The Construction of the Information Society

In his famous partial dissent in the LeRoy Fibre 2 case, Justice Holmes conceptualized the shift from an absolutist understanding of property fights to a "bundle of rights" approach that permits removal of particular entitlements without harming the remaining interests of the owner. Recognizing that law focuses on differences ofdagree, Holmes posited that an individual's property entitlements change as industrial, economic, and societal structures evolve. In Shamans, Software, and Spleens, James Boyle adapts and applies Holmes's reasoning to modem intellectual property rights. Much as the increasing proximity of haystacks and flying sparks challenged the traditional notions of property in the early 1900s, Boyle challenges the assignment of property rights under current intellectual property law as an inefficient distribution of entitlements. Rather than advocating monopolistic rights, Boyle envisions a more equal sharing of entitlements in today's information society. Defining his task as the development of a social theory for grappling with the information age (p. x), Boyle concludes that in the present system the judicial and legislative branches divide information between the public and the private sectors. If classified as private, individual control and ownership of information are the norms. Conversely, classification of information as public invites demands for equal access. Boyle notes the difficulty of categorizing information against the backdrop of our traditional notions of property, markets, and privacy (p. 12). Current discussions focus on the existence and location of entitlements, the free flow of information versus the forced exchange of property rights, and the search for equality versus the maintenance of the status quo. Boyle concludes that numerous tensions and contradictions arise in this process of categorizing information. Specifically, the process of classification is unpredictable and indeterminate, turning on arbitrary distinctions. For instance, Boyle cites the inability to reconcile the illegal nature of blackmail when one person demands money from