Piracy_ The Intellectual Property Wars from Gutenberg to Gates - Adrian Johns [301]
Such a process would sit awkwardly with traditional intellectual property assumptions. It is often thought that the great virtue of the fundamental distinction between copyrights and patents is that it captures a simple and natural difference. But in historical perspective it is by no means evident that literary and mechanical invention are natural kinds. On the contrary, the distinction was much debated in the past, and no consensus was really attained. Moreover, the division between literary and mechanical creativity was extrinsic to much of the early modern history of authorship: for centuries people patented books and registered machines. That is not to imply that the division was merely adventitious, however, let alone that it could easily be relinquished. On the contrary, it came about and became entrenched for substantial reasons, the force of which it would be hard to gainsay. Those reasons included the transformed relationship between liberal and mechanical arts in the early modern era, the scientific revolution, the rise of industry, and the advent of a public sphere based in commerce and consumption. Needless to say, these were also the transformations that shaped modernity itself. And it is in that light that one can say that the history ofpiracyis the history of modernity. The question society has to confront as the crisis of intellectual property reaches a climax is therefore this: should the conjunction of creativity and commerce continue to be defined in terms of a binomial distinction forged (and then controversially) in the Industrial Revolution?
In practice, of course, we already have a more reticulated and flexible system than that. What seem like stable doctrines and concepts in the abstract inevitably fragment into conventional norms and rules of thumb when they are put to use in different areas. The principle of "fair use," for example, is notoriously hard to systematize across domains. Expertise is correspondingly fragmented: populations of specialists exist for software patenting, for example, who work with skills and premises professionally distinct from those devoted to gene patenting. The problem is to frame basic categories of creative commerce in terms of that fact. What is needed, in effect, is a taxonomy rather like Defoe's, fitted for the twenty-first century For example, algorithms, genes, and cloud-computing applications are as likely to be the bases of progress and prosperity for our descendants as mechanical and poetic works were in Samuel Johnson's day. The distinctions between them are debatable, but we have no reason to expect them to correspond in any straightforward way to those that Johnson's contemporaries struggled to define between orreries and epics. It would make sense to recognize that. In effect, doing so would mean acknowledging that the principles of what is now called "intellectual property" are dynamic-in a word, that they are historical through and through.
In that context it is no coincidence that the problem facing intellectual property coincides with a period of deep unease about the practices that society entrusts with discovering and imparting formal knowledge in general. The foundations and status of the academic disciplines are in question, no less than those of intellectual property. Both the modern disciplinary system and the modern principle of intellectual property are achievements of the era culminating in the late nineteenth century, and the