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

0 Comments | Insight on the News, August 19, 1996 | by Leslie Alan Horvitz

The rancorous dispute that has broken out between the United States and China over pirated software and videotapes is only the latest skirmish in the global war for the control of information.

If information can be commodified, as James Boyle contends in Shamans, Software, and Spleens: Law and the Construction of the Information Society (Harvard, 270 pp), then how is this commodity to be distributed?

In some respects information is distinctly different from a commodity such as soap. When we purchase a bar of soap, we give up something in return -- namely, the money it costs. But when we share information -- say, the fact that light travels at 186,000 miles per second -- we are not giving up anything; on the contrary, sharing this knowledge would seem to be a win situation.

There are ways, however, that information is like soap. Suppose someone spends time and I money to acquire certain knowledge, such as the location of a gold reserve. Shouldn't he or she be entitled to certain rights about that information, rights protected by law? On the other hand, what if rights to information -- copyrights and patents, for example -- are so promiscuously distributed that they interfere with the rights of the public?

It seems reasonable that authors should hold the rights to their books and artists be able to take someone to court for forging their paintings. Copyright protection also extends to Ed McMahon's opening line on the Tonight Show and Bela Lugosi's claim on a specific image of Dracula. Yet some incontestably original works, because of their nature, are not afforded any copyright protection whatsoever Albert Einstein could not copyright his theory of relativity.

The root of the problem, at least as Boyle understands it, is that Americans are held in thrall by a romantic notion of authorship. We tend to idealize the maverick who creates something extraordinary, be it a symphony or a cure for cancer.

Which brings us to the bizarre case of John Moore, a patient whose spleen was removed as part of his medical treatment. While the procedure itself was justified, the doctors failed to tell Moore they were using his spleen to create a cell line for potentially lucrative commercial purposes. He sued, maintaining that his doctors had misled him, a contention with which the court concurred.

But when Moore further asserted a claim to the profits from the use of his genetic material, the court ruled against him, arguing that if other people took similar action they would impede scientific research. It wasn't his cells that were original, the court held, it was what the scientists did with them.

In this instance, the scientists were functioning in the role of authors, because they were able to give a purpose to the raw material taken from Moore's body.

But romanticizing the notion of author can carry great social costs, Boyle avers, citing the example of the rosy periwinkle, a plant grown in Madagascar that forms the basis of a compound used in chemotherapy treatments. Because Madagascar -- "the biological equivalent of an Arab oil sheikdom" according to one report -- never obtained any of the huge profits from the use of this unique natural resource, its impoverished population has forced to resort to slash-and-burn farming practices to survive. In the process, they effectively destroyed a potential pharmaceutical reserve of enormous importance.

The tendency to monopolize in formation naturally has legal implications. In the early 1980s, for instance, the U.S. Olympic Committee enjoined a homo sexual activist group from organizing a Gay Olympic Games on the grounds that the committee owned the word "olympic" and could prohibit its use in certain commercial and promotional contexts. Boyle, however, contends that the court make end run around the First Amendment. By the same reasoning, the Democratic National Committee could assert a right over the word "democratic" and prohibit other groups from using it.

The fair-use clause of the copyright law, Boyle reminds readers, was intended to promote innovation and creativity by ensuring free access to information. But Boyle finds that policymakers are more interested in protecting rights (and in widening them) than in guarding the public's interest in acquiring information.

Ironically, says Boyle, it won't be the authors, artists and software developers who will benefit from this reasoning. They, too, will be deprived of access to information necessary to create their works. Those rights already will have been grabbed up by the IBMs, Microsofts and General Electrics.

At times, Shamans, Software, and Spleens is difficult going; the language can be dense and abstruse. But readers who make the effort to follow Boyle's careful reasoning will be rewarded. The book is a valuable contribution to a debate that will grow more heated as time goes on. If toll booths begin to spring up all over the information highway, and only people riding in limos can afford the tariff to proceed ahead, we will know how it happened.