantage undermines the public domain and subsequent inventiveness.

135ff Boyle takes on some of the significant blind spots of the federal Information Infrastructure Task Force’s “White Paper” on intellectual property released in September 1995. Driven largely by Chair Bruce Lehman (more about him in class), this document while not “binding” in any sense is an excellent epitome of arguments for strong IP protection, both in what it says and what it ignores. Spend a little time exploring the document; it’s long, but a look or two is well worth it.

Boyle identifies the greatest threat of the “White Paper” as the “privatization of the public domain.”

136 further, he says that “[t]he ‘summary’ of the current state of intellectual property law is in fact a brief for publishing interests.” Methodologically, recall that policy instruments and reports are first and foremost rhetorical devices, intended not just to persuade but to reflect certain assumptions about the world and the supposed “inevitability” of the approach described in the report or policy instrument.

138 Boyle takes a very strong stand that asserts that:

[I]ntellectual property rights are limited monopolies conferred in order to gain present and future benefits; for the purposes of achieving those goals, the “limitations” on the right are just as important as the grant of the right itself.


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this point, in its language as well as its spirit, finds itself at the heart of many of the current controversies about “intellectual property.”

he posits a hypothetical situation where he invites us to consider what might happen if the IITF working group had started with the assumption that the interests of users should be paramount in IP discussions, not those of owners.

139 all of this argument is to help support one of the main theses of the book: “the author-vision” downplays the importance of fair use and thus encourages an absolutist rather than a functional idea of intellectual property.” What does that mean? Why does it matter? The answers are key to the book.

140 in contrast to what many believe, Boyle asserts that “the current [copyright] system rests on assumptions and not evidence.” Of course, the situation is both a bit more complex than that, but it is also, in some sense, inevitable. This point that faith is all that keeps compelling us to extend copyright protection is one we see throughout Lessig, Vaidhyanathan, and elsewhere. Such faith is strongly defended in Goldstein (2003) and elsewhere.

141 Boyle reminds us that the outcome of our current author/owner-centric approach is to “minimize the importance of the public domain . . . [and] the claims of sources and audience, the interests of future producers.”

252 n. 16 he refers to some early examples of the growing literature about indigenous peoples and their interests in the cultural artifacts they produce

253 n. 37 what do you think? He says “[h]arsh reactions to criticisms of the current system show the extent to which the author-invention vision becomes an article of religious faith.”

February 17

Chapter 3, The Public and Private Realms, pp. 25-34

25 in quoting Marx on the “nonpolitical,” Boyle is exploring how we bracket a topic, that is, hold it immune from examination and judgment (see the attached Glossary).

26ff here and elsewhere, Boyle engages the somewhat facile distinction we make between private and public concerns – be alert to the nuances and implications of this part of his argument.

30 his discussion of how we characterize information is central to his theory of the “information society” and to his book’s argument.

33 his reference to equal protection of law brings to mind the U.S. Supreme Court’s decision Santa Clara County v. Southern Pacific Railroad Company (1886), giving equal protection of the law to corporate persons, not just natural persons.


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34 here, and elsewhere, Boyle wrestles with liberal theory’s characterization of information as essential to both public and private realms and how (micro)economics cannot resolve some of the resulting conflicts about information – see the next chapter in particular.

213 n. 14 he cites the very influential Dialectic of Enlightenment by Max Horkheimer and Theodor Adorno (1972) – if you don’t know the work of the Frankfurt School, you may want to explore it a bit.

Chapter 4, Information Economics, pp. 35-46

35 one of the fundamental paradoxes of information policy appears here – we want to encourage the sharing of information but protect its production; this paradox is one of the puzzles of copyright.

beware here and elsewhere of the image of “information flows” – beware its misplaced concreteness, i.e., it reifies information in a misleading way.

36 this entire chapter is an exploration of how information erodes the foundations of economic theory – what do you think? Do you agree? Why or why not? Why might it matter?

41 here, he considers Feist (1991).

43 consider his discussion of how “the certainty of these conclusions warrants some skepticism.” Does he make his case or not? Why?

44 what does he mean by the “utilitarian calculus”? Think about it some before referring to the Glossary.

45 Boyle tries to identify the character and implications of some of the more important disparities between “microeconomic analysis and actual social behavior.” This small section reminds us that trying to understand people’s information behavior is a matter of empirical investigation as well as of theorizing and analysis and that lawyers and economists know little about that behavior.

he underscores the constitutive character of power and inequality – what do you think?

216 n. 4 he reminds us that information can have negative as well as positive value – see p. 258 n.7 below

227 n. 34 Boyle mentions the “manufacturing of needs as well as products” – see Say’s Law in the Glossary.


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Chapter 5, Intellectual Property and the Liberal State, pp. 47-50

47 he notes that “Like information, property plays a vital role in liberal state theory.” What is that?

what does he mean by the “Blackstonian definition of property”? Why might it be so important?

48 he quotes Kenneth Vandevelde on the “conceptual imperialism” of the concept of property in the law – what does that mean? Do you agree? Why or why not? Why might it matter?

he refers to the “familiar ‘bundle of rights.’” Consider the strengths and weaknesses of this metaphor, and, please recall, it is a metaphor.

May 5

Chapter 13, Proposals and Objections, pp. 155-173

155 he reminds us that one of the primary goals of the book has been the creation of a “social theory of the information society.” How successful has he been? Why would the “author-vision” and “intellectual property” be of import to such a theory? Please recall my reservations about the rhetoric of the so-called information society.

by the way, his somewhat oblique reference to Durkheim and bridge parapets is to Durkheim’s 1897 influential study of suicide (and the constructed nature of suicide as a concept). Durkheim’s work is fundamental to sociology, and this work in particular has been so important for many reasons, among them its rigor (no pun intended), its empirical, quantitative character, and its close look at what was regarded as either a taboo or “obvious” subject.

156 the table on this page, “Tensions in an Intellectual Property System,” while a bit too dualistic, is worth a close look. You might especially pay attention to the differing views of creativity, what the table identifies as “Vision of the Productive Process.” Compare the cited approaches of literary scholar Northrop Frye and attorney Paul Goldstein, author of one of our other texts this semester, Copyright’s Highway (2003).

158 “By studying a society’s sanctimonious rhetoric we can understand its normative orthodoxy.”

why would he use such a strong and dismissive term like “sanctimonious”? What orthodoxy is he critiquing?

161 in the third paragraph, he takes a broad swipe at technological and economic determinism, expressing intellectual as well as political dismay at “our orthodoxy that social meaning in general, and ideology in particular, are mere adjuncts to technological and economic change.”

168ff Boyle offers what he identifies as specific suggestions and recommendations – it’s worth your time to read and evaluate them closely.


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pay special attention to concepts such as anonymity and compulsory licensing, as well as his suggestions on p. 172

256, n. 3 he refers again to the excellent work of Carla Hesse on Revolutionary-era France, this time mentioning her discussion of differences between French and English approaches to the public domain.

Conclusion, pp. 174-186

174 we might say that Boyle is asserting that there is no Archimedean Point, i.e., “We are always already inside, or between, a set of histories, ideologies, institutions, and practices.”

175 he reasserts his critique of our “ahistorical and romanticized vision of authorial creation.”

176 offering a methodological warning, Boyle affirms the value of historicizing research while recognizing that, while “we rely on historical analogies . . ., the analogies mislead as well as enlighten.”

178 Boyle mentions that his goal is intangible as well as pragmatic, “Ideologiekritik rather than policy analysis.”

180 he notes “the laissez-faire Lochner era” – see the Lochner decision and recall our discussion of its ideological foundations and influence in matters such as licensing and contracts more generally.

258 n. 7 recall that “[s]ome decisions become harder with more information,” undermining our usual assumption that more information is better [emphasis in the original]. Also see p. 216 n. 4 above.

Appendix A: An Afterword on Method, pp. 187-191

187- an essential insight into the increasingly narrative approach that 188 characterizes the study of people and organizations is captured in Boyle’s

assertion that:

A society is not merely a particular configuration of people and productive resources within a geographical boundary; it is also a set of stories – moral, political, religious, and economic – about why the existing order is desirable, or inevitable, or natural, or neutral (or, more confusingly, all of the above).

you might want to see Benedict Anderson’s widely read and admired Imagined Communities (1991; originally published in 1983) on this score.


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Glossary

This glossary discusses only a few of many of the important and rich terms in Boyle (1996) and notes where they appear in the text. As noted above, the glossary is meant to help you understand the book and to alert you to some terms and concepts important to the course as a whole; it is far from the last word about these terms and concepts. Many of the terms are used in more than one place in the book, so be certain to consult this Glossary and the book’s index as you read all of the chapters.

Ahistorical: generally, the term means uninformed by historical study or unaware of historical context. In post-positivist arguments like Boyle’s, however, the concept carries a bit more freight. It is code of a sort for “positivistic,” “unnecessarily abstracting,” “insensitive to the constitutive effects of context, the contingent, the particular, and the temporal.” The term is also used to criticize scholars who take current political and social categories and institutions as “given,” rather than the result of particular decisions, circumstances, and choices. Thus, these categories and institutions are to be interrogated and changed rather than defended at all costs. See bracketing and contingency. (p. 175)

Ambit: scope or extent. (p. 57)

Analysis: identification and examination of a phenomenon’s constituent parts and the relationship(s) among them. (p. 55)

Antinomian: paradoxical or oxymoronic. (p. 51)

Antitrust: as demonstrated by the Microsoft case, antitrust is an area of law where digital technologies, cultural production, “intellectual property,” and other topics of interest to us intersect. Knowing just a bit about what antitrust means and how it works, e.g., the AT&T divestiture, is useful in understanding information policy and its importance to the information professions. (p. 135)

Apologetic: like others on this list, a term whose “technical” meaning is somewhat different from its use in ordinary speech. In more scholarly discourse, the term means justificatory or legitimating, from the Latin apologia, a formal, closely argued, written defense of one’s beliefs or behavior (p. 189)

Aporia (aporetic): an unresolved contradiction; Boyle uses the term “paradox” synonymously. (pp. 58, 115, 218 note 6)

Atomistic: this term is used pejoratively to indicate a (mis)understanding of people as isolated, pre-social beings. This sort of “person” inhabits the world of political philosophy (e.g., The Social Contract), economics, and other disciplines. Boyle plainly is in the camp of those scholars who find this approach to analysis misleading and less than productive. (p. 29)

Bracketing: although he does not use the word explicitly (that I can recall), it is useful to his argument. The term comes from Edmund Husserl (he uses the Greek epoche []), the founder of the school of phenomenology in philosophy and Martin Heidegger’s teacher. Bracketing generally refers to terms and concepts that we will not examine, that we leave immune from judgment. Husserl, however, used the term a bit differently. In the context of Boyle’s argument, the concept can


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remind us that what we have naturalized, and what defenders of strong copyright tend to bracket or excuse from analysis, can often be very profitably questioned. Similarly, like Vaidhyanathan and Lessig, Boyle recounts some of the major ill effects of failing to un-bracket important copyright assumptions and structures. See ahistorical and contingency (p. 25)

Commons: that which we share and must use in common; the concept is based on the medieval English space in the middle of many villages that all could use to pasture their livestock. The so-called “tragedy of the commons” springs from the same concept. (xiv)

Compulsory licensing: one of the limitations put on rightsholders; compulsory licenses most often are used for certain cable TV retransmissions and for the public performance of copyrighted musical works in coin-operated players. (p. 169)

Contingency: in the context of social theory and critique, the term emphasizes the historical, situated development of social structures, practices, and other conventions that we have naturalized. The emphasis on contingency, as opposed to some abstract inevitability, reminds us that the social world and practices that we know could have developed quite differently. In turn, we are obliged to help change social “reality” as informed by our values and desires. See ahistorical, bracketing, and historicize. (p. 248 note 4)

Copyleft: as we will discuss in class, this initiative is in contrast to “copy-right.” See http://www.gnu.org/copyleft/copyleft.html, where copyleft is defined as “a general method for making a program free software and requiring all modified and extended versions of the program to be free software as well.” (p. 133)

Correlation: in statistical analysis, two variables are correlated if changes in one are reflected by changes in the other; of course, correlation ≠ causation. See Yule’s association coefficient. (p. 43)

Cosmid: in genetics, a cosmid is an artificially constructed cloning vector. (p. 10)

Costive: slow in coming. (p. 114)

Distributional criticism: critique of the prevailing capitalist ideology. The critique, sometimes referred to as “distributive,” focuses on the justice and equity of social and economic arrangements rather than what are called restrictive perspectives. See utilitarian calculus. (p. 125)

Endogenous: originating or caused from within, as opposed to “exogenous.” (p. 39)

Episteme: although originally used by Aristotle in his Metaphysics to mean “knowledge” or “science,” it is ordinarily used today to refer to Michel Foucault’s meaning in his Order of Things (1966). Foucault uses the term to signify a shared conceptual structure of discourse of a specific time and place; also see ideology below (p. 57)

Epistemology: both the theory of knowledge and the branch of philosophy that investigates the nature and possibility of knowledge. (pp. 229-230 note 7)


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http://www.gnu.org/copyleft/copyleft.html

Ex nihilo: literally “out of nothing.” Boyle’s argument, like that of those who value the public domain and the shared nature of creation, question the prevailing presumption of copyright law that creators create out of nothing, this presumption based on the Romantic idea of the “originating genius.” (p. 128)

Externality/ies: an (unintended) side effect of some activity. Externalities can be negative, e.g., air pollution in New York from power plants in the Midwest, or positive, e.g., the increase in the value of a phone as more people connect to the phone network. Economics is famously puzzled by externalities, as the locution itself suggests. (p. 176)

Functionalist legal theory: economically informed approach to law that asserts that legal questions are (best) framed and resolved primarily in the context of incentives given to individuals. This school of thought tends to ignore ideology, meaning, and conflict of many kinds. Functionalist approaches to sociology and anthropology may have been formative influences on legal functionalism. They identify societies as systems with supposedly self-regulating and –balancing elements, and these elements are explained in terms of the consequences they have for the society in question. This perspective is exemplified by the work of, e.g., Robert Merton and Talcott Parsons. This approach to social science and the law is in contrast to historical accounts of those elements. See historicize. (p. 205 note 11)

Historicize: to emphasize the historical roots of values, social structures, traditions, and the like. See ahistorical, functionalist legal theory, and contingency. (p. 205 note 9, in the title of Saunders and Hunter (1991))

Homologization: in the way that Boyle uses the term, it loosely means “being in the same position” or “being of the same kind,” based on an anatomical metaphor (p. 7)

Ideology: Boyle loosely but usefully “defines” it as “a structure of beliefs, a set of justificatory stories, a way of constructing reality” (p. 189). Like the term rhetoric, ideology has unfortunately assumed pejorative meanings in colloquial speech, especially through Marx, since the nineteenth century. Used in more contemporary serious political analysis and in the sociology of knowledge, however, ideology’s meaning is not negative at all. Rather, it is something closer to that of episteme (defined above) or of what we might a bit colloquially call a “paradigm.” That’s why Boyle’s informal definition of ideology is so useful. See, e.g., Terry Eagleton’s Ideology: An Introduction (1991). (pp. 172, 189)

Laocoon: a Trojan prince and priest, strangled, along with his two sons, by snakes sent by the gods to punish him, either for marrying despite being a priest or for protesting the taking of the Trojan Horse into Troy. His death and his sons’ in the writhing coils are vividly described in Virgil’s Aeneid and shown in the famous Rhodian statue from the first century CE now in the Vatican (p. 32)

Law and economics: perhaps the most influential movement in legal theory and education of the past few decades. This perspective emphasizes economic principles and concepts, e.g., rent seeking and the efficiency of markets, as essential to understanding law and its evolution. This concept is one that you may want to investigate much further on your own. (p. 204 note 9)

Legal realism/legal realists: there are two common meanings of the term. The one current in the U.S. and most other (legal/social/political) commentary emphasizes that legal reasoning tends to hide jurists’ adherence to non-legal values, norms, and


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mores. The other meaning involves a school of legal thought in Scandinavia with quite different suppositions about the law. (pp. 34, 55)

Liberal: investigate this concept yourself – do not think in terms of the colloquial, simplistic distinction between so-called “liberals” and “conservatives.” (pp. 51, 109)

Marketplace of ideas: although Boyle does not use this term explicitly, the concept and the controversy it engenders provide important context for his argument, e.g., on p. 30 at the end of ¶ 1. This concept presumes that ideas, like products in a “free” and “competitive” market, will compete for attention and allegiance in politics and elsewhere, with the best ideas, supposedly like the best products, surviving and thriving (this is an example of the agonistic perspective of many scholars in economics, politics, and elsewhere). As we might expect, such a supposition has many contested bases – it ignores power, it presumes that the market is a good model for describing political behavior, it reifies ideas, and so on. The concept of the marketplace of ideas is a (bracketed or rarely examined) foundation of neo-classical approaches to economics, law, and political economy.

New Criticism: although not used by Boyle, it, too, is useful to his argument. New Criticism was an almost obsessively text-focused approach to literary and other modes of interpretation. Among its primary exponents were I.A. Richards, T.S. Eliot, Allen Tate, and Northrop Frye. This approach emphasized the work as a self-contained and “timeless” artifact; plainly differentiated from more historicized and contextual modes of study. (p. 57)

Nomenklatura: a Russian term used to identify a list of important positions to be filled by members of the Communist Party; it is also used to identify the persons on that list. (p. 189)

Plagiarism: not to be confused with infringement of copyright, plagiarism is the use of someone’s words or ideas without attribution. Plagiarism is both intellectually dishonest and unethical, but it is not illegal; copyright infringement, by definition, however, is illegal. (p. 230 note 12)

Political economy: the economic analysis of government and political life more generally. The term has been expanded, especially in the wake of Adam Smith and Marx, to include examination of social groups and forces more widely. Vinnie Mosco’s The Political Economy of Communication (1996) and his co-edited volume with Janet Wasco The Political Economy of Information (1988) are good examples of contemporary work in the field. (p. 119)

Polysemic: having many meanings. (p. 190)

Procrustean: (forced to be) uniform; refers, of course, to the robber Procrustes (sometimes called Damastes) and his bed which either stretched or chopped off the legs of his captives as described in Apollodorus, Bacchylides, and elsewhere – Theseus killed him; also spelled “Prokrustes.” (p. 118)

Psychographic: related to people’s attitudes, values, and beliefs; used in contrast to the term “demographic,” which generally signifies characteristics of particular groups of people such as their ages, heights, and the like. (p. 11)

Public goods: these are goods that cannot be fully appropriated by private parties and, instead, belong to the many. This concept, like the concept of externalities,


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pose some interesting conceptual and political questions to economics, especially neo-classical economic assumptions. (xi)

quid pro quo: something returned in exchange for a favor or other advantage. In the context of copyright, defenders of the public interest in copyright emphasize that the protection given to rightsholders is granted only in exchange for their willingness to share the fruits of creative work. (p. 139)

Rhetoric: like ideology, this term is colloquially and carelessly used in a pejorative way. More thoughtful uses of the term recognize the millennia-long debate in Western thought about the appropriate place of rhetoric, especially in public affairs. Although we also tend to a bit lazily equate rhetoric with “the art of persuasion,” that definition, as well, is too limited. A good alternative is to think of rhetoric as a way to construct a community of meaning makers. (ix)

Romanticized: refers, of course, to two related, but not equivalent, meanings of “romantic”: (1) springing from the Romantic “Age,” the post-Enlightenment period in the late 18th and early 19th centuries (see, e.g., Chapter 6 and pp. 242-243 note 43) and, thus, stressing, individuality and “genius” in creation and (2) idealized or sentimentalized. Boyle, and like-minded individuals such as Lessig, argues that the Romantic concept of the author is one of the major causes and results of current “over-propertized” notions of copyright. See Vaidhyanathan (2001), however, for a related but somewhat dissenting view. (p. 175)

Say’s Law: although Boyle does not use the term, it is another concept useful in framing his argument. Say’s Law is sometimes construed to mean that supply and demand will, of necessity, come into balance. In contemporary usage, however, Say’s Law is most often invoked to indicate that supply can drive demand, rather than the other way ‘round, the way that classical economic theory asserts. While many traditionally trained economists dismiss Say’s Law, it is quite clear that supply often drives demand in information products and services; information services on the Internet and in public libraries are cases in point (p. 227 note 34)

status quo ante: the pre-existing circumstances. (p. 27)

surcease: ending or relief. (p. 34)

torts: these are non-contractual wrongs. Etymologically, the root of the word is the Latin torquere, to twist or to wring. The past participle indicates, then, something that is twisted or wrung. And it is from “wrung” that we get the English word “wrong.” (p. 212 note 4)

“Totalizing . . . grand social theory”: according to postmodern critiques (see, e.g., Lyotard), perhaps the greatest weakness of modernism is its reliance on (unexamined, bracketed [see above]) grand explanatory schemes. Boyle is reminding us here that his efforts are not intended to construct such a scheme. (p. 14)

Trope: a figure or metaphor, especially one that makes a play on a commonly accepted turn of phrase or image. (p. 112)

Utilitarian calculus: of course, at the heart of the arguments of John Stuart Mill and Jeremy Bentham – that the value to be maximized in social policy is the so-called “greatest good for the greatest number.” Such an approach elides major contentious questions, e.g., who decides what the greatest good is? What about


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competing goods? What about power, inequality, enforced silence? The utilitarian calculus in one form or another animates neo-classical economic approaches to law and politics but is one of the major targets of more constructivist and distributive approaches to political analysis. (p. 221 note 9)

“wavicle”: a combination of “wave” and “particle,” indicating that we can think about light in two different and apparently contradictory ways, using whichever way serves us best in any particular circumstance. (p. 189)

Yule’s association coefficient: a particular measure of the statistical correlation between variables, used in nursing, economics, political science, and other disciplines. (p. 43)


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