Related to the second half of our conversation about Boyle yesterday, read this very poignant piece by Cathy Davidson about the life and death of Aaron Swartz and the ways in which we/society values some types of information and knowledge distribution and circulation and criminalizes others. This brings us back to Jorge's point about the surveillance state and Boyle's theory of information. Acceptable unintended consequences?

Dr. Christen and I (Jen) mentioned Dave Perry yesterday in class. Perry came to campus last semester, and I have heard people refer to him as an "open source zealot." He is a professor of emerging media at UT Dallas and sometimes goes under the name of "academic Dave" on the internet (@academicdave). Here is a link to his website, and here is a video of a presentation he gave on "Protecting the Internet Public": 

    The rosy periwinkle and thousands of other medicinal plants have been ripped off from indigenous peoples around the world, most without any effort to compensate or include indigenous peoples in the millions of dollars worth of profit enjoyed by colonial companies.  The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) addresses this continuous theft.  The Obama administration finally signed on, but with reservations (no pun intended).  Corporations are rushing to patent seeds .  There are NGO's fighting back, but clearly the corpses are winning the war.  Meanwhile the limited resources of the commons are rapidly being commodified and turned into profits for pharmaceutical companies and agri-business.  Stopping this burn binge would be a done deal if national governments that have signed onto UNDRIP would realize and actualize it's articles.  The world is supposedly post colonial, yet the stratification continues, with darkskinned, indigenous peoples on the very bottom and lightskinned invaders on the top.  Boyle's tiny addressing of this, two or three pages, (128) tells me that he is not terribly concerned about anything actually stopping the rip-off.  Racism and colonialism are still hand in hand, plundering the commons.  Boyle uses two or three examples and then refers redundantly to them throughout the book.  I think a lot more in depth coverage of this phenomenon is called for.  This is the crux of the continuous rape of indigenous people's resources and a major contributor to the extreme stratification of the world's population into the very wealthy, including us grad students (really) and the destitute and truly poor of the third world/underclass.
Vandana Shiva's visit to WSU a few years ago highlighted the seed patenting schemes of Monsanto.  We live in a monoculture of wheat and lentils.  The grasses and bushes of the pristine palouse have been eradicated, along with their potential as food and medicine.   The ethnobotanies collected from modern remnants of the original inhabitants of this area tell of thousands of edible and medicinal plants that are lost or almost gone.
        How can you and I do anything about this?
        Will UNDRIP ever become reality for Indigenous Peoples?
        Is the Indigenous Shaman's knowledge protected? Compensated?
    Is the classical romantic author at the bottom of copyright law a fictional being?
The work involved in writing is a shining example of Locke's property philosophy.  If combining our labor with facts and stories from the commons to produce original creative writing does not qualify as intellectual property, what does?  Blindness to sources, like citation deprivation in a scholarly paper, leads (according to Boyle) to negative effects on efficiency.

Mentioning Monalisa in class reminded me of this great video. How do we differentiate between ideas and expression in such cases?- Somava

This is a really interesting video that talks about the production line.  It is interesting to think about in terms of information rather than material goods. ~Rachel

**I have aggregated all the comments and listed them here.

In addition, key terms/points in Boyle we need to address and unpack in relation to both his social theory of information and our own:

1. public / private dichotomy
2. the public domain
3. incentive
4. romantic author
5. originality
6. distributive justice
   
7. metaphors in use around information (ie "marketplace of ideas)
8. frontiers/information grab
9. property

We can add to this list in class.

As academics who can be both the victim and the perpetrators of “fair use” laws, how do each of us feel about the idea of un-sourced uses of information (aka plagiarism)?" -Rachel

Boyle (1996) makes a compelling argument about the complexities of ownership of genetic   
material. In the case of John Moore, his genetic material was unique enough to be of use to scientists.  At  which point does the “expression” of how our bodies made our genetic material become unique enough that we should be able to retain ownership of it?  In other words, when does our unique expression of genetic material outweigh the expression of use as prescribed by scientists?" -Rachel

Boyle’s book provides a “road map” for analyzing the social and political aspects of information regulation. He discusses some of the ways he would like to see our system change, but points the reader to the Bellagio Declaration as an example of how the current approach to IP might be revised. What did you make of this document (p. 192-200)? Do you think that its suggestions for change are consistent with Boyle’s analysis? - Jen

Our information society has changed since 1996. I think about big data, SOPA/PIPA, and the debate over who owns the online user information harvested by corporations like Facebook and Google. Boyle’s fear of “information overload” (p. 179-180) baffles me, but generally I find his book useful to thinking about current IP issues. In what ways, if at all, has Boyle’s “road map” helped you to rethink your understanding of current information issues? -Jen

Is it possible to include information production in the broader system of labor as understood by modern capitalism? How could information producers be compensated for that labor without creating disadvantages for their sources or audiences (if such is possible)? - Tiffany

The discussion of John Moore made me think about Henrietta Lacks, the protagonist of this year’s Common Reading Book and from whose cancerous cervix came the first “immortal” cell line. Lacks’ story is somewhat similar to Moore’s in that she never received full disclosure and thus was not able to give informed consent for the use of her cells. Further, neither she nor any of her family received any of the profits that resulted from the use of the HeLa cells (which, among many other things, were instrumental in developing a polio vaccine). I’m wondering whether, for any of these kinds of cases, it would be possible to think of these “sources” as part of the labor of creation of information? Or is that going too far? - Tiffany

I will fully admit to being a bit confoozled at present by the intricacies of information economics (Chapter Four). I don’t have a specific question as yet, but I’m hoping we can tease out how Boyle’s argument in this chapter plays out. - Tiffany

Primarily my concern is how do we (as conscious scholars) define the public and private sphere in this information society then? The division between the public and private sphere is getting hazy, with the deemed property rights (as an incentive for research), yet that would lead to what should we would consider "private" (such as our own genetic make-up) that would not be commodified and then sold into the free market. Is this a vicious cycle? With the increasing domination of neo- liberalism, is there any way to break out of this vicious cycle? - Somava

Further, Boyle indicates that the notion of authorship allows justification for such things as corporations to take well-known folkloric remedies from "third world" peoples and, with slight alterations, claim the intellectual property right to them with no economic benefits to the peoples from which they came. Check here to see the famous intellectual piracy case between several US companies and indigenous people in India. Would Boyle's examples of recommendation (p. 172) help overcome this problem? -Somava

How has the rapid corporatization of public universities further perpetuated dominant understandings of intellectual property? What are the politics that go behind being published in a university press or academic journal with regards to Boyle’s conception of the romantic-author? -Jorge

What social implications might arise with the further development of AI and transgenic technologies on the unsettled issues of human racialized and immigrant labor exploitation? Specifically, I am questioning whether the information age might provide a means by which human labor (and with it the politics of race, immigration, wage exploitation) might be eradicated due to a market-commodification of AI technologies? -Jorge

What might Boyle say about about recent developments in U.S. information systems, seemingly to be convoluted between the military-academic-industrial complex? In this post 9/11 society, where all electronic information is being automatically saved, does this neoliberal security state disrupt all forms of public egalitarianism?  -Jorge

Obviously I've been thinking of Boyle's text in relation to imperial power and data collection, something I consider at great length in my own work; what are the strengths and limitations of a narrative that preys upon fantastical fears of transgenic slavery rather than the lived realities of drone warfare (which relies on amassing private-access spatial data without consent)? -Annita

Similarly, limitations aside, what prescience does this text have for us as academics? None of us are going to be in labs curing cancer (as far as we know), but we are responsible for mass dissemination of ideas and 'intellectual property,' not to mention those of us who do ethnographic work and thus have a responsibility to operate in a manner culturally consistent with and sensitive to the communities in which we work. How (if at all) does this translate into our concerns as researchers/scholars/educators in terms of public/private bifurcations and knowledge production/ownership? -Annita

Although I certainly agree with Boyle’s argument I wonder what does “sensitivity to the needs of both sources and audiences” look like to the law? If language plays a huge role in interpretation, how would the law construct sensitivity, and how different would sensitivity look like to the needs of the sources and the needs of the audiences? -Lizeth

I am really curious to discuss the politics behind knowledge production in academic publishing. Why is plagiarism used as both a tool for protecting property rights and policing bodies? Think about the rules and regulations that exist regarding plagiarism, are they another form of social and intellectual control? -Lizeth

It looks like we have plenty of material for a good discussion today. Make sure you come with specific key passages or examples from Boyle that we can unpack and examine in relation to providing a social theory of information. Much of my work in last five years has focused on the failings of IP in relation to the specific intersection of indigenous knowledge and digital technologies. My collaborators and I have proposed a new set of licenses and labels based on the more communal and community-oriented notions of "traditional knowledge" (itself, of course, a legal construct, which as Boyle reminds us, doesn't automatically lead to a negative). Listed here are some further sources if you are interested as well here is a link to my most recent publication "Does Information Really Want to be Free..." centered around the notion of "information freedom" and indigenous knowledge and a PDF of a talk Jane Anderson and I gave at WIPO's IGC this summer on  the TK licenses and labels and there reframing of some of the central tenants of IP laws that Boyle shows us (primarily author focus and "originality."). Also a great site is Michael Brown's "Who Owns Native Culture" website where he regularly adds new issues in the news and in scholarship around indigenous IP issues.

Anderson, Jane. (2010). Indigenous Knowledge/Traditional Knowledge and Intellectual Property Issues Paper. Centre for the Public Domain, Duke University.

Boateng, B. (2005). Square Pegs in Round Holes? Cultural Production, Intellectual Property Frameworks and Discourses of Power, 61-74. R. A. Ghosh editor, CODE: Collaborative Ownership and the Digital Economy. Cambridge, MA: MIT Press.

Burri, M. (2008). The Long Tail of the Rainbow Serpent: New Technologies and the Protection and Promotion of Traditional Cultural Expressions. C. Graber & M. Burri-Nenova, editors, Intellectual Property and Traditional Cultural Expressions in a Digital Environment, Cheltenham, UK: Edward Elgar.

Carpenter, M. (2004). Intellectual Property Law and Indigenous Peoples: Adapting Copyright to the needs of a Global Community. Yale Human Rights in Development Law Journal, 7:51-78.

Chander, A. & Madhavi S. (2004). The Romance of the Public Domain. California Law Review 42: 1331-1374.

Coombe, R. (2009). The Expanding Purview of Cultural Properties and their Politics, Annual Review of Law and Social Sciences 393-412.

Dommann, M. (2008). Lost in Tradition? Reconsidering the History of Folklore and its Legal Protection Since 1800, 3-16. C. Graber and M. Burri-Nenova, editors, Intellectual Property and Traditional Cultural Expressions in a Digital Environment. Cheltenham, U.K.: Edward Elger Press.

Hyde, L. (2010). Common As Air: Revolution, Art and Ownership. Farrar, Straus and Giroux, New York.

Seeger, A. (2005). Who Got Left Out of the Property Grab Again: Oral Traditions, Indigenous Rights, and Valuable Old Knowledge, 75-84, R.A. Ghosh editor, CODE: Collaborative Ownership and the Digital Economy. Cambridge, MA: MIT Press.

Sherman, B. & Wiseman, L. (2006). Toward an Indigenous Public Domain? 259-277.
Guibault and B. Hugenholtz, editors, The Future of the Public Domain,Klewar Law International.

Wendland, W. (2008). It’s a Small World (After All): Some Reflections on Intellectual Property and Traditional Cultural Expressions, 150-181, C. Graber and M. Burri-Nenova Intellectual Property and Traditional Cultural Expressions in a Digital Environment, Cheltenham, U.K.: Edward Elger Press.

James Boyle’s book Shamans, Software & Spleens, is about the complex politics surrounding intellectual property rights. For Boyle, “the power to gather, manipulate, retrieve, and commodify information has always been important” because it often involves an often contradictory relationship between private property and the public domain (6, 12). He further addresses the importance of looking at the construction of information within the realm of law, because it is often manipulated by “cultural, economic, and ideological assumptions” (12). That being said, Boyle however, finds it necessary to see law as a “complex interpretive activity,” because language plays a huge role in our understanding of ownership claims, property rights, or copyright claims. And our language itself is shaped by our western culture and our historical ideas about power and exclusivity; a practice of unequal distribution of resources, often through violence, policing bodies, and censoring.  

What I found interesting about Boyle’s use of law is the ways social imagination is very much a vehicle for the commodification and the privatization of knowledge productions. We see this in the politics of publishing in higher academia, music downloads (itunes), and film property rights. By social imagination, I am referring to what Boyle describes our human behavior and the assumptions we make about the world we live in (15). These assumptions become practices of privilege and oppression since it imagines a world of information regulation, policing, or censoring. Who has the right to claim authorship to information and who is merely recognized as the “source” of that information?  As Boyle asserts, we must always recognize the social, cultural, economic and political contexts in which we live in and the complex ways it informs our material realities.

With neoliberal practices justifying and expanding global capitalism, Boyle believes that the world will “broadly [be] divided between manipulators of information and ‘sources’” (177). However, he proposes an alternative “rhetoric of entitlement.” Boyle says,

It is important to see the lacunae and contentious assumptions involved in a particular society’s discourse of entitlement –the language in which entitlement to that particular society’s primary resources is both described and justified. To have a critical understanding of rhetoric of entitlement in an information society, one would need an analysis of conventional discourse about information, as well as of the more complicated, more sophisticated, and more highly formalized version of that discourse provided by the language of microeconomics (178).

Two processes are occurring here that don’t negate the “author”/ “source” relationship, rather complicate it in order to illustrate the complex influence they have in our conceptualization of intellectual property rights.  Therefore, to my understanding, it’s not so much that Boyle is demanding to give full intellectual property rights to the sources but to expand the public domain in order to address both the sources and audiences (183).

Questions:

1.    Although I certainly agree with Boyle’s argument I wonder what does “sensitivity to the needs of both sources and audiences” look like to the law? If language plays a huge role in interpretation, how would the law construct sensitivity, and how different would sensitivity look like to the needs of the sources and the needs of the audiences?

2.    I am really curious to discuss the politics behind knowledge production in academic publishing. Why is plagiarism used as both a tool for protecting property rights and policing bodies? Think about the rules and regulations that exist regarding plagiarism, are they another form of social and intellectual control?

Boyle attempts to, as he describes it, “[provide] a social theory of the information society” (x). Using various legal cases to explore the varied epistemic and logistical issues with what he conceives of as the ‘rise of the information society,’ Boyle attempts to offer an accessible problematics of information-as-commodity. While some of these cases are quite compelling—the Moore case in California is particularly alarming—they are used in a rather trite manner to suture together a narrative that stops short of actually interrogating some of the larger systemic forces at work in the commodification of information. Considering his noted reluctance to use Marx, it makes sense his final conclusions are somewhat conservative in nature, though I have to wonder if his hyperobssession with the legal prevented him from seeing the larger political-economic landscape he has attempted to chart.

            I want to reiterate something Boyle had written fairly cavalierly—“We do not do this in a vacuum, in some sterile cultural ‘clean room.’ We are always already inside, or between, a set of histories, ideologies, institutions, and practices” (174).  While I am in total agreement, I do not see Boyle adequately deploying this understanding throughout the text. For example, he makes absolutely no mention of the fact that copying and distributing things like software are made easy through a real material political economy totally dependent on the skilled hands of exploited women of color (or are our microchips also assembled by a bucket of bacteria in a lab somewhere?). Questions of our “information society” must also be grounded in an understanding of the labor that’s used to construct it—not solely the labor used to invent it. Moreover, even in his discussion of law and ethics of information authorship/ownership, Boyle fails to provide what I view to be an adequate critique of the imperial-colonial nature of the governing of an information society—even in the US we have plenty of distinct cultures that conceive of information, authorship, and ownership in vastly different terms…While I do see the text as a somewhat useful launching point for more critical discussions, the narrative Boyle offered in this text seemed to be to be incredibly Western-centric and lacking in its understanding of imperial power structure. 

Discussion questions:

• Obviously I've been thinking of Boyle's text in relation to imperial power and data collection, something I consider at great length in my own work; what are the strengths and limitations of a narrative that preys upon fantastical fears of transgenic slavery rather than the lived realities of drone warfare (which relies on amassing private-access spatial data without consent)?
• Similarly, limitations aside, what prescience does this text have for us as academics? None of us are going to be in labs curing cancer (as far as we know), but we are responsible for mass dissemination of ideas and 'intellectual property,' not to mention those of us who do ethnographic work and thus have a responsibility to operate in a manner culturally consistent with and sensitive to the communities in which we work. How (if at all) does this translate into our concerns as researchers/scholars/educators in terms of public/private bifurcations and knowledge production/ownership?

    James Boyle’s Shamans, Software, & Spleens: Law and the Construction of the Information Society (1996) can be thought of as a polemic against how particular practices of authorship and intellectual property rights have been conceived to be either legal or illegal.  Grounding his analysis of the information age within the context of modern liberal economics, as well as placing the differential role that information plays in the public/private dichotomy, Boyle questions the “implicit frameworks within which the regulation of information is discussed are contradictory—or at least aporetic—and indeterminate in application.” (34) Boyle takes on various sub-categories in how information has been determined and regulated—insider trading, blackmail, copyright, patents—and argues of the necessity in reconstructing much of the narrow-minded analysis that a economic-legal approach provides. More importantly, Boyle complicates current understanding of intellectual property by applying how legal courtrooms act as gatekeepers to information that could ultimately benefit the public good, but instead, has been warped to maintain the very machinery found in any capitalist regime. His examples of the 1976 John Moore v. University of Medical Center, which deconstructed whether individual humans have ownership over their own personal genetic information, was noteworthy to illustrate the role that academic and medical institutions have in order to not “hinder research” (23).
    Among his more analytical approaches to the current state of information regulation, Boyle presents the reader with his notion of the romantic-author, a historical and social construct that he traces to the days of European Enlightenment; whereupon Boyle applies this conception to theorize various opportunities whereby information might serve not only as incentive for private wealth and commodification, but rather, as a possible agent for the promotion and protection of public, egalitarian social wellbeing. If not, Boyle cautions, “we all lose” (179). One thing that struck me reading this text was obviously the intensity that information regulation has undergone since Boyle’s turn of the century publication. During one of his many abstract deductions, Boyle writes:  
        But what about an intellectual property claim? If, and it is a big if, the basis for social feelings about             the evil of slavery is a natural rights formation about the inherent equality of natural persons, then             transgenic species and AI both offer a number of soothing and profitable ways to distinguish                     intellectual property from slavery. These are not “natural” persons but artificial ones. We recognize that         corporations—as “artificial” legal person—do not have the full range of rights possessed by natural             persons. It would be “consistent” to say the same thing about these newly created sapient entities.             (153)
However, as the 2010 Supreme Court ruling, Citizens United v. Federal Election Commission, suggests, corporations are indeed “natural” citizens now, with the protection of free speech rights as guaranteed by the U.S. First Amendment. Similarly, with recent technological advances in the fields of android technology (I’m thinking Japan in particular), would it not be fair to suggest that Boyle’s capital letter If, is really more of a When? If androids have been legitimized as intellectual property, then what this suggests is that Boyle’s analysis of the information age has in fact re-birthed notions of ownership to “living” beings. It would be interesting to contrast how discourse regarding the “civic rights” of U.S. corporations in turn reflects current (or upcoming) discourse in the protection/defense of “artificial/civic rights” of AI and transgenic beings.
Discussion Questions:
1)    How has the rapid corporatization of public universities further perpetuated dominant understandings of intellectual property? What are the politics that go behind being published in a university press or academic journal with regards to Boyle’s conception of the romantic-author?
2)    What social implications might arise with the further development of AI and transgenic technologies on the unsettled issues of human racialized and immigrant labor exploitation? Specifically, I am questioning whether the information age might provide a means by which human labor (and with it the politics of race, immigration, wage exploitation) might be eradicated due to a market-commodification of AI technologies?
3) What might Boyle say about about recent developments in U.S. information systems, seemingly to be convoluted between the military-academic-industrial complex? In this post 9/11 society, where all electronic information is being automatically saved, does this neoliberal security state disrupt all forms of public egalitarianism?