We finally got around to watching Food, Inc. last night, and while most of it wasn't new to us, it was definitely worth viewing. I'd recommend it. One of the subjects discussed was Monsanto's role in the genetically modified seed industry and the farmers that it has successfully driven to ruin. Much as in the chicken industry, farmers who opt-in to business with Monsanto soon become trapped by restrictions and costs. Because the genetic modifications of Monsanto seeds are patented, farmers are unable to save seeds from one season to the next, and must re-buy every year. Most of this portion of Food, Inc. discusses the farmers and seed cleaners actively hunted down and sued by Monsanto lawyers.
The idea of farmers not being able to save their own grown seeds is ridiculous on the face of it, but after watching the documentary I was wondering what legal analogies might be drawn elsewhere in order to make some progress with more fair patent regulations. The obvious analogue seems to be self-replicating nanotechnology. Forget about existential threats like grey goo- the question of who should own later generations of these technologies is vexing enough by itself. It's sensible enough to say that if Monsanto creates a genetic modification, they have some exercisable rights concerning its use. But is it reasonable to tether farmers who fairly buy these products for generations on end? A living seed (or even a self-perpetuating machine) is an inherently generative thing. It doesn't make sense to create this sort of product and then pretend that it only has one shelf life.
...actually (maybe the reference to "shelf" led me here?) it just struck me that similar analogies could be drawn for ownership rights of e-resources in libraries. As e-books become more mainstream and libraries purchase them for patron use, some publishers have threatened limited ownership rights, so that libraries would lose access to an e-book after so many check-outs (and I believe the proposed number is absurdly low... like two dozen check-outs or so) and have to repurchase it. The argument of the publishers has been that e-books don't wear out like printed books, and it's unfair to publishers to sell away titles that won't ever deteriorate and need replacing.
At least in this case each individual check-out isn't construed as a reproduction of the publisher's intellectual property as in the above biotech/nanotech instances. But similar questions apply. And the basic one is this: when a fair purchase is made on a product for which proliferation of use is understood as inherent to the properties of the product (future generations for seeds or nanobots, future loans for a book), on what basis can the IP owner really claim the right to regulate later usage?
On the bright side, farmers and seed producers have recently sued Monsanto in an effort to avoid being punished when other peoples' Monsanto crops contaminate their own. This hardly begins to approach proper recompense for these farmers, but keeping a multinational juggernaut from suing its victims into the ground is at least a start in the right direction.
Sunday, June 26, 2011
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Having grown up part of my life on a farm I enjoyed this rejoinder to the stupidity that is inherent in films like Food, Inc.: http://www.american.com/archive/2009/july/the-omnivore2019s-delusion-against-the-agri-intellectuals
ReplyDelete"But is it reasonable to tether farmers who fairly buy these products for generations on end? ..."
ReplyDelete(a) Patents only last twenty years, so at best, you're talking about one generation, after that it falls into the public domain and anyone can use the technology without a license. So in a short time other manufacturers of the seed will appear and they'll be able to provide a generic version, probably at prices lower than Monsanto. Yours is more of an argument for shortening the lifespan of patents - which I am all for (same with copyright as well).
(b) Why would Monsanto create a product like this without having in mind the notion that it would like to control its use for more than one season? There is of course a convergence of patent and contract law here.
(c) The farmers in question aren't stupid; they are professionals. They've generally been doing what they do for a long time and dealing with companies like Monsanto for a long time.
"...when a fair purchase is made on a product for which proliferation of use is understood as inherent to the properties of the product (future generations for seeds or nanobots, future loans for a book), on what basis can the IP owner really claim the right to regulate later usage?"
I dunno, on the basis of the contract signed between the parties? Honestly, you act like their is some sort of Archimedian point of fairness that can be pointed to, when what is "fair" is what these parties agreed too. Farmers aren't stupid.
"On the bright side, farmers and seed producers have recently sued Monsanto in an effort to avoid being punished when other peoples' Monsanto crops contaminate their own."
There's a lot to unpack here; let me deal with three things that especially stand out.
(a) First the assumption that "contamination" occurs. Well, contamination normally means in the context of food science that some sort of harmful addition has been made; there is no evidence that GMOs are harmful. Indeed, there is no evidence that organic food is more nutritious than non-organic, as an example. Organic food is like any other dietary requirement that groups of people engage in for solidarity, etc.
(b) Of course, what is and is not contamination is subjective ... however, generally Anglo-American law has never recognized a right to be protected in this way if your crop (or whatever) is sensitive in nature. You're expected (and quite reasonably so) to protect yourself from the reasonable activities of others - and that would include using crops that are genetically modified, since genetic modification has been at the heart of farming for thousands of years. More of that here:
http://reason.com/archives/2002/10/02/organic-law
(c) The most famous case where Monsanto sued was out of Canada; there the Canadian Supreme Court found that the +95% purity of his I believe corn crop (it was +95% genetically pure round up ready Monsanto corn) could not have possibly been so pure by mere inadvertent means or contamination.
(d) Now, Monsanto has done some problematic things IMO, like suing Oakhurst dairy in Maine for its advertisements regarding BGH; but honestly the settlement that came about is as much the result of state and federal laws and regulations regarding the dairy industry than anything else (and of course the odious Supreme Court rulings on corporate speech for that matter). The recent SWAT-like raids on purveyors of raw milk reinforce this point.
From the article:
"Monsanto is currently developing genetically modified seed for many other crops, thus putting the future of all food, and indeed all agriculture, at stake."
Yes, without innovators like Monsanto (and Norman Borlaug) we'd not have the ability to feed the Earth's growing (though that growth has slowed) population. A lot of people would have to die for the rest of us to live "organically."
Ok, so I added a fourth thing. :)
ReplyDeleteHave you seen Food Inc., Gary? The first article you link doesn't really strike me as applicable to it. There are some overlaps of theme and sentiment, to be sure, but on the whole I found myself wondering why you felt it at all relevant.
ReplyDelete"Yours is more of an argument for shortening the lifespan of patents"
I don't think it is, actually, although it's similar to that. The question isn't whether genetic modifications now owned by Monsanto will be freed up in a couple of years... it's whether Monsanto has control over seeds grown and saved by farmers from seeds that were bought from Monsanto to the extent that they can make farmers destroy these seeds.
"Honestly, you act like their is some sort of Archimedian point of fairness that can be pointed to, when what is "fair" is what these parties agreed too."
It's probably a little more complex than that. You should grant that ownership of genetic codes is a new concept and that the law requires a process of development in order to properly respond to it (this is also why the analogies of nanotech or new media for literature are apt). Raising questions about fairness in such an evolving context isn't to call any party to a contract stupid, and it isn't to say that "fairness" is as static as you try to portray it here.
"contamination normally means in the context of food science that some sort of harmful addition has been made"
By "contamination" I simply meant that Monsanto genes ended up in fields that were not planted with Monsanto seeds, and from outside forces rather than inside intentions.
The Reason article you post is actually quite interesting. I'm not inclined to lean so heavily on political economy in making decisions about rights, but some valuable points are made there. But I do hope you recognize that the question in the case of the article is much different than the one raised in this post. As I understand it, this isn't a matter of farmers suing because their crops are now impure from Monsanto genes. The farmers are trying to protect themselves from Monsanto taking legal action against them because their fields were contaminated. This isn't a matter of a "right to be protected" because one's "crop is sensitive in nature".
I think I've addressed most of your substantive comments. One thing that drives me crazy about talk of food is how, for instance, the slightest mention of something related to genetically modified food has you responding as if I've argued that Monsanto corn will give you cancer or that organic food will make you live longer. I've said nothing about natural seeds being better than modified seeds... quite the contrary, this post is about helping farmers to use genetically modified seeds. And yet strawmen abound in this metaphorical cornfield.
...two more side points on the Reason article:
ReplyDelete1. The cute thought problem of a factory and a farmer downwind is helpful in getting a handle of the economics involved, but one has to recognize that Monsanto ain't just some factory upwind making $.80 for every $.50 made by the farmer. Any comparison between their profits would hopefully resolve in the direction of more substantial rights for the farmer. Which is why I found the references toward the end to profit margins for organic growers as a bit too much... there are surely plenty of organic growers who do quite well, but they're not exactly fat cats compared to the other players in this game.
2. I understand why organic food is called a "niche" market in this article... it is, of course. But that idea has always struck me as odd insofar as "niche" gives a sense of a special process or a unique, defining characteristic. Just growing a field of vegetables without tweaking their genetic structure or spraying them with chemicals strikes me as the opposite of the connotations I mentioned above. It's like when someone is called "fancy" for eating arugula, while the person who eats a McDonald's hamburger factory processed from God knows how many cows who were injected with hormones, etc., etc. ...somehow this person is the regular Joe? Anyway, not a substantive comment, just a weird thing about how we look at life.
"You're expected (and quite reasonably so) to protect yourself from the reasonable activities of others - and that would include using crops that are genetically modified..."
ReplyDeleteSo farmers should be "on guard" against bees flying onto their property?!
No, I have not seen "Food, Inc." and I have no plans to.
ReplyDelete"...it's whether Monsanto has control over seeds grown and saved by farmers from seeds that were bought from Monsanto to the extent that they can make farmers destroy these seeds."
If it is part of the contract, that would be a yes.
"You should grant that ownership of genetic codes is a new concept..."
The first Supreme Court case on the matter came about in I believe 1980. Thirty-one years. It isn't a really long period of time, but it isn't short either.
"The farmers are trying to protect themselves from Monsanto taking legal action against them because their fields were contaminated."
So, the question is, would they have crops of significant enough genetic purity that would be in danger of such claims? I actually did a literature review on this subject in the mid-2000s and there was at the time no scientific weight to the claims that somehow GMOs were actually inadvertantly causing the sort of contamination that would lead to significant levels of genetic purity.
"I've said nothing about natural seeds being better than modified seeds... quite the contrary..."
The article you linked to made some strong claims in that direction, and hinted at the dangerous of GMOs.
"The cute thought problem of a factory and a farmer downwind is helpful in getting a handle of the economics involved..."
Well, actually a couple of very famous cases in enviromental law deal with the issue exactly that way - one dealing with pollution from a cement factory, the other dealing with smells, etc. from a cattle yard. They are both classics in the area of nuisance and they provide in part the precedents at common law for how to deal with a nuisance.
Anyway, I'm note quite sure why them being (or not being) fat cats is an issue. The issue is a pareto effecient outcome, not one of equality.
As for your last comment, that is a value judgment; however, my response is that having worked on an organic farm as an adult I can say tweaking genetic structures is common (just not in a lab), that organic pesticides are used (thus "chemicals" are used), and that all manner processes, effort, etc. is put into making something "organic" - including of course lots of back breaking work weeding the fields every day. All food production requires technology; lots and lots of technology; even if it is leaf taken from the jungle it still had to be transported by truck, plane, etc. to get my table, and then I would have had to wash it off and eaten it with a fork and knife. So to me organic food is a sort of romantic conception of what the right sort of food technology should be; the thing is of course that we simply would not have something as simple as OJ not from concentrate without all manner of very sophisticated technology to keep it from spoiling before it got into the carton - that is to pasteurize it.
Anyway, if you think McDonalds is complex, read this bit of awesomeness: http://modernistcuisine.com/
These same folks are working "food printers" - namely machines which will create food out of what looks like the cartridges you use for a home printer. This is such a great idea because it solves the major kink in the food distribution system as it exists today - that last mile problem where so much waste exists (vegetables spoil, etc. in that last mile).
Gene,
ReplyDeleteYes. If you are that concerned with it create a hedge around your property where most of the pollinators will go. Then again, the notion that such cross contamination of any significant degree by pollinators over a significant distance is not something I think holds up. Human experience teaches us that it is in fact quite hard to cross-breed varieties, etc. for significant effect and takes a lot of human effort to do so (having done a fair amount of grafting of fruit trees in my life and failed at I can also personally attest to it).
Evan,
ReplyDeleteAnd of course food printers would go a long way toward dealing with what causes world hunger - namely human foul ups in the distribution of such (I always maintain that famine is the result of poor human responses to environmental challenges).
Sort of surprised Daniel hasn't jumped in on this.
ReplyDeleteThe bit about not being able to save seed is a bit of a red herring. Hybrid seeds don't retain their characteristics after one generation either. And since farmers grow hybrid varieties (if not GM), then they are buying seed every year already, say from ADM or Pioneer.
ReplyDeletehttp://msucares.com/pubs/infosheets/is1549.htm et al.
You're going to have to explain why it's a red herring to bring up the problem of not being able to save seed. Unlike hybrid varieties, these Monsanto seeds do keep their characteristics in later generations, right? That's the whole basis of these legal disputes... that Monsanto genes are present in later generations.
ReplyDeleteIf Monsanto developed sterile seeds (and I imagine they're working on this/have already done it in some instances), THEN the GM seeds might be comparable to your hybrid seed example, and THEN of course we wouldn't need to be having this conversation because farmers couldn't save seed. As it stands, though, I don't see what your example of hybrid seeds contributes to this conversation.
There's been a lot of push-back from the idea that we should even be talking about arguing against Monsanto. No one's really engaged with the ideas I've brought up, though. What do people think of the analogies of nanotechnology or e-books as far as the implications for intellectual property rights goes?
ReplyDeleteEvan,
ReplyDeleteIt seems to me that the IP rights in question are basically contractual in nature (though they are embedded in patent and copyright law - they couldn't enforce the contract the way they do without IP law as their backstop), so again, change the nature of that backstop and you'll get some different results more than likely.
As for sterile seeds, Monsanto already tried that, and the environmental community lost its left nut. Called "terminator" technology by environmentalists, it was basically argued that if Monsanto were to create such it would bode ill for farmer independence. Any time since the late 1990s when Monsanto or other companies have talked about this sort of technology there has been an almost universal protest from environmentalists over such. So yeah, Monsanto is caught between something of a rock and a hard place PR wise here.
I am not suggesting that Mansanto is some sort of helpless victim; I am suggesting that a lot of what passes for thinking in the environmental community is at best contradictory and self-defeating and at worst downright stupid. On almost every other issue environmentalists appear to be pushing for new, innovative technology to deal with the problems rich and poor societies have - except when it comes to, well, food production.
ReplyDeleteAs to why it's a red herring, GG covered the reason. The attempt to terminate GM gene transfers was widely attacked as an attempt to monopolize seed production. So, Monsanto feels they have to go the route they have in order to profit from the IP (all discussions about the morality of IP aside).
ReplyDeleteAs to the lawsuits themselves . . . . I haven't read about all of Monsanto's suits, but of all the ones that have made significant press, it has turned out that farmers have actually planted Monsanto seed in violation of their user agreement (essentially the EULA). The lawsuit you link to does not seem to counter that, as they are concerned about the possibility of being sued if GM genes are turned up in their field, but none have actually been sued. You might want to read the brief, as the source they cite for their concerns that they might be sued is the CBS Evening News, the report of which appears to indicate that farmers were engaged in violating their agreement with Monsanto by saving seed (using a seed cleaning service, which mixed up seed with other customers who did not have an agreement with Monsanto, and so I could go on against Monsanto on that account--the point being it was not a fabrication on Monsanto's part that GM crops were being raised without the license and it was not the result of contamination). Anyway, the lawsuit actually appears to be an assault on Monsanto's patent rights. As I said above, a different argument . . . .
It's yet one more example of wanting to have cake, and eat it too.
The attempt to terminate GM gene transfers was widely attacked as an attempt to monopolize seed production. So, Monsanto feels they have to go the route they have in order to profit from the IP (all discussions about the morality of IP aside).
ReplyDeleteRight. But the current situation doesn't avoid the worries of monopolization present in the terminator seeds. Which is why I'm questioning whether the current approach is reasonable (all discussion of the profit margins of multinational corporations aside).
And yes, I agree with your assessment of the suit linked at the end. I wasn't meaning to link it as an example of work being done on the problem that I cover in the post, but rather as a current attempt to address other problems with Monsanto.
Well, strangely enough, I actually find myself in agreement with much of what Gary says! ;)
ReplyDeleteAs I've mentioned elsewhere, my father is an agronomist and his comments have informed much of how I think about these particular issues. It may also be worth having a look at what Monsanto specifically says about such matters, e.g.:
Terminator (i.e. sterile) seeds
Suing farmers who save seeds
Patents
With regards to farmers not being able to reuse saved seed... Well, I would suggest that this simply detracts from the attractiveness of the GM product. Farmers need to weigh up the benefits and costs of not being able to save GM seeds, and decided whether this makes them less preferable to regular seeds.
Evan, your extension to eBooks is interesting. Personally, I think that it may largely boil down to institutional or practical questions. Similar to how bands don't necessarily tolerate the proliferation of their music on social networking sites because it is profitable or ethically correct; but rather because enforcement is all but impractical. Institutional in the sense that, for instance, society appears to have decided that certain facets of knowledge (via books) should be available to everyone at very low cost. But even libraries are vulnerable under this type of institutional norm; is it just me or weren't they among the most vociferous critics of the Google Books project?
PS - If anyone is interested in the GMO-is-bad-for-you debate, may I shamelessly recommend this?
stickman,
ReplyDeleteProbably because I've got some experience with the subject. :)
I have some background in botany at the academic and practical level. Plus, like I said, I've lived on farms as a kid as an adult.
I'm probably out of my element on most of what is discussed here; but the only way to learn is to charge headlong into the fray.
stickman,
ReplyDeleteNice link, BTW.
I'm probably out of my element on most of what is discussed here; but the only way to learn is to charge headlong into the fray.
ReplyDeleteI'll take that as permission for my own charging into it, too!
Also, full disclosure: went with my daughter to pick out a treat today and we got raspberries. After looking at two boxes of organic berries and seeing mold inside, we bought the non-organic box, from the same company, and for $1.50 cheaper. So, as I've said already, I'm not someone who thinks all GM or chemical use is bad. This isn't the argument I'm making. If I were making that argument, I wouldn't be trying to make it easier for farmers to reuse Monsanto seeds, would I?
...but I still did look at the organic berries first, so there's certainly a bias of some sort. Mostly, though, my bias is towards local and smaller rather than towards organic purity.
ReplyDelete