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Tuesday, November 06, 2012

Bad Law + Bad Jurisprudence = Horrendous Consequences

Percy Schmeiser in canola field

A colleague and I at the CCF sometimes like to kick around the question, “Which are the top 10 worst decisions of the Supreme Court of Canada?” 

One case that we always nominate is Monsanto Canada Inc. v. Schmeiser, 2004 SCC 34, where the Supreme Court held by a five-to-four majority that farmer Percy Schmeiser had infringed the patent of Monsanto after his canola field was accidentally contaminated with Monsanto’s patented, genetically modified (GMO) seed.   The GMO seed was probably carried to Schmeiser’s field from neighbouring farms via the wind or insects, but however it arrived, it was without his knowledge or consent.  Yet the decision held, essentially, that Monsanto owned his canola crop and he didn’t.

While the SCC took the sting out of the decision by holding that Schmeiser owed no damages to Monsanto, its decision on  nevertheless set the stage for many problems down the road.  

A new documentary “Percy Schmeiser:  David v. Monsanto”  by German filmmaker Bertram Verhaag is available for viewing free until November 10 at this website.  Percy Schmeiser narrates the history of his court battle and explains the serious negative implications of this poorly reasoned court decision.  I recommend this excellent film.

Although I believe that the court decided wrongly in Monsanto’s favour, I nevertheless find it disturbing when I hear people describe Monsanto as “evil” and then proceed to tar all corporations—and all businesses, for that matter—with the same brush.  In my view, any evil that Monsanto or other corporations may do stems directly from destructive laws and conditions set in place by the state.  It is the state that grants coercive monopolies through patent law.  Without the power of the state, Monsanto could not exercise any significant control over farmers.  It is the state, not businesses or corporations, that should be blamed.

Of course, the morality of intellectual property law is hotly debated among libertarians and conservatives.  I expect that some readers of this blog are ardent supporters of patent law.  However, for those with an open mind or a great deal of curiosity, here are some links where you can read the moral and practical arguments against state-enforced intellectual property rights:

·      Against Intellectual Monopoly, by Michele Boldrin and David K. Levine (you can download the whole book for free)

·      Against Intellectual Property, by Stephan Kinsella (2001 article from Journal of Libertarian Studies)

·      Contra Copyright, Again, by Wendy McElroy