Seizing the Means of Re-Production

This essay is part of a series on offensive horticulture.

Steal a Monsanto soybean and you'll be in legal trouble for a day.

Sow a Monsanto soybean and you'll be in legal trouble for the rest of your life.

Owning Ideas

• infringement: taking a DVD from Piratebay without permission
• theft: taking a DVD from Walmart without payment/permission
• poaching: taking a DVD from Blockbuster its natural habitat without permission

Copying isn't technically theft, but it may infringe on IP (AKA "freebooting").

In a garden-variety garden, intellectual property comes in different flavors:

• trademark: protects names and brand identifiers
• copyright: protects creative works
• patent: protects inventions and processes

The plant analog of copyright is called "varietal rights". Plant Varietal Rights are a US-centric implementation of international Plant Breeders' Rights.

Owning Plant Ideas

But plants aren't DVDs. Plants like to copy themselves and change over time, which is annoying for IP owners and great news for everybody else (esp. enterprising IP attorneys). So 21st-century plant IP evolved accordingly:

• plant trademark: protects the name/branding of your plant or produce (e.g. Broccolini, Cuties, SunGold kiwi)
• plant varietal rights: protects cloning/selling/marketing/importing/exporting a stable plant variety (e.g. Cotton Candy grapes, Autumn Blaze maples)
• plant patents: protects cloning of exact genetic copies (asexually reproduced) of a plant (e.g. Honeycrisp apple, Caluya rose)
• plant utility patents: protects pretty much anything to do with a plant or a specific gene (e.g. Monsanto Roundup Ready soybean, Flavr Savr tomato, Golden Rice)

Note: These definitions overlap; it remains a legal headache.

Note: Next time you visit your local nursery, you'll notice many of the tags have trademarks (󰩧), patent numbers (PP#), patent-pending (PPAF), and plant-varietal rights (PVR).

Note: Yes, Broccolini is a registered trademark of Mann Packing, and they recently started enforcing their trademark (lest they lose it). Its genericized name is apparently "baby broccoli" or "tenderstem broccoli", which disappoints me.

Plant Patents, In-Practice

If you plant a Honeycrisp apple (or any other familiar apple) in the ground, you'll be unpleasantly surprised to find a crab apple tree in a few years. All "tasty" apples must be asexually propagated via grafting, which is why you can even patent an apple.

And it's more than just fruit and veggies. Seriously, a nursery got busted for cloning Knock Out roses:

According to the statement from Conard-Pyle, the nursery was in violation of United States Plant Patent Laws that state that no one may asexually propagate or sell any patented plant without the permission of the patent owner.

“Illegal propagation is a matter that we take very seriously,” said Jacques Ferare, vice president of license for The Conard-Pyle Co. “As the introducer of the Knock Out roses, we are committed to ensuring that Knock Out plants are grown only by legitimate growers. This not only protects these legitimate nurseries, it also guarantees that the consumer is getting the real thing and not a knockoff.”

Aside: "Knockoff roses" are so cyberpunk.

You may use/lend/sell/destroy a patented wrench. But you may not clone that wrench (or sell its clones), even if that wrench clones itself. The same legal framework applies to plants.

Hybrid Theory

Plant patents protect genetically identitical clones.

But it's pretty easy to modify the genes of most plants:

1. Move plant dust ("pollen") from one flower onto another flower.
2. The flower may turn into a fruit, which contains seeds.
3. The seeds may turn into new plants which are genetic mixtures of their flower parents.

I hope this is a useful/not-true oversimplification.

Normal plant patents do not protect genetic remixes (sometimes called "children"). Plant Variety Rights protect descendants, as long as those descendants look/feel/function (N U A N C E) like the protected ancestral plant.

By analogy:

• sharing an unlicensed clone of pokerface.mp3 infringes on the rights of Streamline/Interscope Records plus all Poker Face's performers and writers and publishers to control reproduction
  • asexually cloning (e.g. via cutting) a protected rose may infringe on patent and PVR
• playing an unlicensed cover of Poker Face infringes on the rights of the performers and writers and publishers but not the recording labels
  • planting a protected rose via seed may infringe on PVR, but not patent
• copying pokerface.mp3 for personal use is totally okay
  • copy a protected rose for personal use is totally okay under PVR, but may infringe on the patent
• some other uses of Poker Face are totally okay (e.g. a Christopher Walken lyrical reading)
  • some other uses of protected plants are totally okay (e.g. cloning a rose for non-commercial research purposes)
• recording and selling "Polka Face" without a license is totally okay (but Weird Al gets permission anyway)
  • breeding/hybridizing a completely new rose from a protected one is totally okay (except…)
• samples infringe on reproduction rights but are usually unenforced by their rightsholders
  • using patented genes infringes on reproduction rights but are usually unenforced by the their rightsholders

Wait, you can patent genes? That seems fraught with --

Problematic Utility Patents

Alright, now we're ready to answer your burning question: what's the deal with Monsanto?

I am not anti-GMO. GMO agriculture seems like a sane strategy to create calories and produce nutrients. But I also believe a dumber approach might fare better in the long-run.

After Monsanto stopped producing Agent Orange to kill things, they started using glyphosate to kill things. Because glyphosate is good at killing things, they sold it as a weed-killer called Roundup.

But glyphosate couldn't kill some particularly buff bacteria. So they took the buff genes from the buff bacteria and put those genes into corn. Now we have buff corn that can survive a light mist of death chemicals. The farmers like buff corn because the death mist kills bugs that want to eat the corn (without killing their buff corn).

They use a thing called a "gene gun" to transfer genes, which is also a very cyberpunk term.

But Monsanto faced an issue: they couldn't patent the corn, because farmers don't clone corn. Plant Varietal Rights might protect against unauthorized propagation, but it doesn't protect against cross-breeding, derivatives, limited seed-saving, etc.

And so Monsanto slapped a utility patent (different from a normal plant patent) on the buff (glyphosate-resistant) gene and its usage. For the duration of the patent, Monsanto could litigate against any farmer who grew buff corn.

Good news: The patent expired -- farmers can replant their buff corn seeds now! Sieze the means of reproduction!

Bad news: The bugs are already resistant to glyphosate-flavored death mist, and farmers cannot grow profitable monoculture yields without using the latest seeds and corresponding death mists.

Monsanto made lots of money from selling buff corn seeds, so they put buff genes into soybeans, alfalfa, wheat, sorghum, etc.

In one big lawsuit, Monsanto sued a farmer for growing unlicensed Roundup alfalfa, even though he wasn't applying Roundup herbicide on his crops. The court ruled that the "utility patent" needn't be actually be utilized to infringe on a patent, because cloning protected tech confers optionality powers to its pirates, i.e. pirates can suddenly choose to infringe on the unlicensed copies whenever it becomes cost-effective to do so.

In another big lawsuit, a farmer purchased these Monsanto soybeans and replanted a second generation of seeds from his first harvest (i.e. first sale vs. resale. But the US Supreme Court said something like: "dude, you're not allowed to do that, because you're making a patented product without a license". They also said that this ruling does not necessarily apply to other "self-replicating technologies" -- whatever that means.

Monsanto has been involved in lots of nifty legal cases.

Today, ~74% of the world's soybeans by area are genetically-modified soybeans, which are mostly Monsanto beans. And the people lived happily ever aft--

The Grass Cannon

When you grow lots of similar things in a single place, you create a "monoculture". Nature abhors monocultures because they invite exploitation. Any resource-rich system attracts parasites, pests, viruses, etc. Homogeneity amplifies this effect.

Note: Furthermore, the creation and collapse of monocultures ignite unforeseen conequences.

Note: Monocultures form a powerful-yet-unstable strategy. Nerds sometimes call this a "glass cannon". Corn is a grass, ergo "grass cannon".

Most modern produce is grown in fragile monocultures. These industrial systems demand the latest synthetic fertilizers and pesticides and antibiotics, which only work with the latest utility patents in the latest plants. Farmers cannot save these seeds without risking severe patent infringement lawsuits.

Why don't US farmers just grow/save non-GMO seeds like our grandparents? Here are a few non-exhaustive reasons:

• paltry consumer demand for organic produce makes pesticide-free plants unprofitable
• the US economy depends on cheap soybean protein and cheaper corn carbs to feed hundreds of millions of people; the only way to meet industrial demand is via industrial supply
• last decade's seeds are helpless against superbugs created by this year's homogenous GMO crops
• we know about more efficient non-homogenous farming methods, but they haven't been tested at-scale and the discoveries are not well-distributed
• manual seed-saving is hard labor; it's easier to purchase predictable seeds prepared by machines

Anyway, seeds are now a subscription service. This is probably very not good.

We have historic surpluses of food; the farmers grow poorer. This is the inevitable outcome of a system where industrial behemoths control vital interconnected variables: inputs (e.g. fertilizers, pesticides), outputs (e.g. seeds), and everything else (e.g. shipping, processing, packaging). Sometimes it seems like these entities spread poisons and sell convenient antidotes.

It gets worse.

Plants Have Sex

Plants have sex, and they do it with/without our permission. When living things have sex, they sometimes create babies with both parents' genes.

This process shouldn't surprise you -- it's been happening for a while. The worrisome part is that some of those genes might be patented, and we cannot control how and when pollinators facilitate plant sex.

Nor can farmers even detect when patented genes have entered their crop rotation. We can implement simple DNA "barcodes" for extracting patent numbers at home, but it seems much cheaper to stick with surveillance/fear/lawsuits.

In response to these worries, Monsanto promised that it will not litigate against "trace contamination".

Sounds like a big win, right? Well, the problem with this arrangement is that we've created a secret seed police that surveils farmers.

"Seed police" are cyberpunk.

US courts are going to hold Monsanto to their promise, but worries remain:

“The real threat of continued contamination of our nation’s food supply was only highlighted last week when Monsanto’s unapproved GMO wheat was discovered in an Oregon farmer’s field more than 10 years after it was legally planted in that state.”

The recent discovery of GE contamination of wheat sent shockwaves through the Western wheat growers community and resulted in Japan and South Korea temporarily halting the acceptance of American wheat imports. Several lawsuits have now been filed against Monsanto. The lawsuits allege that the presence of GE wheat crops spurred top wheat importers, such as Japan, South Korea, and the European Union, to enact damaging restrictions on American wheat.

International conflict over uncontrolled gene contamination is soooo cyberpunk.

Peasants vs. Profits

Quick recap: the monkeys acquired the power of gods, but the monkeys with money/missiles want more money/missiles instead of free food for everyone forever.

Netflix -- if you're listening -- I can have a screenplay ready in ten days.

In response to this dilemma, monkeys have been throwing wild intraplanetary parties and writing lots of stuff down:

Many monkeys worry that some of these parties were not enough to make free food for everyone forever.

Meanwhile, other monkeys formed troupes to share seeds:

Unfortunately, open seeds aren't the end of the story:

The attraction of an open source initiative for me has much to do with the frustration of watching 20 years of non-commodified political struggle for farmers’ rights produce the impotent, and perhaps actively meretricious, ITPGRFA which, after an additional 10 years, the United States still has not condescended to sign. Meanwhile, a concentrating capital has extended its reach into the genescape despite a few symbolically important but functionally largely meaningless rollbacks of the most egregious examples of raw bio- piracy (e.g. the Enola bean, Basmati rice). Open source offers at least the prospect of a shift from continuous defensive actions to the creation of a positive, relatively autonomous space in which capital might be effectively prohibited – by its own rules – from trespassing.