Getting Our Genes Back

The argument that we often hear from companies regarding the “benefits” of intellectual property regimes is that they help provide incentives for innovation by providing temporary monopoly to reap the benefits of the innovation. This was what Myriad Genetics, a company based in Salt Lake City, UTAH, argues about the patents it owns for BRCA1 and BRCA2 genetic sequences, which are linked to higher hereditary risk of Breast and Ovarian cancer.  Everyone has these two genes. They are believed to work as tumor suppressors (a good thing, because they suppress cancer cells) when they function normally. However, women with certain types of mutations are at a heightened risk of contracting ovarian and breast cancer (National Cancer Institute, 2009).

Myriad Genetics holds the patents for these two genes and hence is the only company that makes tests to detect these genes. According to Myriad Genetics, without proper patent protections, they would not have found the investors to support Myriad to identify the associations between mutations that are linked to increased risk of breast or ovarian cancer.

The problem is these mutations are naturally existing phenomena. And knowing about these mutations does not really have the “new or distinctive form, quality or property” that makes it eligible for patent protection. Rather, Myriad Genetics, and many other companies that hold a patent over a great number of genes, are patenting knowledge and information (not actually patentable). Very crudely put, this is like patenting an arm or a leg, or patenting the law of gravity.

The implications for innovation are highly severe. The Electronic Frontier Foundation (2011) argues:

Because Myriad owned the patents, testing on these two genes could only take place in Myriad’s own labs – meaning that others could not develop tests on those genes, depriving women from alternative (and cheaper) tests.

The Myriad Genes also prevent other researchers from developing treatment methods without Myriad’s permission (probably in exchange for hefty fees, something not all creative geniuses can afford to pay)

In 2009, a union of breast cancer and women’s health groups, breast cancer patients, approximately 150,000 researchers filed a lawsuit against Myriad Genetics’ patents over BRCA1 and BRCA2 gene mutations (Ray, 2009):

The lawsuit claims that patenting genetic sequences hinders the free flow of information and therefore infringes the First Amendment protecting free speech. “Genes are informational. [By] allowing a company to have a patent on the actual sequence you are restricting the free flow of information,” Tania Simoncelli, ACLU’s science advisor, told Pharmacogenomics Reporter this week.

In March 2010, the U.S. District Court found in the plaintiffs’ favor and invalidated the patents:

“It is concluded that DNA’s existence in an ‘isolated’ form alters neither this fundamental quality of DNA as it exists in the body nor the information it encodes. Therefore, the patents at issue directed to ‘isolated DNA’ containing sequences found in nature are unsustainable as a matter of law and are deemed unpatentable subject matter.”

Of course, it did not take long before Myriad filed an appeal in 2010.

Last week, the U.S. Federal Circuit Court of Appeals in Washington D.C. heard the oral arguments. The good news is that The U.S. Department of Justice is also supporting the decision by the U.S. District Court to invalidate the patents.

For more info:

Globalizing Permission Culture

Since last week, the leaked provisions of the Anti-Counterfeiting Trade Agreement reveal that the agreement is more about creating a global Digital Millennium Copyright Act (DMCA, USA).

Under the agreement, if moves on as leaked, Internet Service Providers, will be required “to cut off the Internet access of accused copyright infringers” or face liability themselves. In the spirit of the DMCA, the accused infringer will in no way have access to a trial or counsel through which he or she can prove innocence or fair use.

Similarly, social media sites that rely on user generated content (e.g. YouTube) will have to actively make sure that the user generated content do not “infringe” copyrights.  Putting aside the ridiculous amount of resources that would a company like YouTube would need to accomplish this deed, the active checking of user generated content will lead to “preemptive censorship” within which the service provider will both be the police and the judge and try to minimize its own risk by eliminating content that may be on that increasingly thinning fair use area.

And again, in the spirit of the DMCA, any development, sharing, publication of means through which digital rights management systems can be bypassed–even for legal purposes such as putting your device to a new use, or taking a back-up, or finding a way to skip through the copyright notice to show a short scene in a class—will be prohibited.

For details about the ACTA and taking action:

Freedom to Ring

Previously I had mentioned an “interesting” case about American Society of Composers, Authors and Publishers asserting that when somebody’s cell phone’s musical ringtone sounds in a public place, they are infringing copyrights.  Here is the update about the case from EFF:

A federal court yesterday firmly rejected that argument, ruling that “when a ringtone plays on a cellular telephone, even when that occurs in public, the user is exempt from copyright liability, and [the cellular carrier] is not liable either secondarily or directly.”

The ruling is an important victory for consumers, making it clear that playing music in public, when done without any commercial purpose, does not infringe copyright. That’s thanks to Section 110(4) of the Copyright Act, which exempts public performances undertaken “without any purpose of direct or indirect commercial advantage.” In the words of the court, “customers do not play ringtones with any expectation of profit.” This ruling should also protect consumers who roll down their car windows with the radio on, who take a radio to the beach, or who sing “Happy Birthday” to their children in a public park.

Long live the right to whistle, sing and roll down your car windows!!!

Ethics? Anyone?

When it comes to the issue of online file sharing the representatives of the copyright  industry (RIAA, MPAA etc.) often play the “moral” card (e.g. you would not steal a bread would you?, pirated DVD’s help terrorists etc).  A relatively recent book by Tarleton Gillespie (Wired Shut: Copyright and the Shape of Digital Culture) provides a very good analysis of the rhetorical tactics employed by the copyright industry, so I am not going to dwell on these rhetorics or the false assumptions the copyright industry wants legislators and the public to make about theft and intellectual property (maybe in the future, I will).

On the other hand, please see the news piece below about the “moral” choices movie makers can make when it comes to making a few more bucks (Source: Techdirt).

Movie Makers Use ‘Fake’ Piracy Numbers To Score Distribution Deal

The NY Times recently had a blog post noting that the makers of an $850,000 romantic comedy called X’s and O’s were thrilled that their movie was widely shared on file sharing networks, because the attention it got helped land them a big DVD distribution deal, and potentially a television deal, helped along by the attention received from that file sharing. Of course, there’s just one little problem. The FreakBits guys noticed that the number of downloads the movies’ creators are citing are almost certainly false. Apparently some sites post fake download numbers as a part of their advertising, and the movie makers used those fake numbers. But… it seemed to get them attention to get more deals, so more power to them. No matter what, it suggests that (once again) obscurity is a much bigger problem than piracy.

I am not even sure if this news piece requires any further comments.

The hidden cost of e-books

As a person who spends about 12 hours a day in front of the computer screen, one thing that I can never do is read an article or a book from the computer screen.  Even with a two-page article, my impulse is to first print the article and then read it.  For this, I apologize to all the environmentalists who rightfully should blame me for killing trees.

On the other hand, as Kindle and other options for reading e-documents, e-articles and e-books become increasingly popular, the question becomes why we should be  willing to submit ourselves to the misery of agreeing to license contracts that impose important limitations on how you use a piece of content you own (“you can read but….can’t share, can’t sell, can’t lend”–and the list goes on).

Why should a reader be required to let the servers record every book they read? Why should that reader be forced to forfeit rights afforded to him or her by the existing copyright laws just because the contract that they never have actually read says so?

And who gives the right to Apple or to decide, “hey this is our device, so you can’t consume this content on it” or “well, we decided to remove the content from your device, without even asking to you“?

So, risking to sound as archaic as can be, here is the solution: continue flipping the paper pages for as long as we can. And here is why the book should (but will probably not) win over e-book. And if nothing else works to convince my readers to opt for hard copies of books, apparently e-books may be bad for physical health, too (bad for the eyes, dangerous if you have heart batteries and may explode!!!)

Frontiers of Permission Culture

A few days after the (please put your indecent adjective here) decision of a U.S. jury in a federal retrial to penalize Jammie Thomas-Rasset with $1.92 Million for 24 songs she downloaded from internet (for those of you who are not good with numbers that makes $80,000 per song), the copyright industry seems to seek new frontiers for creating their own “permission culture” and a new revenue source (Baruh 2006; Lessig 2004).  They think that every time your phone rings in public is publicly performing without a license to publicly perform the copyrighted material. Electronic Frontiers Foundation Reports:

ASCAP (the same folks who went after Girl Scouts for singing around a campfire) appears to believe that every time your musical ringtone rings in public, you’re violating copyright law by “publicly performing” it without a license. At least that’s the import of a brief [2.5mb PDF] it filed in ASCAP’s court battle with mobile phone giant AT&T.

This will doubtless come as a shock to the millions of Americans who have legitimately purchased musical ringtones, contributing millions to the music industry’s bottom line  (full story)

In an effort to make a guess about what can come next, I propose the following newspaper headline:

Commuter Train Pirate Caught and Punished

(May 12, 2014, Associated Press) Lemi Baruh was sentenced to pay $80,000 in royalties for whistling Linkin Park’s “Given Up” in a commuter train. The jury also asked that Lemi Baruh agree not to whistle ever again…

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