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Romantic Authorship and the Rhetoric of Property

50 Pages Posted: 30 May 1997 Last revised: 14 May 2014

Mark A. Lemley

Stanford Law School

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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.

Suggested Citation

Lemley, Mark A., Romantic Authorship and the Rhetoric of Property. Texas Law Review, Vol. 75, p. 873, 1997. Available at SSRN: https://ssrn.com/abstract=44418 or http://dx.doi.org/10.2139/ssrn.44418

Mark A. Lemley (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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