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The Fiction of Intellectual Property

Monsanto vs. Vernon Bowman’s Farm

by THOMAS L. KNAPP

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.

Thomas L. Knapp is Senior News Analyst at the Center for a Stateless Society (c4ss.org).