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.
Showing posts with label theory of commons by necessity. Show all posts
Showing posts with label theory of commons by necessity. Show all posts
Thursday, March 4, 2010
Monday, September 14, 2009
Citation in Brief for Amici Curiae
I notice that Who Owns You and this blog are cited and quoted in a recent court filing in the ACLU v. Myriad case. The references occur in the BRIEF FOR AMICI CURIAE IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS AND IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT for the National Women's Health Network, Asian Communities for Reproductive Justice, Center for Genetics and Society, Generations Ahead and the Pro-Choice Alliance for Responsible Research at p. 18. Quoting now the brief:
"The consequences of such attempts to assert exclusionary rights to our common heritage often involve harms to others. Attorney and philosopher David Koepsell asks us to “[i]magine a tax on air, or a levy on sunlight, or some corporation claiming ownership of the open seas and demanding royalties for their use. Imagine a world where ideas could be owned, and thinking ideas held by others was prohibited or subject to fees, taxes or royalties.” David Koepsell, Who Owns You?, Wiley-Blackwell at 133 (2009). He points out that the “human genome is a constantly evolving object that involves every member of the species” and that “[g]ranting exclusionary rights to discoverers of genes that are part of that genome interferes with our common rights as beneficiaries and possessors of parts of the human genome.” http://whoownsyou-drkoepsell.blogspot.com (Aug. 21, 2009 posting; last accessed Aug. 27, 2009)."
I am pleased to see this used in the brief, and I am quite honored.
"The consequences of such attempts to assert exclusionary rights to our common heritage often involve harms to others. Attorney and philosopher David Koepsell asks us to “[i]magine a tax on air, or a levy on sunlight, or some corporation claiming ownership of the open seas and demanding royalties for their use. Imagine a world where ideas could be owned, and thinking ideas held by others was prohibited or subject to fees, taxes or royalties.” David Koepsell, Who Owns You?, Wiley-Blackwell at 133 (2009). He points out that the “human genome is a constantly evolving object that involves every member of the species” and that “[g]ranting exclusionary rights to discoverers of genes that are part of that genome interferes with our common rights as beneficiaries and possessors of parts of the human genome.” http://whoownsyou-drkoepsell.blogspot.com (Aug. 21, 2009 posting; last accessed Aug. 27, 2009)."
I am pleased to see this used in the brief, and I am quite honored.
Friday, August 21, 2009
A summary of the ethical argument
1.) I argue property rights over land and moveables are grounded in brute facts of possession
2.) I argue that IP rights are not grounded, and so we can generally alter them at will except where they may conflict with grounded rights
3.) I explain that patents protect expressions (manifesting a type in some way in the world of tokens) of a type, not the type itself. They are exclusionary, not possessive rights, giving the patent holder the right to exclude another from reproduction or practice of his or her type
4.) A gene is the arrangement of nucleotides that codes for a protein. Its action involves the creation of proteins by mRNA, which as it creates the proteins, reads the beginning and end of the gene, and leaves out the introns. This is the same mechanism employed by humans when we make cDNA.
5.) A patent on cDNA, I argue, is not different than the patent on the gene itself as there is nothing new about the cDNA. Nature devised long ago the methods of reading genes and making proteins. cDNA is thus not novel and not properly patentable. (ultimately, though, my commons argument trumps all of this).
6.) Newly created genes, not otherwise found in nature but assembled from intentional action by humans are properly patentable.
7.) The human genome is a constantly evolving object that involves every member of the species, and is, I argue, a commons by necessity, like outer space, the atmosphere, sunlight, and radio spectra. Discovering its nature, replicating its processes and using them to our benefit cannot ethically be done to the exclusion of others. Granting exclusionary rights to discoverers of genes that are part of that genome interferes with our common rights as beneficiaries and possessors of parts of the human genome.
8.) Myriad, for instance, when it uses its patent on the BRCA1 and 2 genes that are linked to breast cancer, prohibits meanwhile the replication by others of the genes themselves. It has sent cease and desist letters to scientists who were doing lab work on those genes. I argue that it is our right in common to explore and investigate our individual genomes, as well as the human genome, unhindered by claims of others. What Myriad "owns" is a right to stop you from doing that, and they have exercized that right to the our common detriment.
9.) Miami Children's Hospital has done the same thing with the Canavan's disease gene, and while their right is not one of standard, possessory ownership, it is the right to exclude others from doing research on that disease. This is, I claim, an unethical usurpation of the commons of DNA.
10.) My argument differs from what lawyers know as an "anti-commons" argument, which I do discuss in my book, but which my argument does not rely upon. Anti-commons are created where over-patenting has hindered research. This may well be happening, as the Murray article tends to point that way, but my argument about the commons and DNA is a totally new, totally different argument founded on my ontology of commons by necessity.
I hope this clears up my arguments a bit. In a bit, I will also point out how I believe Holman and others have distorted my discussions of the law (as I begin to discuss above in justifying my discussion of Moore based on its use by Celera's attorneys). I have also tried to point out, in relation to Holman's lengthy selection accusing me of creating "fictions," that my position on these issues is correct if you don't buy (as I don't, and argue against) the "isolation and purification" argument, which I argue is a fiction.
I find it still very strange that Holman's review cites my chapter 7 as a re-hash of the anti-commons arguments of others, when nowhere in that chapter do I ever make anything like that argument.
But I see all that discussion as a distraction, and my book spends about 10 out of its 200 pages discussing cases, none of which are determinative of the argument or conclusions.
2.) I argue that IP rights are not grounded, and so we can generally alter them at will except where they may conflict with grounded rights
3.) I explain that patents protect expressions (manifesting a type in some way in the world of tokens) of a type, not the type itself. They are exclusionary, not possessive rights, giving the patent holder the right to exclude another from reproduction or practice of his or her type
4.) A gene is the arrangement of nucleotides that codes for a protein. Its action involves the creation of proteins by mRNA, which as it creates the proteins, reads the beginning and end of the gene, and leaves out the introns. This is the same mechanism employed by humans when we make cDNA.
5.) A patent on cDNA, I argue, is not different than the patent on the gene itself as there is nothing new about the cDNA. Nature devised long ago the methods of reading genes and making proteins. cDNA is thus not novel and not properly patentable. (ultimately, though, my commons argument trumps all of this).
6.) Newly created genes, not otherwise found in nature but assembled from intentional action by humans are properly patentable.
7.) The human genome is a constantly evolving object that involves every member of the species, and is, I argue, a commons by necessity, like outer space, the atmosphere, sunlight, and radio spectra. Discovering its nature, replicating its processes and using them to our benefit cannot ethically be done to the exclusion of others. Granting exclusionary rights to discoverers of genes that are part of that genome interferes with our common rights as beneficiaries and possessors of parts of the human genome.
8.) Myriad, for instance, when it uses its patent on the BRCA1 and 2 genes that are linked to breast cancer, prohibits meanwhile the replication by others of the genes themselves. It has sent cease and desist letters to scientists who were doing lab work on those genes. I argue that it is our right in common to explore and investigate our individual genomes, as well as the human genome, unhindered by claims of others. What Myriad "owns" is a right to stop you from doing that, and they have exercized that right to the our common detriment.
9.) Miami Children's Hospital has done the same thing with the Canavan's disease gene, and while their right is not one of standard, possessory ownership, it is the right to exclude others from doing research on that disease. This is, I claim, an unethical usurpation of the commons of DNA.
10.) My argument differs from what lawyers know as an "anti-commons" argument, which I do discuss in my book, but which my argument does not rely upon. Anti-commons are created where over-patenting has hindered research. This may well be happening, as the Murray article tends to point that way, but my argument about the commons and DNA is a totally new, totally different argument founded on my ontology of commons by necessity.
I hope this clears up my arguments a bit. In a bit, I will also point out how I believe Holman and others have distorted my discussions of the law (as I begin to discuss above in justifying my discussion of Moore based on its use by Celera's attorneys). I have also tried to point out, in relation to Holman's lengthy selection accusing me of creating "fictions," that my position on these issues is correct if you don't buy (as I don't, and argue against) the "isolation and purification" argument, which I argue is a fiction.
I find it still very strange that Holman's review cites my chapter 7 as a re-hash of the anti-commons arguments of others, when nowhere in that chapter do I ever make anything like that argument.
But I see all that discussion as a distraction, and my book spends about 10 out of its 200 pages discussing cases, none of which are determinative of the argument or conclusions.
Monday, July 20, 2009
We're all commoners now
A major argument I make in my book, Who owns You? is about the nature of the natural genome as a "commons." It seems to me utterly clear and uncontroversial that that there are some things that simply cannot be claimed by any individual as their "property" in any meaningful sense of the term. The strongest analogy I make is to radio spectra, which can be monopolized only over short distances as long as someone else has a transmitter of identical strength. Brute force cannot make one the king of the radio waves, as long as others have the same potential force, in which case we end up with the classic tragedy of the commons, where a certain frequency ultimately becomes worthless as whomever wishes to and has the means tries in vain to monopolize something that cannot be enclosed. In many ways, this is the story of the encroachment by corporations in general over the domain of science.
Scientists deal in the natural world. They seek understanding, prediction, and ultimately control over natural laws. This cannot be accomplished without a community of scientists undertaking the tried and true methods of science, which depend in large part upon open critique and judgment of hypotheses, theories, and results of experiments by a community of peers. The domain of science is nature and its laws, and these can best be delved into, and nature's riddles best solved, with open and free exchange of information. All of which clearly annoys the powers that be who want as much as possible to cordon off vital knowledge so it can be put to use in profit-making. I am not, in general opposed to making profits, nor am I opposed to people being rewarded for inventiveness, except where the commons makes better sense, or in some cases, is a matter of justice.
We choose to make certain commons (which I call "commons by choice"). Thus, while land can be enclosed, and trains can be privately owned and possessed to the exclusion of others, in some cases we deem it in everyone's best interests to make certain resources freely available, or at least be heavily subsidized (as in the case of national parks and public transportation.) In other cases, like in the case of radio spectra, we allow the government to regulate an otherwise unencloseable space (what I call a "commons by necessity"), doling out monopolies to bidders at public auctions in order to prevent the breakdown of that commons. In some cases, nations negotiate to regulate commons (like the atmosphere) to prevent the collapse or ruination of an unencloseable space that benefits all. In the case of genes, an unencloseable, evolving, utterly natural and necessary commons has been parceled out to the first to file their bogus claims of invention where they are merely drawing lines on a landscape that nature drew long ago. Lots of money is now at stake, and there are entrenched interests, shares, and stakeholders who will fight tooth and claw to hold onto what they never should have gotten. But the commons are ours. Always have been. No property right can be taken where none ever truly existed, and as a classical liberal about property (in the A. Smith sense), I am perfectly comfortable that no right will be denied when we repeal the practice of gene patenting, and once again require invention, innovation, usefulness, and human need to drive the market rather than greed and the desire for bulging patent portfolios.
The commons is reemerging in many spheres, as a vital natural forum for both competition and cooperation. After all, the commons once devised under British common law were available for commoners, who had no other property or wealth, to eek out a living through their hard labor and a common agreement that some spaces were to be used for all. If one was productive, frugal, and lucky, one could rise above one's squalor and save, and even, eventually, become a tenant farmer (because then, the sovereign owned everything thanks to God). Recognizing the role and use of the commons was both a democratic and a market innovation, encouraging class mobility. The oceans are another example, rich with resources claimed by no one, the bravest and best, or the luckiest could garner wealth. The commons is a source of capital for anyone who uses it best. Intellectual capital, innovation, guts, grit, and fortitude, combined with a well-maintained commons, is not only right, it is just.
Scientists deal in the natural world. They seek understanding, prediction, and ultimately control over natural laws. This cannot be accomplished without a community of scientists undertaking the tried and true methods of science, which depend in large part upon open critique and judgment of hypotheses, theories, and results of experiments by a community of peers. The domain of science is nature and its laws, and these can best be delved into, and nature's riddles best solved, with open and free exchange of information. All of which clearly annoys the powers that be who want as much as possible to cordon off vital knowledge so it can be put to use in profit-making. I am not, in general opposed to making profits, nor am I opposed to people being rewarded for inventiveness, except where the commons makes better sense, or in some cases, is a matter of justice.
We choose to make certain commons (which I call "commons by choice"). Thus, while land can be enclosed, and trains can be privately owned and possessed to the exclusion of others, in some cases we deem it in everyone's best interests to make certain resources freely available, or at least be heavily subsidized (as in the case of national parks and public transportation.) In other cases, like in the case of radio spectra, we allow the government to regulate an otherwise unencloseable space (what I call a "commons by necessity"), doling out monopolies to bidders at public auctions in order to prevent the breakdown of that commons. In some cases, nations negotiate to regulate commons (like the atmosphere) to prevent the collapse or ruination of an unencloseable space that benefits all. In the case of genes, an unencloseable, evolving, utterly natural and necessary commons has been parceled out to the first to file their bogus claims of invention where they are merely drawing lines on a landscape that nature drew long ago. Lots of money is now at stake, and there are entrenched interests, shares, and stakeholders who will fight tooth and claw to hold onto what they never should have gotten. But the commons are ours. Always have been. No property right can be taken where none ever truly existed, and as a classical liberal about property (in the A. Smith sense), I am perfectly comfortable that no right will be denied when we repeal the practice of gene patenting, and once again require invention, innovation, usefulness, and human need to drive the market rather than greed and the desire for bulging patent portfolios.
The commons is reemerging in many spheres, as a vital natural forum for both competition and cooperation. After all, the commons once devised under British common law were available for commoners, who had no other property or wealth, to eek out a living through their hard labor and a common agreement that some spaces were to be used for all. If one was productive, frugal, and lucky, one could rise above one's squalor and save, and even, eventually, become a tenant farmer (because then, the sovereign owned everything thanks to God). Recognizing the role and use of the commons was both a democratic and a market innovation, encouraging class mobility. The oceans are another example, rich with resources claimed by no one, the bravest and best, or the luckiest could garner wealth. The commons is a source of capital for anyone who uses it best. Intellectual capital, innovation, guts, grit, and fortitude, combined with a well-maintained commons, is not only right, it is just.
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