Monsanto

In a sign of how far the forces of enclosure have come, the US Supreme Court ruled unanimously on Monday that re-using seeds that are patented, knowingly or not, amounts to an act of piracy.  Of course, re-using seeds has been the tradition in agriculture for millennia, just as re-using songs and text is an essential element of culture. 

No matter.  The masters of "intellectual property" hold the whip hand, and they don't want us to re-use and share seeds as the natural course of things. If you think that a farmer ought to be able to use the seeds from one crop in the next season, you are entertaining  illegal ideas. (Just be happy that Google doesn't have access to your mind yet -- although Google Glass may be a leading gambit!)

The Supreme Court case involved 75-year-old farmer Hugh Bowman, who bought bean seeds from a grain elevator and planted them in his fields.  Since nearly all soybeans are now genetically engineered to be pesticide resistant, Bowman suspected, correctly, that the beans he bought might also be Roundup-resistant like the earlier generation of seeds.  It turns out they were – and so Bowman grew them several seasons, using the next generation of seeds each time.  But here’s the catch – the original generation of seeds are patented, and he didn’t pay Monsanto for the right to use the second-generation of seeds for planting.

This amounts to an act of intellectual property theft, according to the Court, because farmers should not presume to have the right to re-plant seeds from prior harvests.  Companies like Monsanto now hold property rights in seeds, and they don’t like the competition from the commons.  The commons is the radical idea that the abundance of nature (self-reproducing plants) ought to be shareable. 

Two cases involving the patenting of living organisms are now pending before the U.S. Supreme Court, and the outcomes do not look good.  It appears that commoners who wish to use seeds, genes and other living things as a shared gift of nature will be cast out into the darkness once again.  The Court seems poised to privilege the private control of lifeforms, providing yet another legal subsidy for the market order. 

The seed case was brought by a 75-year-old farmer from Indiana who had bought commodity soybeans from a grain elevator.  As described by the New York Times, an estimated 90 percent of all U.S. soybean crops are now grown from genetically modified Monsanto seeds resistant to the Roundup herbicide.  Not surprisingly, many of the seeds that farmer Vernon Hugh Bowman bought contained second-generation versions of Monsanto seeds.   

The problem is, Bowman inadvertently grew a new batch of GMO seeds without paying Monsanto or getting its authorization.  Monsanto sued him, claiming that Bowman’s crops infringed Monsanto’s patent.  Accepting the view that Monsanto’s patent let it control even second-generation seeds, a U.S. federal district court forced Bowman to pay an $84,000 fine.  

In his legal filings, Bowman argues that once a patented object is sold, the seller loses control over how it can be used.  This is a legal doctrine known as “patent exhaustion.”  It’s similar in concept to the “first sale doctrine” in copyright law, which prohibits publishers and other copyright holders from charging licenses for library books or DVDs.  If the scope of copyright or patent rights is too extensive, sellers can control too many “downstream” uses of the product, usually with harmful effects on competition, innovation and price.  (Come to think of it, though, that is precisely what is also happening with e-books and e-journals:  publishers are licensing content rather than selling it, giving them much greater control over downstream markets.)