Mario Biagioli

Kant’s essay on the question of literary piracy has so far been read as a foundational text in the history of literary property. When Kant refers to the book as a “mute instrument,” scholars of intellectual property already know how to interpret that formulation because they presume the distinction that the contemporary jurisprudence of intellectual property makes between matter and form and its concomitant assumption that print is just an inert, nonagentive medium. In fact, Kant begins his analysis of unauthorized publication not with the question What is an author? but with the question What is publication?. His insight was that unauthorized publication revealed a structural feature of publication in general. The effect of the interposition of print, or the fact that speech begins in and with print, is that the author is structurally alienated from his or her speech. Kant was not an Enlightenment media theorist, but he recognized that speech had to be mediated and therefore delivered to the reader and that it was the medium itself that determined the conditions under which authors and readers could exist and be present to one another and under which speech could become an authorship. In order to create a language channel for public reason, Kant had to take a detour through the legal fiction of agency. Speech might have been an action that could have its existence “only in a person,” but this supposedly innate bond was made by a legal fiction of representation, according to which one person could truly speak “as if” they were another. Kant’s answer to the question What is a book? developed a law that was not so much a law of literary property as a law that sought to suspend the alienating effects of print so as to restore the Enlightenment ideal of communication.

Questions about how closure is achieved in disputes involving new observational or experimental claims have highlighted the role of bodily knowledge possibly irreducible to written experimental protocols and instructions how to build and operate instruments. This essay asks similar questions about a scenario that is both related and significantly different: the replication of an invention, not of an observation or the instrument through which it produced. Furthermore, the machine considered here—Galileo’s compass or sector—was not a typical industrial invention (like a spinning jenny), but a mathematical invention (a calculator), that is, a machine that produces numbers, not yarn. This case study describes some of the similarities and differences between replicating experiments, traditional machines producing material outputs, and mathematical inventions yielding calculations or information. This comparison indicates that, as in other kinds of replication, the replication of mathematical inventions involves texts (the calculator’s instructions) but that in this case bodily knowledge cannot be properly described as either tacit or explicit. It rather takes the shape of memory—muscle memory—that may be recalled from reading the instructions.

Historians of science and technology and STS practitioners have always taken intellectual property very seriously but, with some notable exceptions, they have typically refrained from looking “into” it. There is mounting evidence, however, that they can open up the black box of IP as effectively as they have done for the technosciences, enriching their discipline while making significant contributions to legal studies. One approach is to look at the technologies through which patent law construes its object – the invention – in specific settings and periods by examining procedures, classifications, archives, models, repositories, patent specifications (in both their linguistic and pictorial dimensions), and the highly specialized language of patent claims. More ambitiously, we could treat intellectual property as a technology itself. Patent law does not evolve either by merely articulating its doctrine in response to technological developments. The line between what does and does not count as invention may be redrawn with the emergence of new objects and technologies, but is not determined by them. It is this constructive feature of the law that we are trying to capture with the notion of law as technology. We hope that thinking about the technologies of the law and the law as technology will bring into question what we mean by both “technology” and “law”.

The scale is the most famous emblem of the law, including intellectual property (IP). Because IP rights impose social costs on the public by limiting access to protected work, the law can be justified only to the extent that, on balance, it encourages enough creation and dissemination of new works to offset those costs. The scale is thus a potent rhetorical trope of fairness and objectivity, but also an instrument the law thinks with – one that is constantly invoked to justify or to question the extent of available IP protection. The balancing act that underlies the legitimacy of IP is, however, literally impossible to perform. Because we are unable to measure the benefits that IP has for inventors or the costs it has for the public, the scale has nothing to weigh. It conveys a clear sense that IP law can be balanced, but in fact propagates only a visible simulacrum of balance – one that is as empty as it is powerful.

1. MARIO BIAGIOLI--Introduction 2. KAREN BARAD--Agential Realism: Feminist Interventions in Understanding Scientific Practices 3. MARIO BIAGIOLI--Aporias of Scientific Authorship: Credit and Responsibility in Contemporary Biomedicine 4. PIERRE BOURDIEU--The Specificity of Scientific Field and the Social Conditions of the Progress of Reason 5. ROBERT M. BRAIN and M. NORTON WISE--Muscles and Engines: Indicator Diagrams and Helmholtz’s Graphical Methods 6. MICHEL CALLON--Some Elements of a Sociology of Translation: Domestication of the Scallops and the Fisherman of St. Brieuc Bay 7. SANDE COHEN--Reading Science Studies Writing 8. H. M. COLLINS--The TEA Set: Tacit Knowledge and Scientific Networks 9. LORRAINE DASTON--Objectivity and the Escape from Perspective 10. ARNOLD I. DAVIDSON--Styles of Reasoning, Conceptual History, and the Emergence of Psychiatry 11. PETER GALISON--Trading Zone: Coordinating Action and Belief 12. IAN HACKING--Making Up People 13. DONNA J. HARAWAY--Situated Knowledge: The Science Question in Feminism and the Privilege of Partial Perspective 14. ROGER HART--On the Problem of Chinese Science 15. THOMAS P. HUGHES--The Evolution of Large Technological Systems 16. LILY E. KAY--In the Beginning Was the Word?: The Genetic Code and the Book of Life 17. EVELYN FOX KELLER--The Gender/Science System: or, Is Sex to Gender as Nature Is to Science? 18. ROBERT E. KOHLER--Moral Economy, Material Culture, and Community in Drosophila Genetics 19. BRUNO LATOUR--Give Me a Laboratory and I Will Raise the World 20. BRUNO LATOUR--One More Turn After the Social Turn... 21. TIMOTHY LENOIR--Was the Last Turn the Right Turn?: The Semiotic Turn and A. J. Greimas 22. GEOFFREY LLOYD--Science in Antiquity: The Greek and Chinese Cases and Their Relevance to the Problems of Culture and Cognition 23. MICHAEL LYNCH and JOHN LAW--Pictures, Texts, and Objects: The Literary Language Game of Bird-Watching 24. DONALD MACKENZIE--Nuclear Missile Testing and the Social Construction of Accuracy 25. EMILY MARTIN--Toward an Anthropology of Immunology: The Body as Nation State 26. ANDREW PICKERING--The Mangle of Practice: Agency and Emergence in the Sociology of Science 27. THEODORE M. PORTER--Quantification and the Accounting Ideal in Science 28. PAUL RABINOW--Artificiality and Enlightenment: From Sociobiology to Biosociality 29. HANS-JORG RHEINBERGER--Experimental Systems: Historiality, Narration and Deconstruction 30. BRIAN ROTMAN--Thinking Dia-Grams: Mathematics, Writing, and Virtual Reality 31. JOSEPH ROUSE--Understanding Scientific Practices: Cultural Studies of Science as a Philosophical Program 32. SIMON SCHAFFER--Late Victorian Metrology and Its Instrumentation: A Manufactory of Ohms 33. STEVEN SHAPIN--The House of Experimentation in Seventeenth-Century England 34. SUSAN LEIGH STAR and JAMES R. GRIESEMER--Institutional Ecology, "Translation," and Boundary Objects: Amateurs and Professionals in Berkeley’s Museum of Vertebrate Zoology, 1907-39 35. SHARON TRAWEEK--Pilgrim’s Progress: Male Tales Told during a Life in Physics 36. SHERRY TURKLE--What Are We Thinking about When We Are Thinking about Computers? 37. ALISON WYLIE--The Engendering of Archaeology: Refiguring Feminist Science Studies.

i propose a revisionist account of the production and reception of galileo's telescopic observations of 1609–10, an account that focuses on the relationship between credit and disclosure. galileo, i argue, acted as though the corroboration of his observations were easy, not difficult. his primary worry was not that some people might reject his claims, but rather that those able to replicate them could too easily proceed to make further discoveries on their own and deprive him of credit. consequently, he tried to slow down potential replicators to prevent them from becoming competitors. he did so by not providing other practitioners access to high-power telescopes and by withholding information about how to build them. this essay looks at the development of galileo's monopoly on early telescopic astronomy to understand how the relationship between disclosure and credit changed as he moved from being an instrument-maker to becoming a discoverer and, eventually, a court philosopher.

The ArgumentI propose a revisionist account of the production and reception of Galileo's telescopic observations of 1609–10, an account that focuses on the relationship between credit and disclosure. Galileo, I argue, acted as though the corroboration of his observations were easy, not difficult. His primary worry was not that some people might reject his claims, but rather that those able to replicate them could too easily proceed to make further discoveries on their own and deprive him of credit. Consequently, he tried to slow down potential replicators to prevent them from becoming competitors. He did so by not providing other practitioners access to high-power telescopes and by withholding information about how to build them. This essay looks at the development of Galileo's monopoly on early telescopic astronomy to understand how the relationship between disclosure and credit changed as he moved from being an instrument-maker to becoming a discoverer and, eventually, a court philosopher.