his summer produced a career milestone for James D. Boyle, William Neal Reynolds Professor at Duke Law School. Boyle received the annual World Technology Award in Law for his work on the theory and practice of protecting the "intellectual ecology" of the public domain--the ideas and expressions that are free for all to use or build upon.

Instituted in 2000, the awards are sponsored by a range of organizations, including the American Association for the Advancement of Science; NASDAQ; Microsoft; and Time, Science, and Technology Review magazines. They honor especially innovative individuals and corporations for work of technological significance.

Boyle came to Duke Law in 2000. A leading legal theorist and social critic who has written in a wide range of areas, he produced "some of the most coherent work done in the 1980s on a body of thought called Critical Legal Studies," says Katharine Bartlett, law-school dean. "He is a well-known interdisciplinary scholar whose work draws not only on law and legal theory, but also literature, philosophy, political thought, and even computer science."

In articles and books since his 1992 Theory of Law and Information, Boyle has argued that we have a number of crucial blind spots in the way we understand information and intellectual property. His book Shamans, Software, and Spleens focused on the way that our ideas about original creation neglect the importance of accessing and building upon existing creative works. Foucault in Cyberspace argued that we make too many policy decisions about the Internet by entrusting issues to a combination of technology and private enforcement, both of which are immune from public scrutiny. A Politics of Intellectual Property analogized our current politics of intellectual property to the environmental politics of the 1940s and argued that we need to learn from the theoretical and organizational innovations of the environmental movement.

Beyond his theoretical work, Boyle has helped to found or to advise several organizations dealing with intellectual-property issues, including Creative Commons, Duke's Center for the Study of the Public Domain, and Public Knowledge. Before coming to Duke, Boyle taught at Yale, Harvard, the University of Pennsylvania, and American University, where he received the faculty award for outstanding scholarship and research.

In the second annual Duke Magazine Campus Forum, Boyle had a public conversation with Adrienne Davis, professor of

law at the University of North Carolina at Chapel Hill. Davis is a frequent commentator on controversial issues of private law, property, and social power. The following is adapted from the conversation.

On how he became interested in issues of intellectual property

I've known Professor Boyle for a long time, and he has been a real force in legal theory, interpretation, and the politics of law, including incisive critiques of the lines we try to draw between public and private law. But about ten years ago, he started doing this intellectual tinkering with the Internet and cyberspace. I remember thinking, "What are you doing? Is this a new direction?" Can you tell us something about some of the early cases or conflicts that got you thinking about these issues?

Well, you are right that it was actually a set of conflicts and cases that got me to focus on this area. I was writing an article about law and the information society--the regulation of information transfers in everything from insider trading to blackmail. This led me, inevitably, to the world of intellectual property and the lines between it and the rest of our legal traditions, such as free speech or privacy. Some of the cases drawing those lines were astounding.

If I had to pick one that drew my attention, it would be San Francisco Arts and Athletics Association v. the United States Olympic Committee. Congress, in its wisdom, had decided that the USOC needed to be able to control the use of its symbols. But they decided to give it much more than a trademark over the five rings. They passed a law that effectively said, "You, the USOC, control the word 'Olympic.' And no one can use it in any commercial or even non-commercial fundraising context without your permission."

To me, the non-commercial side of that law seemed like an obvious violation of the First Amendment: "Congress shall make no law abridging the freedom of speech." Yet Congress is saying you can't use the word "Olympic" unless the USOC gives permission? The San Francisco Arts and Athletics Association, which was an association of gay athletes, wanted to hold a Gay Olympic Games--partly in order to make a political point and partly to undermine a series of anti-gay stereotypes. The USOC sent them a cease-and-desist letter. Understandably, the SFAA did not think that the Constitution allowed the Federal government to pass a law controlling the use of a general word like "Olympic." Certainly they could stop people selling T-shirts that purported to be from "the Olympics," or using the interlinked circles that form the logo. But to stop gay athletes calling their games "the Gay Olympics"? Interestingly, the USOC had given other people permission to use it--the Special Olympics, for example. But when it came to the Gay Olympics, obviously believing that nothing was more foreign to the traditions of ancient Greece than homosexuality, they said, "No, this is where the line must be drawn!"

The SFAA went to the Supreme Court and said, "This is a violation of the First Amendment." And the Supreme Court said, effectively, "No, it's not. This is a matter of property. The USOC is not censoring you. It's just not allowing you to use this word that it controls."

The case fascinated me, because it seemed to suggest that, when you got into the domain of property, you were in a place where the normal rules of constitutional law disappeared. You could say to someone, "I own the word Olympic, and you can't use it." Could you own the word "Democrat"? Could Congress say that "The Democratic Party has managed to give the word 'Democrat' very positive connotations; in order to support their work in the future, we hereby decree that no one may use it without their permission"? On the logic of this case, why not? One of the things the case illustrates, something, as you suggested, that has become central to my research, is that free-speech issues have been made invisible, because we've called them property issues.