The ethical case against IP (transcription)

[Introduction]

[00:00]

I'm sort-of leaping into the lion's pit here today, because when I was asked to speak Michael made the mistake of asking me what I wanted to speak about, instead of suggesting something. And I've been speaking for the past year now about the subject of my book ‘Who Owns You: The Corporate Gold Rush To Patent Your Genes’ and I'm getting kind-of tired of it – although this happens to be a very exciting time for this, and I'll talk a little bit about that in relation to the lawsuits that are going on, and the various bills and whatnot that are bringing all this to a head. But I'm now working on the next stage of my work, and it's a culmination now of twelve years of work on the subject of intellectual property and philosophy. So this is an exploratory effort and I'm interested in your reactions.

[Axioms]

[01:01]

I'm going to start with some fundamental axioms and then give you some premises and try to work through an argument that has convinced me, not just of the ethical problems related to patenting genes, but of ethical problems related to all intellectual property rights.

So our first axiom – and I take these as uncontroversial: if you don't accept these axioms, then we are going to have some disagreements – we have fundamental rights to autonomy of our minds and our bodies. This is pretty standard liberalism from Mill.

Axiom two: we have fundamental rights to freedom of expression consistent with Mill's liberty principle. Do I need to reiterate that principle? According to J. S. Mill we have unrestricted liberty except to the extent that it injures someone else. So this is the notion of the liberty principle – a basic, fundamental notion of liberal democracies. And again, if you disagree, you can just step right out.

[Premise 1]

[02:09]

All man-made objects intentionally produced are expressions, and these are the only subjects of IP law. [First premise]

Now we're going to get into a little bit of philosophy, because this is not what you're used to hearing if you study – who here studies intellectual property law? I'll watch out for you guys. I'm using terms a little differently than you are used to using them, and this is based on my first book, and I'll explain how I mean to use these terms.

My first book was ‘The Ontology Of Cyberspace’ and it was a combination of my PhD dissertation and some work I did after that. And the crux of my interest in cyberspace was the puzzling problem of the simultaneous granting of patents and copyrights to the same sort of thing. I'm sure that all of the IP folks here understand that that's a problem, because ordinarily the subjects of patent law and the subjects of copyright law are what logicians call mutually exclusive. And there are cases leading up, before software, that make that clear; except along comes software which then bridges these two worlds and starts to get both patents and copyrights. This implied to me that cyberspace is either a unique hybrid object, something entirely new, or, that the categories of patent and copyright have been incorrectly drawn from the start. Guess what I concluded.

My conclusion was that cyberspace was not some sort of new – the term ‘ontological’, that's a philosophical term, it simply means, well, ontology is the study of being, and I prefer to use this term over ‘metaphysics’ which sounds too much like transcendental meditation or something like that. But ontology is simply the study of categories of being. And if we're talking about the nature of something, and we're using terms that are ordinarily used to describe two mutually exclusive categories, and then we have an object that fits into those categories, we have to ask ourselves: is something wrong with the terms, or is something wrong with the object?

And my conclusion is, it's not a problem of the object, it's a problem of the categories. And I looked at the history of machinery leading up to software, essentially. And – does anybody know what that thing on the left-hand side is? A Jacquard loom. And what does a Jacquard loom do? What you see here are holes on – these are not paper cards, these are big, wooden slats or metal slats, with holes on them in a certain pattern. And the Jacquard loom is an early form of computer: it reads the software on these big plates of metal with holes in them and it weaves for you a pattern, easing the work of weavers.

And I say it's a matter of degree: it is a smooth spectrum between the wheel and software. All of the objects in between are really the same sort of thing ontologically speaking. And I'm going to defend that a little more for you, because some of you are sceptical. This spectrum, I say, consists of, on the one side, things that are primarily utilitarian, and on the other, things that are primarily aesthetic. And all of the objects of intellectual property law can be categorised somewhere on that spectrum.

What are these things then? – if the categories of patent and copyright don't really describe these things accurately? I say we can use a very common term to describe exactly what they are: they are expressions. Any idea made manifest in the world is the expression of that idea. Now, we perceive these expressions for different purposes; the description of a well-pump is not going to ever fill your glass of water. But that description is an expression of the idea of a well-pump for a particular purpose: a primarily aesthetic purpose – or maybe a utilitarian purpose if it is an instruction in how to build a well-pump.

I claim that this is an example – software is an example, of the faulty ontology underlying intellectual property law; not because it is a new sort of object, but because it is an object that does things in a very quick way. This is a text that we don't directly perceive, it is a machine whose moving parts we don't directly perceive, but the ontology of it is the same as that of a Jacquard loom, which is uncontroversially a machine, or a novel which is uncontroversially an expression of another sort.

[Premise 2]

[08:33]

Our next premise – and this is also a bit of philosophy: rights of ownership stem from brute facts of possession, and laws are just when grounded in brute facts.

Recently, The Guardian reviewed this book (‘Who Owns You’). It had a very favourable review, but it said I have this quirky natural law theory, which is true, it is quirky. But I'm going to defend it for you, and maybe some of you will be convinced. It's not essential to my argument, but I like it.

So, where do property rights stem from? I claim that rights to things like land and moveables, which – I should first tell you a little bit about John Searle and the notion of social objects. Has anybody read ‘Construction Of Social Reality’? It's a great book. He really explains the nature of institutions, I think, quite accurately. And what he says is there is a world of brute facts, that's the pre-institutional world – you can think of the world without any of the legal or social conventions that we now use to understand the world, and understand that there is, before all of those institutions, there is a world of brute facts.

Step outside your training and think of a world without institutional facts, and you still have objects, right? So this is still a thing, right? and I'm still doing something with the thing. Would we call that owning it? If we're in a pre-institutional world, am I owning this book at the moment? No. Ownership is an institutional fact, right? What am I doing? Holding it, and possessing it. I'm excluding you from holding it by my fact of possession. So in a pre-institutional world we still have possessions and we still have – we still occupy space, for instance, but we don't have the institutional terms like ownership.

I claim that the rights, the justice of laws that give us rights to property, like land and moveables, is based upon something that – now there's another philosopher you will never have heard of, Adolf Reinach, who wrote a – he was a lawyer-philosopher, so dear to my heart – he described certain sorts of institutions as grounded. And this was long before Searle talked about the notion of brute facts, but he was describing the same thing. He said contracts are just because they are grounded in the fact of actual agreements among people, and when people make actual agreements, something new arises in the world: an obligation and a duty. And that happens, according to Reinach, again, pre-institutionally. So contracts arise because of brute facts, and I say – and Reinach didn't talk about this, but I say that the justice of laws that enable us to exert our rights over land and moveables are also, that's also grounded in brute facts. The brute fact of my possession of something is what makes laws that enable me to sue you, or the state to criminally prosecute you, when you take it from me, grounded, and therefore just.

And now I have a psychological explanation for this, and that is that we have created institutions that are basically supposed to prevent violence, and prevent the use of force. You don't have to buy that part, all you need to buy so far is that there is some justice to laws of possession that we call ownership in institutions based upon something that exists pre-legally.

But as all of you know, and this is not – there are some theorists who dispute this, but there is no way to exclusively possess, the way I can exclusively possess a book, what we would call an expression type. So intellectual property law recognises the distinction between types and tokens – again this is a philosophy term, types and tokens, that describe two different real things: the novel – this book, for instance, what is the token? the token is the actual object, with the particular words on pages, etc. The type though, is different; and what is the type? The ideas, the particular string of words strung together in a certain way. So my possessing this token, what does it do to the type? anything? Nothing. Because you can also possess another copy of it, you could maybe read it, and memorise it and carry around in your head the type. So it's a very different sort of possession, and there's no way, there's just physically no way – and intellectual property law recognises this – to exclusively possess an expression type, as opposed to the token. And any attempt by you to dispossess me of the type, by maybe reproducing it etc., that's not actually going to cause violence, and it doesn't require force. Once I have expressed that type it is out there in the world, and it doesn't do anything to my individual autonomy – if Peter comes up to me and he rips this book from my hand, that's a very different act than if he surreptitiously memorises my book and then goes home and types it.

Unlike land and moveables, intellectual property laws are not grounded in any brute facts of possession. As I said, just laws, according to Reinach, and I agree, are grounded in brute facts. And a positive law could be unjust if it conflicts with grounded laws. Now there is all sorts of positive law that isn't grounded in any brute facts: rules about where you smoke, or park your car – we could argue about that, but I think those are less clearly grounded in brute facts than those of possession of moveables and land. But if we consider a regime that outlawed private property, and said private property is theft – there have been such regimes – we could criticise, based on this theory so far, those regimes as being unjust, because the justice of the rights to land and moveables I say is grounded in brute facts.

Intellectual property law is a pragmatic response to the logical problem of the fact that you can't possess an idea type to the exclusion of others; and it is an attempt to try to create an economy, to try to deal with this to spur innovation through increasing profit for those who have monopolies.

[Premise 3]

[16:49]

Premise three – and this is – I'm getting slightly more heretical: there are parts of the world that cannot justly be owned.

I'm going to try to defend that based on the argument I made about gene patents in this book: and it has to do with this notion that if there are positive laws that conflict with grounded rights we have to consider whether or not they are potentially unjust. And I looked at the problem of genomes, so a little, a brief introduction to the problem of gene patenting – all of you might have – there's been a lot going on here, and in the media, about gene patents but, just a brief introduction to the question of gene patents.

This is a process that started in the early 1990s; it actually started at the NIH, so I had the great honour yesterday of interviewing Dr. James Watson – anybody heard of him? Watson and Crick, they discovered the structure of DNA, with the help, and often sometimes uncredited help, of Rosalind Franklin and Maurice Wilkins. And when they discovered – I asked Dr. Watson, when you discovered it, did anybody suggest you patent it? And he looked puzzled and he laughed and he said no, nobody would have thought of that, and I wouldn't have thought of that, but some unnamed Hungarian Nobel Prize winner did suggest it to him, and Watson thought this was insane and laughed it off, essentially, moved on, and got a Nobel Prize instead. That was a pretty good concession prize actually.

The structure of DNA was not patented, but, in the 1990s Watson was asked to head the Human Genome Project for the NIH. The Human Genome Project was an international effort to develop a map of the human genome; because if we know where in general genes occur in the human genome, we would be able to target further and future research into particular genes that we could find – for disease genes and develop cures – a great medical project that basically is the equivalent of the space race. And the Human Genome Project was divided into tasks that were assigned to different research centres all over the world. James Watson was in charge of the US effort – when he was working for the NIH project of the Human Genome Project at the time.

. . . for the same team, for Watson's team, and his name was Craig Venter. Now you've heard of Craig Venter. Who hasn't heard of Craig Venter? Craig Venter is a very famous man; he started a company called Celera, and they were going to be the private competitor to the publicly funded Human Genome Project. But that was much later; he actually taught at the University of Buffalo, where Peter Lees and I are alumns of – he was in the pharmacy department for a while, and nobody liked him, that I know of. But he is a very famous man who has done great things – I don't want to detract from his greatness – and he actually did do a lot to spur along the race for completing the human genome because he helped to develop a new method, a really important new method to rapidly sequence genes: the whole-genome shotgun method, which relies on computing power – it's a great – if you're a geek, go read about it, I'm not going to describe it here. That was a great innovation.

Now, when he was working for Watson as part of the human genome project in 1992, he and another couple of people in the NIH thought, wow, when we get these things, when we find genes – and they were looking for expressed sequence tags which delineate ends of genes – what we should do is we should file patents on these things because they could become valuable in the future. James Watson – well, first of all, Bernadine Healy, who was James Watson's boss at the time, thought this was a great idea – when James Watson got word of it he bitterly complained – he has a temper apparently, and he yelled and screamed that this couldn't happen, you can't do this, he was really going to blow his stack over this – it didn't make him happy. And when Bernadine Healy discovered his unhappiness because of his very vocal opposition to it, she fired him. So he was no longer in charge of the HGP in the US. Francis Collins then became the head of that, and he is now going to be head of NIH. So, a little historical background to put it in perspective.

Venter went on and founded a company, a private company: Celera, which I already talked about, and they, as they began to sequence the human genome, guess what they did – they patented the hell out of it. They started filing patents left and right. Other companies, Incyte and a couple of other companies, really got into the act, and the short story of it is that today about 20% of the human genome is patented – so 20% of genes have some patent claim filed on them.

A gene is an arrangement of nucleotides that codes for a protein – a little bit of science: its action involves the creation of proteins by mRNA – messenger RNA – which, as it creates the protein, reads the beginning and end of the gene and leaves out the introns. Now, this is a natural process; this is how you are made: you are composed of proteins that are read through this process, and produced in different cells according to differentiation of those cells, again, through the instructions of your DNA. It is the same mechanism as that which scientists use to create what they call isolated and purified genes – cDNA. That's important.

A patent on cDNA is, I argue, not different than a patent on a gene itself: there's nothing new about the cDNA. As I said, the process for creating cDNA is the transcription process that goes on all the time – nature devised this, it isn't anything new – it's not novel and it's not properly patentable. But I'm not here to make the legal argument, so don't let's get tripped up on that because I have another argument about this that has to do with ethics. We can debate it later – my friend Luigi Palombi has an excellent book which I recommend: it's called ‘Gene Cartels’, and he really tears apart all the legal arguments on the other side of the debate. So if any of you want to debate that, I'll ask him to step up here and talk about that. Let's talk about the ethics.

[25:10]

There are two types of commons – now this is again an area where we need to get clear on the terminology, because you and I, we were trained as lawyers and we think of commons as something that, it turns out is, I think, a little bit over simplified.

We think of the commons as a creature of positive law: that we carve-out commons, out of things that might otherwise be ownable and possessable. But that's only one particular type of commons, I argue. A national park, national highway systems, international waters – could any of those things be enclosed and possessed to the exclusion of others? All of them could, absolutely. And in fact a lot of commons of those sorts: national parks, highways, etc., they have to be reclaimed from individuals by the state and then turned into a commons. That sort of commons, when you take something that could be owned and possessed to the exclusion of others, and carve that out and then set it aside for the common good – that is what I say is a ‘commons by choice’. I talk about that in chapter 7 of my book.

There's another sort of commons, and that is a ‘commons by necessity’; and this is a little trickier. Are there parts of the world that simply cannot be possessed in any meaningful way? – they can't be enclosed, they can't be subject to the – remember how I described the justice, the grounding, of rights to possession over certain things – are there parts of the universe that are unsusceptible to that sort of grounding? I claim that there are. These are, I would say, commons by necessity, and here's a couple of examples: all of the oxygen in the atmosphere, the element oxygen, laws of nature, bands of the radio spectrum – I like this one, this is the one a lot of IP theorists argue about all of the time – is there any way for me to exclusively possess a band of the radio spectrum? What can I do? If I want to exert my control over a band of the radio spectrum I build a radio tower and I start broadcasting on a particular band. And then you come along, and you want to exert your control over it, and what do you do? Pump up the volume, turn up the wattage, and then we end up with a battle – and this is what a lot of economists call the tragedy of the commons: when everybody is fighting for one of these things that is supposed to be for everyone's benefit. But I don't think most of the discussions account for the fact that there are these two different types of commons – and we can choose to treat commons by choice in one way, but we have no choice over commons by necessity.

I argue that the human genome itself is a commons by necessity. It is a constantly evolving object that involves every member of the species, and like outer space, like the atmosphere, like sunlight, like laws of nature, and like radio spectra, it cannot be enclosed to the exclusion of others, simply as a matter of necessity, not as a – it's just logically impossible to conceive of it. And in fact we prove this all the time: if somebody wants to come along and reproduce a gene, what do they have to do? – one of these 20% of the genes that are patented? Do you have any control over your present violation of the patent law? You can stop yourself replicating – you can try to do that, and you can try not to breath etc. Anyway, this unenclosable object is constantly reproducing genes, and I argue that this is an example, just as clear to me as radio spectra, of a commons by necessity. And it isn't a pragmatic argument; so this is distinct from anti-commons argument: when you think of commons you think of the anti- – there's a lot of you, you know, Lawrence Lessig and people like that speak of the anti-commons effect – that's a pragmatic argument; that is not what I'm making. I'm making an ontological argument, I'm talking about the nature of the thing itself.

So when people try to patent genes, when they do what Craig Venter and others have done in trying to patent genes, they are attempting to enclose an unenclosable space to the exclusion of others. I argue that this is an ethical wrong. I'll give you an example so – we have people from the ACLU here today as well who are courageously suing Myriad Corporation for Myriad's patents on the BRCA 1 and 2 genes. Let me introduce them, because I really think they're doing great work: Sandra Park is with the ACLU, she's an attorney on the case that is against Myriad; and Tania Simoncelli is a lead scientist on this case. They are doing the right thing here because Myriad has violated not only the law – they're doing something I approve of ethically as well, because there is an ethical problem: Myriad has attempted to possess, through patents, the BRCA 1 and 2 genes, which are responsible for a great number of cancers, and in so doing they're trying to prevent others from using those genes. So they have actually sent cease-and-desist letters to researchers who were doing research on the BRCA 1 and 2 genes who were, in the course of their research, reproducing the genes.

I argue that not only is that illegal, which is Luigi's domain and Sandra's and Tania's domain, it is unethical, because this is an attempt to curtail our autonomy over our own genome. You and I have as much right to investigate what makes us up as anyone else – and this goes back to the axioms I explored early on in the talk. What Myriad owns with these patents is a right to exclude you from finding out about what is in you; and they're exercising their right to our common detriment – in fact it does violence to you when they exercise their right, in much the same way as if Peter ripped this book from my hand.

[Premise 4]

[33:13]

Our fourth premise – and this now goes beyond the gene argument, and goes into new territory for me, so be gentle: IP rights are exclusionary rights that prevent the unauthorised expression of protected idea types.

I realised, after I made this argument, that this – the two books I've talked about so far – lead me to a conclusion that I didn't realise I was going to end up having to accept, but which I now accept wholeheartedly.

When an author or inventor owns their intellectual property they can exclude others from making unauthorised reproductions of their expressions, they can receive royalties for any reproduction made, and they can enjoin the expression – they can prevent the expression by others of that idea type. That's basic intellectual property law.

Now, we allow for all sorts of restrictions on our expressions consistent with Mill's liberty principle – what was that again? Where that expression injures another – does some injury. So typically, when the law says you can't make a certain expression, has to do with preventing of physical harm or incitement to some physical harm. And I've come to the conclusion that all intellectual property law is some form of government restriction on expression having nothing to do with physical harms or incitement. And in fact all expressed ideas belong to the category of commons by necessity, as there is no meaningful way of possessing or enclosing them.

So besides the ethical problems of governmentally curtailing free expression, I say that intellectual property law as a category of law is an attempt to enclose a commons by necessity, just like laws that allow for the patenting of genes. IP rights prevent the free use of expressed ideas, which are commons by necessity just as much as radio waves are, just as much as the element oxygen is, genes, and laws of nature. And IP laws do in general what gene patents do: they prevent you from using something that is a commons by necessity. And if the positive law violates something grounded, as I've argued before, then it is unjust. So my conclusion is that our shared rights to commons by necessity are grounded in the brute facts of their unenclosability, and attempts to curtail our access to that commons by necessity are similarly unjust.

There's this old aphorism that ideas want to be free, but that's a little too glib: they just – they are – once they are expressed, once they are made manifest into the world, expressions are simply free; and attempts to enclose them are morally wrong, as attempts to enclose genes, sunlight, oxygen, or other commons by necessity are.

[Conclusion]

[36:55]

So that is my radical conclusion. I didn't expect to reach it when I started investigating intellectual property law about 12 or 13 years ago, but that's where my work has taken me. And I would ask you to consider, for instance – there's a ton of examples we can talk about, perhaps this is fodder for our discussion now, but I want to thank you for listening.