We have a very distinguished scholar with us at the Berkman Center for several months this winter, Jean Nicolas Druey, professor emeritus at the University of St. Gallen in Switzerland. He’s leading the lunchtime discussion for the community here in Baker House today; it’s a terrific crowd (Prof. Viktor Mayer-Schonberger, Prof. Jonathan Zittrain, and Prof. Jerry Kang, among many others, have joined the Berkman fellows, staff and students). He’s worked on information law since being at HLS as an LLM student here in 1967. His book, “Information as a Subject of Law,” is a classic treatise in the information and communications law field.
Prof. Druey’s talk is on his argument that “information cannot be owned.” He gets there in four steps:
1) Law itself is information. Information itself is not good or bad.
2) Communications is the flow of information between specific individuals, which is governed by a series of pre-legal rules (e.g., values) as well as constitutional principles and the like. The channel of information between two persons is what’s protected by law. Privacy becomes relevant.
3) Information law cannot be drawn by analogy to other types of rules (by way of “methodological” rule). The law is focused on the use of the information, not the information itself.
4) This progression excludes the application of the ownership concept to information. Industrial and property rights were not in tension up until now, but the participatory mode of communications has rendered this previous thinking obsolete.
It is through constitutional law that we can re-introduce theory into the discussion. The clarity of concept — where each piece of the puzzle finds its place in the whole — is a strong argument in politics and we should use it.
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Jerry Kang wants to know whether there’s anything that you can burn onto CD that’s “not information.” (Druey: You protect either information — by freedom of speech, e.g. — or non-information — where the law wants information not to flow.) He’s also interested in where regulation kicks in: the channel of communication. Is it how law treats procedure v. substance? Why does channeling get more coverage than content? (Druey: It’s right, that channel gets more focus.)
Jonathan Zittrain: More on the channel concept. Copyright is relational: if you had lots of monkeys typing on a typewriter, and you came up with something copyrighted, you’d not have a violation of copyright (e.g., “My Sweet Lord”). Patent is not so: if you come up with something that’s been patented by someone else, you’ve infringed.
Diane Cabell wants to know what’s objectionable under this thinking? Druey: Database protection laws, in EU (and possibly the US proposal, too).
Jedediah Purdy points out that there are two things, in Prof. Druey’s presentation, that sets information apart from ordinary property: 1) non-exclusiveness and 2) the character and use of information. But, Jed notes, Prof. Druey lets back in a few traditional notions of property, with respect to the character of ownership of property. Is in fact so that the ownership concept belongs with ordinary property and not in information, or, more dramatically, in neither? (Druey: It’s correct that the ownership concept doesn’t fit nicely with traditional goods, either. You need the principal of speciality — that something is identified as an object of property. Is the reserve wheel in car part of the property of the car registered with the state agency? Information fits yet less well.)