The unexpected outcome of the Open Source Seed Initiative's licensing debate (Opensource.com)

[Posted June 3, 2014 by jake]

Over at Opensource.com, Jack Kloppenburg—one of the founders of the Open Source Seed Initiative (OSSI) that is trying to apply open source ideas to the genetic material in plant seeds—describes the switch from a licensing approach to that of a "pledge". "In February of 2014, OSSI made the hard but considered decision to abandon efforts to develop a legally defensible license and to shift to a pledge. This moves OSSI’s discourse and action from the legal field to the terrain of norms and ethics. We have found this shift to be stimulating, reinvigorating, and productive. The licensing approach was pulling us into a policing and bureaucratic orientation that was not congenial. Although our pledge is likely not legally binding, it is easily transmissible, it is viral, it is an uncompromising commitment to free exchange and use, and it is a very effective tool for outreach and education."

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The unexpected outcome of the Open Source Seed Initiative's licensing debate (Opensource.com)

Posted Jun 4, 2014 2:26 UTC (Wed) by salimma (subscriber, #34460) [Link]

we know how well pledges work for politicians, can we expect multinational companies to behave better?

The unexpected outcome of the Open Source Seed Initiative's licensing debate (Opensource.com)

Posted Jun 4, 2014 3:47 UTC (Wed) by rahulsundaram (subscriber, #21946) [Link]

http://legal-dictionary.thefreedictionary.com/estoppel

Look up legal estoppel

The unexpected outcome of the Open Source Seed Initiative's licensing debate (Opensource.com)

Posted Jun 4, 2014 6:45 UTC (Wed) by thedevil (guest, #32913) [Link]

If I understand it right (and I probably don't), estoppel only applies to the original parties to the pledge. It would not (will not?) apply to an outside corporation using their work in a proprietary "product". It may not even apply to heirs and corporate descendants of the original parties, though I am not sure about that.

The unexpected outcome of the Open Source Seed Initiative's licensing debate (Opensource.com)

Posted Jun 4, 2014 8:06 UTC (Wed) by rvfh (guest, #31018) [Link]

you are in the details...

Does estoppel work here?

Posted Jun 6, 2014 15:34 UTC (Fri) by coriordan (guest, #7544) [Link]

I'm not sure.

An example of what estoppel can do, is turning a pledge into a licence. People expected Red Hat to grant a blanket licence to free software developers regarding their software patents. Red Hat didn't. But they made a pledge. For years people debated the value of this, and what would happen if the patents got sold or if Red Hat got bought, but finally a court ruled on a similar case and said that estoppel makes this sort of pledge equivalent to a licence. Great.

But that case is different because everyone accepts that patents are licensable, so the court had a legal basis to create a licence from the pledge.

I've only skimmed the article, but it seems this seeds case is different because seeds (or seed usage) aren't licensable. A judge can't use estoppel to turn a pledge into a licence if a licence isn't possible

Right? Wrong?

A little more on estoppel:

http://en.swpat.org/wiki/The_value_of_promises_and_estopp...

Does estoppel work here?

Posted Jun 6, 2014 15:45 UTC (Fri) by rahulsundaram (subscriber, #21946) [Link]

Only a court judgment can tell you that. I dont think any of us are qualified to cover the details. It is just one aspect to keep in mind.

Does estoppel work here?

Posted Jun 6, 2014 16:29 UTC (Fri) by coriordan (guest, #7544) [Link]

What I'm wondering is, if estoppel is to be used, what question would the court answer?

With Red Hat, it was "Can estoppel make a 'pledge' a licence?"

If the OSSI think that a licence might be possible, then they don't need the court to turn their pledge into a licence, they can go ahead and write their licence and then let the court decide "Is this licence valid?" or more precisely, "Does a user need the rights granted by this licence, and must that user thus agree to the conditions imposed if they want to make use of those rights?"

But from skimming the article, it seems the OSSI think a licence isn't possible. So, what would they be hoping estoppel (or any other legal device) would do with their pledge?

Does estoppel work here?

Posted Jun 6, 2014 16:33 UTC (Fri) by rahulsundaram (subscriber, #21946) [Link]

We have to make some assumptions about a possible scenario:

Someone relies on the OSSI pledge to do something with the seeds and gets sued say because the OSSI pledge was revoked. The court would have to answer the question of, was it unfair?

Does estoppel work here?

Posted Jun 6, 2014 17:25 UTC (Fri) by coriordan (guest, #7544) [Link]

Seems to me they should have just called it a licence and let it say "On the condition that you agree to allow all recipients of these seeds or their derivatives to use them in any way they wish, with this same condition applying to them, you are granted all rights and licences necessary, be they patent or other, to use these seeds".

It'll still boil down to a court deciding if any licences or rights were needed, but calling it a pledge just adds a layer of interpretation which means the judge might do something unexpected. (And since OSSI is already being optimistic, an unexpected interpretation is likely to be for the worse.)

Does estoppel work here?

Posted Jun 6, 2014 18:06 UTC (Fri) by Cyberax (✭ supporter ✭, #52523) [Link]

Seeds most certainly can be licensed. Wikipedia has a helpful article: http://en.wikipedia.org/wiki/Plant_breeders%27_rights

Does estoppel work here?

Posted Jun 6, 2014 18:36 UTC (Fri) by sfeam (subscriber, #2841) [Link]

Yes, but the legal situation may have changed significantly in the US because of the Myriad decision last year.

Does estoppel work here?

Posted Jun 6, 2014 18:46 UTC (Fri) by Cyberax (✭ supporter ✭, #52523) [Link]

Nope. Plant breeders' rights are a completely separate issue, and they are explicitly regulated by various established laws.

Myriad decision says that it's not possible to patent a discovery of naturally occurring gene or gene variation. So it's totally legal to sequence your own genome and check for various inherited diseases. Nobody can patent the knowledge that a certain genomic variation increases the chances of breast cancer, for example.

The second part of Myriad decision states that it's still possible to patent novel methods to detect these variations or applications of the knowledge gained from these variations.

Does estoppel work here?

Posted Jun 6, 2014 20:28 UTC (Fri) by sfeam (subscriber, #2841) [Link]

But the example or precedent of a breeder protecting an already-developed strain is not the relevant case here. The issue would be whether plant breeders starting with seeds obtained from an "open source/open seed" repository could be constrained as to what restrictions on redistribution or use they could impose later on derived strains. Suppose that the "open source" seeds from the repository are originated in the wild (I don't know any details about what is or isn't in the actual OSSI repository). Myriad would dictate that they are not patentable, but presumably engineered variants would become patentable. The question raised here is whether the repository can somehow add a restriction on seeds obtained through them, whether in the form of a pledge, a contract, a license, or whatever, that prevents a later patent claim by the person who obtains them.

The unexpected outcome of the Open Source Seed Initiative's licensing debate (Opensource.com)

Posted Jun 4, 2014 20:15 UTC (Wed) by donbarry (guest, #10485) [Link]

"uncompromising"? They've just compromised out every actually effective technique to keep the content open. All in the interests of "congeniality."

This is idealism: "wish" hard enough and your dreams will come true. What it has to do with reality is not specified.

Why even maintain such an organization if its primary output is faeries and unicorns?

The unexpected outcome of the Open Source Seed Initiative's licensing debate (Opensource.com)

Posted Jun 5, 2014 1:47 UTC (Thu) by pabs (subscriber, #43278) [Link]

I expect there are no laws that create a monopoly on seeds and so it isn't possible to create a "GPL for seeds". IANAL though, definitely interested if you have further info on this.

The unexpected outcome of the Open Source Seed Initiative's licensing debate (Opensource.com)

Posted Jun 5, 2014 12:01 UTC (Thu) by mathstuf (subscriber, #69389) [Link]

> no laws that create a monopoly on seeds

Someone should talk to Monsanto. They use patents, lawyers, lots of money, and government assistance to do it with theirs. Not sure if you could put it on paper though. Lawyers tend to jam up the paper feed :( .

The unexpected outcome of the Open Source Seed Initiative's licensing debate (Opensource.com)

Posted Jun 5, 2014 13:24 UTC (Thu) by tzafrir (subscriber, #11501) [Link]

Maybe enforcing copyrights is cheaper than enforcing patents. Thus it is not practical to sue in case of an infringement.

The unexpected outcome of the Open Source Seed Initiative's licensing debate (Opensource.com)

Posted Jun 5, 2014 14:24 UTC (Thu) by Cyberax (✭ supporter ✭, #52523) [Link]

Well, we worked with them.

And they are good guys. Most idiots with 'Hate Monsanto' car stickers don't know a thing about what Monsanto is doing.

First, they do NOT use copyright - they are using patents. Which expire. Their RoundUp-resistance gene is expiring in several months and everybody will be free to use it. Because of that, Monsanto spends more on R&D than most companies in the US (about 10% of their gross profit).

Second, they are most definitely NOT a monopoly. They have competitors, but not many companies go into the field of seed development. Entry barriers are big and returns are not so big.

Third, they are not evil. Monsanto goes only after willful infringement. If your field of organic-clean-good-crystal-vibrations corn gets polluted by their Evil Genemodified Corn from nearby fields, Monsanto will buy all the affected crop at two times the market price.

The unexpected outcome of the Open Source Seed Initiative's licensing debate (Opensource.com)

Posted Jun 6, 2014 2:55 UTC (Fri) by smurf (subscriber, #17840) [Link]

> Monsanto goes only after willful infringement

Oh really? I've heard different.

What they are also doing is to patent conventionally-bred produce, which does not make any sense whatsoever (except for Monsanto lobbyists).

The unexpected outcome of the Open Source Seed Initiative's licensing debate (Opensource.com)

Posted Jun 6, 2014 12:35 UTC (Fri) by Cyberax (✭ supporter ✭, #52523) [Link]

Well, where did you hear it? And no, Google is a bad source in this case.

And of course, Monsanto uses legal protection of conventional hybrids. How else would they earn money?

You might also notice that Monsanto has to compete with many other plant breeders, it's not like they have something even close to a monopoly there.

The unexpected outcome of the Open Source Seed Initiative's licensing debate (Opensource.com)

Posted Jun 7, 2014 12:40 UTC (Sat) by pboddie (guest, #50784) [Link]

Well, where did you hear it? And no, Google is a bad source in this case.

What is that supposed to mean? "Don't use the evil internets for facts: it's all lies!!!"?

The unexpected outcome of the Open Source Seed Initiative's licensing debate (Opensource.com)

Posted Jun 7, 2014 12:56 UTC (Sat) by Cyberax (✭ supporter ✭, #52523) [Link]

No, most easy-to-find examples of Monsanto evilness are either fabrications or only partially true.

The unexpected outcome of the Open Source Seed Initiative's licensing debate (Opensource.com)

Posted Jun 7, 2014 10:14 UTC (Sat) by ballombe (subscriber, #9523) [Link]

Monsanto produced the agent orange [1] used during the Vietnam war. They are evil. Period.

[1] http://en.wikipedia.org/wiki/Agent_Orange

The unexpected outcome of the Open Source Seed Initiative's licensing debate (Opensource.com)

Posted Jun 10, 2014 14:14 UTC (Tue) by nix (subscriber, #2304) [Link]

I don't like Monsanto either, but to be honest that shows only that they were evil a human lifetime ago. Not one person working there then could possibly be working there now, and I suspect very few people ever worked there who ever knew both people working there then and people working there now.

Corporate cultures change over that span of time.