Romantic Authorship and the Rhetoric of Property

Abstract:     
This is a review of James Boyle's new book, Shamans, Software and Spleens: Law and the Construction of the Information Society. Boyle's book ranges across the law of information, which he argues should be treated as a unified discipline. Boyle applies his analysis of "romantic authorship" to the law of information, arguing that in copyright and elsewhere, the law gives new works too much protection because it wrongly discounts the sources on which those works necessarily build. In this review, I suggest that whatever its merits as legal argument, "romantic authorship" does not explain very much about the features of copyright law, nor why copyright protection is expanding over time. I suggest an alternative explanation: that a particular strand of law and economics scholarship that endorses strong property rights is pushing for the "propertization" of all valuable information.

Note: This paper was published in its final form at Texas Law Review, Vol. 75, P. 873, 1997.

Working Paper Series