“Intellectual Property”: This Land was Made for You an … er, for Monsanto


by Thomas Knapp
http://c4ss.org/content/17358

Note: “Whether it’s Monsanto’s genetic “patent” claim, or the “copyright” demand of a novelist that once he’s strung some words together in a certain order nobody else may do likewise without coughing up, or Ron Paul’s plea to the United Nations to seize an Internet domain name he wants, “intellectual property” is, simply put, an attempt to turn the world into one big antebellum plantation, with the state as indispensable overseer.”

Speaking as an entirely disinterested party in this matter, what other legitimate function has the State but to ensure that a novelist gets his royalties? Writing a novel is no more stringing a few words together than growing food is making a few scratches in the earth. Monsanto, on the other hand, can get stuffed. SIG

“Intellectual Property”: This Land was Made for You an … er, for Monsanto

In 1860, pro-slavery apologist Edmund Ruffin forcefully argued in support of a proposition: “[T]he greater profits of slaves as property, compared to other investments for industrial operations.”

I’ve no doubt that IG Farben functionaries, touring their shiny new Buna Works complex in 1942 occupied Poland, quelled any twinges of conscience with an identical observation respecting the use of Jewish slave labor from nearby Auschwitz.

Has humanity morally evolved since the US Civil War? Since the Holocaust? If oral argument before the Supreme Court of the United States in Bowman v. Monsanto is any indicator, well, no.

“Without the ability to limit reproduction of soybeans containing this patented trait [resistance to a particular
pesticide],” says IG Farb … er, Monsanto … attorney Seth P. Waxman, “Monsanto could not have commercialized its invention, and never would have produced what is, by now, the most popular agricultural technology in America …”

Chief Justice Edmund Ruf … er, John G. Roberts … seemingly agrees: “Why in the world would anybody spend any money to try to improve the seed if as soon as they sold the first one anybody could grow more and have as many of those seeds as they want?”

Like Ruffin and IG Farben, Roberts and Monsanto argue the issue without reference to its moral dimension.

I willingly stipulate to the truth of Monsanto’s claim that its profits would be greatly enhanced were the state to grant it ownership and control of Vernon Bowman’s farm, of Vernon Bowman’s crops, and of Vernon Bowman himself (and for that matter of every farm and farmer on God’s green earth). That’s exactly what Monsanto is asking the state to do, on the basis of precisely that argument.

Keep one thing firmly in focus here: Vernon Bowman had no contractual obligation whatsoever to Monsanto with respect to the seeds he purchased, planted, and saved the progeny of in this case. He’d previously bought other seeds under contracts forbidding such use, and he’d honored those contracts, but these particular seeds were not so encumbered.

If those past contracts cloud the issue for you, keep in mind that this case reprises the Canadian Supreme Court’s 2004 award of “license fees” to Monsanto at the expense of Saskatchewan farmer Percy Schmeiser, for reproducing seed bearing “their” patented gene — seed which had come into his possession via natural cross-farm contamination (wind and pollen happen, folks).

Monsanto’s entire case against Vernon Bowman — as with Percy Schmeiser — is that their profits will be negatively affected if they’e not empowered to dictate what Vernon Bowman does on his own land and with his own stuff. The relief they’re requesting is that the state should therefore so empower them.

This is not a case of a “bad” or “over-broad” or “improperly applied” patent. By its very nature, “intellectual property” always represents an assertion on the part of one person of ownership title to the minds, bodies and property of others.

Whether it’s Monsanto’s genetic “patent” claim, or the “copyright” demand of a novelist that once he’s strung some words together in a certain order nobody else may do likewise without coughing up, or Ron Paul’s plea to the United Nations to seize an Internet domain name he wants, “intellectual property” is, simply put, an attempt to turn the world into one big antebellum plantation, with the state as indispensable overseer.

Fortunately, most variants of the fiction of “intellectual property” are quickly falling apart under the pressure of advanced copying and sharing technologies, and the state as we know it is on its last legs too. Neither will be missed.

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29 responses to ““Intellectual Property”: This Land was Made for You an … er, for Monsanto

  1. Julie near Chicago

    ‘By its very nature, “intellectual property” always represents an assertion on the part of one person of ownership title to the minds, bodies and property of others.’

    People holding certain views use the same argument against the legitimacy or validity of the concept of property in general–ANY sort of property, whether land, “intellectual,” or whatever. The argument goes that if “my” lawnmower were genuinely (“genuinely,” according to whom? according to what standard?) MINE, my property, I might legitimately forbid you to use it, which would infringe on your freedom, which would be (to that degree) to enslave you.

    Therefore one cannot have legitimate property in lawnmowers. Or anything else. Birthday cake. Learjets. Rubber duckies.

    QED.

    Sean has every right in the world to license his book to his publisher for a fee agreed upon by contract between both parties. The publisher similarly has a right to produce a physical item–print book, audio-book, electronic book–and license the physical item, for use by a customer, for a fee. It is generally understood that the physical print book and the physical audio-book may be re-sold on the used-book market, or lent privately or given as a gift by its licensee to some third party (or, for that matter, destroyed); but the use of the intellectual (or musical or artistic, etc.) content of the item in order to produce what is effectively a copy of the original remains the right solely of the copy-right holder, except where the customer wishes to make a copy for his private use. –The situation with electronic books (and music) remains unsettled, in legal theory and in practical fact.

    [NOTE–I’m surely not any sort of expert on copyright or patent law (or any sort of law, for that matter). My interest is to set out the concepts as I understand them cleanly and comprehensibly.]

    The case of patents is different. If you discover something previously existent in the Real World, that is not properly patentable by you even though you did the work necessary to discover it. (In an earlier discussion I pointed out that no one has ever argued Columbus, or Leif Erickson, or whomever, should have been allowed to patent the New World just because he discovered it. Same thing with DNA, RNA, genomes or parts of genomes, etc. You didn’t make them, God or Nature did.)

    But if Monsanto or anyone else makes CHANGES to things that exist in the real world in such a way as to render those things markedly different in some important respect, then it (or they or he) has by any reasonable standard created something new, by their or his own effort, and is entitled to license the production rights in the same way as the copyright holder.

    If the patent or copyright laws are so written as to permit blatant abuse, then they need to be changed. Nor should the climate of opinion, especially within the legal profession, encourage persons or companies to try to get away with abuse, blatant or otherwise.

    If ConAgra or whomever can’t confine its GMO seeds to its own fields, it has no right to insist that farmers of other fields pay in any way for whatever seeds end up growing on their land (assuming the seeds drifted in on the wind, or there was insect cross-pollination, or some such). A suit making such a claim IS a blatant misuse of patent law.

    In fact, the farmer ought to have the right to sue ConAgra (or whomever) for not properly restricting his seeds to his own property.

    . . .

    This does raise an interesting question, though, which Sean might be able to answer. There are gazillions of “Theme and Variations” musical compositions, in fact zillions on the “Theme of Paganini” alone. (I love the Rachmaninoff, except the Beautiful Variation, which is TOO melodic, so that it doesn’t wear well. In my opinion. –Love the 17th, though–my favorite of the bunch!) I will assume the original Paganini violin piece was out of copyright before all those T&V’s were written. But I think that, for example, Puccini’s heirs still hold the copyrights to his work–or at least, they did 25 years ago. The question is whether it is customary to cede the right to write Variations upon musical works still under copyright, on the theory that there is (or, perhaps, “probably is”) sufficient difference between the Variations and the original to constitute work that is effectively new?

  2. Edward Spalton

    I was in the seed trade when “Plant Breeders’ Rights” were first introduced in the Sixties. This was a relatively small royalty payment to the plant breeder and seemed to be quite reasonable. Prior to that, breeders really had to make their profit on the many years it takes to produce a new variety in just the first one or two years of sales. After that, all their competitors had it without the expense of having bred it. With increasingly stringent testing of new varieties for their economic characteristics, the placing of a variety on the market became much more complicated and expensive – a parallel perhaps with the production, proving and licensing of a new medicine.

    I cannot now remember whether the rights lapsed after so many years, like a patent. Varieties tended to become outclassed fairly quickly. With other improvements in farming techniques, grain yields increased massively. 1 ton to the acre was a poorish crop and 30 hundredweight (1.5 tons) a jolly good one. Now 3 and even 4 tons to the acre are not unknown and grain crops have acquired other desirable characteristics, like short, stiff straw so that sudden storms no longer damage crops to the extent they used to.

    Whilst people got fed up with the bureaucracy of the new system, I doubt very much whether we would be as well fed without it – or without firms like Monsanto. Mind you, I am apprehensive of the idea of being able to patent genes themselves ,

  3. Well, of course Julie is correct (and Sean). The argument used by the “left-anarchists”/”left-libertarians” apply to all property.

    These “left” arguments are always predicated on a standard “left” error, which is the belief that ownership is an act of denial to other people, Therefore, people go short of stuff because somebody else owns it. Therefore, if there were no ownership, everyone would have stuff.

    The answer we know from numerous communist experiments is that the opposite happens; nobody has any stuff at all (except grudging rations from the State, if you’re lucky) because, without ownership, nobody produces any stuff for other people to have. If Sean doesn’t own his production- the fruits of his labour- he has no incentive to labour. So, he produces nothing. And thus nobody else gets anything either.

    If you want markets, you must have property rights. It’s the very core of a libetarian world. Property=production=wealth. It really is as simple as that.

  4. Julie near Chicago

    Yes, Ian B. And with this: “the belief that ownership is an act of denial to other people, Therefore, people go short of stuff because somebody else owns it.” — you have gone, implicitly, to the very crux of the problem, which is that people keep insisting on the Scarcity Theory of Property.

    Wrong, wrong, wrong! If you (“you” = “one”) believe that property is inherently “scarce” (more correctly, in limited, supply) then you might have an emotional (at the least) investment in the idea that it’s not “right” for somebody else to have the unlimited use of something that you, by law, do not.

    Whereas actually, property exists because somebody put some portion of his LIFE (=time + effort + physical body, which includes his brain) into making it–or, in the case of “gifts of nature”: unclaimed land, nuts & berries, sticks in the forest, wild boar, into making it reasonably claimable by him.

    It wouldn’t matter whether I threw 1 million pots for every man, woman, child, and dog on the planet–every one of those pots would still be rightfully MINE, my PROPERTY, until and unless I assigned the rights to one or all of them to others, either via trade or as a gift. One could hardly argue, however, that “pots thrown by Julie are scarce.” For the supply would be for all practical purposes unlimited in terms of the number of pots a person, any person, could conceivably use or even want. –Oh, maybe I should qualify that. For those of you who don’t know, I won’t tell you what it is said that Howard Hughes found suitable for one of his collections. Although I don’t know that he ever collected 1,000,000 of them. It seems unlikely. :>))!!

    The ECONOMIC value is the exchange value of a thing–what is somebody willing to give up to get it? This may (generally does) in fact depend on the degree of sufficiency of the supply to meet the demand–that is, on how limited, or “scarce,” the supply is in relation to the demand;

    But that has NOTHING to do with the status of the thing as property. “Property has its genesis and its moral significance in the fact that it is the result of the expenditure of a portion of someone’s LIFE.” To quote myself. :)

  5. These appear to be very complex arguments in relation to something I see as a simple matter, firstly If I went to the hardware store and bought a hedge trimmer, I would presume in my own mind of common sense this was mine in law, if somebody stole it, ie, theif, I would on the basis of common sense come to the conclusion my property rights had been violated, at the same time if I engaged a lawyer and it became apparent he had fiddled his accounts to the tune of several thousand pounds, gone out and bought a new car, I would consider this a violation of my property rights, however the law does not take that veiw in such incidents and would uphold the veiw the car was not your property. At the same time, if I were a land owner and decleared my land an independent state outside of the state and implimented my own statute law this would be an illegal act and no doubt deemed illegal by the courts. Firstly, it is generally accepted that any author who produces a book is the copyright holder, but this is subject to question,what when they copy a book on the same subject, and write it in a slightly different way, although the book tells an identical story, in law they own the copyrigh for the newer version. Take for example a library book, in one year a 1,000 people may read it, they all have access to the material, one could argue shared copyright. It is generally accepted a photographer owns copyright over his photographs, but in reality the law is impossible to regulate, more so with the introduction of photocopiers,, computors and scanners. As time progresses the copyright argument becomes more of a “Hot Potato” at the moment it is immpossible to regulateand you see very few court cases on the subject these day’s in the headlines. And the most important point is this, most copyright protection is subject to time limits, once these expire the rights dissolve, with the continued exspansion of information and technology, copyright law is becomming a “Victorian Pony Cart” with breaches difficult or impossible to prove before a court, electronic equipment cannot be held guilty of a crime, and pin pointing the person respsonsible can be like looking for a needle in a dozen haystacks!

  6. Monsanto has all the lawyers & most of the judges on their payroll to defeat one common man, but being right is the best weapon.

  7. Hello, Magnoia, I think you’ve got the situation well figured out, they are the
    same here, the court is like the temple of “Sodom” it’s a sorry sate of affairs
    where they are able to bring about complete distruction of their critics, you
    would get better justice from Capone. That I guarntee! bastards.

  8. Yes, well certain people have a lot on them and the laywers, just look at the
    way the boy’s in uniform pull their strings, corrupted puppets!

  9. You should read the nationals, I don’t alway’s beleive everything in the papers, knowing a bit a bit journalisim, “But When They Claim The Authorities…………………………………………….
    Are Using The Sword Of Blackmail And Intimidation to silence” yes we know on this point at least,
    they speak the whole truth and nothing but the truth!

  10. I know of no rule that prevents people using the old types of seed. No one has to use the new types of seed that the seed compaines have developed (with their evil non seed bareing plants and so on). What seems to be happening is that people want the higher production that the new types of seed produce – but do not want to pay the seed companies for them.

    O.K. – perhaps “intellectual property” makes no sense (I express no opinion on the matter), but do not expect seed companies to spend a lot of time and money producing new seed types – and then not get paid for them.

  11. Well of course that is well said, but in realaity, when a company develops
    a new product, they should establsih three things, 1. they have the resources
    and finding to undertake such a product, 2, establish their market exists,, 3.
    when the product is put on the market price in order to recover costs and
    profit, any failures of this stategy result from bad management or research. Not directly linked to property rights as there are many other
    elements at work. There is of course a property right link, however this
    would not take effect until the three priciples outlined have been put to
    good effect, such as the development of markets, demand and supply established, Nobody wants rights over sand in the desert, there is no market
    so such rights are effectively useless for capital creation.

  12. Julie near Chicago

    Paul — What’s been happening over here is that seeds genetically altered by their producers end up in the fields of farmers who specifically do not want them and therefore haven’t bought them, where they sprout and produce as they were designed to do. The GMO-seed producers then try to sue the non-GMO-using farmers for “using” their seeds without buying them (and satisfying whatever contractual commitments the seed-producers get from their proper customers). This puts these non-GMO-using farmers in the position of having to build domes over their fields or some such to keep the unwanted seeds out.

    This IS a flagrant abuse of patent rights. And one must understand that all this is going on in the context of the abuses already mentioned (such as by Apple), and of ongoing attempts by government, allegedly (but believably) acting in cahoots with Big Ag, to force the small independent and hobby farmers, to give up their farming (or else farm under contract to one of the big companies such as ConAgra) and even their gardening.

  13. Paul Marks ask why poor Third World farmers do not buy traditional seed varieties. In some instances it was because originally they didn’t buy seed but used saved seed from their previous crop. GM crops do not produce seeds by design which means once farmers are in the system they are trapped into purchasing new seed every year. Additionally farmers can be sued by Monsanto if their non-GMO crops are polluted by GMO crops in their vicinity. In some cases traditional seeds were banned from government seed banks in the Third World in order to increase the uptake of GM, but the new seeds cost a thousand times the price of traditional varieties. Farmers were also not informed that GM cotton crops needed double the quantity of water in order to grow.

    Intellectual Property rights (IP) is a system of legislation under which governments seek to interfere in the level of remuneration paid to the originators of intellectual content (a sectional interest), much as they confer rights on collectivised and politicised labour (a sectional interest) in order to raise wages above market determined rates, with the medium term result of the large scale export of factory jobs abroad and the long term result of de-industrialisation of the country in question.

    Libertarians generally tend to be suspicious of government meddling in any aspect of our lives with very good reason. IP rights cause huge problems in practice. A small minority make a killing but the great majority earn little. Big corporations able to afford armies of lawyers benefit hugely and are able to exclude smaller competitors from markets by using IP to establish a monopoly position. Lawyers themselves are unsurprisingly major beneficiaries and have a major interest in expanding the action. Legal enforcement of IP rights is in practice impossible without spending serious money on lawyers. In the case of music copyrights nowadays this often hinges on victimising a tiny minority of supposed “violators” who are ruthlessly pursued and punished with ruinous fines far beyond their ability to pay in order to become an example to others. Hardly justice in action.

    The example of the outcomes resulting from the exercise of IP rights in GM crops is just one horrific example of the issues raised by this system. The agriculture of whole countries, for example Iraq (following the US invasion), are dominated by US seed companies able to exercise their IP rights.

    India is one of the most striking examples of the tragic consequences of the exercise of IP rights by big business. Monsanto GM crops were supposed to feed the world. The reality was rather different. Sustainable and affordable organic food crops were replaced by GM cash crops such as cotton with disastrous results. Unsurprisingly GM crops didn’t do in practice what it said on the box and often failed catastrophically. Moreover although GM crops were supposed to be pest resistant that resistance declined as pests evolved in response so farmers were then forced to purchase pesticides from Monsanto (!) to try to survive. In 2002 farmers using Monsanto BT cotton increasingly committed suicide when they were unable to cope. In 2002 alone more than 17,000 small farmers committed suicide. An Indian farmer commits suicide every thirty minutes and in the last decade a quarter of a million have killed themselves. Often their wives were left unable to cope with the aftermath and committed suicide themselves. Countless thousands of families have lost their land as a result. 60% of India’s population depend on agriculture one way or another so this tragedy has spread beyond those on the land. And the way farmers died? Often by drinking Monsanto insecticide.

    IP rights, you can keep ‘em. Some light reading:

    http://www.chrgj.org/publications/docs/every30min.pdf

    http://www.seattleorganicrestaurants.com/vegan-whole-foods/indian-farmers-committing-suicide-monsanto-gm-crops/

    http://www.organicconsumers.org/articles/article_1867.cfm

    http://www.naturalnews.com/037262_GMO_Monsanto_debate.html

  14. Martin, because your comment contained more than a certain number of links, it was automatically weeded out as spam, and I had to dig it out of WordPress and approve it.

    Everyone should feel free to post as many links as he pleases, but will have to wait for David or me to notice that the comment requires our special attention.

  15. Exactly the point, seeds with the value of desert sand! Where none appears
    to want or desire the property rights!

  16. Julie near Chicago

    As I and subsequent posters have commented, the IP laws as they stand, coupled with the lack of a basic moral sense and fundamental commitment to basic ethics in certain segments of the legal, business, and government communities, certainly invite and encourage abuse.

    Mr. Reed’s posting does allude to what strikes me as actionable fraud.

    Nevertheless, Intellectual Property is as real and valid a form of property as any other, and the denial of Intellectual Property rights is no more moral than the denial of any other property rights. (See postings above by Ian B and me for why this is.) Our aim should properly be to draught laws that protect the makers of I.P. but that discourage abuse of I.P. law as much as humanly possible.

    Actually the USDA and its counterpart vis-á-vis pharmaceuticals and food, the FDA, are lepers; but unlike human lepers, they should be drowned. Then much of this nonsense would cease because the government wouldn’t be able to grant favors and immoral entitlements, and the other players wouldn’t have anybody they could effectively coerce or bribe.

  17. I think that everyone here can agree that the Department of Agriculture and the Food and Drug Administation should be shut down.

    It is not in the interests of a butcher to poison his customers (as I think a certain Scots gentleman pointed out).

    And a modern drug company lives by its reputation (they do not go from town to town in wagon – selling stuff and never being seen again).

    If they poison people it gets exposed by a (fanatically hostile to “big business”) media, and they sued to bits in the courts.

    There is no need for all these executive agencies – they are activelly harmful.

    Making the development of meds incredibly expensive.

    And turning farming into a subsidized mess.

  18. Martin Reed – I already said that the artificially produced crops were seedless.

    Actually that is a logical move in a world WITHOUT patents and copyrights.

    The seed company can not trust people not to pirate its ideas – so it produces one use seeds.

    Hard to see what your problem is with this. No one has to buy this stuff if they do not want to – they can stick to their old plants and “use some of the seed from the old crop”.

    Of course then they will not get the added production – but that is their choice.

    By the way……

    Why does the original post have a title that is, basically, a line from an old Communist song?

    “This land is my land, this land is your land, this land was made for you and me….” (or some such bullcrap).

    No doubt it is just a coincidence.

  19. I have just read Julie’s comment.

    Well if seed is going to people who do not want it – that is not acceptable.

    And for a company to sell seed as one thing (when it is really somthing else) is fraud.

  20. Paul Marks: “Nevertheless, Intellectual Property is as real and valid a form of property as any other, and the denial of Intellectual Property rights is no more moral than the denial of any other property rights.”

    Unfortunately IP renders the ownership of real property untenable because the exercise of IP rights always ultimately depends on the control of the property* of the so-called violator by the IP rights holder. IP and real property are mutually exclusive. Moreover IP rights have a parasitic relationship with real property and depend on the prior existence of real property which they seek to control. That is not true of real, tangible property because it exists entirely independently of IP, nor does not depend on controlling IP.

    The seedless GM crop example serves to remind us that there are ways in which large rapacious corporations, cartels and monopolies can protect their inventions without IP rights being necessary, it’s just that government provided IP rights make it far easier for them to do so.

    * Examples of the forms of property in question subject to control by IP rights holders: computers, printers, MP3 players, televisions, DVD burners, machine tools, etc.

  21. Martin why are you quoting me saying things I have never said?

    I do not tend to use such words as “nevertheless”.

    As for IP not existing.

    I think you had better get into a death-match with Sean Gabb then.

    Considering that is the way he earns his living.

    He does not like me much me very much now – but I think he would be really pissed off if I started selling copies of his stories (and I use the word “stories” without meaning any disrespect – after all Homer created “stories”) without paying him.

    By the way – do not use violent metaphores (he takes them in a literal way).

    Oh no – I used the “death-match” above……..

  22. Julie near Chicago

    Martin,

    Don’t blame Paul for the quote–I’m the one who insists on it.

    (And apologies if I misunderstood you.)

    I assume the vast majority of modern tools and other inventions (including GMO) are under patent. So what? Your comment about “rapacious” groups goes to the argument for a strict and impervious “wall of separation” between business and state–not to denying its creator the absolute right of disposition of his property (within in the libertarian framework, of course–he may not use his property to coerce or attack another, except in self-defense).

    Don’t blame the measles rash (abuse of intellectual property rights under bad statute law) for the measles illness (collusion and coercion in both directions between business and government, which itself comes from the measles virus (governmental intrusion into matters none of its business).

  23. Beg pardon Paul (and Julie of course) for misquote due to being unduly rushed here tonight. Personally I wouldn’t dream of trying to deprive Dr Gabb of his living; from what I hear his novels are a good read though I tend not to read much fiction myself nowadays. On the other hand I’m not into government intervention in our lives and obviously realise that without such intervention the rewards earned originators of works ranging from inventions to literature to music and so on almost infinitum would be on a very different basis. It’s just that I wouldn’t want the government to interfere in the processes by which such originators earned their living any more than I want them to meddle in anything else that isn’t their business.

  24. Well Martin, this is a snowball that won’t stop getting bigger, governemt
    knows meddling means “Big Money. That is the quango motive.

  25. Martin – I suspect there might be technical ways by which authors (and other such) could make a living without need for copyright (and that inventors could make a living without need for patents).

    But I am too dumb to be able to work out what these ways are.

  26. Could become road sweepers, that might be one possibility.

  27. Karl – I did mean authors earning their living by their stories, and inventors earning their living by their inventions.

    But I can not think of any way it could be done.

    It is, of course, the road sweeper thing I want to avoid – not that this is not a respectable job (it is), But because … well because…..

  28. Well because…….yes I now what you meant paul, just a humerous suggestion, nothing more, they earn a lot of money up to £1,000 per
    week in midlands with bonuses so the rags say!