Remora

The fight about Intellectual Property goes on. Listen to the shots outside your window in the lonely night, listen to the sirens coming closer. Converts to the Open source idea, which is also the idea of the commons, come out of their closets, in the business world, are attacked, and then go back in. One such is the Michael Capellas, CEO of Compaq, who made a slip the other day. He was speaking before a biotech conference in Boston. Here's a couple of grafs from the Globe report: "The hundreds of biotech executives and venture capitalists at yesterday's conference hope to make immense profits by turning that processed data into salable products. Some aim to do this by obtaining patents on genetic information that they discover along the way. But this is a controversial idea, with some critics arguing that because genes are a part of nature, businesses shouldn't be able to own them.

In a comment that stunned the audience into several seconds of silence, Capellas responded to a question on the issue by flatly saying that companies shouldn't be able to patent genes. But he quickly backed away from the comment, pleading ignorance of all the ramifications of the issue. ''If you're asking me what should be patentable,'' Capellas said, ''I don't know.''

In a later telephone interview, Capellas stressed that companies had a right to control their scientific discoveries. ''I absolutely believe that the intellectual property must be protected,'' he said. Original processes and products growing out of genetic research should definitely be subject to patent protection, he said.But he repeated his concern that patent law might not be the best way to deal with basic genetic information. ''I'm not sure if the best way you do that is taking individual components and patenting them,'' Capellas said. ''That process doesn't lend itself well to this new world of bioinformatics.''

Catch that explanation of open source resistance: since genes are "a part of nature,' businesses shouldn't be able to own them. There are, as my puss-in-boots readers will know (oh you heady slicers and dicers of the dialectic!)
two major problems with that sentence. The first is that opposition is based on businesses 'owning nature." If a business exists, it is going to own nature somehow -- unless, of course, it is one of those Enron style "asset-free" companies, in which case its claims (and its year end accounting) are more super-natural. No, the question is about particular kinds of nature. The question is about the commons.

The other mistake resides, of course, in the verb "own." As in the equivalence between patent and own. Patents, as we have said before (and said and said) are grants of monopoly. They are inventions of state governance. Unlike contracts, monopolies of this type have a time limit. The reason for this is simple: the perpetual ownership of things intellectual, whether it is the sentences in a book or the method for clicking through the webpages to own the book, are eventually common property. The patent office is borrowing from you every time they issue a patent. The copyright people are doing the same. And you -- you out there, scribbling a poem, or working on a new fuel cell, are continually borrowing from the commons to do what you do. There is no work of art or man that refers only to itself. Well, outside of a nuthouse. This isn't a controversial point. It is, in fact, the reason nobody had ever heard of the phrase Intellectual Property until a couple of decades ago. If we go back to the discussion of patents in the Constitutional era, as Lawrence Lessig has shown, you will see that Jefferson, like Adam Smith, viewed patents as monopolies, and was accordingly reluctant to encourage their growth. Only lately has this insidious ownership idea crept out of the teeming minds of Monsato, Microsoft and their ilk. This isn't the new economy, this is the Hubris Economy. Only in the current atmosphere would it be possible for a company to actually think it can buy the idea of corn seeds -- which is what Monsanto has done in Mexico. And the reason this is happening is that the conservative judiciary, far from displaying that fealty to the past which they like to entertain themselves with at the Federalist Society banquets, are actually wildly, promiscuously legislating.

SO: sorry LI has to be so casuistical, so ... boring. But let's go over it. In the sense that I own the apartment I am living in -- that is, I rent it -- yes, one can talk of ownership. But owning in the sense of my ownership of the computer I'm using is out of the question. Ah, the thing is to prevent, by semantic means, the question from even being posable. So the question won't be posed, the question will be perpetually distorted, as long as Business Journalists go along for the ride and quietly seed the ownership-patent equivalency in their little business stories.