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By Root 2059 0

no precedent.20 But they also draw support from deeper convictions about how knowledge is properlygener- ated, distributed, and preserved. The mid-century insistence that openness was a guiding norm of true scientific research took on new force in the context of molecular biology and biotechnology. With the boom in biomedical and "life sciences" commerce, concerns grew that property claims could be prejudicial to the common interest in publicly funded science, and even impede research. These were at first distinct from the ethical fears that led the Human Genome Project- the foremost publicscience project of its time-to abjure the patenting of genes.21 But they combined to spark the emergence of an "open-access" movement insisting that state-funded research be made publicly available after a relatively short interval (typically a year or so). Open access has by now won over much of the public medical research establishment in the United States and the United Kingdom, bringing with it the prospect of a profound change in the culture and economics of scientific communication. Although premised on digital publishing, its ideological foundations in fact date back to the mid-twentieth-centurypatent conflicts, and to the normative view of science as public knowledge that they generated.22

The contests about science are fundamental, but one could multiply ad libitum the realms in which strong proprietary models are under challenge in cognate ways. Interestingly, many of the challenges center on trans- figuredversions of practices that were once decried as piratical. The norms of the open-source movement, for example, align it with the coding customs condemned by what was then Micro-Soft. Mass book scanning projects foster intimations of a universal library that recall the cosmopolitan piracy of the Enlightenment.13 Opposition to pharmaceutical patenting revives the compulsory-licensing advocacy of the Victorian antipatentees. Some of the rhetoric of TV pirate viewers descends from that of the pirate listeners of the 192os. File-sharing acolytes resemble in some respects the home tapers of the 196os-197os, and historically their practices did begin with the swapping of cassettes. These recurrences are an indication that more is happening than technological change alone: longer-term commitments and convictions are at stake. Two specific conflicts emerged in the early aooos as plausible candidates to convert these otherwise disparate trends into occasions for coherent legal and philosophical transformation. The first concerned copyright, the second patents.

In the realm of copyright, the challenge was that of the mass digitization of books. Google announced the largest enterprise dedicated to this task, its so-called Library Project, on December 14, 2004. Four major university libraries (Stanford, Harvard, Oxford, and the University of Michigan) and one public institution (the New York Public Library) would participate in a hugely ambitious project to scan and make accessible digital copies of their printed holdings. The ambition was finally to realize the old dream of a universal library-or at least to provide its online "card catalogue." In succeeding years more libraries would join the project, giving it a reach beyond the anglophone world. But it faced a serious problem-one that had been repeatedly mooted throughout the history of copyright, but now became real and urgent.

Google's proposal was often to make visible only small portions of the digital copies, in response to online searches. In order to do even this, however, it would need to scan and retain its own digital copies of the entire books. That was not controversial for works out of copyright, and in Oxford and NewYork onlyworks in the public domain were slated to be scanned. But at Michigan -which stood at the vanguard of the venture - no such restriction was envisaged. Google's stance was that such scanning fell under the principle of "fair use." But the publishing industry rose up in protest, objecting to the apparent assumption of a right to copy and, moreover,