Law in Contemporary Society

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LaurenPackardFirstEssay 5 - 14 Apr 2015 - Main.EbenMoglen
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 The third-world communities that developed knowledge of and cross-bred and cultivated the plants do not own the genetic resources they helped create. One solution is to dissolve intellectual property’s regime of strict dichotomy between individual ownership and the public domain.
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EliKeene comment: This is really interesting stuff, and it was very well written, particularly for a first draft. I think the sole disappointment here, for me, is that you propose an interesting alternative at the end of your piece, but then don't explore it any further. I'm curious what it means to dissolve the current intellectual property regime.

I know you're limited on space, but I wonder if you could remove one or two of your examples and fill out the end of the essay. Some questions I had were (1) What does your proposed replacement regime look like?; (2) From a practical standpoint, how do you loosen the grip of Big Ag/Big Pharma, which today completely dominate the developing world?

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At the heart of the draft is a contradiction. The model of idea ownership that underlies the patent system is at odds with the way human knowledge discovery is really organized. But "biopiracy" only makes sense as a concept if something is being stolen, which is only the case if that something is otherwise owned.

The problem is misdescribed, which is what gives rise to contradiction. The scope of patentability in society A is wrongly allocated, which gives a reason to enclose (rather than steal) the knowledge generated in a communal fashion in society B. The problem is resolved by sharply restricting or eliminating patent law in society A, a process which can be pursued without reference to society B's virtuous communitarians at all. We should have been done this at the end of the 20th century, as a few people (me among them) then urged. Now that the Chinese Communist Party has realized the value to its own purposes of government-created monopoly rights protected by international trade law, we will not so easily deal with what back then was basically a pharmaceutical company protection program with the US IT industry attached.

But propertizing "traditional knowledge" is no step in the direction of a useful answer. It's just another payoff that helps to stabilize the system of misappropriations that is "intellectual property."

You can find, in another draft, the courage to abandon not only patent law but the impression that you need something other than patent law with which to destroy patent law.

 
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Revision 5r5 - 14 Apr 2015 - 18:24:22 - EbenMoglen
Revision 4r4 - 07 Apr 2015 - 23:12:58 - EliKeene
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