Beating the Bounds: Inside the Struggle to Make Open Source Seed

This chapter traces the origins and early development of the Open Source Seed Initiative (OSSI), which seeks to “free the seed.” Founded in 2012, OSSI disavows traditional intellectual property rights and proposes that plant genetic materials can be shared within a “protected commons,” with access rights guaranteed by a simple moral pledge. In the US, OSSI now includes 38 breeders, 52 seed companies, and 407 varieties.[5] It is a project, I argue, that reflects the characteristics of a growing transnational commoning movement. Yet, challenges remain for OSSI to gain wider legitimacy for “free seed,” to build trust in a moral pledge, and to establish fair and just guidelines for what kinds of seed — and thus, which communities — can participate in making the commons and reap its benefits.

In the story that follows, I briefly sketch my theoretical framework. I then relate OSSI’s experiences in three cases, each framed as a question of repossession:

Un-Enclosing IP: How does OSSI create an alternative to pat- ents and other forms of IP? What challenges has it faced in this journey so far?

Commoning Knowledge: In what ways do open source principles help repossess seed knowledge for common use? Whose expertise is central to commoning? Where does this knowledge exist?

Global Seed Systems: Do open source processes work in dif- ferent geographical and cultural contexts, and if so, how? How does OSSI intersect and engage with other social movements, like seed sovereignty, for the repossession of common wealth?

2.  Commons: From Tragic Herdsmen to Cooperating Commoners

For two generations, the very idea of the commons has been dismissed as a misguided way to manage resources: Hardin’s so- called “tragedy of the commons.”[6] It should come as no surprise, really. Affirming competition as the defining characteristic of hu- man relations, Hardin’s logic — spelled out in a 1968 essay — fit- ted perfectly into the then-congealing neoliberal designs. Yet, starting in the 1970s, Elinor Ostrom became interested in a heterodox question: what happens when communities cooperate to manage their resources? Gathering data on so-called “common pool resources” (CPR) — openly accessible resources over which no one has private property rights, Ostrom’s team surveyed the institutions and strategies that peoples around the world were using to govern fisheries, forests, communal landholdings, and other CPRs vulnerable to over-exploitation and free-riding. The overwhelming evidence pointed to communities working together to manage their resources sustainably. The key, Ostrom wrote, was figuring out how to “organize and govern themselves to obtain continuing joint benefits when all face temptations to free-ride, shirk, or otherwise act opportunistically.”[7]

A new generation of scholarship has built upon Ostrom’s work to apply her principles to many different forms of commons, including: knowledge commons,[8] digital commons,[9] cultural and civic commons,[10] and global commons.[11] Yet Ostrom still operated within the standard economic framework, which assumes some basic precepts about “rational actors” and functionalist decision-making in the design of a commons. She did not treat capitalist structures in depth, nor did she treat the micro-scale psychological dynamics or interpersonal relationships that might animate a commons. As Bollier puts it, Ostrom’s scholarship laid the groundwork for a profound reconceptual- ization of economic analysis and the role of the commons in it — “without taking the next step: political engagement.”[12]

I extend an emergent field of so-called “new commons” scholarship to study seeds within structural conditions of enclosure, reclamation, and expansion. Extending Ostrom’s analysis and complementing neo-Marxian analysis over the past twenty years, this field connects working class struggles with social movements that are resisting new — and reversing old — separations from social wealth.[13] With the understanding that the neoliberal state often colludes with capital to continuously privatize and enclose resources,[14] I join the new commoners in linking state to market to civil society processes — and in making a provocative claim: that rather than simply being a resource or place to share, commons represents a process — an active thing that people do. As historian Peter Linebaugh underlines: there is no commons without the commoners, no commons without commoning.[15]

What this understanding further suggests is that the best place to study commoning — the place where its energy is most palpable — is often not within formal institutions. Instead, we should look to social movements — an eclectic cadre of Indigenous Water Protectors, European Transition Towns, and Venezuelan comuneros — that have embraced the commons as a paradigm for social change. Evident in these social movement articulations is that seeing the commons as the “resource” offers only a blinkered view. To make better sense of the dynamic whole, it helps to envision the commons as a triad:

resource + community + social protocols = commons

In my research on OSSI, I consider the resource as seeds, linking culture to biology in a “biocultural” resource. I consider the people as the plant breeders, scientists, and small seed-company owners who compose the OSSI community, and the social protocols as the rules, norms, and customs that they collectively negotiate to defend against enclosure of seed. To explore how the social protocols of a commons are (re)negotiated, I anchor this analysis in political ecology — a field that begins with the assumption that politics are inevitably ecological, and that relations with the environment are intrinsically political.[16] Central to political ecology is, as Watts proposes, “a sensitivity to environmental politics as a process of cultural mobilization, and the ways in which such cultural practices — whether science, or traditional knowledge or discourses, or risk, or property rights — are contested, fought over and negotiated.”[17]

3. Beating the Bounds

In medieval times, according to historian Linebaugh, the British monarchy and forest bureaucracy would regularly “beat the bounds” — perform “ceremonial walks about a territory for asserting and recoding its boundaries.”[18] These walks were vital in mapping the complex and shifting geography of Crown holdings — and largely served to enlarge royal jurisdiction. But if the perambulation was a kind of mapping, it was also an act of contestation. Peasants would walk the perimeters of a forest or piece of open field — “If they came upon a private fence or hedge that had enclosed the commons, the commoners would knock it down, re-establishing the integrity of their land.”[19] Before physical maps were ubiquitous, such boundary-beating served several purposes: marking territory, policing borders, and serving as a public delineation of place and community identity. The practice has survived for centuries in Welsh and English parishes, where on special days of the year, processional parties pass through the landscape, with men striking bounds with a stick — a willow branch known as a “wand” — and even bumping the heads of young boys against particular landmarks like gravestones and fences “so that they would remember.”[20]

Commoners in medieval Europe variously employed boundary beating as physical mapping of space, territorial defense, and performative acts of community, collective memory, and shared responsibility. It is in this multifaceted spirit that I look to how boundary beating is occurring around seed in old and new manifestations. As corporations build unprecedented control over the formal seed supply, commoners are pulling up IP hedgerows and knocking down GMO fences; they are rewriting “feed the world” narratives; and bumping heads to reverse encroachments into farmers’ seed. OSSI’s approach, simply put, is one that beat boundaries for the commoners instead of the kings. This is their story.

4.  Un-enclosing IP: From Open-Source Licenses to a Moral Economy Pledge

Pacing the stage energetically, rural sociologist Jack Kloppenburg laid out the seed crisis facing many a farmer today. Despite a wide variety of farming scales, customs, and practices, he told an audience at the University of California, Berkeley, most growers — from Guatemalan peasants to Iowa growers — are experiencing one thing in common: they confront their seeds as industrial commodities. Rather than enjoy the freedom to replant from a previous season, they are structurally shackled to Monsanto-Bayer or Dow-DuPont, with little choice but to purchase patented, highly priced, non-renewable seed.

Well known to this academic audience as the author of First the Seed, a landmark work on the history of biotechnology development, Kloppenburg has spent half a lifetime researching such problems. But this was a different, solutions-focused provocation. Seed movements worldwide are roundly condemning monopoly gene giants, the injustice of patenting, and the rapid rollout of new GMOs. A more radical stance, he offered, might be to move from a defensive posture to an offensive one: not only to impede processes of dispossession, but to open up paths for repossession.

OSSI was conceived as a project of repossession — a move to steal back the proverbial goose. Founded in 2012, its organizational structure includes a board of directors and a wider net- work of OSSI-affiliated public plant breeders, freelance breeders, small seed companies, and nonprofits. Many of the freelance breeders are also farmers and company owners, blurring the conventional divisions of labor in US seed systems. In response to the past hundred years of seed enclosures, OSSI’s self-stated commitment is to the “promoting and maintaining of open access to plant genetic resources worldwide.” The Pledge promoted by OSSI is an agreement by users to “ensure that germplasm can be freely exchanged now and into the future.”[21] But the Pledge at the heart of the OSSI commons — and more importantly, OSSI commoning — did not start out that way. It is the product of years of negotiations that illustrate the give-and-take of practical commoning, the disputes that shape a commons from inside and out, and how its boundaries can bend without breaking.

4.1 Enclosing Seed and Agri-Food Systems

The macroeconomic picture against which OSSI struggles has been detailed elsewhere and need not be rehearsed again here, except in broad strokes.[22] Since the 1930s, plant hybridizatiohas affected biological enclosures of seed to finance the growth of a robust private seed industry. The growth and elaboration of intellectual property rights since the 1930s — through legislation, treaties and US Supreme Court rulings — has made law the handmaiden of biotechnology, creating a legal mechanism for enclosures of seed. The 1961 establishment of the Union for the Protection of New Varieties of Plants (UPOV) in Europe, followed by the 1970 Plant Variety Protection Act (PVPA) in the United States, instituted exclusive plant breeders’ rights (PBR) but with important exemptions: breeders could still use protected varieties for further breeding and research, and farmers were free to save, exchange, and reproduce seed. Since 1985 (Ex Parte Hibberd),[23] utility patents have become especially prevalent in the US, enabling the private sector to expand ownership of genes, gene sequences, tissues, seeds, and whole plants. Unlike PVP rights, utility patents prohibit breeding, research, and seed saving on a patented cultivar, crippling both farmers’ and plant breeders’ freedom to operate. Today, as Luby et al. note:

Commercial maize cultivars are generally protected by dozens of patents on specific traits, license agreements, contracts, and trade secrets, allowing developers to own and manage the intellectual property associated with their work. “Bag tag” licenses and associated “technology use/steward- ship agreements” for modern maize cultivars specify that users cannot save, replant, use as a parent, or conduct research with the seed.[24]

Intellectual property incentives, in turn, have been a dominant factor in seed industry consolidation over the past 30 years, a trend documented in powerful synergies among stronger IP protections, anemic antitrust laws, and the dominance of top firms “at the expense of freely competitive industry.”[25] As of 2015, just six seed and chemical corporations — BASF, Bayer, Dow, DuPont, Monsanto, Syngenta — were collecting more than USD 65 billion annually from selling their seed traits, chemicals, and bio-technologies.[26] Together they controlled 75% of the pesticide market, 63% of the seed market, and more than 75% of private-sector research in crops and pesticides. Mergers in 2015–2017 tightened that control yet further: Bayer acquired Monsanto, DuPont merged with Dow Chemical, and the Chinese state-owned chemical company ChemChina acquired Syngenta for a record $43 billion. DowDuPont subsequently spun off its agricultural businesses into a new company called Corteva Agriscience dedicated to seeds, agricultural chemicals, and traits – including those produced with CRISPR-Cas technology, for which Corteva is a global IP leader. ChemChina-Syngenta has now combined with the giant firm Sinochem, creating a patent powerhouse that analysts suggest will funnel substantial state-backed public research into proprietary holdings,[27] extreme consolidation is well underway.

While this concentrated structure is fully elaborated in most industrialized countries, seeds now offer the opportunity to transform agrarian economies globally. Markets for many patented, genetically engineered crops are now saturated in the US, Canada, the European Union, and Australia, pressing agrochemical firms to seek new frontiers of accumulation. Their target is tens of millions of peasant and small-scale farmers in the Global South who still save, replant, share, exchange, and sell their own seeds.[28] Toward enabling these enclosures, the UPOV framework has been a particularly effective instrument. Many developing country governments are being pressured to join UPOV through multilateral free trade agreements (such as the Trans-Pacific Partnership), bilateral treaties, and other foreign aid contracts. In doing so, they agree to implement strict IPR and marketing laws, effectively recognizing scientists as makers and rightful owners of seed, while ignoring the historical and ongoing contributions of farmer knowledge and farmer work.

4.2. The Digital Commons Inspiration

As suggested by its name, the Open Source Seed Initiative drew crucial inspiration from a field often considered remote from farmers’ concerns: computer science. In the early 1980s, MIT professor Richard Stallman recognized that proprietary software could restrict people’s ability to access and use soft- ware — and consequently, to innovate. Stallman’s stroke of genius was to invert the copyright license, using intellectual property to make software contractually non-proprietary. This innovation, sometimes called “copyleft,” is today celebrated as a landmark hack around copyright law. It ensures everyone the freedom to copy, modify, or distribute a program as they see fit, as long as they apply the same copyleft license to their creation. In this way, the free license propagates, making more and more software shareable and legally protected. It achieves a so-called “viral” character.

The success of this digital commons was a key inspiration for OSSI’s development. Frank Morton, a plant breeder and owner of Wild Garden Seed in Oregon explains it this way:

I first heard of “open source” from my Linux-loving son, Taj, sometime before he created our website at age 13. That was 2003, so I guess this Open Source Seed notion has been rattling my cage for over a decade. But that is about all, because I have never been able to create the legal mechanism in my head that would allow me to share or market an original open-pollinated seed variety to others without the real pos- sibility that some bad actor could patent it out from under me.[29]

Morton and other small-scale amateur breeders, I would later discover, have been releasing their seed into the public domain for decades, allowing others to freely use their seeds. Yet public domain operates more like an open access regime than a governed commons. The reality remains that if a breeder’s original varieties are not protected by a utility patent or plant variety protection (PVP), they can be scooped up and protected as IP by someone else. Organic vegetable breeders like Morton have so far avoided such bioprospecting, “sailing by,” as he puts it, with only a few varieties pirated from him. But he does not consider himself “out of the woods,” since the imminent threat is not theft of whole varieties, but the patenting of individual traits. After the US Supreme Court declared in JEM Ag Supply v. Pioneer Hi-Bred [30] in 2001 that “novel traits” of plants could be subject to utility patenting, the gates burst wide open for enclosures at the genetic level.

Despite this gene-grab occurring beneath their feet, Morton and several like-minded farmer-breeders have found the easy solution extremely unpalatable:

So does that mean we should hoard our beans, lock ’em up with PVP and patents? Not allow others to see, breed, or make comparisons to our stuff? That’s no fun, and you can’t get started in plant breeding with an attitude like that.[31]

Facing this dilemma of wanting to share but risking free appropriation, in April 2010, Morton got together with Jack Kloppenburg and Irwin Goldman, a plant breeder at the University of Wisconsin-Madison, to explore prospects for developing an open-source seed. This meeting generated much enthusiasm, leading to a second meeting in Minneapolis in early 2011. By then, the commoners had expanded to include several more public university breeders, additional farmer-breeders, one organic seed company, representatives from Northern and Southern indigenous communities, and the institutional support of a few nonprofits, including the Organic Seed Alliance, a prominent US advocacy and education network. They called themselves the Open Source Seed Initiative, or OSSI, and began figuring out how to craft legally defensible, open source plant germplasm licenses. Just as in software, the idea was to create what they dubbed a “protected commons.” It would allow for free sharing, saving, replanting, trading, and breeding of seeds. It would also allow selling of seeds, since copyleft means free from IP, not from price. But it would carry one pivotal restriction — the inability to restrict sharing.

For about 15 months, OSSI labored intensively to make the licenses work. By late 2013, however, it was evident that the licensing approach had reached an impasse. Their lawyers could — and indeed did — craft two forms of open-source seed licenses. But unlike software code, for which the code-writer automatically receives copyright protection, the creation of novel genetic sequences does not immediately grant the plant breeder an analogous right. This biological difference in seeds made it legally tricky to use copyright law to assure seed sharing. More importantly, OSSI’s farmer affiliates were put off by tactics that, from their perspective, replicated those of “gene giants” such as Monsanto. The lawyers had solved the copylefting problem with dense and intricately worded licenses, but how were the farmers supposed to propagate eight-page contracts on 3x4-inch packets of seeds? And how were they supposed to understand the thick technical language that was required to make the licenses robust in court proceedings? OSSI’s seed companies felt likewise: even if the lawyers could shorten the contracts, the whole approach would repel rather than attract their customers.

As they struggled with this tactical problem, OSSI encountered yet another dilemma, this one within its own plant breeding community. OSSI’s breeders as a whole felt dedicated to a goal of maximally unencumbered flow of plant genetic resources. Yet within the group there was a rift: some breeders argued in favor of completely “free seed,” while others felt that breeders need to be rewarded monetarily for their efforts.

On the free-seed side we had university breeders like Irwin Goldman and his protégé Claire Luby, for whom commoning via OSSI represented a chance to bring back the “freedom to operate” that he and his colleagues had traditionally enjoyed as land-grant breeders.[32] Goldman, Luby, and their colleagues hoped to rekindle the culture of sharing materials between labs — and even between campuses — without worrying about who owns what, who will get what, and whose innovation is proprietary. Other land-grant-breeders, however, were more skeptical of going all in with free seed licenses. Especially with declining levels of state support for agricultural research (and within that for conventional plant breeding), royalties are seen as a lifeline; many breeders rely directly on that revenue for maintenance of their breeding programs.

OSSI nearly collapsed under the weight of this early community dissension. The Organic Seed Alliance, which had been hoping to generate revenues from royalty-bearing licenses, decided to pull its support. Several breeders peeled off, leaving just five or six people. For several months, the remaining members struggled with the disappointment of likely defeat.

The holdouts, I came to realize, were doing their own form of “beating the bounds.” Not, of course, in the literal sense of bushwhacking and head bumping, but in terms of defending the commons using a variety of social protocols. The original license was one such protocol, intended to defend the OSSI commons against the incursion of intellectual property. As they struggled to refine the social protocol (would it bear royalties? would it be free?), those protocols fed back to shape the com- position of the community itself. OSSI went through a type of population bottleneck with this licensing experiment, as the crisis stoked by struggles over licenses dramatically reduced the size of its community. But those left standing were more united in their ethical commitments. They understood that gaining the trust of the small-scale farmers and seed companies — its future commons community — was more important than allaying the concerns of lawyers and royalty-seeking breeders. OSSI took a leap and decided to abandon the conventional path that licenses had come to represent.

4.3. From Open-Source Licenses to a Moral Economy Pledge

The pivotal moment, Morton said, was going back to first prin- ciples: “Our most central concern,” he explained, “is that the users of seed must never restrict the use of seed by others to create new varieties and adapt seed for the benefit of future generations.”[33] In place of a license, OSSI crafted a Pledge that reads:

You have the freedom to use these OSSI seeds in any way you choose. In return, you pledge not to restrict others’ use of these seeds or their derivatives by patents, licenses or other means, and to include this Pledge with any transfer of these seeds or their derivatives.

This Pledge is printed on every packet of OSSI seed today. It reflects, OSSI suggests, the underlying rationale of E. P. Thompson’s “moral economy.” Looking at eighteenth-century peasant uprisings over the price of bread, Thompson argued that the riots were less about bread per se than about emergent capitalism abridging customary social protocols. “The men and women in the crowd,” he wrote, “were informed by the belief that they were defending traditional rights and customs; and, in general, that they were supported by the wider consensus in the community.”[34]

Thinking about the Pledge in terms of a moral economic system, Kloppenburg told me, was also partly inspired by the radical invocations of black feminist author Audre Lorde. Instead of trying to use the “tools of the master” — that is, the legal contract — to dismantle the master’s house, the Pledge means tossing out those tools and making your own. OSSI wanted to build a whole new house from the foundation up.

What the Pledge has not tossed out from the license phase is the central premise of functioning as a “protected commons” — that is, ensuring that materials are freely available and exchanged but are protected from appropriation by those who would monopolize them. Passed along with each seed packet, the Pledge commits all users to honor four basic freedoms:

1. The freedom to save or grow seed for replanting, or for any other purpose.
2. The freedom to share, trade, or sell seeds to others.
3. The freedom to trial and study seed, and to share, or publish information about it.
4. The freedom to select or adapt the seed, make crosses with it, or use it to breed new lines and varieties.

According to legal experts with whom I spoke, the moral Pledge represents interesting tradeoffs with state-backed judicial enforcement. Legally, holders of patents and copyrights are in a much stronger position to enforce control over seeds. In a moral pledge, enforcement usually cannot be backed by the courts through litigation or by prosecution; the enforcement would happen through the practices of the body issuing the Pledge, such as by excluding a violator from its community and resources. So, for example, if Monsanto-Bayer were to successfully patent an OSSI seed that the open source group was seeking to protect, what would happen? Very likely, the courts would uphold the patent to the exclusion of OSSI and its breeders, but the US Patent Office might not accept the patent application if OSSI showed evidence that the breeders had created and used a variety for some time. The new IPR claim would depend on the novelty of the invention, prior use, and practice history.

The courts might also treat the Pledge as defensible under contract law. After all, the Pledge is a contract, in the sense that everyone who takes OSSI seeds agrees to obey the conditions set in the Pledge. Every time a variety is passed on, a new contract is being made between OSSI and the chain of people using the seed. The question, then, is whether this “softer” contract would outweigh an attempt to patent the seed, which would violate the contract. This question arises regardless of the Pledge or the license approach, since the share-alike commitment in both cases only bind the two contracting parties and not third parties.[35]

When I put these queries to Kloppenburg — will the Pledge have any power? why abandon the surer route of the law? — he expressed a logic and strategy that I have come to recognize as emblematic of commoners’ pragmatism. “I feel comfortable doing it and I’m glad we did it,” he said. “The Pledge is much simpler and much more powerful as a discursive tool.” By comparison, “the license approach is cumbersome [and] over-legalized in our view.” And besides, he said, “the Pledge may well be legal. We say that it could be legal. Our current attorneys say, ‘Treat it as legal until somebody tells you it isn’t.’”[36]

5. Commoning Knowledge: Redefining Seed and Breeding Expertise

On April 17, 2014, in solidarity with International Peasant’s Day, OSSI officially re-launched under this Pledge. OSSI’s seven plant breeders at the time celebrated with release of 37 open-source varieties. Today, OSSI includes some 38 plant breeders, 52 small seed companies and more than 400 varieties. The particular way in which OSSI has expanded leads to the second part of our story — OSSI as a knowledge commons. What is it doing to re- possess knowledge? Who owns the expertise within OSSI?

When OSSI was first founded in 2012, the answer was clear: professional scientists. Its community was mostly comprised of public sector breeders affiliated with land grant schools such as Washington State University, Oregon State University, and the University of Wisconsin-Madison. Soon, however, it became apparent that the center of gravity of the OSSI community was shifting: away from the formal sector of universities, labs and extension, and toward the informal sector of independent farm- er-breeders and gardener-breeders.

Carol Deppe (Fertile Valley Seeds), Frank Morton (Wild Garden Seed), Jonathan Spero (Lupine Knoll), Loretta Sandoval (Zulu’s Petals), and Joseph Lofthouse (Lofthouse Farms) are just a few of the plant breeders who comprise a quietly expanding movement of “freelance” organic plant breeders in the US. In fact, they used to call themselves “amateur breeders” but have started to use the term “freelance” in recognition of their expertise. Self-taught and fiercely Do-It-Yourself, they are generally less driven by money than by curiosity, less driven by expanding patent portfolios than by self-renewal. To get along, many operate small direct-to-consumer companies, earning income from selling seed-breeding materials and finished varieties. They tend to specialize in open pollinated seed, or OPs, and in varieties specifically adapted to low external-input organic systems.

Figure 1. ossi pledges over time. The number of crop varieties released into the OSSI commons by US public university breeders remained stable at 16 between December 2016 and April 2018, while the number from freelance breeders grew by 107 new seed varieties, or roughly 35 percent.

 

Geographically, the freelancers form a diffuse network, with a notable hotspot in Washington State and Oregon and single farm-company outposts in Virginia, North Carolina, Illinois, Maine, Michigan, New York, Utah, the UK, and Australia, among others. They are, of course, distinct from one another in important ways. Their entries into breeding range from subsistence farming to supplying niche vegetables to restaurants in the Bay Area. Some are lone seedsmen and seedswomen, while others participate collectively. Some are relative newcomers to breeding, whereas others have been at it for almost 50 years.

As a group, these informal breeders have contributed all but 16 of the total 407 OSSI-pledged varieties.[37] And as can be seen in Figure 1, over time, the number of seeds pledged by public sector players has remained stagnant at 16, while the number coming in from the informal sector continues to grow and grow. This raises the obvious question: why have these freelancers risen to prominence?

Part of the answer, I found, is that they represent an existing culture of commoning: freelance breeding networks were not born in 2014, after all. Many grassroots seed-saving, exchange, and breeding groups are thriving in spite of (and perhaps because of) the heavily corporatized seed sector. Organizations like the Seed Savers Exchange, now an OSSI partner, have survived for decades, even while fewer and fewer US growers today reuse seed let alone attempt to breed. For folks who are part of these networks, OSSI is not such a radical ideological shift; sharing is already the norm, rather than the exception.

Oregon breeder Carol Deppe told me that “[p]atents are often considered immoral” and inconsistent with an understanding of seed as the heritage of humankind. David Podoll of Prairie Road Organic Seed in North Dakota corroborates: “Seeds are a sacred thing. Everything we have now is built on farmers selecting seeds for millennia. All of that genetic diversity is a great gift. Seeds should not be owned, patented, or controlled.”[38] Hand-in-glove with this existing culture goes an existing practice of opposing intellectual property. As mentioned earlier, I discovered that freelancers have long been releasing their new varieties in the public domain. Yet, the problem with putting seeds into public domain is that others can scoop up your seeds; it is essentially an open access regime. What OSSI represents to freelancers, then, is the chance for more protection over their varieties than is currently offered by public domain, without having to adopt morally repugnant IPR solutions.

The other reason that freelancers have risen into prominence within OSSI is the flipside of this coin: the constraints on partici- pation faced by public-university breeders. Public-sector breeders today face an onerous IPR thicket: of patents, trade secrets, licensing arrangements, and material transfer agreements. In addition, they confront the structural backdrop of Bayh-Dole, a law passed in 1980 that granted universities the ability to claim ownership rights over taxpayer-funded innovations. Now that universities own this intellectual property, they can sell these rights to the private sector — and they have. Research published in 2012 indicates that private funding of land-grant schools has been outpacing federal funding for decades.[39] As you can imagine, Bayh-Dole put significant backwards pressure on the upstream breeding pipeline — what was valuable for corporations to commercialize began to discipline what public-university researchers would pursue.

Insofar as OSSI goes against this now-entrenched model, it represents not only a potential loss of capital for universities from any specific open-sourced variety, it challenges the whole setup: the propertizing of knowledge, the revenue stream from intellectual property, and the public-private partnerships that increasingly keep universities afloat.

The power of this structural lock-in has surprised even the breeders. In 2014, Goldman told NPR radio that he expected many public-sector scientists would join the open source effort.[40] But, as Goldman told NPR and later told me, the use of OSSI germplasm poses a huge pragmatic challenge for university breeders: because any derivatives of OSSI seeds are also open source, the university would not be able to claim IP rights over, say, the product of a cross between university-owned germplasm and OSSI-pledged germplasm. “This means that as a breeder,” Goldman explained, “I would have to have two separate breeding programs: one for OSSI and a ‘protected’ program for the university.”

This does not mean that university breeders cannot participate at all. In 2016, for example, Luby and Goldman released eight new carrot populations into OSSI. Carrying names that represent root color (Red, White, Purple, and Yellow) and market classes (Chantenay, Nantes, Danver, and Ball), these carrots represent a push against mainstream land-grant practices. Typically, breeders will develop cultivars or inbred lines that are genetically stable and homogeneous — types well-suited for monoculture systems. The goal here, Luby and Goldman explained, was the opposite: “to take commercially available cultivars that had the freedom to operate and create diverse carrot populations.”[41] To do this, they identified 95 different carrot cultivars and, with the 87 not restricted by existing IPR, developed open source populations that can now be used by anyone breeding. The colorful carrots, they indicate, are “the first example of crop germplasm that has been collected, characterized, and bred specifically for entry into an open source commons.”[42]

Still, Goldman told me, such work remains the exception rather than the norm. For these releases to happen, the University of Wisconsin-Madison had to forfeit institutional ownership of the germplasm, signifying that the breeders could dispose of the varieties in any way they chose. Yet this is not necessarily a likely outcome for most germplasm. Public breeders, he reckoned, may have some success in obtaining university permission to use germplasm in crosses that the university never intends to license, “but this is unlikely to occur when the cultivars are of high commercial value.”[43]

In summary, while university breeders have been instrumental to OSSI’s formation, they have been less vital to its ongoing growth. For all the reasons sketched above — scientific culture, structural lock-ins, the challenges of managing a separate breeding program, and the value of the germplasm in question — the university system has not been a particularly fertile space for the commons to grow. By contrast, the existing culture and non-proprietary practices of freelancers have made open source something of an intuitive step forward.

5.1 Promiscuous Pollination

Joseph Lofthouse, you might say, has been commoning all along, releasing seeds to his community with no claims to intellectual property and a fierce resistance to corporate control. Lofthouse and the other freelance breeders are also beating the bounds, I suggest. Insofar as they are moving plant breeding back into the informal sector, they are reclaiming farms and living landscapes as legitimate sites of seed production. Insofar as their seeds come to embody vernacular knowledge and on-farm expertise, they are fending off the enclosures of knowledge that ripple throughout the broader neoliberal project — where property is “normal” and sharing is not.

Lofthouse is a self-described subsistence farmer, specializing in landrace breeding. He grew up on a farm in Paradise, Utah, gardening and milking a cow on a farm first established by his grandfather’s grandfather, more than 150 years ago. Before the Green Revolution, a variety of local wheat developed by Lofthouse senior was the most widely-planted wheat in northern Utah and Southern Idaho. Lofthouse Jr. still grows that wheat today, alongside other varieties he has coaxed back from ancient origins. Rather than “depend on faraway distant mega-companies for seeds,” he told me, he has decided to restore the age-old practice of creating his own.

But “create” is an uncomfortable verb for Lofthouse, who prefers terms like “guarding” and “stewarding” when speaking of seeds. He also tends to defer to his ancestors — tipping his hat to their collective endeavors in contributing to the heritage of seed. This has created some tricky issues with the OSSI paperwork he must fill out in order to release his varieties. You are supposed to fill in the blank claiming that you are creator of a new variety, he explained. You must be the “breeder, agent, or coagent” with the express authority to release the seed. The variety must be biologically “novel.” But Joseph doesn’t really believe in individual creators of seed, nor does he consider his seeds to be novel. So, he told me, he compromises, sometimes signing 10K — by which he means “10,000 years’ worth of illiterate plant breeders who created this variety.”

For Lofthouse, who took a vow of poverty 17 years ago, there is simultaneous freedom and security in subsistence breeding. Freedom from the bland taste and nutritional vacuum of industrial food; security in the stability of harvests that may not yield maxima but are steadier over time; freedom, in turn, from food insecurity, which also fosters emancipation from the power that corporations and the state have over farmers. As Lofthouse told me: “I’m kind of an anarchist, and so what corporations do, or what governments do doesn’t really matter to me, because I’m going to grow my seeds the same way I always grow my seeds.”[44] Traditional crops are the key to Lofthouse’s breeding strategy.

Much as peasant and indigenous farmers around the world still do, Lofthouse works with landrace varieties, crops with high genetic variability purposefully maintained as a diverse gene pool to enable their adaptation to territorially specific conditions. In Lofthouse’s case, Paradise, Utah, demands that seeds can thrive in a cold arid climate. In his seed catalog, he explicitly tells his customers that these seeds are best for “irrigated desert, superdry air, sunlight-drenched, cold radiant-cooled nights, short-season, and high-altitude clayish, limestone-based lake bottom soil.”

If Lofthouse is specific about the ecological conditions he breeds for, he is even choosier about the social characteristics: “Home gardeners, plant breeders, and small-scale market growers who welcome diversity of shape, taste, texture, color, size, and maturity dates may love my seeds,” he prints clearly in his catalog. “My seeds are unsuitable for commercial farms or large operations that require uniformity, predictability, or stability.”[45]

You may wonder how landraces of wheat and corn come to be grown in Utah, given that their origins are Mesopotamia and the Yucatán, respectively. This is where Lofthouse’s method of “promiscuous pollination” comes in, a practice that reverses the stabilization of traits that have occurred with modern breeding: he allows plants to swap pollen freely rather than restrict who mates with whom.

Using this technique in 2009 to develop a new cantaloupe landrace, Lofthouse began by gathering 90 different varieties of cantaloupe over a three-year period.[46] The seeds came from his own farm, from surrounding farms, and from online mail orders. He then planted these together to make an original “mass cross” — without, he emphasizes, keeping track of which varieties went where. The seed produced by this mass cross were the beginnings of a new melon landrace. From there, it was a practice of observation and culling. Some varieties were entirely destroyed by soil microbes before they germinated. Some grew slowly and did not produce any fruit. Others grew passably and yielded a small bit of fruit before first frost, while still others grew vigorously, producing loads of melons that ripened on the vine well before the cold came in. Importantly, a collaborator in the valley did the same thing. They swapped seeds over the years and produced “Lofthouse-Oliverson Landrace Muskmelon.”

This method of promiscuous pollination is remarkably similar to “evolutionary breeding” techniques now recognized as cutting-edge in the scientific community. Pioneering researchers, including Salvatore Ceccarelli and Kevin Murphy, approach such work as complexity science. Rather than refine varieties with stable traits, they allow nature to do the evolutionary work: by placing seeds in dynamic settings of shifting biotic and abiotic pressures, amidst complex trophic webs of predators and prey, they allow crops to adapt to diversity. Rather than create genetically simplified and stable seeds for monoculture systems, they allow complex ecosystems to breed complex seeds.

Lofthouse had never heard of evolutionary breeding when I asked him about it, but he understood. Moreover, he suggested, it is the people who benefit: “When I plant genetically diverse crops and allow them to promiscuously pollinate,” he said, “they are creating lots of variation in taste, texture, color, and odor. When I save seeds from specific plants that taste best to me, I am moving the population in the direction of what tastes best to me and to my community.”[47]

Of course, there are wrinkles in Lofthouse’s open-source story that he is quick to point out. Unlike freelancer Deppe, for example, he is not particularly blown away by the “restriction to end all restrictions” of the OSSI Pledge. “It has no teeth,” he suggested to me, implying that the Pledge will be ignored by large corporations who will do what they will. Nor is Lofthouse pleased that his great-great grandfather’s heirloom wheat — not being “novel” — cannot be pledged. Yet he likes OSSI for other reasons. He values the relationships that come through the open-source network. Deppe corroborates this view, telling me that OSSI is helping bring dispersed freelance breeders into a more close-knit community, under the label, the logic, and the public recognition of a protected commons.

In this way, I suggest, the Pledge may well constitute a “legal hack.” It is not quite legal — yet. But it has provided the impetus for OSSI to expand what De Angelis and colleagues call the “life flow,” the “incessant activities of commoning, of (re)producing in common.”[48] For OSSI, that means freeing the seed — making sure that genes in at least some seed can never be locked away by intellectual property rights. In Lofthouse’s case, it means practicing promiscuous pollination to generate locally adapted, resilient varieties. For Deppe, it revolves around education — teaching gardeners and farmers how to breed their own seed varieties, reclaiming knowledge that US growers have nearly lost. For Luby, Goldman, and Kloppenburg, it means reviving norms around reciprocity and sharing within universities and between scientists and the public.

On this foundation, the legitimacy of commoning can expand — and a Pledge that is not yet legally enforceable can become so. Maybe it will become legal by widespread cultural assent — “common sense” — and eventually guide institutions of lawmaking. Maybe, as Illich reminds us, the requisites for formal legality become moot as commoning activities become rooted, richly recognized, and legitimated under vernacular law. The term “vernacular” comes from an Indo-Germanic root that implies “rootedness” and “abode,” Illich muses in Shadow Work. But while Roman scholars attached the idea to vernacular language — a designation that stuck — for Illich it was about much more than local speech. The vernacular domain, as Illich calls it, is the realm of everyday life where people create and negotiate their own sense of things:

We need a simple straightforward word to designate the activities of people when they are not motivated by thought of exchange, a word that denotes autonomous, non-market related actions that by their nature escape bureaucratic control, satisfying needs to which, in the very process, they give specific shape. […] By speaking about vernacular language and the possibility of recuperation, I am trying to bring into awareness and discussion the existence of a vernacular mode of being, doing, and making in a future society [that] might again expand all aspects of life.[49] For commoners like Lofthouse, there is freedom and power in the vernacular domain. Reproducing seeds, he says, has little to do with legal defensibility of the Pledge.

If some corporation comes in and says that they own my seeds or whatever, I’ll still just keep growing my seeds, be- cause I’ve lived in poverty for decades and I have nothing they can take from me. So, I mean, they have no power.[50]

6. OSSI and the Global Seed System

This brings us to the challenges of expanding open source to other countries, especially in the Global South. From the start, OSSI has been interested in how open source will play out globally. To begin taking the pulse of global South civil society organizations, in 2011 Kloppenburg attended the fourth meeting of the International Plant Treaty in Bali, Indonesia, and met with several members of La Via Campesina (LVC). A few LVC members, Kloppenburg recalls, thought the idea of open source “was appalling” — though other members were more interested. Two years later, Kloppenburg flew to Mexico City to introduce OSSI to potential allies. ETC Group and GRAIN representatives, he told me, expressed serious misgivings about the utility of an open source approach for indigenous and peasant communities. Some of these concerns could be seen in a report by GRAIN and LVC published in 2015 which critiqued open source licenses as “tools of intellectual property” and “not necessarily appropriate for seeds or for small farmers.”[51] As Ramón Vera-Herrera of GRAIN explained to me, the problem was not really about “the license or no license.” The problem was the whole notion of reducing social and ecological relations to things. Especially in agriculture, he said, “what we call seeds, as you well know, is a vast thread of social relations.”52 “How,” he asked me, “can we get into a contract the vast complexity of life?”

Several related concerns, Vera-Herrera and other informants explained to me, grow from this basic disjuncture. First is that “open source” is strongly associated with computer technology, data, and information systems. This can pose particular challenges amongst peasant and indigenous communities skeptical of technological solutions. In contrast to the territorial concepts of sovereignty seen among many such communities — where seeds are rooted spatially, culturally, often spiritually — we often find in open source an a-territorial notion of resources. Unmoored from land or place, open source tends to be associated with radically unrestricted movement and fungibility. Indigenous peoples are seldom thrilled by the idea of unbounded freedoms for anyone to remix, reuse, and repurpose as they see fit.

Second is an issue of science and power. My interviewees indicated that much scientific manipulation is steeped in hubris — disrespectful (and indeed ignorant) of the scales and types of transformation it imposes. Especially when paired with the “viral” nature of open source sharing, genetically modified germplasm, synthetic biology products, and now CRISPR-edited organisms that could suffuse the seed and crop system, OSSI would then be displacing diverse seed and agroecological knowledge rather than sustaining them.

Third, there is the issue of law and governance. “Positive law” as developed by Western capitalist societies, informants told me, tends not to respect customary law, and efforts to translate cus- tomary arrangements into positive law often undermine them. Any attempt by OSSI, then, to build contractual licenses would therefore follow in this paradigm — likely displacing the very types of informal and “vernacular law” upon which commoning thrives.[52]

For GRAIN and their allies, then, the point is that the attempt to codify seed reproduction is itself dangerously reductive. Yes, OSSI currently forbids GMOs from entering the commons. Yes, it has already abandoned the license in favor of the informal, vernacular Pledge. But my informants insisted I was overlooking a subtler form of codification inscribed in the OSSI protocols. In order to release a variety as open source, one must first affirm that the variety is “new.” One must also claim authority over a variety in order to release it. All the freedoms of access and use that OSSI provides require first passing through an ontological keyhole tailor-made for Western scientific ideas about germ- plasm and property. One must first be an owner and creator in order to give seeds away.

6.1 From Commoning Seed to Seeding Many Commons

None of these concerns are unfamiliar — Kloppenburg recognizes the critiques. Unfortunately, the contradictions are not so easily fixed by relaxing the commons rules. If the Pledge guidelines are amended so as to include Native and heirloom seeds, for example, OSSI risks inadvertently becoming the bio-prospector. What gives OSSI the right to decide who among the countless cultivators of Brandywines or Cherokee Purple tomatoes should have the authority to pledge them? And why should OSSI allow one Navajo or Pueblo farmer to pledge a corn variety that belongs not to her individually (as she herself believes) but to her territory, community, and ancestry? To be seen as enabling biopiracy — which remains one of the most deeply resented ex- pressions of colonial and imperialist “gene grabbing” — makes evident why OSSI would hesitate to relax guidelines on pledging heirloom and native varieties. “It has to be something novel,” Kloppenburg told me. “Otherwise, we look like bad pirates too.”[53]

OSSI has, of course, investigated workarounds. In the case of heirlooms, they did so only to find that in addition to problems of uncertain origin, uncertain identities became an issue: heirloom varieties have many synonyms, opening up the chance for accidental duplication and inadvertent pledging of someone else’s seed. With indigenous cultivars, the variables are even more complex, given communal, ancestral, and often sacred relations to seed. OSSI consulted with grassroots partners, including Seed Savers Exchange, who preferred that OSSI not include heirlooms, at least for the time being. Similarly, early consultations with indigenous communities in the US, Latin America, and Southeast Asia indicated these groups’ preference for a “wait and see” approach. For many global South farmers, the concern is not only about unauthorized pledging of their varieties. It is also uncertainty over whether OSSI is vulnerable to being stolen from. Will the Pledge, as a moral economic construct, be respected by seed corporations and other proprietary interests? Will Lofthouse’s concerns that the Pledge “has no teeth” sap the legitimacy through which a “protected” commons is protected?

OSSI’s hope, for now, is that Monsanto-Bayer and other agri- chemical companies will simply steer clear of the open source commons, because although corporations have access to OSSI materials, they cannot, under the Pledge, patent OSSI seed or any derivative product. Thus, breeding or engineering with OSSI germplasm is theoretically possible, but could potentially disrupt these companies’ core business models, not to mention attract unpleasant publicity. In Plant Breeding Reviews, a team of Monsanto researchers hinted that they have little interest in tangling with open source seed, writing that if enforceable, OSSI represents “one of the most restrictive forms of access” from their perspective.[54]

And yet, it remains the case that heirlooms, landraces, and indigenous people’s seeds are particularly vulnerable to enclosure. They are especially in need of a protected commons — so what is there to do?

Rather than beat the US-specific OSSI Pledge into a pulp of contradictions, OSSI is now taking an alternate approach: seeding many commons. Open source is not a one-size-fits-all model. It is a set of principles that can be taken up, locally adapted, and made to work for and by communities globally. In this fashion, OSSI is moving towards what development scholar Arturo Escobar calls “commons in the pluriverse.”[55] OSSI will share its experiences, struggles, and stories with other communities; it will offer inspiration over formulation, tested strategies, and solutions rather than a body of unified theory.

Some of this pluriverse action is already underway. In India, for example, the Centre for Sustainable Agriculture (CSA) has adapted the OSSI model to the conditions of Hyderabad and surrounding rural villages. An open source seed program helps farmers preserve seeds for traditional foods and supports participatory breeding projects to develop rice, eggplant, and millets that meet local needs.56 Similarly, the German organization AGROECOL is launching an EU-appropriate open source system. In this case, the breeders and biodynamic farmers are designing formal licenses, not unlike those abandoned by OSSI. The Germans feel the licenses are feasible within their highly technocratic regulatory system — and may be more robust as an antidote to rigid UPOV rules. Meanwhile, partners in East Africa are beginning to pilot their own open source projects in Uganda, Tanzania, and Kenya, and plans are in the works for an OSSI-indigenous platform specific to Native peoples.

Conclusion

In this chapter, I have traced the efforts of one new project to resist the long colonial and capitalist enclosures of seed. “Beating the bounds” is an active mode of resistance undertaken by members of the Open Source Seed Initiative in an attempt to repossess the commons. I have argued that such boundary beating moves us beyond a static “commons” and into the active form of commoning: the living practices of making rules, negotiating protocols, and re-evaluating the principles through which a commons adheres. By focusing on knowledge, I have followed these social practices through three related stories, from experimenting with legal structures to affirming plant breeding knowledge to articulating with the global seed system.

Beating the bounds also underlines that persistence is necessary — as enclosing is never a done deal. Indeed, since the time I conducted this research, new challenges have appeared on the horizon. The US Department of Justice in 2018 approved the buyout of the agrichemical giant Monsanto by the multinational life science company Bayer, cementing the third in a series of mergers that, according to Bayer, has created a “global leader in agriculture.” At its launch, the new firm announced it would create a leading platform in “Digital Farming,” provide an “integrated product portfolio across crops” with “a comprehensive offering of Seed and Crop Protection products,” and have an an- nual innovation budget of 2.5 billion euros.[57] Meanwhile, at the university where I completed my PhD, gene editing is helping to propel the next generation of agricultural, pharmaceutical, and basic science research. The question “who owns CRISPR-Cas9?” is already a billion-dollar conundrum, pitting two universities into patent wars and sealing lucrative licensing deals for Du- Pont-Pioneer/Dow, Monsanto-Bayer, and Syngenta-ChemChina, among others.

However, there are many anti-enclosure developments too. In November 2019, the African Food Sovereignty Alliance gathered 44 women and men from 10 African countries (Zambia, Zimbabwe, Burundi, Malawi, Tanzania, Kenya, South Africa, Senegal, Eswatini, and Uganda) to develop “a common strategy for changing the prevailing narrative around seed in Africa, to one that recognizes smallholder farmers, their indigenous knowledge and their seed systems that are the fundamental ba- sis of Africa’s food system.”[58] This meeting carried forward the decolonial and feminist ethic voiced by peasant agroecologists who convened in Rome the year prior: At FAO headquarters, they fought to assure that agroecology’s core tenets — valuing indigenous wisdom, cultivating complex social-ecological systems, enabling women’s full participation in the social and political life of their communities — are not instrumentalized by formal uptake in the international policy arena.[59] Commoning implicitly, if not explicitly, runs through each. I will therefore be watching — and participating — as OSSI seeks to promote a pluriverse of seed commons rather than establish or oversee a universal archetype, which would never succeed agroecologically or politically. These actually functioning commons are what Bollier suggests are the “staging areas” for post-capitalist systems and I agree. Like the OSSI commoners, I suggest that creating and protecting these staging areas will take much boundary-beating work. But in that activity, there are real possibilities of deconstructing dominant structures, there are real possibilities for commoned seed to grow.

 

NOTES

1. An earlier version of this chapter appeared in Maywa Montenegro de Wit, “Beating the Bounds: How Does ‘Open Source’ Become a Commons for Seed?” The Journal of Peasant Studies 46, no. 1 (2019): 44–79.
2. E.P. Thompson, Whigs and Hunters: The Origin of the Black Act, 1st edn. (Harmondsworth: Penguin, 1975).
3. Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge: Cambridge University Press, 1990).
4. Massimo De Angelis, “Separating the Doing and the Deed: Capital and the Continuous Character of Enclosures,” Historical Materialism 12, no. 2 (2004): 57–87; Peter Linebaugh, The Magna Carta Manifesto: Liberties and Commons for All (Berkeley: University of California Press, 2008); Peter Linebaugh, Stop, Thief! The Commons, Enclosures and Resistance (Oakland: PM Press, 2014); Silvia Federici, Caliban and the Witch, 2nd rev. edn. (New York: Autonomedia, 2014); David Bollier, Think Like a Commoner: A Short Introduction to the Life of the Commons (Gabriola: New Society Publishers, 2014).
5. These figures are current as of April 2018.
6. Garrett Hardin, “The Tragedy of the Commons,” Science 162, no. 3859 (December 13, 1968): 1243–48.
7. Ostrom, Governing the Commons, 29.
8. Yochai Benkler, The Wealth of Networks: How Social Production Trans- forms Markets and Freedom (New Haven: Yale University Press, 2006); Michael J. Madison, Brett M. Frischmann, and Katherine J. Strandburg, “Constructing Commons in the Cultural Environment,” Cornell Law Review 95 (2009): 657–710.
9. Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (New York: Penguin Press, 2004); Benkler, The Wealth of Networks.
10. David Bollier, Silent Theft: The Private Plunder of Our Common Wealth (New York: Routledge, 2003); Yochai Benkler, The Penguin and the Le- viathan: The Triumph of Cooperation over Self-Interest (New York: Crown Business, 2011).
11. Peter Barnes, Who Owns the Sky? Our Common Assets and the Future of Capitalism (Washington, DC: Island Press, 2001); John Vogler, “Global Commons Revisited: Global Commons Revisited,” Global Policy 3, no. 1 (February 2012): 61–71.
12. David Bollier, “Commoning as a Transformative Social Paradigm,” The Next System Project, April 28, 2016, http://thenextsystem.org/commoning- as-a-transformative-social-paradigm.
13. De Angelis, “Separating the Doing and the Deed”; Silvia Federici, Caliban and the Witch; Michael Perelman, The Invention of Capitalism: Classical Political Economy and the Secret History of Primitive Accumulation (Durham: Duke University Press, 2000); David Harvey, The New Imperialism (Oxford: Oxford University Press, 2003).
14. Amanda Huron, Carving out the Commons: Tenant Organizing and Housing Cooperatives in Washington, D.C. (Minneapolis: University of Minnesota Press, 2018).
15. Massimo De Angelis, Nate Holdren, and Stevphen Shukaitis, “The Commoner No. 11 — Reinfusing the Commons,” Mute, June 20, 2006.
16. Paul Robbins, Political Ecology: A Critical Introduction, 2nd edn. (Malden: J. Wiley & Sons, 2012).
17. Michael Watts, “Political Ecology,” in A Companion to Economic Geography, eds. Eric S. Sheppard and Trevor J. Barnes (Oxford: Blackwell, 2000), 257–74, at 259.
18. Linebaugh, The Magna Carta Manifesto, 74.
19. Bollier, Think Like a Commoner, 138.
20. Su-ming Khoo, Lisa K. Taylor, and Vanessa Andreotti, “Ethical Internationalization, Neo-Liberal Restructuring and ‘Beating the Bounds’ of Higher Education,” in Assembling and Governing the Higher Education Institution, eds. Lynette Shultz and Melody Viczko (London: Palgrave Macmillan, 2016), 85–110.
21. Claire H. Luby et al., “Enhancing Freedom to Operate for Plant Breeders and Farmers through Open Source Plant Breeding,” Crop Science 55, no. 6 (2015): 2481–88, at 2481.
22. Jack Kloppenburg, “Re-Purposing the Master’s Tools: The Open Source Seed Initiative and the Struggle for Seed Sovereignty,” The Journal of Peasant Studies 41, no. 6 (November 2, 2014): 1225–46, at 1225; Philip H. Howard, Concentration and Power in the Food System: Who Controls What We Eat? (New York: Bloomsbury, 2016); Maywa Montenegro de Wit, “Stealing into the Wild: Conservation Science, Plant Breeding and the Makings of New Seed Enclosures,” The Journal of Peasant Studies 44, no. 1 (2017): 169–212.
23. Ex parte Hibberd, USPQ 443 Board of Patent Appeals and Interferences (1985): 443–48.
24. Luby et al., “Enhancing Freedom to Operate for Plant Breeders and Farmers through Open Source Plant Breeding.” The authors focus on corn, an agro-industry favorite, alongside soybeans, canola, cotton, and wheat. But the IP regime that companies employ, says Goldman, is now trickling down to “specialty crops” — fruits, vegetables, nuts, and horticultural crops — through a complex of patents, licenses and bag tags (Goldman interview, June 17, 2017).
25. Philip H. Howard, “Visualizing Consolidation in the Global Seed Industry: 1996–2008,” Sustainability 1, no. 4 (December 8, 2009): 1266; Philip H. Howard, “Intellectual Property and Consolidation in the Seed Industry,” Crop Science 55, no. 6 (2015): 2489. See also Howard’s revised seed industry visualization, updated to 2018, https://philhoward.net/2018/12/31/global-seed-industry-changes-since-2013.
26. ETC, “Breaking Bad: Big Ag Mega-Mergers in Play,” ETC Group Communiqué, December 2015, http://www.etcgroup.org/sites/www.etcgroup.org/ files/files/etc_breakbad_23dec15.pdf.
27. Al Root, “DowDuPont Is Splitting Into 3 Companies. Here’s Everything You Need to Know,” Barron’s, April 29, 2019, https://www.barrons.com/ articles/dowdupont-spinoff-dow-dupont-corteva-51556552428; “ChemChina, Sinochem Merge Agricultural Assets: Syngenta,” Reuters, January 5, 2020, https://www.reuters.com/article/us-chemchina-sinochem-syngenta/chemchina-sinochem-merge-agricultural-assets-syngenta-idUSKBN- 1Z40FZ; Jon Cohen, “Fields of Dreams,” Science 365, no. 6452 (August 2, 2019): 422–25.
28. An estimated 90 percent of the seeds that peasant farmers plant every year come from their own bins or are bartered with neighbors in local markets: Shawn McGuire and Louise Sperling, “Seed Systems Smallholder Farmers Use. Food Security,” Food Security 8, no. 1 (2016): 179.
29. Frank Morton, “Open Source Seed: A Farmer-Breeder’s Perspective,” in Organic Seed Growers Conference Proceedings, ed. Kristina Hubbard (Corvallis: Organic Seed Alliance, 2014), 147.
30. J.E.M Ag Supply v. Pioneer Hi-Bred International, Inc., 122 S. Ct. 593 (2001), rehearing denied, 122 S. Ct. 1600 (2002).
31. Morton, "Open Source Seed, 147.
32. Luby et al., “Enhancing Freedom to Operate for Plant Breeders and Farmers through Open Source Plant Breeding.”
33. Morton, "Open Source Seed," 118.
34. E.P. Thompson, “The Moral Economy of the English Crowd in the Eighteenth Century,” Past and Present 50, no. 1 (1971): 76–136, at 78.
35. Selim Louafi et al., “Open Source for Seeds and Genetic Sequence Data: Practical Experience and Future Strategies,” CIRAD Policy Brief: Agricultural Research for Development, December 2018.
36. Kloppenburg interview, December 7, 2016.
37. Luby interviews, between 2016 and 2018.
38. David Podoll, “Prairie Road Organic Seed,” Open Source Seed Initiative: Plant Breeders, November 5, 2014; Deppe interview, August 2016.
39. FWW (Food and Water Watch), “Public Research, Private Gain: Corporate Influence Over University Agriculture,” San Francisco, 2012.
40. Dan Charles, “Plant Breeders Release First ‘Open Source Seeds,’” NPR: The Salt, April 17, 2014.
41. Claire Luby and Irwin Goldman, “Release of Eight Open Source Carrot (Daucus Carota Var. Sativa) Composite Populations Developed under Organic Conditions,” Horticultural Science 51, no. 4 (2016): 448–50, at 448.
42. Claire Luby and Irwin Goldman, “Improving Freedom to Operate in Carrot Breeding through the Development of Eight Open Source Composite Populations of Carrot (Daucus Carota L. Var. sativus),” Sustainability 8, no. 5 (May 14, 2016): 479.
43. Goldman interview, July 17, 2017.
44. Lofthouse interview, November 12, 2016.
45. Joseph Lofthouse, “For Sale: Genetically-Diverse Promiscuously-Pollinated Landrace Seeds Grown by Joseph Lofthouse in Cache Valley in the Rocky Mountains,” 2017, http://garden.lofthouse.com/seed-list.phtml.
46. Joseph Lofthouse, “Adaptivar Landraces,” 2017, http://garden.lofthouse. com/seed-list.phtml.
47. Joseph Lofthouse, “Landrace Gardening: Do It for the Taste,” Mother Earth News, April 27, 2016.
48. De Angelis et al., “The Commoner No. 11 — Reinfusing the Commons.”
49. Ivan Illich, Shadow Work (Boston and London: M. Boyars, 1981), 49–50.
50. Lofthouse interview, November 12, 2016.
51. GRAIN and La Vía Campesina, “Seed Laws That Criminalize Farmers: Resistance and Fight Back,” March 2015, 43.
52. Ramón Vera-Herrera, “Ejercer Nuestros Saberes Es Su Mejor Protección,” Biodiversidad, August 2016, http://www.biodiversidadla.org/index.php/ layout/set/print/layout/set/print/Principal/Secciones/Documentos/Ejercer_nuestros_saberes_es_su_mejor_proteccion; Vera-Herrera interview, January 2017.
53. Another reason OSSI requires that seeds be “new” is that it avoids the risk of IP infringement. As Kloppenburg describes, “Because we get novel material, the only way you can get it is through our channels, our chain of custody. It’s one of our breeders who’s pledged it.” By the same rationale, the chain of custody protects OSSI seed from unauthorized use. “If you’ve seen that variety out there and it doesn’t have the OSSI logo on it, or it doesn’t say OSSI pledge, then someone’s taking it in a way that they shouldn’t have taken it” (interview, December 7, 2016).
54. David V. Butruille et al., “Maize Breeding in the United States: Views from Within Monsanto,” in Plant Breeding Reviews: Volume 39, ed. Jules Janick (Hoboken: John Wiley & Sons, Inc., 2015), 199–282, at 223.
55. Arturo Escobar, “Commons in the Pluriverse,” in Patterns of Commoning, eds. David Bollier and Silke Helfrich (Amityville: Common Strategies Group, 2015), 348–60.
56. CSA-India, “Open Source Seed Systems,” Centre for Sustainable Agriculture, November 2014.
57. Bayer Corporation, “Bayer to Acquire Monsanto: Creating a Leader in Global Agriculture,” 2016, https://www.advancingtogether.com/en/about- the-combination/compelling-strategic-rationale.
58. AFSA (African Food Sovereignty in Africa), “Every Seed Has a Story – The Strategy,” March 20, 2020, https://afsafrica.org/every-seed-has-a-story.
59. La Vía Campesina, “Declaration at the II International Symposium on Agroecology, April, 2018 – Via Campesina English,” April 8, 2018, https:// viacampesina.org/en/declaration-at-the-ii-international-symposium-on- agroecology.