VALUING PROGRESS - NYU La Sheff_1.pdfand right and good. Their notions change with experience and...

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VALUING PROGRESS

Jeremy N. Sheff

Professor of Law and Director, Intellectual Property Law Center

St. John’s University School of Law


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[C]onflicting sacred duties confound my reason. I ask you to tell me decisively—Which is better?

-The Bhagavad-Gita1


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1. INTRODUCTION: PROGRESS, JUSTIFICATION, AND LEGITIMACY

This is a book about our relationship with the future. It is about the

ways societies go about deciding how to make tomorrow better than

yesterday, how they determine whose desires will be pursued and whose

will be deferred or denied, and how they apportion the burdens and

benefits of getting us there. When we try to plan for our collective future,

we invoke the notion of progress: the solving of unsolved problems, the

satisfaction of unmet needs, the realization of untapped potential, and the

creation of new capacities that at one time were beyond the realm of the

possible. The idea of progress runs very deep in Western—and particularly

in American—thought. From the perfectionism of Aristotle’s naturalist

political philosophy1 and the eschatology of the Abrahamic religions,2

through the Enlightenment’s hope for the ameliorative power of reason,3

past Victorian notions of an evolutionary social order,4 and on to the

maximizing ideology of global capitalism,5 the teleological belief that

humanity is engaged in the work of shaping the world toward some more

perfect future has found expression in every age. In our current era in the

United States, that idea finds its fullest expression in the valorization of

technology and the cultural production that such technology makes

possible.6 This contemporary narrative echoes back to the American

Founding and our supreme legal text: to the Constitutional promise of “a

more perfect Union,” and the prerogative of Congress “to promote the

Progress of Science and useful Arts, by securing for limited Times to

Authors and Inventors the exclusive Right to their respective Writings and

Discoveries.”7 Thus in America, and particularly in the twenty-first

century, the social narrative of progress is intimately bound up in a legal

regime: the intellectual property system.


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Today, there is significant disagreement as to whether this system is

well suited to the age. On the one hand, legal frameworks designed for the

twentieth—or even the eighteenth—century may be seen as too crude and

inflexible to work well with the twenty-first century’s dynamic and

interconnected processes of innovation and creativity, which are

characterized by plummeting costs of creating and distributing new

knowledge as well as globalized and decentralized patterns of knowledge

production and consumption. On the other hand, our current system may

be seen as too porous and cumbersome to ensure a proper incentive or a

fair reward for those who make valuable contributions to humanity’s

stock of technology and culture. On both sides of this debate, there is

concern that somebody—either those who create new knowledge or those

who stand to benefit from it—is not getting what they deserve under our

current system.

Alternatives to intellectual property are proliferating in academic

debates: policy tools like innovation prizes, direct government subsidies,

and tax incentives jostle and compete with governance models like open-

source peer production, targeted tax incentives, and direct government

procurement. Scholars offer novel and refined technocratic solutions and

recommend pulling on this or that policy lever to tweak or overhaul the

system. They defend their creations with mathematical models or

invocations of the authority of Enlightenment philosophers and the

Founding Generation. Erudite debate rages over whether alternative

governance regimes would or could be better or worse than the intellectual

property system on which we currently rely.8

But this is an evaluative question. It assumes we have some agreed

standard to determine what makes a system better or worse than the

alternatives. And as I will argue in this book, that assumption is wrong.


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Progress is not a mechanical process whose output can be measured

according to a one-dimensional scale. Nor is it a morality play in which

good and right must be defended against bad and wrong. Rather, it is a

complex, worldwide, generation-spanning social phenomenon informed

by plural, competing values. And once we accept that the design of

knowledge-governance regimes requires us to engage such values, we find

that it is less a problem of technocratic social engineering or abstract

justice, and more a problem of collective social cooperation. It requires not

only the identification of important values, but the reconciliation of

conflicting values. It requires resolution of disputes among competing

claimants who invoke those conflicting values. It generates outcomes that

must be explained in terms of those values, to the satisfaction—even in

disappointment—of those disputing claimants. It is, in short, not just a

problem of theory, but also a problem of politics. To sum up with a metaphor:

progress is neither a clockwork nor a courtroom; it is a community.

The title of this book, Valuing Progress, deliberately invokes a dual

meaning of a loaded word: value. When we say we “value” something, we

might be saying that we think it is important; that we are willing to

sacrifice other things for it; that we are willing to structure our lives and

our institutions to preserve and promote it. But we might instead be

saying that we are “valuing” something in the sense of assessing its worth,

putting a price on it, trying to figure out what we would be willing to

trade it away for. To capture both senses of the word, we need to both

identify what our values are—what normative commitments we feel

obligated to honor in laying out our path to the future—and contemplate

how to consider values against one another—how to evaluate policies and

systems in terms of whether they strike the right balance among

potentially competing priorities held by disparate and diverse persons.

Herein lies a substantial challenge: not everyone agrees on the answers


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to these irreducibly normative questions. Different people think different

things are important. They attach different weights to the things they

think are important. They have differing notions of what is fair and just

and right and good. Their notions change with experience and

circumstances. And they invariably think their own notions are superior

to different notions held by others. Anyone who wants to evaluate systems

to regulate the production and distribution of the new knowledge that

collectively constitutes progress—which I will refer to as “knowledge-

governance regimes” (or simply “regimes”)—must negotiate this diversity

of values. In this book, I will provide an outline of how I think such a task

can be productively engaged.

That outline begins with a critique of what I think have become

unproductive ways of engaging the problem of progress—specifically, the

ways in which most contemporary scholars have been engaging it in recent

decades. The values that inform debates over the appropriate shape of

knowledge-governance regimes have long been hidden, muddled, woven

into causal assumptions about how progress actually comes about. These

causal assumptions run deep in contemporary thought on intellectual

property and its alternatives, and need to be carefully identified and teased

apart from the normative values that are layered over them. Such parsing is

important for multiple reasons, but not least because the causal

assumptions themselves are false. In Chapter 2: From Is to Ought, I outline the

two dominant approaches to evaluating knowledge-governance regimes—

consequentialism and deontology—and demonstrate how they blur

contestable normative claims into admittedly incomplete or even

misleading causal claims about how new knowledge comes into the world.

By the end of this discussion we will see how the causal indeterminacy

that attends regime design leads both consequentialists and deontologists

to fall back on default positions that align with their values—and where


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those values diverge, to simply talk past each other in a game of burden-

shifting.

Having identified the crux of the debate over knowledge-governance

regimes with values held by the debaters, I will turn to the content of those

values. My objective is to map the contours of the normative commitments

that inform our attitudes toward knowledge creation. I will begin by

identifying some of the substantive priorities that might inform particular

regime designs. Examples might include the search for truth, the

prevention and alleviation of suffering, the satisfaction of wants, the

conservation of resources, the pursuit of beauty, the expression of self, the

formation and deepening of interpersonal connections, the development

and preservation of culture, and the fulfillment of untapped human

potential. Most people will agree that some or all of these priorities are

worthy of pursuing, but perhaps not on which of them should take

precedence, or how best to pursue them. In Chapter 3: Comparability, I will

discuss the possibility that such disagreement is not really about the

efficacy of our legal regimes—the causal question stripped away in

Chapter 2—but is instead about how to implement our commitment to

these types of substantive aims in circumstances where the aims

themselves are in tension with one another. We will see that this

possibility recapitulates familiar problems from moral philosophy:

incomparability- and incommensurability-based objections to

consequentialist justifications; and accusations of indeterminacy or

illiberalism leveled against deontologists. It also points in the direction of

a fresh normative approach: value pluralism.

Resolving conflicts among plural values is perhaps the most important

and difficult challenge in designing a knowledge-governance regime—or

really any legal or regulatory system. This challenge is most keenly felt in

making the distributive choices any such system must make, particularly


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where conflicts arise not only among values, but among people who weigh

those values differently. Whose priorities for progress will be pursued, and

whose will be deferred (or denied)? Who will bear the burdens of bringing

forth new knowledge, and who will receive the benefits of that knowledge?

Who, ultimately, gets to decide these questions?

In Chapter 4: Reciprocity, I will examine how the intellectual property

system and various alternative knowledge-governance regimes (such as

prizes, direct government funding, and open-source peer production)

resolve these distributive questions. I propose that the differences

between them lie along a dimension defined by the correlation among

burdens, benefits, and resources at the level of individual members of

society. Which system you prefer will depend on the extent to which you

think the beneficiaries of new knowledge ought to be the ones to bear the

burdens of creating it, the extent to which you think those who currently

control proportionally greater resources ought to contribute

proportionally more resources to the creation of new knowledge, and the

extent to which you think such proportionally greater contribution

entitles the contributor to a proportionally greater say in setting

priorities.

A commitment to these types of distributive values has serious

practical consequences when brought to bear on real-world questions of

knowledge-creation policy. For example, it may determine whether those

who stand to benefit from lifesaving drugs will alone bear the cost of

research and development for those drugs, whether such drugs will be

available to those who need them regardless of their ability to contribute

to the cost of their development, and whether wealthier people will be

compelled to contribute to the cost of developing such drugs even if poorer

people are the ones who need them. Ultimately, these issues may decide


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whether a lifesaving drug—or any other type of new knowledge—is

produced at all.

Of course, normative commitments to enforcing particular correlations

among individual benefits, burdens, and resources need not be fixed, or

even stable. Different people may take different positions on the extent to

which the burdens and benefits of knowledge creation ought to be linked

to each other, or to individuals’ resource constraints. But it is perhaps

more interesting that any given individual might take different positions

on those correlations depending on what type of new knowledge we are

considering. If the knowledge in question is, for example, a video game

instead of a lifesaving drug, people’s judgments about who should bear the

cost of producing it are likely to change. So might their view as to whether

its production ought to take priority over other possible uses of scarce

resources. In Chapter 5: Responsibility, I identify these shifts in judgment

with values concerning what people deserve, and what makes people

deserving or not deserving. These value judgments often turn on whether

a person’s position is understood to be a result of their own conscious

actions or a result of mere luck. But in a complex world where both choice

and chance play important roles in our lives and circumstances, and where

it is difficult to separate out the effects of agency from the whims of

fortune, efforts to pursue responsibility itself as a value can turn out to be

self-contradicting, or simply pointless. Indeed, agency itself is an

unhelpful concept when the distributive consequences of a knowledge-

governance regime turn on facts that are purely the subject of chance—

most obviously, facts such as when and where a particular subject of the

regime happened to be born.

The influence of chance on distributive outcomes, and the resulting

absence of clear or helpful responsibility-based normative principles

regarding distribution, both have deep implications for the process of


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designing knowledge-governance regimes. Indeed, they put special

pressure on the values held by those who design those systems, insofar as

they have the power to change these fortuitous distributive consequences.

A powerful work of literature cannot inspire a person who is unable to

access a library; the latest mobile computing technology cannot bring the

world’s online knowledge repositories to populations without basic

internet service; and the latest advances in medical research do little good

to those who are currently suffering from diseases that researchers are

ignoring. Thus, the basic question of who counts—whose needs, wants, and

priorities matter and whose don’t—is fundamental to the design of

systems for governing knowledge creation and distribution.

The problem of deciding who matters is implicated whenever we deal

with questions of morality and politics, and questions about progress are

no different. Chapter 6: Remote Persons addresses the general problem of

community definition—a problem recently highlighted by the access to

knowledge movement and its critiques of the internationalization of

Western intellectual property laws. Questions over the definition of the

“circle of moral concern”—in the words of philosopher Peter Singer—

require us to ask not only which values matter, but which people matter.

This is especially true where, as with competing visions of progress, some

people’s values can only be served at the cost of a real diminution in the

resources, capacities, or opportunities of others. Simply including or

excluding particular people from participation or consideration in the

design of a knowledge-governance regime will therefore deeply influence

which values will be reflected in that regime, and how conflicts among

those values will be mediated.

The community-definition problem becomes inordinately more

profound when we recognize that progress is a cooperative social activity


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that has no beginning and no end. We take up the work of progress by

building on the contributions of people long dead; our own contributions

to progress will be the foundation on which future generations will build.

Decisions we make today about how knowledge creation and distribution

should be governed will not only affect our own futures, but the futures of

countless billions not yet born. Our decisions will affect not only the

opportunities and capacities of these future generations of humans, but

the identities of who those humans will be. In Chapter 7: Future Persons, I draw

on the work of Derek Parfit—and particular his identification of the “Non-

Identity Problem”—to discuss some of the deep philosophical challenges

raised by the cross-generational nature of progress. I argue that these

challenges—which recapitulate all the value choices and judgments

already discussed—require us to fashion knowledge-governance regimes

that are explicitly other-regarding. Quite simply, a regime that relies

exclusively on everyone pursuing their own interests cannot be justified,

and will not be legitimate, precisely because of the cumulative and long-

term character of progress. The overwhelming majority of the people

affected by today’s knowledge-governance regime simply cannot make

their interests felt, or their values heard, in the governance design choices

we make here and now. Nevertheless, they will depend on our choices for

the quality—and even the fact—of their existence. Some tools are needed

to ensure that those choices are not simply an imposition of the values of

regime designers on others who don’t share those values.

The book’s latter chapters explore what these tools might look like.

They are very different from the tools that dominate discussions of

knowledge-governance regimes today. The tools used by consequentialists

and deontologists are heavily theoretical; they seek to derive “correct”

answers from starting assumptions. My model of progress rejects the very

idea of a “correct” answer in favor of the search for a “legitimate and

justifiable” answer. Drawing on the value pluralism of Isaiah Berlin, it


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turns away from theory and toward politics. It thus places significant

weight on political institutions and political character. On the first point,

Chapter 8: Pluralist Politics discusses desirable features of institutions and

processes that seek to justify their output as a legitimate resolution of the

conflicting demands of people with a stake in knowledge governance

regimes, and of the values that motivate those demands. These features are

familiar elements of due process: transparency, equality, inclusiveness, and

opportunity to be heard. These types of procedural values are especially

salient as power over knowledge-governance policy formation has been

migrating from domestic democratic institutions to international

technocratic ones, and from public institutions like legislatures and

courts to private ones like trade associations and arbitration panels.

Still, these procedural safeguards alone are not enough to legitimize

the design of a knowledge-governance regime, for at least two reasons.

First, even scrupulously fair procedures cannot ensure the participation of

all those with a stake in the outcome of regime design (particularly future

persons). And second, decisions must ultimately be made that will

disappoint even stakeholders who have participated and have been treated

in a procedurally fair way. Regime-design choices are made by human

beings, and the individuals with responsibility for making those choices

would benefit from some framework for justifying those decisions to

others who will be affected—and disappointed—by them. Such a

framework is outlined in Chapter 9: Pluralist Ethics. This chapter argues for

epistemic humility and empathetic sensibilities on the part of those in a

position of policymaking power. It demands a frank acceptance of causal

indeterminacy and a strict separation of causal or empirical reasons for a

policy choice from value-based reasons for that choice. It further entails an

effort to find the greatest possible common ground among competing

values, striving for consistency in their application while sharpening and


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minimizing those points on which values are inescapably in conflict.

Finally, it entails an other-regarding exercise of putting oneself in the

shoes of those who will be disappointed by a policy decision, and searching

for a way to justify that decision that relies neither on uncertain causal

reasoning nor on simple preference for one party over another.

This is a difficult task and a weighty responsibility. This book does not

offer tidy or easy answers to the problem of progress, because the problem

does not have tidy or easy answers. This is because it is not, at bottom, a

problem of performing calculations correctly, or of defending inviolate

rights. It is a problem of politics in the non-pejorative sense of the word: the

social process of organizing competing individual priorities into a plan of

coordinated action. Progress is a social project defined by the collective

contributions of people who will never meet—who will never even share

time on Earth—but who must nevertheless find ways to live and work

cooperatively, as part of an effort much larger than themselves. Making the

future better than the past may be the hardest problem human beings face;

it requires good faith, humility, sensitivity, altruism, and a great deal of

hard work. This book ultimately argues that we can only do that hard

work together.

So let’s begin.


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NOTES TO CHAPTER 1

1 THE BHAGAVAD-GITA: KRISHNA’S COUNSEL IN TIME OF WAR 30 (Barbara Stoler Miller trans.

1986). 1 ARISTOTLE, POLITICS 1.1252A (“Every state is as we see a sort of partnership, and every

partnership is formed with a view to some good (since all the actions of all mankind are done with a view to what they think to be good). It is therefore evident that, while all partnerships aim at some good the partnership that is the most supreme of all and includes all the others does so most of all, and aims at the most supreme of all goods; and this is the partnership entitled the state, the political association.”)

2 See, e.g., Isaiah 40:3-5 (“[P]repare ye the way of the Lord; make straight in the desert a highway for our God. Every valley shall be exalted, and every mountain and hill shall be made low: and the crooked shall be made straight, and the rough places plain: And the glory of the Lord shall be revealed, and all flesh shall see it together….), quoted in Mark 1:3, Matthew 3:3, Luke 3:4, John 1:23. See also SAMUEL RAPAPORT, TALES AND MAXIMS FROM THE MIDRASH 49 (1907), (“A time has been appointed by God for the coming of Messiah. Yet if Israel but repent his sins, the glorious redemption will be hastened, and Messiah will make His appearance before the appointed time.”); 2 Pet. 3:9-15 (New Revised Standard Version) (“The Lord is not slow about his promise, as some think of slowness, but is patient with you, not wanting any to perish, but all to come to repentance…. [W]hat sort of persons ought you to be in leading lives of holiness and godliness, waiting for and hastening the coming of the day of God, because of which the heavens will be set ablaze and dissolved, and the elements will melt with fire?…[W]hile you are waiting for these things, strive to be found by him at peace, without spot or blemish; and regard the patience of our Lord as salvation.”). But see QURAN 33:63 (M.H. Shakir trans.) (“Men ask you about the hour; say: The knowledge of it is only with Allah, and what will make you comprehend that the hour may be nigh.”); id. 6:57 (“Say: Surely I have manifest proof from my Lord and you call it a lie; I have not with me that which you would hasten; the judgment is only Allah's; He relates the truth and He is the best of deciders.”); see generally Tarīf Khālidī, The Idea of Progress in Classical Islam, 40 JOURNAL OF NEAR EASTERN STUDIES 277–289 (1981) (tracing pessimistic and optimistic views of human progress in the Islamic tradition).

3 See JONATHAN ISRAEL, A REVOLUTION OF THE MIND: RADICAL ENLIGHTENMENT AND THE INTELLECTUAL ORIGINS OF MODERN DEMOCRACY 1–36 (2009).

4 HERBERT SPENCER, SOCIAL STATICS 77-80 (Appleton Ed. 1873) (“Progress, therefore, is not an accident, but a necessity. Instead of civilization being artificial, it is a part of nature; all of a piece with the development of the embryo or the unfolding of a flower. The modifications mankind have undergone, and are still undergoing, result from a law underlying the whole organic creation; and provided the human race continues, and the constitution of things remains the same, those modifications must end in completeness…. As surely as the tree becomes bulky when it stands alone, and slender if one of a group; as surely as the same creature assumes the different forms of cart-horse and race-horse, according as its habits demand strength or speed; … so surely must the human faculties be moulded into complete fitness for the social state; so surely must the things we call evil and immorality disappear; so surely must man become perfect.”).

5 JOSEPH A SCHUMPETER, CAPITALISM, SOCIALISM, AND DEMOCRACY 82–83 (1994), (“The essential point to grasp is that in dealing with capitalism we are dealing with an evolutionary process.... The opening up of new markets, foreign or domestic, and the organizational development from the craft shop and factory to such concerns as U.S. Steel illustrate the same process of industrial mutation—if I may use that biological term—that incessantly revolutionizes the economic structure from within, incessantly destroying the old one, incessantly creating a new one. This process of Creative Destruction is the essential fact about capitalism.”).


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6 The utopian teleology of the current age finds expression in musings over “a world without

scarcity” or the so-called “singularity”. See, e.g., RAY KURZWEIL, THE SINGULARITY IS NEAR: WHEN HUMANS TRANSCEND BIOLOGY (2006); Mark A. Lemley, IP in a World Without Scarcity (unpublished draft), http://papers.ssrn.com/abstract=2413974 (last visited Jan 23, 2015).

7 U.S. CONST. preamble; Art. I, §8, cl. 8. 8 See generally, e.g., Daniel J. Hemel & Lisa Larrimore Ouellette, Beyond the Patents-Prizes Debate,

92 TEX. L. REV. 303 (2013).


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2. FROM IS TO OUGHT

Most can raise the flowers now,

For all have got the seed.

-Tennyson1

Somewhere between 9,000 and 12,000 years ago, as climate change

destabilized the food sources of human hunter-gatherer groups, our

ancestors began relying increasingly on the seeds of wild grasses as a

source of nutrition. Some species provided better seeds than others, and

within species certain characteristics—seed size, yield, time to maturity,

etc.—made some individual plants more useful than others. Over

thousands of years, human societies learned which grasses brought forth

the best and most reliable seeds, learned to select and propagate those

grasses, and ultimately began building their entire societies around the

practice of managing this stable, reliable—but sedentary—food source. It

was the Neolithic Revolution—the dawn of agriculture, of cities, and of

large-scale human civilization.2 From the Nile Valley to the Yangtze Basin

to the Andean Mountains, social cooperation and organization developed

hand in hand with the techniques and practices of cultivation.3

In the modern era, as the scientific method came to supplant

traditional forms of knowledge production and transmission, this

millennia-old solution to the problem of feeding the human population

underwent a similar shift. Tradition and social structure were overtaken

by experimentation and artifice, and agriculture came under the influence

of the logic of improvement—of progress. Mendelian theory and systematic

observation increased farmers’ ability to manipulate the characteristics of

useful plants through experimental breeding. Prospering societies found

themselves awash in a steadily increasing number and variety of novel and

improved agricultural products. In the nineteenth and early twentieth

centuries, cultivation of useful plants became not only the fulcrum of

social structure, but also a science—an object of intentional, disciplined,


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methodical, and laborious study holding the promise of steady, cumulative

advancements in useful knowledge (and concomitant advancements in

human happiness).4

Law has been playing a curious role during this period of scientific

ascendancy. New plant varieties have indeed proliferated over the past two

centuries, in keeping with the progressive promise of the scientific

method.5 And legal regimes governing that proliferation have evolved as

well, with the stated aim of augmenting this progress. Of course, law must

always in some sense play catch-up with human activity; it is the

intentionalized structure we impose on our organic social interactions.

But the response of the law to developments in agriculture has followed a

particular and curious pattern. New laws governing the production of

knowledge about useful plants have uniformly given knowledge-creators

proprietary rights over the work that they had heretofore been doing without

enjoying such rights.

Consider, for example, the case of Luther Burbank. Burbank was the

most visible and successful example of a generation of entrepreneurial

plant breeders racing to meet the public’s insatiable demand for novel and

reliable plant varieties. He first selected his famous Russet potato variety

in 1871; today it accounts for over a third of the planted potato acreage in

the United States, and over half the acreage in Idaho—generating literally

billions of pounds of food per year.6 Burbank ultimately developed over

800 new edible and ornamental plant varieties over a career spanning five

decades, becoming something of an American folk hero. He produced most

of these varieties by means of assiduous large-scale hybridization through

sexual reproduction of compatible plant species, followed by careful

selection of promising offspring. His usual practice was to sell specimens

of his most promising new varieties to nurserymen and seedmen for a


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lump sum—the Russet brought him $150 in 1871. These purchasers of

Burbank’s new varieties then relied on marketing, first-mover advantage,

and Mr. Burbank’s reputation to convert these new plants into profits—

not always successfully, nor even honestly.7 For a time in his later career

Burbank also received grant funding from the Carnegie Institute—a

charitable corporation chartered by Congress “to encourage, in the

broadest and most liberal manner, investigation, research and discovery,

and the application of knowledge to the improvement of mankind—but

the grant was eventually terminated “with almost nothing to show for it.”8

Even so, today you can enjoy the first fruits of Burbank’s labor—the

Russet Burbank potato—in any one of thousands of McDonalds

restaurants around the globe, or find his famous Shasta daisies growing in

any number of ornamental gardens.

Six years after Burbank’s death, Congress found itself debating a bill

that would become the Plant Patent Act of 1930 (PPA),9 which gives plant

breeders like Burbank exclusive rights to newly developed plant varieties

propagated by asexual reproduction (i.e., grafts and cuttings). Senator

Townsend read into the record of that debate a telegram he had received

from Burbank’s widow, which purported to “acquaint [the Senate] with

Luther Burbank’s very strong feeling in this connection”:

He said repeatedly that until Government made some such provision the incentive to creative work with plants was slight, and independent research and breeding would be discouraged to the great detriment of horticulture. Mr. Burbank would have been unable to do what he did with plants had it not been for royalties from his writings and from other by-product lines of activity, but it must be remembered that most plant breeders and experimenters do not reach post where any such revenues are available to them until too late in their lives to help them in financing their extremely expensive work. If Mr. Burbank were living, I know he would be in the forefront of the campaign to secure protection for other devoted men giving their lives to this service to mankind.10

This telegram was immediately preceded in the record by a message

from that most prolific of patentees, Thomas Edison, who predicted that


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passage of the PPA would “give us many Burbanks.”11

Now, Burbank had neither abandoned his work nor lived in poverty for

want of patent protection. At his death he left his young widow a

comfortable home and garden where she continued to live for nearly five

decades after his death, plus an even larger satellite farm, both of which

can still be visited today.12 Nor did Burbank’s death significantly affect the

nation’s horticultural research output. The system of land-grant

universities, and in particular in the “experiment stations” established

and funded there under the Hatch Act of 1887 and the Adams Act of 1906,

continued to serve the needs of the nation’s farmers for new and better-

performing plant varieties as they had for half a century, and as they still

do today.13 In short, it was not apparent in 1930 that the nation was in any

way suffering for the want of “many Burbanks.” Nevertheless, perhaps

impressed by the aforementioned testimonials, Congress passed the PPA,

which remains in force today.

But the new statute did not have the beneficial effects that had been

predicted. Fifteen years after passage it had secured for the widow

Burbank a few patents on some of her late husband’s creations, but the

New York Times reported that it “Has Not ‘Given us Many Burbanks,’” and

that it had “failed of its primary purpose.”14 Even today, the PPA is at best a

footnote to the intellectual property system: the U.S. Patent and

Trademark Office issued all of 1,072 plant patents in 2014, compared to

over 300,000 utility patents.15

Whatever its merits, the PPA had no apparent impact on the next great

epoch in agricultural progress. In the mid-twentieth century, Norman

Borlaug led the development of new hybrid strains of cereal crops that

ultimately saved millions—perhaps billions—of human beings from

malnutrition and starvation, in what became known as the Green


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Revolution.16 Borlaug was no Burbank. He was a professional scientist

with a Ph.D. from the University of Minnesota (one of the aforementioned

land grant universities), and was employed by an institution that

originated in a cooperative arrangement between the Mexican Ministry of

Agriculture and the Rockefeller Foundation. His mission was to try to

address the dangerous levels of food insecurity that accompanied the post-

war population boom, which threatened disastrous famine on a global

scale.

Borlaug led a team of researchers in spartan conditions, working to

improve yields and reliability of wheat and maize in the underproductive

fields of Mexico. In 1953 he received—gratis—a sample of a promising

strain of dwarf wheat from Orville Vogel, an academic plant breeder at

Washington State University (another of the aforementioned land-grant

universities). After several years of experimentation with hybrid crosses of

Vogel’s strain, Borlaug’s team produced new disease-resistant, high-yield,

semi-dwarf strains that soon made Mexico a self-sufficient net exporter of

wheat—and of plant-breeding scientific knowledge. Similarly improved

strains of other staple cereals—such as maize and rice—followed, turning

many countries in the developing world from net-importers to net-

exporters of their staple cereal crops, and ensuring that their populations

would face far lower food insecurity than anyone would have predicted

halfway through the twentieth century. In 1970, Borlaug received the

Nobel Peace Prize.17

Almost immediately upon consolidation of these tremendous advances

in agriculture, the legal regime governing development of new plant

varieties was again altered, again to make such varieties the subject of

private property. In 1970 Congress passed the Plant Variety Protection Act

(“PVPA”),18 allowing creators of sexually-reproducing plant varieties (like

Borlaug’s hybrids) to acquire property rights in those varieties, while


6

reserving to farmers a “seed-saving” defense to infringement. (This defense

allows farmers to collect and replant seeds from plants grown from

patented seeds purchased from the patentee.) But again, the new legal

regime found few takers; In the 45 years since the PVPA’s passage there

have been a grand total of 10,514 Plant Variety Protection Certificates

issued, upon only 13,041 filed applications.19 Just as the PPA gave us few

Burbanks, the PVPA seems to have given us few Borlaugs.20

The relative desuetude of the PVPA may be attributable to the fact that

researchers quickly moved on to the next wave of agricultural

improvement: genetic engineering. Today, almost all staple crops grown in

the United States come from genetically engineered seeds marketed by

major corporations with huge research and development operations.21 The

most visible examples are transgenic staple crops like Monsanto’s

“Roundup-Ready” herbicide-resistant soybeans. They are the product of

genetic engineering technologies that emerged from years of collaboration

and between private firms and researchers at public universities.22

And here, finally, it seems the law has caught up to plant variety

innovators—perhaps because it has nothing more to give them. In 1980,

the Supreme Court held for the first time in Diamond v. Chakrabarty23 that

living organisms are eligible for utility patent protection—the powerful

legal right to prevent anyone else from making, using, selling, offering to

sell, or importing the invention claimed in the patent for a number of

years24— so long as the organism is not naturally-occurring. More recently

in J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, the Court explicitly

extended utility patent protection to sexually-reproducing plant varieties

(so long as they otherwise meet the criteria for patent protection), giving

plant developers an even stronger form of protection than is available

under the PVPA (not least by circumventing the PVPA’s seed-saving


7

defense).25 Now that utility patents are explicitly available for plant

varieties, researchers and firms avidly seek them out for their agricultural

innovations. This patenting activity has been facilitated by the passage in

1980 of the Bayh-Dole Act, which explicitly encourages universities to

patent (and, hopefully, license) their government-funded research.26 By

2001, Borlaug himself observed that if Orville Vogel’s dwarf wheat strain

had been developed today instead of in the 1950s, “Washington State

would take out a patent and license it to DuPont or Monsanto or

somebody” rather than donating it to Borlaug’s group for further publicly

funded development.27

We can detect a cynical tone in Borlaug’s observation about the changes

to the legal and economic structures surrounding research and innovation

during his lifetime. And we might similarly question the motivation for

the legal system to take the unowned innovations of yesterday and use

them as a model for the private property rights of tomorrow. Each of the

legal developments discussed above brought under the cloak of

intellectual property protection research that was already being done

without the promise of such protection. Plant breeders had been generating

new varieties for literally thousands of years before passage of the PPA.

True-to-seed hybrids were being produced and marketed prior to the

passage of the PVPA, and certainly prior to J.E.M. Ag Supply—often through

publicly funded projects.28 Chakrabarty, like Borlaug, relied on gifts of

promising specimens in his genetic engineering work, and relied on

techniques previously developed and published by others in the field29

even as he developed—and published—novel engineering solutions of his

own.30 The race to find a suitable vector for the transgenic modification of

plants was well underway years before Chakrabarty was decided.31 All this

being the case, why did Congress—and the courts—feel the need to change

the laws that prevailed at the time of successful innovations, and why

always in this particular way?


8

The conventional answer to that question is rooted in the

Constitutional text that gives Congress the power to pass these laws in

the first place: Article I, Seciton 8, Clause 8. The assumption inherent in

that Clause is that “securing for limited Times to Authors and Inventors

the exclusive Right to their respective Writings and Discoveries” will

“promote the Progress of Science and useful Arts.” This assumption has

grounded American intellectual property theory in one of the two great

schools of Western moral philosophy that, like our republic, grew out of

the Enlightenment era. That school is consequentialism: the view that the

rightness of conduct is a function of the results of that conduct. It’s most

familiar incarnation is the utilitarianism developed in the 18th- and 19th-

centuries by thinkers like Jeremy Bentham and John Stuart Mill, who held

that morality is to be identified with whatever produces the greatest good

for the greatest number.32 In modern policy debates, utilitarianism has

typically been repackaged as welfarism: the idea that the goodness of any

particular state of the world is some increasing mathematical function of

the well-being of individuals in that state of the world, as perceived by the

individuals themselves (often referred to as a social welfare function).33 The

key feature of these and other consequentialist moral theories is that their

application requires measurement and aggregation: they attempt to quantify

welfare (or utility or happiness or pleasure or wealth or whatever

individual good is the carrier of moral worth) at the individual level, and

then put the various individual measurements together to achieve some

aggregate social quantity as a basis for comparing acts, rules, or states of

the world.34

Consequentialist justifications of intellectual property rights begin

with the observation that new knowledge is difficult to create but easy to

copy. Knowing this, people will not invest sufficient time, effort and


9

resources in knowledge creation, because once their laboriously generated

new knowledge enters the world, free-riders can simply copy it. Any hope

the creator might have of recouping their investment by selling their new

knowledge—such as inventions or creative works—will be undermined

by competition from free-riders who don’t have to recoup those costs, and

can thus offer the knowledge to buyers at a lower price. The “limited

Time[] … exclusive Right” Congress provides is designed to prevent such

free-riding during the period of exclusivity, giving knowledge-creators the

power to charge a monopoly price and thereby allowing them to recoup

their investment. This monopoly price provides the incentive to invest in

creating new knowledge in the first place. And this, it is argued, leads to a

state of the world that is preferable to a world without intellectual

property: a world in which we have an adequate supply of new

knowledge.35

So goes the theory, at any rate. But this justification of intellectual

property rights has always been considered a tenuous one.36 Thomas

Jefferson, who as our first Secretary of State issued the first U.S. patents,

thought societies could reasonably disagree as to whether patents

“produce more embarrassment than advantage.”37 The noted economist

Fritz Machlup famously reported to Congress that “[i]f we did not have a

patent system, it would be irresponsible, on the basis of our present

knowledge of its economic consequences, to recommend instituting one[;

b]ut since we have had a patent system for a long time, it would be

irresponsible, on the basis of our present knowledge, to recommend

abolishing it.”38 America’s history of copyright law is less ambivalent but

more checkered. In the 19th century America was a pirate nation, protecting

the few works produced by its own citizens but refusing to grant

copyrights over the far larger and more highly demanded body of works of

authorship produced overseas. Now that we have become a net exporter of

copyrightable works, we have also become a net exporter of rightholder-


10

favoring copyright laws, embedding protective Western—and particularly

American—standards into international legal instruments such as TRIPS

and bilateral and multilateral trade agreements.39

Our ambivalence about the very existence of intellectual property

rights can be traced directly to its consequentialist justification. Part of

the problem is that application of consequentialism is highly dependent

on facts in the world: it has empirical as well as normative aspects. The chief

empirical assumption underlying consequentialist justifications for

intellectual property rights is what we might call the incentive thesis: the

proposition that the promise of intellectual property rights induces

people to create new knowledge that they would not otherwise create.40

The incentive thesis is a proposition regarding the causal relationship

between intellectual property rights and knowledge creation: it posits

that intellectual property law increases the world’s store of knowledge as

compared to a world without intellectual property.

A major developing problem for consequentialist justifications of

intellectual property is that the incentive thesis appears not to be reliably

true. The example of agricultural innovation with which this chapter

began is suggestive: almost all of humanity’s most stunning advances in

agriculture were generated outside of any intellectual property regime, and

the extension of intellectual property rights to various agricultural fields

does not seem to reliably increase innovation in those fields (the “many

Burbanks” conundrum). Indeed, no lesser authority than the Supreme

Court of the United States expressed serious doubt about the incentive

thesis, even as it blessed the extension of patent protection to living things

in Chakrabarty:

The grant or denial of patents on micro-organisms is not likely to put an end to genetic research or to its attendant risks. The large amount of research that has already occurred when no researcher had sure knowledge that patent protection


11

would be available suggests that legislative or judicial fiat as to patentability will not deter the scientific mind from probing into the unknown any more than Canute could command the tides. Whether respondent's claims are patentable may determine whether research efforts are accelerated by the hope of reward or slowed by want of incentives, but that is all.41

Since the Court announced this conjecture, intellectual property law

scholarship has taken what might be called an “empirical turn,”42 and

found evidence that the Justices may have been on to something. Mark

Lemley, a leading intellectual property scholar, recently summarized this

research:

The problem is that the picture painted by the evidence is a complicated one. The relationship between patents and innovation seems to depend greatly on industry; some evidence suggests that the patent system is worth the cost in the biomedical industries but not elsewhere. Copyright industries seem to vary widely in how well they are responding to the challenge of the Internet, and their profitability doesn’t seem obviously related to the ease or frequency of piracy. The studies of the behavior of artists and inventors are similarly complicated. Money doesn’t seem to be the prime motivator for most creators, and sometimes it can even suppress creativity. And an amazing number of people seem perfectly happy to create and share their work for free now that the Internet has given them the means to do so.43

Based on this review of the literature, Professor Lemley concludes that

intellectual property law “probably [is]n’t helping much, or [i]s only

helping people in a few specialized areas, and might in fact be making

things worse.”44

But when Professor Lemley asks whether intellectual property law is

“helping” or “making things worse,” he is not talking—or not only

talking—about the incentive thesis. The incentive thesis is not in itself a

justification for intellectual property rights; it is just one piece of the

argument. The ultimate question in consequentialist analysis of

knowledge governance regimes is whether the regime has a positive effect

on aggregate individual well-being compared to some baseline alternative

policy. Typically the means for analyzing this question is some form of

cost-benefit analysis: compared to some baseline or alternative, does the

added individual well-being generated by the regime exceed the added


12

individual costs generated by the regime?

Within the consequentialist framework, analysts’ focus on the

empirics of the incentive thesis is understandable. It is the most tractable

aspect of consequentialist justification, and holds out the promise of

sidestepping more complex and contestable claims about value. If the

incentive thesis were always and everywhere false, and if the creation of

new knowledge were the only benefit flowing from intellectual property

laws, we could short-circuit our analysis. We would conclude that the

benefits generated by intellectual property rights are—relative to a world

without those rights—less than or equal to zero, meaning we need not

consider the costs of intellectual property rights at all to find them

unjustified. But unfortunately neither of these conditions obtain.

Evidence that the incentive thesis may be true in some circumstances but

not in others means a consequentialist must consider the costs of

intellectual property rights in at least those circumstances where they

induce creative activity, and somehow attempt to compare those costs to

the benefits of that activity. Moreover, there may be other benefits to

intellectual property laws—besides the creation of new knowledge—that

a cost-benefit analysis would need to take into account.

We can begin to understand the nature and scope of these

complications by considering the value of creative work to creators

themselves, and the costs of realizing that value. For example, Rebecca

Tushnet argues that many people deeply enjoy engaging in creative work:

they feel motivated to create and derive personal satisfaction and

fulfillment from doing so, independent of any pecuniary compensation.45

Relatedly, Robert Merges argues there is value in the autonomy of creative

professionals who are able to earn a living from their creative efforts under

an intellectual property regime.46 Both of these phenomena—the fact that


13

creators derive personal satisfaction from the process of creation itself, and

the fact that creators can enjoy material security while pursuing such

personally fulfilling activities according to their own wishes—would

seem to be relevant to a justification of a legal regime that purports to rest

on the well-being of individuals. But accounting for these aspects of well-

being is a fraught task, because none of them exist in isolation. The

material support knowledge creators enjoy under an intellectual property

regime comes out of someone else’s pocket: it is extracted from purchasers

at a monopoly price that the purchasers might have spent elsewhere.

Likewise, the desire to create knowledge generates opportunity costs:

people engaged in gratuitous knowledge creation could have been engaged

in other activities that might be deemed more valuable by other members

of society.

Despite the mathematical pretensions of consequentialism, valuing

these cross-cutting aspects of knowledge creation is not an empirical task.

It is evaluative. Any attempt to measure and aggregate these individually-

felt costs and benefits reveals an essential incompleteness in

consequentialist justifications for regulation of complex social

phenomena such as innovation and creativity, and exposes serious

limitations on the power of empiricism to evaluate such justifications.

This is principally because any strategy for measurement and aggregation

is necessarily beset with contestable value judgments. The pitfalls of

attempting such quantification and comparison are frequently cited in

critiques of cost-benefit analysis as it applies to health and safety

regulations of activities that pose risks of death or serious injury,47 but

they are equally relevant to evaluation of knowledge-governance regimes.

We need not resort to life-and-death stakes to show how value

judgments creep in to any cost-benefit analysis of intellectual property

rights. Take, for example, the autonomy enjoyed by a creative professional


14

who is able to earn a living from her creative work, and the satisfaction she

derives from doing so. What is the value of her autonomy, or her

satisfaction? How might we measure it? Should we try to quantify it in

dollars? Can we? Is her income itself a proper measure? Should we instead

try to identify some alternative, more remunerative labor she might engage

in, and treat the difference between her imputed foregone income from

that labor and the income flowing from exercise of IP rights as the “value”

of her autonomy? If so, how do we know what alternative labor she would

have engaged in, or what the imputed income from it would be, if we

cannot observe either directly in the real world? And should the loss of

that labor be counted as an opportunity cost of her creative efforts? Or

should we instead ask her to put a dollar value on her autonomy, or on the

satisfaction she derives from creative work? If she did so, should we take

her estimate at face value, and treat it as data?

When we do turn to questions of life and death, these fundamental

uncertainties become even more unsettling. What is the aggregate social

benefit of a cure for a rare disease that kills ten people per year? Should we

ask those who suffer from the disease? Their loved ones? Their employers?

What about the benefit of a marginally improved treatment for a

superficial health condition, like mildly itchy skin, that affects millions of

people per year? Again, whom should we ask, and can we rely on their

answers?

And here is perhaps the most difficult question of all: if we did ask the

terminally ill, the mildly itchy, the creative professionals, and the amateur

knowledge-creators of our examples to put a dollar value on these costs

and benefits of their lived experiences, and they all gave us different

answers, which answer(s) should we use as the basis for measurement of

individual welfare? Should it matter whether the difference in their


15

answers is influenced by their heterogeneous pre-existing levels of wealth

or income, over which they have no control?48 Should we simply average

their answers together, and if so should we weight the components of our

average? Should anybody else have a say? If so, who?

Answering all these questions requires us to make value judgments—

about the value of freedom to develop one’s expressive capacities, about

what level of material support a member of society deserves in exchange for

a technological or cultural contribution, about our collective obligations to

the sick and the needy, about the allocation of control over cultural

development between the last generation and the next one, about how to

balance respect for individuals with wariness about bias and self-interest.

These values are not amenable to empirical quantification. Specialized

training in law, economics, or empirical methods does not confer any

privileged position in answering these questions.49 My value judgments

are no better than those of the average person on the street (though of

course I may believe they are).

Part of the problem here is the issue of Comparability, which we will

address in the next chapter. That is, we may be trying to compare apples

and oranges (or dollars and lives) when there is no single acceptable

metric or ordinal relation by which to compare them. But a deeper problem

is that whether something is best thought of as an apple or an orange may

depend on who is holding it—or looking at it—at any particular moment.

Under these conditions, nearly all the work of cost-benefit analysis is

contained in the act of deciding what gets measured, and how. Thus, the

implicit answer to this most fundamental question in cost-benefit

analysis—who settles disputes over the definition and measurement of

value—is that the analyst decides.

The danger of reducing consequentialist justification to its causal

assumptions, or its empirical claims, is that in doing so we will fail to


16

recognize that the application of these claims and assumptions is not an

act of observation, but an assertion of power. It is the act of deciding what

counts, how to count it, and ultimately how to compare it to other sources

and measures of value. The incentive thesis may be true, or it may be false,

or it may be somewhere in between, but regardless we are still faced with

the task of evaluation: of deciding what the benefits generated under any

particular knowledge-governance regime are worth, and what we are

willing to trade those benefits away for. When we attempt to value

progress in this way, whoever does the evaluating is necessarily exercising

power that will be subject to legitimate normative contestation.

This is not a problem unique to consequentialism. The causal

indeterminacy of consequentialist arguments has led some to turn to the

other great school of Western moral philosophy: deontology. Deontological

theory holds that the morality of conduct is a function of the reasons for

which an actor undertook that conduct. The fundamental expression of

deontological ethics is Kant’s categorical imperative—the principle that

you should only act based on reasons that you could rationally will to be

universal laws guiding all human conduct.50 The related “moral rights” or

“natural law” philosophy of John Locke has historically informed the

American intellectual property tradition. Locke identified the rights of

property with the moral claims of labor, on the theory that all would agree

to allow individuals to assert property rights over resources they had

worked to put to productive use, “at least where there is enough, and as

good left in common for others.”51 Lockean theorists have extended this

logic from physical resources to intangible ones, identifying the rights of

authors or inventors with the labor of the mind.52 Another leading

intellectual property scholar, Rob Merges, recently concluded that the

empirical indeterminacy of the consequentialist case for intellectual


17

property required recourse to other justifications for intellectual

property—alternatives drawn from deontological philosophical

authorities such as Locke, Kant, and Rawls.53

Whatever the merits of these deontological labor-desert theories, it

must be admitted that they rest on an unprovable causal logic of their

own. Specifically, they assume that the labor of an author or inventor is the

morally relevant cause of bringing forth new knowledge into the world.

This assumption ignores a series of issues that will be explored in Chapter

5, regarding the extent to which new knowledge is a result of the agency of

a particular creator as opposed to the circumstances in which the creator

finds herself by chance or luck. To the extent that luck plays any role in the

bringing forth of new knowledge, it is difficult to credit a deontological

claim that all rational minds would privilege the claim of a lucky laborer to

control knowledge that others might beneficially use, particularly where

reducing the laborer’s power over others’ use of the knowledge would not

deprive the laborer herself of that use.

Moreover, deontological theories require some form of practical

reasoning when different rights or duties come into tension with one

another—as for example when we must weigh a regime’s commitment to

the labor-desert claims of creators to other legitimate moral claims of

others—claims grounded in autonomy, for example.54 Because practical

reason depends on evaluation of various reasons for acting given a set of

circumstances, and because different actors may weigh those reasons

differently, deontological theories pose the same evaluative problem as

consequentialist theories when they attempt to mediate the competing

claims and interests of the diverse subjects of knowledge-governance

regimes—the problem of deciding who decides. In such circumstances,

resort to the authority of dead white male philosophers and their well-

considered ideas of what is right and good is no less an act of power than


18

the specification of a model for cost-benefit analysis. In both cases, the

analyst’s conclusions rest on the privileging of a set of values embedded in

the assumptions underlying their mode of analysis.

My point here is not that either consequentialism or deontology is true

or false, it is that people—incredibly smart people!—legitimately disagree

on that question, as they disagree on what conclusions should be drawn

from either mode of reasoning. The very fact of that disagreement counsels

us against ideal theory as a means to the end of regime design. Indeed,

efforts to rely on theory alone merely blur the causal and normative claims

of each theory, with the result that the role of the analyst’s own values in

determining the outcome of an analysis is obscured. But we can uncover

these values, with a healthy application of Hume’s Guillotine—severing

“is” claims from “ought” claims.55 We need only be on the lookout for the

normative assumptions that creep in to ostensibly neutral analyses.

The current debate over intellectual property policy by the field’s

leading legal scholars is illustrative. Professor Merges’s analysis, for

example, unabashedly asserts a default preference for the interests of

knowledge creators: “[C]reative professionals,” he says, “ought to be a

special object of interest for IP law and policy.”56 Professor Lemley’s

analysis, in contrast, unabashedly asserts a default preference for the

interests of knowledge users:

“IP rights represent government interventions in the marketplace that seek to achieve [a] desirable social end by restricting the freedom of some people (consumers, reusers, critics) to do what they want with their own real and personal property in order to improve the lives of other people (inventors and creators).... In a market-based economy, regulation requires some cost-benefit justification before we accept it.”57

Take these default preferences away, and all that remains is the empirical

ambiguity that both scholars recognize—an ambiguity that does not seem

to counsel for any particular position on the wisdom of intellectual


19

property as a knowledge-governance regime. Even the most erudite

expositions of moral theories—over which people legitimately disagree—

and empirical findings—which are incomplete and indeterminate—are

thus revealed to be red herrings. The selection of a default—and the

shifting of the burden of persuasion to those who would argue against

that baseline—is doing all the work of the analysis. What we have is

simply a disagreement over what (or whom) to value, and in what

measure.

In a sense, the clarity of seeing through to the assumptions that drive

our disagreements is liberating. It reveals that regime design is not the

exclusive province of technocrats and philosophers—that the types of

value judgments we are all equally equipped to make have an important

role to play. But in another sense, the reduction of regime design to such

value judgments is deeply troubling. If these differences of values are what

drive differences in opinion over the justification of a knowledge-

governance regime like intellectual property rights, whose values ought to

prevail? And if regime design requires some people’s values to defer to other

people’s values, how can knowledge-governance regimes—like our current

intellectual property regime—ever ultimately be justified?

Many have come to the conclusion that they cannot. Returning to

where we began this chapter, the history of agricultural innovation offers

worrying illustrations of the potential results of such failures of

justification. Farmers and merchants have engaged in decades of litigation

against Monsanto over its enforcement of patents in its genetically

engineered plants, making their way to the Supreme Court of the United

States, the Supreme Court of Canada, and the Court of Justice of the

European Union.58 More broadly, there is growing skepticism about the

merits of intellectual property rights, in the economy in general and in the

agriculture sector in particular. Today’s ubiquitous proprietary


20

agricultural varieties—and especially genetically modified organisms or

“GMOs”—have been accused of all manner of sins, whether environmental

(due to the conversion of agricultural land to intensive farming methods

and the attendant strain on water resources and application of artificial

fertilizers, herbicides, and pesticides), ecological (for the same reasons

plus the reduction in genetic diversity resulting from reliance on a small

number of commercial crop strains) or sociopolitical (due to the economic

marginalization of small farms; the concentration of agricultural land,

capital, and wealth; the privatization of gains from publicly-funded

research; and the reliance by developing countries on developed countries

for the technologies that generate their subsistence).59 Such accusations

reflect serious doubt that the latest wave of agricultural innovations do in

fact represent progress, and suggest that that even if they do, such

progress is outweighed in the minds of many people by other, competing

values.

Whether one believes these critics of modern agricultural technologies

to be well informed or not, they are passionate. The anti-GMO movement,

for example, is motivated by a diffuse collection of the types of concerns

just mentioned, but particularly by distrust of the economic and political

power wielded by large, concentrated, and socially remote private interests

over a phenomenon as primal as cultivating the Earth to feed the human

population. And when the legal regimes we rely on to generate new

knowledge appear to privilege such concentrated private interests over the

objections of cohesive political constituencies, this distrust can evolve

into suspicion that public institutions are corruptly beholden to such

private interests.60 Such distrust can have tragic consequences.

Opposition to the commercialization of agricultural innovation has begun to

manifest itself as opposition to the fact of agricultural innovation. In one of


21

the most visible recent manifestations of the anti-GMO movement, local

activists in the Philippines destroyed an experimental field trial of

transgenic “golden rice.” The destruction was apparently instigated by a

local leftist political party, and targeted a public research institution

taking advantage of a freely licensed patent portfolio for a technology

which promises to one day alleviate the deadly and crippling malnutrition

that results from high levels of vitamin-A deficiency in—among other

places—the Philippines.61

We have come a long way since the Neolithic Revolution. We continue

to find new ways of feeding the world that only a few years ago would have

been dismissed as fanciful if not impossible. And the future holds the

promise of even greater and more stunning advancements, not merely in

our knowledge of agriculture, but in all areas of technological and cultural

endeavor, from medicine to entertainment to information technology. Still,

while these advancements promise to improve the material well-being of

broad swathes of humanity, they always come at a cost. They generate

winners and losers, and varying degrees of each. Particular instances of

knowledge creation will thus always remain subject to contestation by

those who claim their cost is too great, or is improperly apportioned, or

was unnecessarily incurred. Whatever legal, social, or normative systems

we rely on to govern the complex long-term social project of knowledge

creation, they will necessarily be subject to these types of claims: claims

about power, about freedom, and about distribution.

Because these claims are not empirical or causal claims, but assertions

of value, we must put ourselves on the messy side of Hume’s Guillotine,

and shift our thinking about knowledge-governance regimes from the is to

the ought. We must try to understand why we disagree on the questions of

value that inform our judgments about these regimes, as a first step

toward figuring out what to do about that disagreement. To that end, we


22

must identify and explore the key dimensions that define our values

regarding the creation and distribution of knowledge, and try to

understand how legitimate disagreements along each of these dimensions

influences disagreement over regime design. Only then will we be in a

position to design tools to channel those disagreements into a course of

social action that will have some claim to legitimacy.


23

NOTES TO CHAPTER 2

1 Alfred Lord Tennyson, The Flower, in THE WORKS OF ALFRED LORD TENNYSON, POET LAUREATE, at 230 (Macmillan 1898).

2 See generally DENIS J. MURPHY, PEOPLE, PLANTS AND GENES (2007). 3 See generally MARCEL MAZOYER & LAURENCE ROUDART, A HISTORY OF WORLD AGRICULTURE:

FROM THE NEOLITHIC AGE TO THE CURRENT CRISIS (2006); J. Molina et al., Molecular Evidence for a Single Evolutionary Origin of Domesticated Rice, 108 PROC. NATL. ACAD. SCI. 8351–8356 (2011).

4 See generally 5 See generally PAUL J. HEALD & SUSANNAH CHAPMAN, CROP DIVERSITY REPORT CARD FOR THE

TWENTIETH CENTURY: DIVERSITY BUST OR DIVERSITY BOOM? (2009), http://papers.ssrn.com/abstract=1462917 (last visited Jan 29, 2015).

6 National Agricultural Statistics Service, November 10, 2014 Press Release: Northwest Potato Production is Forecast at 257 Million Hundredweight, Up 3 Percent from Last Year.

7 KINGSBURY, supra note 4, at 187-94. The nursery-and-seed trade was generally rife with dishonesty during the period. See generally Cheryl Lyon-Jenness, Planting a Seed: The Nineteenth-Century Horticultural Boom in America, 78 BUS. HIST. REV. 381 (2004).

8 KINGSBURY, supra note 4, at 194-95; An Act to Incorporate the Carnegie Institution of Washington, Pub. L. No. 58-260, ch. 1828, 33 Stat. 575 (Apr. 28, 1904).

9 Plant Protection Act, Pub. L. No. 71-245, ch. 312, 46 Stat. 376 (1930). 10 72 Cong. Rec. 6764-65 (Statement of Sen. Townsend), Apr. 9, 1930. 11 Id. 12 Elizabeth W. Burbank, 89; Widow of Horticulturalist, N.Y. TIMES (June 22, 1977), page B4. The

widow Burbank had served as her husband’s proofreader and secretary in composition of the writings from which he (and later she) received royalty income. Id. Tours of the Burbank home and garden are offered by a nonprofit organization that manages the properties as a museum and event space. See generally Tours | Luther Burbank Home & Gardens, , http://www.lutherburbank.org/tours (last visited Jan 31, 2015).

13 Hatch Act, ch. 314, 24 Stat. 440 (1887); Adams Act, ch. 951, 34 Stat. 63 (1906). For a review of the political and legislative history of this national system of agricultural research, and of its achievements during this period, see generally HAROLD CARL KNOBLAUCH, E. M. LAW & WERNER P. MEYER, STATE AGRICULTURAL EXPERIMENT STATIONS: A HISTORY OF RESEARCH POLICY AND PROCEDURE (1962); and ALFRED CHARLES TRUE, A HISTORY OF AGRICULTURAL EXPERIMENTATION AND RESEARCH IN THE UNITED STATES, 1607-1925: INCLUDING A HISTORY OF THE UNITED STATES DEPARTMENT OF AGRICULTURE (1937).

14 Jack Kilpatrick, Plant Patent Act is 15 Years Old, N.Y. Times (July 28, 1945), pages 17, 19. 15 UNITED STATES PATENT & TRADEMARK OFFICE, U.S. PATENT STATISTICS REPORT (March, 2015),

available at www.uspto.gov/web/offices/ac/ido/oeip/taf/reports.htm (last visited May 15, 2015). Of these 1,072 plant patents, 671 were issued to foreign applicants. UNITED STATES PATENT & TRADEMARK OFFICE, PLANT PATENTS, JANUARY 1, 1990 — DECEMBER 31, 2014: A PATENT TECHNOLOGY MONITORING TEAM REPORT (March, 2015), available at www.uspto.gov/web/offices/ac/ido/oeip/taf/reports.htm (last visited May 15, 2015).

16 See generally, e.g., Peter B.R. Hazell, Green Revolution, in THE OXFORD ENCYCLOPEDIA OF ECONOMIC HISTORY (Joel Mokyr ed. 2003); The Nobel Peace Prize 1970 Award Ceremony Speech, available at http://www.nobelprize.org/nobel_prizes/peace/laureates/1970/press.html.

17 KINGSBURY, supra note 4, at 284-304; M. P. Reynolds & N. E. Borlaug, Impacts of breeding on


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international collaborative wheat improvement, 144 THE JOURNAL OF AGRICULTURAL SCIENCE 3 (2006).; N. E. Borlaug, The Green Revolution, peace, and humanity: Lecture on the Occasion of the Award of the Nobel Peace Prize for 1970 (Dec. 11, 1970), available at www.nobelprize.org/nobel_prizes/peace/laureates/1970/borlaug-lecture.html; Andrew Pollack, The Green Revolution Yields to the Bottom Line, N.Y. TIMES (May 15, 2001), http://www.nytimes.com/2001/05/15/science/the-green-revolution-yields-to-the-bottom-line.html (“The gene that spurred the green revolution in the 1960’s—creating high-yield grain and helping alleviate world hunger—was provided to Dr. Norman E. Borlaug by Washington State University.”).

18 Pub. L. No. 91-577, 84 Stat. 1542 (1970). 19 Email from Dr. Paul Zankowski, PVPA STATISTICS FOR RESEARCH PURPOSES.PDF (2015). 20 Today many Plant Variety Protection certificates are issued to companies that obtain

utility patents on the same varieties—a sort of “belt and suspenders” approach to legal protection. See, e.g., Plant Variety Protection Certificate #201400441 (issued for a soybean variety covered by Monsanto’s patents for Roundup-Ready Yield2 Soybeans); see generally USDA AGRICULTURAL MARKETING SERVICE, PLANT VARIETY PROTECTION OFFICE, CERTIFICATE MANAGEMENT SYSTEM, http://apps.ams.usda.gov/CMS/default.aspx.

21 Dan Mitchell, Why Monsanto always wins, FORTUNE, 2014, http://fortune.com/2014/06/26/monsanto-gmo-crops/ (last visited Sep 11, 2015).”).

22 See, e.g., U.S. Patent Nos. 5,352,605 (filed Oct. 28, 1993), 5,633,435 (filed Sept. 13, 1994). A description of the development of these technologies into commercial-scale seed production—including the crucial involvement of a researcher at the University of British Columbia—can be found in Monsanto Co. v. Scruggs, 342 F. Supp. 2d 584, 586-88 & nn.1-2 (N.D. Miss. 2004).

23 447 U.S. 303 (1980). 24 35 U.S.C. § 271(a). 25 534 U.S. 124 (2001). 26 Pub. L. No. 96-517, ch. 38, 94 Stat. 3019 et seq. (1980), codified as amended at 35 U.S.C. §§

200 et seq. 27 Andrew Pollack, The Green Revolution Yields to the Bottom Line, N.Y. TIMES (May 15, 2001), N.

Van Larebeke et al., Large plasmid in Agrobacterium tumefaciens essential for crown gall-inducing ability, 252 NATURE 169–170 (1974); I. Zaenen et al., Supercoiled circular DNA in crown-gall inducing Agrobacterium strains, 86 J. MOL. BIOL. 109–127 (1974); Mary-Dell Chilton et al., Stable incorporation of plasmid DNA into higher plant cells: the molecular basis of crown gall tumorigenesis, 11 CELL 263–271 (1977); L. Willmitzer et al., DNA from Ti plasmid present in nucleus and absent from plastids of crown gall plant cells, 287 NATURE 359–361 (1980)..

28 See 116 CONG. REC. 40296 (1970) (statement of Rep. Kastenmeier) (“Mr. Chairman, I represent an agricultural district too, and I am concerned about the cost of this to the farmer, and ultimately, of course, to the consumer. It seems strange that we have gone all the way through our history up to 1970 without the need to resort to this sort of protection for some special interests. As a matter of fact, plants have been developed over the years, have they not—the winter wheats and things we grow in the Dakotas—and without such recourse to protective laws, but rather through development, and much of it public development through the State universities and the Department of Agriculture?”).

29 A. M. Chakrabarty et al., Transformation of Pseudomonas putida and Escherichia coli with plasmid-linked drug-resistance factor DNA, 72 PROC. NAT’L ACAD. SCI. 3647–3651, 3651 (1975) (thanking donors of bacterial strains and developers of techniques, and citing publications describing the


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techniques followed in Chakrabarty’s work); Stanley N. Cohen, Annie CY Chang & Leslie Hsu, Nonchromosomal antibiotic resistance in bacteria: genetic transformation of Escherichia coli by R-factor DNA, 69 PROC. NAT’L ACAD. SCI. 2110–2114 (1972); Russell Thompson, Stephen G. Hughes & Paul Broda, Plasmid identification using specific endonucleases, 133 MOLEC. GEN. GENET. 141–149 (1974).

30 A. M. Chakrabarty, Genetic fusion of incompatible plasmids in Pseudomonas, 70 PROC. NAT’L ACAD. SCI. 1641–1644 (1973).

31 These efforts focused on a bacterium linked to crown gall tumors in tobacco plants; the bacterial plasmid DNA that infected the plants was identified and investigated as a candidate vector for insertion of other genes into the plant genome through the latter half of the 1970s. See, e.g., N. Van Larebeke et al., Large plasmid in Agrobacterium tumefaciens essential for crown gall-inducing ability, 252 NATURE 169–170 (1974); I. Zaenen et al., Supercoiled circular DNA in crown-gall inducing Agrobacterium strains, 86 JOURNAL OF MOLECULAR BIOLOGY 109–127 (1974); Mary-Dell Chilton et al., Stable incorporation of plasmid DNA into higher plant cells: the molecular basis of crown gall tumorigenesis, 11 CELL 263–271 (1977); L. Willmitzer et al., DNA from Ti plasmid present in nucleus and absent from plastids of crown gall plant cells, 287 NATURE 359–361 (1980). Monsanto scientists ultimately were the first to succeed in using the bacterium to produce transgenic tobacco, publishing their results in 1983. R. T. Fraley et al., Expression of bacterial genes in plant cells, 80 PROC. NAT’L ACAD. SCI. 4803–4807 (1983).

32 JOHN STUART MILL, UTILITARIANISM 9-10 (1863) (“The creed which accepts as the foundation of morals, Utility, or the Greatest Happiness Principle, holds that actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness.”); id. at 16-17 (“[The utilitarian] standard is not the agent’s own happiness, but the greatest amount of happiness altogether.”); id. at 52 (“[E]ach person’s happiness is a good to that person, and the general happiness, therefore, a good to the aggregate of all persons.”); Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, 2 (1907) [1823] (“By utility is meant that property in any object, whereby it tends to produce benefit, advantage, pleasure, good, or happiness… or … to prevent the happening of mischief, pain, evil, or unhappiness to the party whose interest is considered: if that party be the community in general, then the happiness of the community: if a particular individual, then the happiness of that individual.”); id. at 3 (“The interest of the community then is, what? –the sum of the interests of the several members who compose it.”); id. at 5 n.1 (quoting the utilitarian principle as “lay[ing] down, as the only right and justifiable end of Government, the greatest happiness of the greatest number.”).

33 Amartya Sen, Utilitarianism and Welfarism, 76 THE JOURNAL OF PHILOSOPHY 463, 463–64, 471–79 (1979); LOUIS KAPLOW & STEVEN SHAVELL, FAIRNESS VERSUS WELFARE 16–28 (2009).

34 While the “new welfare economics” implementation of consequentialist moral theories does not strictly require cardinal measurements of individual utilities (relying instead on ordinal rankings of states of the world), even this approach requires some form of aggregation of individual ordinal rankings (or indifference curves implied by them), and thus some way of measuring those rankings.

35 See generally, e.g., Kenneth Arrow, Economic welfare and the allocation of resources for invention, in THE RATE AND DIRECTION OF INVENTIVE ACTIVITY: ECONOMIC AND SOCIAL FACTORS 609–626 (1962), http://www.nber.org/chapters/c2144.pdf (last visited Jul 7, 2014); Richard A. Posner, Intellectual property: The law and economics approach, JOURNAL OF ECONOMIC PERSPECTIVES 57–73 (2005).

36 Portions of this discussion are adapted from Jeremy N. Sheff, Symposium Introduction: Values, Questions, and Methods in Intellectual Property, 90 ST. JOHN’S L. REV. __ (2017).

37 Letter from Thomas Jefferson to Isaac McPherson, Aug. 13, 1813. 38 Senate Comm. On The Judiciary, 85th Cong., An Economic Review of the Patent System:

Study No. 15 of the Subcomm. On Patents, Trademarks, and Copyrights 80 (Comm. Print 1958). 39 On the history of American copyright and the relationship between levels of cultural

production and levels of copyright protection, see generally B. ZORINA KHAN, DOES COPYRIGHT


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PIRACY PAY? THE EFFECTS OF US INTERNATIONAL COPYRIGHT LAWS ON THE MARKET FOR BOOKS, 1790-1920 (2004), http://www.nber.org/papers/w10271 (last visited Oct 13, 2016). On the extension of U.S. copyright law to developing countries through trade agreements, see Carsten Fink & Patrick Reichenmiller, Tightening TRIPS: Intellectual Property Provisions of U.S. Free Trade Agreements, in TRADE, DOHA, AND DEVELOPMENT: A WINDOW INTO THE ISSUES 289, 295–96 (Richard S. Newfarmer ed., 2006).

40 The turn of phrase is borrowed from Professor Jonathan Barnett. See, e.g., Jonathan M. Barnett, Do Patents Matter? Empirical Evidence on the Incentive Thesis, HANDBOOK ON LAW, INNOVATION AND GROWTH 178 (2011); Jonathan M. Barnett, Shopping for Gucci on Canal Street: Reflections on Status Consumption, Intellectual Property, and the Incentive Thesis, VA. L. REV. 1381 (2005).

41 Diamond v. Chakrabarty, 447 U.S. 303, 317 (1980). 42 See, e.g., Craig Allen Nard, Toward a Cautious Approach to Obeisance: The Role of Scholarship in

Federal Circuit Patent Law Jurisprudence, 39 HOUS. L. REV. 667, 669–70 & nn. 9-10 (2002). 43 Mark A. Lemley, Faith-Based Intellectual Property, 62 UCLA L. REV. 1328, 1334 (2015). 44 Id. at 1334–35. 45 See generally Rebecca Tushnet, Economies of Desire: Fair Use and Marketplace Assumptions, 51

WILLIAM & MARY LAW REVIEW (2009), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1498542 (last visited Oct 18, 2016).

46 ROBERT P. MERGES, JUSTIFYING INTELLECTUAL PROPERTY 7 (2011). 47 Compare Cass R. Sunstein, The value of a statistical life: some clarifications and puzzles, 4 JOURNAL

OF BENEFIT-COST ANALYSIS 237–261 (2013); with FRANK ACKERMAN & LISA HEINZERLING, PRICELESS: ON KNOWING THE PRICE OF EVERYTHING AND THE VALUE OF NOTHING (2005).

48 See generally James K. Hammitt & Lisa A Robinson, The Income Elasticity of the Value per Statistical Life: Transferring Estimates between High and Low Income Populations, 2 JOURNAL OF BENEFIT-COST ANALYSIS (2011), http://www.degruyter.com/view/j/jbca.2011.2.1/jbca.2011.2.1.1009/jbca.2011.2.1.1009.xml (last visited Oct 21, 2016).

49 To be sure, cost-benefit analysis methodologies are usually explicitly laid out and defended against critiques, and this transparency is laudable and important—perhaps the most important feature of such analyses. See, e.g., Cass R. Sunstein, Incommensurability and Valuation in Law, 92 MICH. L. REV. 779–861, 843 (1994) (“[I]f goods are diverse and valued in different ways, there will be considerable crudeness in [cost-benefit analysis of] regulation.... We should therefore have a presumption in favor of a much more disaggregated accounting of the effects of regulation, one that exposes to public view the full set of effects.”). And yes, individual preferences revealed in real-world transactions or survey responses can provide some indirect evidence of how people weigh tradeoffs between control over their current stock of material resources and their goals for an uncertain future, and we can construct plausible models by which we can try to derive from those shadows and reflections of individual values a comprehensive set of population-wide preferences. See generally, e.g., Jacob Goldin & Daniel H. Reck, Preference Identification under Inconsistent Choice, available at https://ssrn.com/abstract=2417709 (2015). But even doing this requires the analyst to make contestable assumptions—for example, that a society’s collective decision as to how to distribute and marshal its finite resources ought to be a function of atomized individual decisions that specific people make under (often arbitrarily heterogeneous) individual budgetary or cognitive constraints. As another of our panelists, Amy Kapczynski, has argued elsewhere, if the existing distribution of those constraints offends our values, a regulatory framework that assumes such a distribution may be similarly offensive. Amy Kapczynski, The Cost of Price: Why and How to Get


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beyond Intellectual Property Internalism, 59 UCLA L. REV. 970, 996 (2012) (“IP rations access via the price mechanism, and so it distributes resources in a way that is sensitive to the background allocation of resources. Yet the background allocation of resources may be unjust.”). This is equally true of a mode of analysis that assumes such a distribution—even where the assumption is simply a result of the limits of the methodology itself. For example, attempting to derive a society’s preferences from individual preferences—whether revealed in transactions or measured in some other way—may simply be an example of the “drunkard’s search” or “streetlight problem” endemic to empirical research methods: we measure what we can observe, even if it is not what matters. DAVID H. FREEDMAN, WRONG 40–46 (2010); ABRAHAM KAPLAN, THE CONDUCT OF INQUIRY 11 (1973).

50 IMMANUEL KANT, GROUNDING FOR THE METAPHYSICS OF MORALS 14 (James W. Ellington trans., Hackett Publ’g Co. 3d ed. 1993) (1785).

51 JOHN LOCKE, SECOND TREATISE OF GOVERNMENT, ch. V, ¶ 27 (Richard H. Cox ed., Harlan Davidson, Inc. 1982) (1690) (“Though the earth, and all inferior creatures be common to all men, yet every man has a property in his own person. This no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature placed it in, it hath by this labour something annexed to it, that excludes the common right of other men. For this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good left in common for others.” (editor’s footnote omitted)).

52 For an example of the Lockean approach to patent law, see generally Adam Mossoff, Who Cares What Thomas Jefferson Thought About Patents? Reevaluating the Patent ’Privilege’ in Historical Context, 92 CORNELL L. REV. 953 (2007). For an examples of the Lockean approach to copyright, see generally Richard A. Epstein, Liberty Versus Property? Cracks in the Foundations of Copyright Law, 42 SAN DIEGO L. REV. 1 (2005).

53 MERGES, supra note 46. 54 See generally, e.g., Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism

in the Natural Law of Intellectual Property, 102 YALE L.J. 1533 (1993). 55 See 1 DAVID HUME, A TREATISE OF HUMAN NATURE 469 (L.A. Selby-Bigge ed., 1888) (1739) (“In

every system of morality, which I have hitherto met with, I have always remark’d, that the author proceeds for some time in the ordinary way of reasoning . . . when of a sudden I am surpriz’d to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is, however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, 'tis necessary that it should be observed and explained; and at the same time that a reason should be given, for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it. But as authors do not commonly use this precaution, I shall presume to recommend it to the readers; and am persuaded, that this small attention would subvert all the vulgar systems of morality, and let us see, that the distinction of vice and virtue is not founded merely on the relations of objects, nor is perceived by reason.”).

56 MERGES, supra note 46 at 196. 57 Lemley, supra note 13, at 1330–31. 58 See generally Bowman v. Monsanto, 133 S.Ct. 1761 (2013); Monsanto Canada Inc. v

Schmeiser, [2004] 1 S.C.R. 902; Monsanto Technology LLC v Cefetra BV and Others, [2010] ECR I-06765.

59 See, e.g., KINGSBURY, supra note 4, at 305-28, 364-97, and sources cited therein.


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60 See generally, e.g., MARIE-MONIQUE ROBIN, THE WORLD ACCORDING TO MONSANTO: POLLUTION, CORRUPTION, AND THE CONTROL OF THE WORLD’S FOOD SUPPLY (2013).

61 Mark Lynas, The True Story About Who Destroyed a Genetically Modified Rice Crop, SLATE, 2013, http://www.slate.com/blogs/future_tense/2013/08/26/golden_rice_attack_in_philippines_anti_gmo_activists_lie_about_protest_and.html (last visited Feb 1, 2015); Golden Rice Project, Golden Rice and Intellectual Property, http://www.goldenrice.org/Content2-How/how9_IP.php (last visited Feb 1, 2015).

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