Against Intellectual Monopoly

to grow the following year's crops. India fears the patent will severely damage
exports from its own farmers to the [United States]. In 1998, they exported almost
600,000 tonnes of basmati rice.25
    Another surprising example of American intellectual over-reach is in - not
so surprising - Iraq:
    The American Administrator of [Iraq] Paul Bremer, updated Iraq's intellectual
property law to "meet current internationally-recognized standards of protection."
The updated law makes saving seeds for next year's harvest, practiced by 97% of
Iraqi farmers in 2002, the standard farming practice for thousands of years across
human civilizations, newly illegal. Instead, farmers will have to obtain ayearlylicense
for genetically modified seeds from American corporations. These GM seeds have
typicallybeen modified from IP developed over thousands of generations by indigenous farmers like the Iraqis, shared freely like agricultural "open source." Other IP
provisions for technology in the law further integrate Iraq into the American IP
economy. 26

    The old Communists like Lenin used to argue that monopolistic capital
breeds war because it needs the support of the imperialistic state to acquire
new markets and grab economic resources. As a theory of wars and as an
argument in favor of socialism, this is as dumb as it gets. It does no good to
either capitalism or democracy, though, to have rent-seeking monopolists
and their lawyers make dumb theories look reasonable to the alienated
masses of poor people by following dumb policies.
Undoing Progress
Design
    The "everything is patentable" virus seems to have also struck in the business
of architectural design. The federal judges in the U.S. Court of Appeals
for the Federal Circuit have never seen a competitive industry with lively
innovation that they could not "improve" by allotting a little monopoly
power here and there, and they recognize no judicial restraint on their
ability to impose judge-made law. Certainly, they appear always ready to
rule in favor of anyone who claims that their intellectual "property" has
been violated by someone else's commercial success. Sadly, their conceit has
penetrated also to the lower courts.
    So it is that, as we write on August 10, 2005, Judge Michael B. Mukasey
has ruled that there are enough similarities between David M. Child's 2003
design for the Freedom Tower to be erected at Ground Zero in New York City
and a 1999 architectural student's project such that the student, Thomas
Shine, may sue the architect.27 Mukasey ruled that observers "may find
that the Freedom Tower's twisting shape and undulating diamond-shaped
facade make it substantially similar to Olympic Tower [the student's project
at Yale School of Architecture], and therefore an improper appropriation"
of copyrighted artistic expression. Never mind that, as he also pointed out,
it is "possible, even likely, that some ordinary observers might not find the
two towers to be substantially similar," and that Child's final project for
the Freedom Tower will not make use of the so-called diagrid design that
is here being debated (which, in case you live in Chicago, you can admire
on the John Hancock building.) Never mind also that "in the late 1990's -
around the time Shine was at Yale - there was a virtual tidal wave of twisting
tower projects."28
    Imagine, if you will, the same judicial logic applied to, say, the Modernista
design patterns of Barcelona's Quadrat d'Or, or to the Renaissance buildings
of Rome and Florence, or to the Doric column or to any other column's
design for that matter. Imagine the city of Venice or the government of
Egypt bringing Las Vegas hotels to court because their buildings imitate similar buildings in Venice, or Egypt, or Paris for that matter, as in Las Vegas
we now have an imitation of the Eiffel Tower as well. Imagine the owners
of eighteenth- or nineteenth-century Mediterranean-style villas in Naples
or the Cote d'Azur suing the Hollywood "stars" for the blatant imitation
of the originals in which they live, which they can afford only because of
their copyright-induced monopoly rents! Oh, how sweet that would be.
It seems to us that rather than releasing a string of judicial decisions into
competitive industries - largely benefiting patent lawyers, litigation lawyers,
and rent seekers with no inherent ties to industry creativity - common sense
should prevail here.

Software
    We have previously observed