89 Pages Posted: 31 Aug 2007
Date Written: August 21, 2007
This article presents a novel historical and philosophical critique of the prevailing view among intellectual property theorists that information is best modeled as a non-rival economic resource. The article traces the prevailing view about information back to the philosophers and scientists whose thought dominated the Eighteenth Century Enlightenment - particularly Francis Bacon, Isaac Newton, and John Locke. In fact, one of the enduring metaphors for the non-rival nature of information - Thomas Jefferson's candle - depends on a view of "nature" drawn directly from Bacon, Newton and Locke.
It is surprising that this metaphor endures. Contrary to the Enlightenment project, the epistemology and ontology that informs the notions of "cyberspace" and the "information commons" are non-foundationalist and constructivist. Indeed, the predominant postmodern critique of intellectual property revolves around the social construction of the "romantic author." This paper demonstrates, however, that Claude Shannon's mathematical information theory fuels the trope that information is a sort of "code" that can be abstracted from any context and freely shared without diminution. The aphorism "code is law," then, represents a curious mix of Enlightenment and postmodern thought.
This mix does not work well. It leads to a groundless pragmatism pitted with intractable empirical lacunae. The article proposes instead a critical realist perspective on the socially rivalrous aspects of information. This perspective recognizes that information has a real relation to an external reality and yet, at the same time, that information is both socially constructed and a tool of social construction.
The paper demonstrates that the law recognizes how information plays precisely such a community-constructive role in areas outside "hard" intellectual property law and cyberlaw. In particular, the law of trade secrets, insider trading, and pre-contract disclosures regulates the socially rivalrous aspects of information. The article then suggests that information policy should attend to virtues and practices that enhance human flourishing in communities constructed by rivalrous information, using the network neutrality debate as an example.
Keywords: intellectual property, romantic author, new chicago school, network neutrality, virtue ethics, critical realism, intellectual property clause, cyberspace, open source, information
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