Sunday, February 18, 2007

Cyberland: a conversation about public vs private

James Boyle in "Shamans, Software, and Speelns" describes the role of the law as well as its rule as dependent, if not defined by, the division of "private" from "public" life. The liberal tradition glorifies the realm of the individual, the private citizen in civil society, entitled to private property and privacy. Yet an oftentimes conflicting tradition, that of American republicanism, claims that
a healthy, thriving democracy depends on an envigorated public sphere, where information flows freely, if not perfectly.

Difficulty arises from this public/private division where cyberlaw is concerned. This is due to the fact that the internet is about INFORMATION. The internet facilitates conversation and relationships, and the meat of those conversations is information. So cyberlaw must govern the exchange and access to information in its many forms. Yet how do we classify the "space" that merely a "consensual hallucination," merely a visual represenation of a network?

Boyle tells us that private law looks to return society to the status quo. Cases in private (civil) law are settled to keep things as they are; damages are decided according to income, etc. Public or criminal law concerns itself with a more egalitarian political community. It treats the involved parties as equals. This distinction is important in the dicourse of property. Information, as it is commonly understood in today's world, is property-like, when not property itself.

However, it is even more complicated than that. Property like a house or a TV is one thing. It is a finite, physical object. Yet the ownership of information is problematic. It is a horse of quite a different color. It can be either finite or infinite, a product or a process. It is a public good, and yet IP law treats it as privately owned. A poem, for example, takes material from the "commons," i.e. words, idioms, expressions, grammar, and converts it into something protectable as a new, privately-owned product. A case of appropriation from the commons. Yet if someone were to read the poem, they have, in an essence, a copy of that poem, either in their memory or stored on a computer somewhere. And in this sense, the poem (or information) is infinite. A million people could read that poem without diminishing the amount "owned" by its author.

This is just a ill-organized wandering through the troubles of IP theories, information exchange, cyberlaw. I am sure the private/public duality will be explored further!

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