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

James Boyle
3.5 out of 5 stars  See all reviews (4 customer reviews)
Price: CDN$ 36.32 & FREE Shipping. Details
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Book Description

Nov. 29 1997

Who owns your genetic information? Might it be the doctors who, in the course of removing your spleen, decode a few cells and turn them into a patented product? In 1990 the Supreme Court of California said yes, marking another milestone on the information superhighway. This extraordinary case is one of the many that James Boyle takes up in Shamans, Software, and Spleens, a timely look at the infinitely tricky problems posed by the information society. Discussing topics ranging from blackmail and insider trading to artificial intelligence (with good-humored stops in microeconomics, intellectual property, and cultural studies along the way), Boyle has produced a work that can fairly be called the first social theory of the information age.

Now more than ever, information is power, and questions about who owns it, who controls it, and who gets to use it carry powerful implications. These are the questions Boyle explores in matters as diverse as autodialers and direct advertising, electronic bulletin boards and consumer databases, ethno-botany and indigenous pharmaceuticals, the right of publicity (why Johnny Carson owns the phrase "Here's Johnny!"), and the right to privacy (does J. D. Salinger "own" the letters he's sent?). Boyle finds that our ideas about intellectual property rights rest on the notion of the Romantic author--a notion that Boyle maintains is not only outmoded but actually counterproductive, restricting debate, slowing innovation, and widening the gap between rich and poor nations. What emerges from this lively discussion is a compelling argument for relaxing the initial protection of authors' works and expanding the concept of the fair use of information. For those with an interest in the legal, ethical, and economic ramifications of the dissemination of information--in short, for every member of the information society, willing or unwilling--this book makes a case that cannot be ignored.

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In 1990 the Supreme Court of California ruled that DNA extracted from a spleen removed from your body could be patented--one of many court precedents to define the emerging laws of cyberspace. Boyle explores such seemingly weird decisions as well as legal issues surrounding autodialers, direct advertising, consumer databases, ethnobotany, the right of publicity, and the right to privacy. Boyle argues that contemporary ideas about intellectual property are based on a Romantic notion of selfhood that is outmoded and counterproductive in our information-based society, a society in which--as someone else probably said before the phrase was popularized by Stewart Brand--"information wants to be 'free.'" --This text refers to the Hardcover edition.


James Boyle's unusually adventurous Shamans, Software and Spleens...examines the ideological and practical issues raised by the figure of the author in contemporary law and legal theory...Boyle's programme is two-fold. First, he offers a social theory of the information society as it depends on the figure of the author and the fiction of originality...Second, he offers a delicately phrased argument for leftward mitigation of intellectual property rights. On both fronts, Boyle succeeds admirably, demonstrating the logical contradictions of the author-centered regime and building a strong ethical and practical case for changes in the laws governing our information society...Boyle develops a terrifically engaging discussion of various problems in legal theory such as blackmail, insider trading, and the ownership of one's genetic code...It is the great merit of Boyle's work that he engages the debate on so many fronts, opening the conceptual breach of authorship neither to close it peremptorily nor to overcome it illusively, but to show how its very paradoxes provide the conceptual basis for the laws of property that govern our intellectual exchange. (Adam Bresnick Times Literary Supplement)

In this masterly book, James Boyle takes one of the mind-twisting subjects of our times--the treatment of information--and turns it into enjoyable and informative reading. The ownership and commoditization of knowledge, biogenetic resources, and human genetic materials are increasingly the focus of international debate. Boyle's discussion of these issues reflects a remarkable understanding of intellectual, cultural, and scientific property rights, and provides astute insights into the nature of innovation, creativity, and knowledge in the information age. (Darrell Addison Posey Oxford Centre for the Environment, Ethics and Society)

Boyle's book is an important contemporary addition to a range of historical works on authorship, textual studies, and the theory of property. (Susan Stewart, Temple University)

Highly original. Very few scholars have attempted a comprehensive evaluation of the wide variety of legal fields pertaining to property rights in information and intellectual creation...The writing is crisp, learned, irreverent, and funny. (William Fisher, Harvard Law School)

This is an exciting and suggestive study. The subject--intellectual property in the `information age'--is as timely as one can imagine, and Boyle has very interesting things to say on a variety of relevant topics...There has been nothing so far quite like Boyle's study, which goes beyond copyright issues in its concern and which provides many new insights into the practical significance of the romantic author paradigm. (Mark Rose, University of California, Santa Barbara)

Why does James Boyle include 'Spleens' in the title of this bold book? You'll have to read at least Chapter 9 to find out. If you read more, you'll discover any number of acute insights about any number of things--all linked by a capacious concern with rights in information. (Ralph S. Brown, Yale Law School)

[James Boyle] has written an eloquent, provocative, and highly readable book on the fundamental question for the information age. Who owns the end result of intellectual creation? And, more importantly, should anyone really be allowed to own it?...[This is an] impressive work...Professor Boyle has articulated an incisive view of intellectual property that deserves our respect and attention. (Richard A. Spinello Ethics and Information Technology)

In Shamans, Software, and Spleens, James Boyle guides the reader through a number of thought-provoking instances [of] conflicts that arise between profit and originality; what is legally correct but ethically questionable; and the long debated controversies on fair and unfair use of information...[He] has devoted a large portion of the book to real life examples that assist the reader in understanding the various ways we know think about information. It deals with the tensions within our current patterns of thought and the unintended consequences that might occur as we rely--consciously or not--on those patterns to create the legal and institutional frameworks of an information society. (European Business Report)

Boyle does not use his title merely to grab the reader's attention. He also uses it to signal that his work will not be yet another dreary academic dissertation. Boyle delivers on the promise of his title. His book proves an enjoyable read; and he also explores the connection among shamans, software, and spleens...Boyle aims to reconstruct the notion of authorship in order to facilitate more balance in copyright policy. No one who reads Boyle's book can fail to detect the pleasure he takes in a well-turned phrase. From this alone, it should be apparent that Boyle does not oppose authors' rights except to the extent that romantic notions about authorship lead to inefficient or unjust legal outcomes. (Michigan Law Review)

[S]timulating and entertaining...Boyle's thesis is that liberal political theory conjures up a historically contingent and culturally specific vision of scientists, authors, and producers of technology as romantic authors (inventors and creators, founts of original genius, in the image of God) to resolve such tensions and solve such problems [of property rights in information]...[He offers] insightful and very sharp analyses. (Deryck Beyleveld Journal of Law and Society)

If Boyle does succeed in...reframing the debate about intellectual property rights, it won't be just because his prose is lucid...nor because his cause is just...Rather, it will be because the key new phenomena he disrupt traditional roles that many people will find themselves on an unaccustomed side of the intellectual property debate and, so, will want to rethink the conventional wisdom. Those who find themselves in that position will be able to turn to Shamans, Software, and Spleens for a crash course on where the conceptual bodies are buried. (David R. Johnson Legal Times)

Readers who make the effort to follow Mr. Boyle's careful reasoning will come away rewarded. This is a valuable contribution to a debate that can only 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 pony up the tariff to proceed ahead, this book will be able to tell you why it happened. (Leslie Alan Horvitz Washington Times)

Boyle's jazzily written book is an unusual hybrid for a law professor. It aims both to formulate a 'critical social theory of the information society' and to galvanize opposition to pending proposals which would expand intellectual-property protection in the U.S. and internationally. (Margaret Jane Radin Washington Post Book World)

Mr. Boyle, a professor of law at American University in Washington, argues that neither economics nor political theory tells us how much to privatize intellectual creation...Many high-sounding legal explanations, he demonstrates, are based on ad hoc, and often unarticulated, guesses about costs and benefits. Only solid facts can tell us, for example, whether the Internet on balance supresses intellectual creation by facilitating piracy or promotes creation by facilitating legitimate distribution. (Peter Huber New York Times Book Review)

Professor Boyle explores the transformation of law and society as we move from an industry-based to a data- based economy. He is a creative thinker who writes about intellectual property in the new economy…Boyle discusses the reasons that law and social theory is a useful lens through which to view the information society. (Bimonthly Review of Law Books)

The information age is upon us, and James Boyle has written an entertaining book designed to expose us to its foibles…Shamans, Software & Spleens provides us with a lively and engaging tour of the many puzzles and paradoxes that fill the law of intellectual property, both old and new. (Richard A. Epstein Economic Affairs)

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Customer Reviews

Most helpful customer reviews
4.0 out of 5 stars Information Economics meets Legal Realism July 9 2002
In a wonderful exposition of contemporary thinking on how markets and institutions produce and distribute information and knowledge, James Boyle gives readers some powerful analysis and some of the conceptual tools they'll need to make the Judge Posner's and Richard Epstein's of the world squirm a bit given their desire to wish away the complex issues Legal Realism raised regarding property and contract law.
Markets, property, privacy, information and knowledge are all social constructs which generate asymmetries of power and Professor Boyle shows the potential for mischief that may occur if workers, citizens, economists and attorneys refuse to rethink what kind of power relations, if any, are consistent with democratic norms.
By looking at such issues as "what is an author" [what is epistemic agency] and the issue of self-ownership of our bodies, Boyle creates a collage of juxtapositions that are of immense relevance to issues such as whether what happened at Enron and other corporations is a manifestation of insider trading, what shall be the scale and scope of patents and copyrights given the need to balance "efficiency" and equity and access, how shall we handle the commodification of our bodies and thoughts?
All of these are tough issues that are never going to go away and Boyle's choice of using Legal Realism as mode of inquiry into how we will shape the future of entitlements to knowledge and it's pecuniary benefits is probably the best choice that can be made for those who see glaring limitations in libertarianism.
The one topic, that in my view is critical for carrying the discussion forward, yet is missing from Boyle's analysis, is employment contracts.
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3.0 out of 5 stars Brilliant but virtually unreadable Oct. 28 2003
By A Customer
Boyle's ideas are fantastic and his analysis is poignant and timely. Be forewarned, however, that the average sentence length in this book is so long that you will get lost multiple times per page. Add in an average of 0.4 cryptic references to ancient literature per page and a healthy dose of words that will send even Duke law students running for the dictionary and you have a very tough task in front of you.
If you want to learn from Boyle, take his IP class, don't try to read the book. His IP class is fabulous. But beware that he will ask you read this book (I hear even his torts students had to read it) and it will be a terrible experience. You will need to be able to come up with at least one idea from it to toss into your exam answers, as he generally writes at least one question that starts with "Using one or more concepts from Shamans..." The dreadful 27 hour take home exam period is not the time to pick the book up for the first time.
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2.0 out of 5 stars Good points lost in poor writing April 9 2001
By A Customer
Boyle raises several interesting points regarding information law and he does bring a different way of deciphering the intricacies of copyright and information law. However, many times his arguments are lost in his use of analogies, references, and words which even an attorney can not understand. In other parts of his book, he provides little explanation of the economic theories which have been used by previous scholars to defend the current status of information law. This leaves the reader confused unless the reader is an economist by training. Although I agree with Boyle's view of information law as being bigger than it has previously been defined, I think his archaic style of writing leaves the reader more frustrated than enlightened. I recommend having Black's Law Dictionary and Webster's handy if you are going to read this book.
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0 of 1 people found the following review helpful
By A Customer
I have both just finished Boyle's book and his Torts class at Washington College of Law. Boyle's analysis is strikingly clear. Taking as one of his launching-off points the important California Supreme Court decision in Moore V. Regents of California, Boyle tackles issues ranging from the commodification and distribution of information to the creation of legally protected property interests in biology. He exposes that courts make decisions based not so much on ahistorical, immutable legal principles but on policy considerations often directly related to contemporary trends in economic thinking. Boyle, despite several references to Marx, is a defender of a uniquely American kind of privatized safety regime in the form of the tort system. This has confused careless readers as evidenced by Huber in the pages of the NYT.
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