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Re: A moral question

  • Subject: Re: A moral question
  • From: "Bill Meyer" <njhosta@hotmail.com>
  • Date: Sun, 14 Mar 2004 11:36:09 -0500

Hi Andrew,
        That is on the face of it an interesting and fair-seeming argument.
Not a true one, but it sounds good. It doesn't work in the real world,
though, because that isn't the way things are. While a patent does provide
some legal protection, it isn't really much protection as you must find and
provide evidence against violators of your patent. Then you must head to
court with attorneys to bring it before a judge. If you are completely in
the right, they will be punished. Sounds very nice and democratic, but let's
stop and look at the reality.
         Getting that patent can cost in excess of $5,000 and paying your
attorney to take a violator to court can double that. That makes it a game
only for the rich. In reality Plant Patents only offer useful coverage for a
plant that is to be propagated on a very large scale - say 50,000 minimum
and probably more like 100,000. Thus it only protects the big nurseries from
their competitors.
         That's the only legal protection there is out there. There is no
protection for ordinary people who hope to make a thousand or two from their
new plant. The reality is that hybridizers and their new plants are much
more like article writers and photographers in that they are hoping for
profits in the $500 to $3000 range for most of their new plants. Writers and
photographers have protection under the laws automatically with copyrights.
Hybridizers have no such protection. It is unfair, and a great
disappointment to us when we first learn that unpleasant truth. Yes, we
really don't have those rights you think are being sold with the plant,
because we can't afford them. We do have moral and ethical rights as human
beings, but we're pretty short on legal ones because what we do is
classified under the patent laws rather than under the copyright laws.
         Dishonest businesses have always preyed upon those who can't
protect themselves, so this is nothing new. To cloak such behavior in
"business ethics" terms such as "the rights are included in the purchase
because it isn't patented" is really just a way to rationalize predatory
business practices. A more honest statement would be "They couldn't afford
protection, so why shouldn't I stick it to them? I can make a bundle and not
give them anything because there aren't any laws that make me."
         With the First Look Auction, we wanted to have a way for
hybridizers to make their plants available to collectors and other
hybridizers without the fear that unscrupulous nursery people would snatch
them up and ruin their value so that the hybridizer receives little of the
revenue generated by the plant. We do this by allowing them to offer the
plant with conditions that bidders for that plant must agree to. We back
this up by saying that they do not have to send their plant to a bidder who
doesn't agree, and that violators of this process will be banned from the
auction. Nurseries could try to exploit this and get what they want anyway,
but that would do two things - 1. It would destroy the market because
hybridizers would no longer offer such plants, and 2. It would get that
nursery public exposure as a dishonest business.
         Oddly enough, despite all the often-bizarre rationalizations that
dishonest businesses come out with, few seem to want to have such behavior
made public. The Court of Public Opinion is judge and jury to a business,
and there are no appeals. Do the dirty deeds, and your sales will suffer if
people find out about it. It doesn't matter how good the lawyers are at
trying to confuse the issue, because proof isn't really needed. If public
opinion turns against a business, it will be extremely difficult to turn it
back. Someone once said it takes a lifetime to build a reputation and only a
moment to ruin it. Fair or not, that is how things work in the real world.
For this reason, I think morality and ethics prevail except at the very
highest levels of business where they have the power to force their way and
control the market to their advantage.
         None of us likes the price of gasoline, but our opinion doesn't
matter. On the other hand, if we don't like a particular seller, we will not
do business with them, so even at that level there is still some power in
the hands of the people. As long as there are no monopolies, there is choice
and a business must be careful about its reputation if it is to keep up with
its competitors. In short, it must at least be perceived as moral and
ethical or there are consequences. This is why our society works as good as
it does - we are not defenseless prey.
                                                    ........Bill Meyer

> Good morning, Glen, and list,
> RE:>>A lot of plants   (those without patents) cab be TC'ed without
permission or
> offering the original hybridizer a red cent.
> While I am writing this from Colorado, and not Iowa, I believe I can claim
that I am on the same planet with you, though definitely not in the same
neighborhood with Chic :-).  However, I do agree with most of what Chic
states regarding the patenting and propagation issue.
> Legislating morality is a difficult row to hoe; perhaps as percarious an
endeavor as attempting to define "indecency". However, without fear of being
too greatly in error, particularly on the legal aspects of this issue, I'll
take a stab at this one.   Bill can correct me if such is warranted.
> It seems to me that when one purchases a patented plant, the right of
reproducting that plant through vegative, micropropagation, DNA cloning, or
other means, is expressively prohibited.  The only "license" conveyed for
personal use is for this one plant.  If it reproduces itself through
vegatative means, the owner of the "license" has no right to redistribute
those progeny without the express written consent of the patent holder.  The
progeny are simply part of the original plant and still part of the legal
protection provided to the patent holder.
> This is similar to how software is sold; unless it is with an open license
such as Linux, Apache, The Gimp, or other GNU/GPL-licensed software, the
purchaser is only obtaining a license to use the software for their personal
benefit, and not for the benefit of any others.   Microsoft is a noteworthy
enforcer of such proprietary licenses.
> On the other hand, developers who distribute their software under a
GNU/GPL license expressly prohibit the purchaser from making their software
proprietary.  Any licensed user can redistribute that software, and they can
charge for the re-distribution or any value-added additions, but they cannot
charge others for the underlying, originally licensed product.  Thus, open
software licensing is the opposite of what a capitalistically-motivated
software developer wants to do.   It's the type of license that controls
future distribution and dictates what the user can do with the product.
> By licensing under GNU/GPL, the developer is expressly ENCOURAGING free
distribution while licensing softwware as proprietary expressly DISCOURAGES
distribution (such would be illegal).
> It seems to me that patenting a plant is the only way to expressly
discourage (prohibit) distribution while not doing so expressly encourages
distribution (so others can enjoy the plant, too!).  To deny a purchaser the
right to propagate a NON-PATENTED plant is probably "immoral" when that is
part of the implied benefits purchased with a non-patented plant.  Were it
otherwise, many purchasers would refuse to purchase that specific plant.
Specifically, when there has been no agreement denying the purchaser rights
of propagation and subsequent distribution, and in fact the purchaser paid
for such rights, to deny them those rights seems immoral and even illegal!
> This is what patenting is all about, right?  Of course, people are free to
establish written agreements and I think this could address your concerns,
or any other hybridizers for that matter.  Getting people to sign an
agreement to not distribute seems like a good idea, if the hybridizer wants
to protect a potential revenue stream.   Two or three simple sentences and a
signature would readily address the problem, incurring little or no costs
for this protection to the seller, and avoids the the extensive work and
costs of patenting.  But to hold purchasers to some kind of implied
prohibition against propagation and resale, especially after the purchaser
has paid for those rights, just seems "immoral".   That's why I'm a huge
open software advocate.   Linux--the choice of a GNU generation!
> Wouldn't you agree?
> Ciao,
> Andrew
> _____________________________________________________________________
> Get your own family web site at www.MyFamily.com!
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