Thank You, Brian Leiter

Last summer, I was horrified when I read a scathing review of my book by Chris Holman. I drafted a hasty response on the invitation of James Hughes at the IEET Blog in which I questioned Holman's reading of my book (as he appeared to address only a few pages of it) as well as his objectivity, due to his long-term connections with the biotech industry. To this day, and to my knowledge, he does not deny consulting or otherwise working on behalf of BIO (he is certainly well-known by BIO), although he says he owns no shares in any biotechs using gene patents. My questioning of his motives and neutrality earned me a rebuke from Brian Leiter, who is a law school professor and author of a well-known blog, as well as a J.D./Ph.D. in philosophy like me (although he teaches in a law school, and not a philosophy department). Leiter is known by philosophers mostly for his Gourmet Report which ranks philosophy departments. Although Mr. Leiter had clearly not read my book, he gleefully publicized Holman's review, and publicly rebuked my response (for features he himself has employed), ignoring my pleas for him to pay attention to the substance of my arguments, and Holman's lack of substance in his review (and even Leiter calls for such potential conflicts to be disclosed when he is the subject of criticism).

Despondent that Mr. Leiter's gossipy coverage might tarnish my reputation, I sought the advice of my mentor, a philosopher of long-standing, international reputation. I was advised to relax. Leiter was not that important in philosophical circles (beyond his rankings, which departments do pay attention to), nor his blog that important. "all publicity is good publicity," I was told. And in fact, my mentor was right.

Stephan Kinsella (a patent attorney whom I have since befriended) read about me through Leiter's blog and came to my public defense, bolstering my arguments frequently with his perspective as a patent attorney. And since Holman's review, the majority of reviews of my book, including in Choice, The Guardian, The Yale Journal of Biology and Medicine, The Journal of High Technology Law, Metapsychology Online Reviews, Ethical Perspectives, and elsewhere, have been quite positive. Patent attorneys have tended to be negative, just as they have been critical of the ACLU's claims in the AMP v. Myriad case. But even more importantly than any review, the issue has gained terrific traction this year, the public is becoming aware, and there is the real possibility of changing public policy.

I will never fully understand Mr. Leiter's motivations (although he was on the board of the publication that solicited Holman's review, and did personally peruse and clear the review before publication), nor the delight of some in the scandal-sheet style attacks on my claims (or maybe just on me). My arguments have stood the test, and moreover, the same reasoning is motivating courts and institutions to change the law. This is much more than I hoped for. I am happy to withstand the attacks of academics and patent attorneys, as long as the word gets out, and these arguments get heard. Most people understand well that natural products and laws of nature ought not to be monopolized, as Judge Sweet held, and that the end of gene patents will be a step toward justice. I have had the great good fortune this past year to meet courageous people who have stepped beyond the theory, and sought to change things. I have mentioned them in this blog, including Luigi Palombi, the ACLU and its attorneys, plaintiffs in the AMP v. Myriad case, and others. I am thankful for their commitment to this important issue. Finally, I should thank you, Brian Leiter, for helping to make this a phenomenal year for justice and for helping to connect me with so many wonderful activists, working to change the system.

UPDATE: Indeed, justice has fully prevailed. The Supreme Court adopted the reasoning I advocated and invalidated most gene patents, and a 2d edition of my book is coming out in May 2015, with a chapter devoted to the Myriad case which set the new precedent.http://whoownsyou-drkoepsell.blogspot.ca/

Commons Sense

One of my recurring frustrations in making my case against gene patents is the failure by some to grasp the argument I am trying to make regarding the nature of "the commons". Perhaps I have been unclear, or maybe the approach I am taking to property law and justice is too far afield from those more frequently made to be immediately understood. Yesterday, however, I gave a guest lecture in an ethics course for ICT students (software programmers, mostly), and gained a lot from the experience. These students not only grasped the argument, but embraced it, and helped to clarify a subtlety that I need to elaborate upon in defining the "commons by necessity" that I believe genes and other parts of the universe belong to.

Briefly, to summarize, I argue that the justice of property rights derives from the logical and practical ability of people to enclose a space, and the need for a rival to use violence to dispossess a possessor of the space. Thus, property rights in land and movables are grounded in these brute facts. There is no such grounding for intellectual property rights. Moreover, there are parts of the universe that cannot be justly owned, and IP claims over these "commons by necessity" are unjust. These are parts of the universe which cannot be held exclusively by anyone, as a matter of brute fact. Examples include: the laws of nature, radio spectra, and genes which are de facto unencloseable. My thanks to Stephan Kinsella who helped me to realize that this applies, actually, to all ideas, and thus makes all IP law a similar incursion on an unencloseable commons by necessity.

My thanks go to some of the students yesterday who pointed out a fine distinction in the realm of objects belonging to the commons by necessity (as opposed to the commons by choice, which includes encloseable spaces over which we make choices to maintain no private ownership). They pointed out that there are commons not just by logical necessity like radio spectra and laws of nature, but also those that might be called commons by practical necessity which includes sunlight. So one could, given enough time and technical capabilities, enclose the sun and harness its power monopolistically, but this is a very remote technical possibility.

Genes, I argue, are logically unencloseable, and thus clearly belong to the commons by necessity, and attempts to give monopolistic control over them are per se unethical. If there's only one point I hope readers take away from my book, this is it.

**update: I just learned Who Owns You? is being translated into Portuguese! My first book came out in Japanese and Portuguese, so maybe Japan will soon follow suit. I'll keep you updated.

A patent attorney who gets it!

Many kudos to Stephan Kinsella, who is a patent attorney who writes at the againstmonopoly.org blog. He posts a nice rebuke to Randall Mayes, and makes the case that patents in general are not necessarily efficient in encouraging innovation, and are de facto usurpations of property rights (making all my statements about the scope and effect of gene patents true, not fiction). His post can be read here. He also lends his support to my responses to Chris Holman, writing here. I have added his blog to my blogroll too, and will be following it diligently.