The Supreme Court heard oral arguments in the case of Bowman v. Monsanto Co. today. It marks the first time that an issue of patent infringement of genetically modified seeds—soy, in the case of Victor “Hugh” Bowman—has been heard by America’s highest court.
The Associated Press is reporting that the justices “appeared likely … to side with Monsanto Co.,” upholding the lower court’s ruling and requiring Bowman to pay $84,456 to the ag giant for violating its intellectual property rights.
Bowman’s alleged infringement stems from a purchase of soybeans from a grain elevator near his Indiana farm in 1999. Although the soy explicitly wasn’t sold to him as seed, Bowman used it to plant a second, late-season crop, one he expected lower yields from due to less desirable weather. Instead of buying expensive Monsanto seeds, as he does for his primary planting, he chose to lower his overhead by purchasing some of the surrounding area’s harvest—much of which likely carried Monsanto-owned genes—at the elevator and use it as a cheaper alternative.
Monsanto didn’t celebrate his thrift. David Snively, the company’s general counsel, told AP, “He wanted to use our technology without paying for it.”
Corporate-controlled genes may be at the heart of contemporary agriculture, but the history of farming has been inherently open-source. Today’s arguments at the Supreme Court are a point of dramatic tension in the Monsanto-dominated narrative, but the seeds-as-intellectual-property plotline is a late development in a far larger, longer story.
It has been 5,000 years since soybeans were domesticated in China—five millennia after some observant hunter-gathers in the Fertile Crescent figured out that by collecting seeds from wild grains and burying them, they could generate another crop. The oldest traces of fermented soy-based foods, found in Korea, date to 1000 BCE; tofu has been consumed in Asia since the year 220.
This more recent chapter started when soy was first introduced to the United States in 1765. One hundred seventy years later, materials derived from the plant were used in manufacturing Henry Ford’s cars. The greater ag-industrial complex mimicked Ford’s embrace of soy during World War II, when production shot up 77 percent over the course of one year. “Remember—when you grow more soybeans, you are helping America destroy the enemies of freedom,” read a war-era USDA pamphlet.
In 1996, 16 years after the Supreme Court ruled that patent laws could be applied to a manmade living organism, Monsanto (which employed Justice Clarence Thomas, who, per usual, didn’t recuse himself from this case, in the 1970s) put its Roundup Ready soybean seeds on the market.
The price of soybean seed has tripled in the years since. Today 93 percent of the crop is planted from Monsanto-patented seeds.
Despite the overwhelming precedent of agricultural history, which began not with the first farmer, but with the first seed-saver, contemporary patent law rules the debate here. As such, biotechnology and software groups are paying close attention to the case. They, like the Obama administration, are siding with Monsanto.
Kembrew McLeod, a journalist and professor of communications at the University of Iowa, wrote of another parallel issue to seed patents in his 2007 book, Freedom of Expression: music and other creative intellectual property.
Unlike a CD, which must be willfully copied, in the case of privately owned seeds, MacLeod writes, “the earth (rather than a computer) “reaps” this information without permission.” To grow a seed is to copy it, repeatedly—one plant produces enough seed to grow 80 more—which is why Monsanto requires that farmers purchase new seeds annually.
But these copies can distribute themselves without any help from humans, drifting one field to the next on a breeze; transported in the guts of animals or birds. As MacLeod writes, Monsanto sued a Canadian famer name Percy Schmeiser in 1998 after finding patented canola plans on his land. “The seventy-three-year-old Schmeiser argued that he shouldn’t have to pay Monsanto a licensing fee because the pollen had blown onto his property from neighboring farms. Although Monsanto said this might be the case—in fact, the company acknowledged that Schmeiser never placed an order for its Roundup Ready canola—he was still infringing on their patent.”
Tracking down—and prosecuting—every one of such patent violations would seem to be a fool’s errand. But like a mirrored image of the recording industry, which lost its tight control on its intellectual property thanks to technologies like Napster and other peer-to-peer networks, Monsanto and its ilk have used technology to monetize a system in which, historically, demand for seed was determined by a farmer’s own supply—and no money exchanged hands. Like information, as open-source activists say, seeds want to be free; Monsanto is tying them down in the lucrative framework of capitalism.
The parallels between transgene seeds and music are more illustrative than anything, as patent law has no legal bearing on copyright law. But as McLeod pointed out in an email, “As an increasing amount of our everyday life experiences include copyrighted and trademarked works—and our ability to document our lives is increasing—it means that our own memories and personal media archives contain property that is not our own.”
For instance, a writer I know wrote a book about a spiritual journey she took with her husband, and it included a scene in which he began singing Bon Jovi's "Livin' on a Prayer" at an extremely inappropriate moment. Her publisher made her get permission to quote four lines from that song, but she was not able to do so, which meant she had to alter that crucial scene in her book. In other words, she had to falsify her own memory.
Regardless of the ruling the court issues in June, debating how much of our lives can be owned by others—on our farmland or in the very private recesses of our memory—is a broader oral argument we should all consider engaging in.