David Bollier

Two cases involving the patenting of living organisms are now pending before the U.S. Supreme Court, and the outcomes do not look good.  It appears that commoners who wish to use seeds, genes and other living things as a shared gift of nature will be cast out into the darkness once again.  The Court seems poised to privilege the private control of lifeforms, providing yet another legal subsidy for the market order. 

The seed case was brought by a 75-year-old farmer from Indiana who had bought commodity soybeans from a grain elevator.  As described by the New York Times, an estimated 90 percent of all U.S. soybean crops are now grown from genetically modified Monsanto seeds resistant to the Roundup herbicide.  Not surprisingly, many of the seeds that farmer Vernon Hugh Bowman bought contained second-generation versions of Monsanto seeds.   

The problem is, Bowman inadvertently grew a new batch of GMO seeds without paying Monsanto or getting its authorization.  Monsanto sued him, claiming that Bowman’s crops infringed Monsanto’s patent.  Accepting the view that Monsanto’s patent let it control even second-generation seeds, a U.S. federal district court forced Bowman to pay an $84,000 fine.  

In his legal filings, Bowman argues that once a patented object is sold, the seller loses control over how it can be used.  This is a legal doctrine known as “patent exhaustion.”  It’s similar in concept to the “first sale doctrine” in copyright law, which prohibits publishers and other copyright holders from charging licenses for library books or DVDs.  If the scope of copyright or patent rights is too extensive, sellers can control too many “downstream” uses of the product, usually with harmful effects on competition, innovation and price.  (Come to think of it, though, that is precisely what is also happening with e-books and e-journals:  publishers are licensing content rather than selling it, giving them much greater control over downstream markets.)

At a small workshop outside of Paris, France, twenty-two of us – mostly Europeans except for two of us – got together to discuss the economics of the commons from an on-the-ground perspective.  We wanted to identify promising avenues for future research, writing and political action.  This was the third of a series of “Deep Dive” workshops that the Commons Strategies Group, working in cooperation with the Heinrich Böll Foundation, held in the fall of 2012.  The two other ones were held in Bangkok for Asian commoners, and in Mexico City for Latin American commoners.

This gathering, in Pontoise, France, was exciting because the participants were some of the world’s most serious, creative and internationally minded commons activists.  The dialogues took place at La Bergerie, a lovely retreat center run by the Charles Léopold Mayer Foundation, which graciously hosted the event.  Our talks probed the conflicts and contradictions in commons thinking, and tried to get each of us to look beyond our own issue-silos and subcultures.  I recently completed a 23-page interpretive summary of the workshop, which can be downloaded here. 

The report examines such issues as how shall we conceptualize the commons; whether commons have intrinsic purpose or not; the tensions between liberal constitutionalism and the commons; and future steps in building a commons paradigm.  Below, I excerpt a few portions of the report that strike me as especially interesting.

Vancouver poet Stephen Collis offers us a wonderful meditation on commons as both anti-capitalist and beyond politics in a wonderful essay, “On Blackberries and the Poetic Commons.”  Noting that the culture of private property is pervasive and suffocating in modern life, Collis sets out to identify what makes an already existing commons a commons.  

He concludes that it is somewhat a fiction that we make up.  If the idea of “the market” is something that we must dream up and sustain together -- a “social imaginary” that organizes our physical and social realities – then surely we need to dream up the commons in the same way, as “imaginary alternatives.”  That is the only way to summon the commons into reality.

To this task, Collis recommends the lowly blackberry: 

"Blackberry brambles are the marginalia of the urban and suburban city/text.  Occupying unused or underused spaces, they hold forth common abundance where private property is ambiguous or in disuse, decline or abeyance.  We troll through our neighborhoods and even into the center of the city.  Along easements and the sides of highways, at the ends of cul-de-sacs and in vacant lots, along open ditches and decrepit fencing, in the deteriorating zones of post-industrial wastes, the ramble entangles and marks the very edges and gaps in the regime of private property.  They mark lulls and failures in capital, the moments of decay and depreciation after industrial production and before gentrification.  In taking to our fences, the brambles even appears to be attempting to stand between properties, on their margins, on that thin line that is neither mine nor thine.

"….We assume blackberries to be a common resource – no one in his or her right mind would pay for blackberries, though I have seen them, and scoffed, in a supermarket.  Like the historical English commons, the ‘patriomony of the poor’ (Neeson, 55), the blackberry bramble is governed by certain customary rules of use.  Take only what you need and leave enough for others.  Those in a neighborhood have first dibs on the neighborhood patch (you don’t drive in from the outside) – unless the patch is in parkland or other non-residential spaces.  The berries high up or deep in a patch are for the birds and the soil and next year’s fruit – you don’t damage the brambles to get at the difficult to reach berries.

After three years of hard work, I am pleased to announce that my new book – co-authored with Professor Burns Weston of the Center for Human Rights at the University of Iowa College of Law – has just been published.  Green Governance:  Ecological Survival, Human Rights and the Law of the Commons was recently released by Cambridge University Press.  Here is a short summary of the book:

The vast majority of the world’s scientists agree: we have reached a point in history where we are in grave danger of destroying Earth's life-sustaining capacity.  But our attempts to protect natural ecosystems are increasingly ineffective because our very conception of the problem is limited; we treat “the environment” as its own separate realm, taking for granted prevailing but outmoded conceptions of economics, national sovereignty, and international law.  Green Governance is a direct response to the mounting calls for a paradigm shift in the way humans relate to the natural environment.  It opens the door to a new set of solutions by proposing a compelling new synthesis of environmental protection based on broader notions of economics and human rights and on commons-based governance.  Going beyond speculative abstractions, the book proposes a new architecture of environmental law and public policy that is as practical as it is theoretically sound.

The book has a number of significant endorsements.  At the risk of immodesty, here are a few of the blurbs for Green Governance:

James Gustave Speth, Former Dean, Yale School of Forestry and Environmental Studies, and Professor of Law, Vermont Law School:

“When a vital body of existing policy and law has run its course, the need for reinvention becomes urgent. So it is with environmental law and policy. It is therefore exiting that two enormously well-informed and creative thinkers, Burns Weston and David Bollier, have joined forces to produce this breakthrough in environmental governance. Their book is a landmark in our thinking about rights-based environmentalism and the law of the commons and how these fields can combine in a powerful synthesis. We must take these ideas very seriously indeed. Highly recommended.”