Frank Morton

How do we create an ethical boundary around a participatory commons of crop plant genetics?

Ever since my children introduced me to the Linux community and the open source software model, I have imagined that someone just a little smarter than me should be able to figure out how to adapt the same model for seeds and the traits they embody. I didn’t know it, but a public bean breeder from Minnesota named Tom Michaels had proposed just such an idea in a peer reviewed journal in 1999. Jack Kloppenburg, rural sociology professor from University of Wisconsin (Madison), and author of First, The Seed (1988), had read the Michaels article, and by time I met Jack in 2010, he was in the process of gathering up like minds to create a working group around the concept of open source seed. The first meeting of this group in the spring of 2011 in Madison included me, Jack and Tom, Steve Jones (public wheat breeder at Washington State), Bill Tracy (public sweet corn breeder from Wisconsin), as well as scientists and rural social activists from southeast Asia who had their own versions of seed sovereignty issues quite distinct from our own.

The following year we met again in Minneapolis as a much larger group with more public breeders (Jim Myers and Patrick Hayes of Oregon State, Irwin Goldman of Wisconsin), graduate level students in plant breeding, a non-profit organization (Institute for Agriculture and Trade Policy), and Tom Stearns, president and founder of High Mowing Organic Seeds in Vermont.

It was during this meeting that the ghost of Keith Aioki, legal professor at Oregon State University Law School and a legal scholar on the intersection of seeds and intellectual property law, rose up from his recent death to remind us that open source software is fundamentally different than seed genetics. Aioki had delivered this opinion at an environmental justice forum at University of Oregon in 2003, and again at the first OSA Seed Growers Conference in 2004, but it had not fully convinced me. Now, Aioki’s reasoning was coming from the mouth of Jeffery Endelman, a brilliant grad student from Steve Jones’ program (and now a research geneticist at Cornell). He put it simply. Software is the result of a written code, and the person who wrote it has copyright law backing up the ownership claim to that code and the software programs that result from it, including derivations thereof. This is what makes open source software protection “viral,” affecting everything to which that software is applied, and it is what makes ownership of code verifiable. One can easily and accurately read it, just as well as a poem, a lyric, or a book. If you wrote it, it’s yours, and you may control it and the use of it, including making it freely available to all.

Seeds are not this way. A person did not write the DNA code. The code is mostly non-coding nonsense (that is, it creates no protein products), the precise code varies from one individual seed to the next, or the functioning of the same code might vary from one individual to the next, depending on past history or current variations in the environment. If software functioned this way, you wouldn’t want it flying airplanes. So, the seed/software analogy quickly falls apart, and the well established copyright law underpinning OSS code is of no help protecting seed sovereignty. After Jeffrey’s claification to us old buzzards, there was a big “Oh heck!” hanging in the air. But...!

The corporate seed industry has other ways to accomplish restriction of use in seeds that they sell.
First, the US Congress and other industrialized nations have agreed upon a varietal licensing system called Plant Variety Protection (PVP), by which governments issue certificates declaring ownership rights to entities for plant varieties that are deemed “original, uniform, and stable across generations.” PVP certification (at present) allows the protected variety to be used for further breeding and other research, seed saving by farmers for replanting (but not for resale), and for licensing to others in exchange for royalties. The downside of PVP (from a breeder’s point of view) is that it may only be used to protect finished, stable varieties, not the individual traits they contain or the breeding populations they are derived from. Further, the cost of the PVP certification process (in time and money) makes it more useful for those with deep pockets and legal representation than for individual breeders or innovative farmers, for whom cash and time are limited resources. These costs have risen dramatically over the last decade, to around $10,000 per variety. For me, PVP would seldom return the cost of acquiring it.

Utility Patents are now the corporate means of choice for keeping competitors away from genetic resources. This approach was not granted by Congress but by the Supreme Court, which ruled in 1980 that genetic engineering created gene sequences that were truly “novel,” and were therefore subject to patent protection. In a controversial opinion in 2001, the Court extended this patent protection to natural “novel traits” of plants (without providing any guidance to the meaning of “novel”). Since then, corporations have used their legal resources to claim absurdly vague (“pleasant taste” of melons) and supremely natural aspects of plant expression (“heat stress resistance” and shades of color) as corporate property. My 2013 catalog essay Patents on Common Vegetables (Holy Crap! You can Patent That?) explores the reach of these abuses of patent law and some of the ongoing outcomes.

And then there are the uses of contract law to keep buyers of seeds from using the inherent genetic potential of those seeds for more than one generation. “Shrink-wrap” agreements in software correspond to “Bagtag” agreements in seeds. The “shrink-wrap protection” model essentially says that when you open a shrink-wrapped software package you agree to a finely printed, thickly worded “contract” between you and the seller of the shrink-wrapped package. Seed companies like Seminis (owned by Monsanto) and Monsanto, et al. use this same kind of “contract” with their customers to prevent any use of their bagged seed other than for growing a single food-use crop– that is, no use in breeding, seed saving, replanting, research, trials, or any other use not specifically allowed. Anything may be shrink-wrapped or bagtagged, regardless of its originality, because the claim on the item is that it belongs to (because it was manufactured or produced by) the entity that wrote the contract that you are agreeing to upon opening. Seminis has bagtagged ‘Amish Paste’ tomato seed, clearly not original to the corporation, to prevent others from using the seed for anything other than growing paste tomatoes for market. This may or may not be legal– only a court case would decide, but it is certainly in conflict with the concept of “public domain,” which specifies that all seeds in the public domain may be used without restriction.

The OSSI group considered these different “protection” models, with the help of attorneys and advisors, hoping to turn the shrink-wrap model around, an Aikido move to use the attackers’ momentum to show them the floor. We considered a bagtag that specified everything that a person may do with the seed (the inverse of the Seminis tag), and just one restriction—one may not restrict the future uses of the seed in any way. This had a very satisfying feel to it, that we could turn the power of contracts around to create freedom rather than restrict it. The sad part of this approach was that it made OSSI look and behave just like our philosophical opponents. We might have endured this embarrassment were it not for the legal conclusion that every exchange of a packet of seed would have required an exchange of a 7-page contractual document, if it were to stand up in court. The seed sellers in the group were sure this would create more problems than it would solve, and that it would be commercially unworkable, even in the US where we agree to tiny unreadable contracts every time we use our computers. Our allies from the Global South rejected the entire notion of contracts of any kind being associated with seeds. For them, no one owns seeds or genetics in any sense, other than by growing them. Once out of a grower’s hands, the seeds are free of any restriction and any claim of propriety is a false claim. For indigenous farmers worldwide, seed belongs to cultures, not to companies or individuals.

So this is where the OSSI working group had arrived by August of 2013. The original working group had expanded, and the interested parties now included Organic Seed Alliance and a number of graduate-level students of organic plant breeding. Some members of the group had begun to express a wish that breeders rights (to receive royalties on new varieties and inbred lines used to make hybrids) be written into the OSSI agreements. If “freeing the seed” meant there was no way to be paid for creating new varieties, how could anyone dedicate their lives to helping create a free seed commons? Trying to accommodate this legitimate concern complicated the language of our original intention– to create a free seed commons that was cost-free to participants. It also completely alienated indigenous farmers, who wanted nothing to do with the formalism of plant breeding as a profession.

Many OSSI thinkers were discouraged by these complicated legal and sociological entanglements, and the possibility of a legally defensible, contract-based open source seed system looked like a lost cause. But Jack Kloppenburg, Irwin Goldman, and some of Irwin’s students were not done. I had already pointed out that it was unlikely any of us would use a violation of OSSI contract agreements to actually take a Gene Giant Corporation to court. Going to court costs money, even for the righteous, and I had opined that it would be more likely that I would use such violations as an opportunity for public shaming of offenders rather than getting legal judgements against them. Shaming a bully for taking stuff and claiming ownership does not require a legal violation, only an ethical one. Creating an ethical boundary around the practices of an intentional commons is not so difficult. It mostly just requires that everyone understand what is within the commons, what the rules of participation in the commons are, and a loud chorus of public indignation whenever the rules of the commons are violated. I suggested to Jack, sitting at the head of the table, that I didn’t need an airtight contract to make a case against a corporation for ethical violation of a public declaration—that being, I wish my work to be shared, not monopolized.

By March 2014, Jack and Irwin and a group of their students had decided that ethical boundaries were good enough boundaries, and moral indignation was as good as a lawsuit, maybe better. They announced to the group that they had pirated the OSSI ship and were taking her to destiny. Rather than get lawyered up and contracted out, OSSI would work by invoking a pledge that spoke a moral intention. The intention is that the use of seed bearing the Open Source Seed Pledge never be restricted, and that anyone reproducing or transferring the seed or its derivatives will pass this pledge onto those who receive it.

On April 17, 2014 (International Day of Struggles in Defense of Peasants’ and Farmers’ Seeds), on the campus of the University of Wisconsin, Jack and Irwin, Irwin’s graduate student Claire Luby, and Tom Stearns, delivered an address announcing the release of 36 Open Source varieties, 27 of them from Wild Garden. The event got media attention around the world, all of it positive, and the response was beyond expectations. OSSI was slammed with requests for seed, a confirmation that there is a passion inside people around the very concept of seed access, and the primary necessity of unfettered seed in sustaining a free and independent culture.

The weakness of this approach is that once the seed becomes detached from its pledge, it falls prey to all the insecurities of any seed in the public domain. It is difficult to impress upon others the burden to carry a message. Even getting our customers to denote our OSSI seed in their catalogs is a stretch—they don’t have space, they don’t have symbol fonts, they don’t have time to tell customers what open source seed means, they don’t wish to carry my water, they don’t want one more thing to do...and I get that. There is no profit for my reselling customers in educating the public about seed sovereignty. But I can put it in our catalog, and that itself plants a seed of the idea, the first essential act in cultivating anything new. We have been emulated before.

OSSI will present another release of freed seed this spring, and I understand that more breeders are coming forward with more material from more species. At some point there will be enough OSS varieties that it will be practical to present them altogether in an online catalog, at which point they will take on a life all their own, and then their open nature will never be detached from them.

This story is still being written. The best account of it thus far was published in May 2014 in the Virginia Quarterly Review, an extensive article written by Lisa Hamilton, “Linux For Lettuce.”
Highly recommended reading. http://www.vqronline.org/reporting-articles/2014/05/linux-lettuce