Peddling a product that consumers can duplicate for free is a tricky business. With affordable consumer technology, you can now copy a song a hundred times, with no degradation in the sound quality—and most people seem to immediately recognize why that’s gonna make it harder to get paid for songs. But my first experiences with lossless, duplicable technology didn’t have anything to do with my career as a rapper. My first encounter wasn’t with a torrent site. Or a bootlegged disc. It was a tomato.
Seeds, quite obviously, are the mechanism of plant duplication. You drop a sunflower seed in wet dirt and, bang, you get a brand new one. Essentially, you just ‘burned’ a sunflower. The seeds of this new plant can then be harvested and planted to create an infinite, almost lossless supply of flowers and seeds. ‘Seed saving’ is the term for collecting seeds to be replanted.
So if farmers can just save seeds from previous crops, why would they still buy them from seed companies?
Monsanto is probably a familiar name to most readers. I know it’s often invoked by my generation as the archetypical hulking conglomerate, which regards ‘ethical concerns’ only as pesky hindrances to the bottom line. But I don’t have much interest in condemning agribusiness: people who know more about the industry than I do can speak to Monsanto’s record more credibly than I can. Suffice it to say that Monsanto is a really big company. It sells seeds that are genetically modified to increase farmers’ yields. The genes in those seeds are patented. Without Monsanto’s express permission, it’s illegal to save seeds for replanting. You gotta buy new ones every year.
A lot of people are concerned about Monsanto. One of those people is my mom. When I was a kid she would take me to a summer conference called the Seed Savers Exchange. Although the nature of the event wasn’t completely clear to me, I knew it had something to do with her gardening. And I knew we were to stay in a tent. And I knew she would try to make me wear a bonnet (I later learned that this penchant for homesteaders’ costuming was idiosyncratic to my mother, and is not integral to any organic movement).
At these summer events, gardeners and naturalists traded heirloom seeds, which is perfectly legal because there’s no patent to infringe upon—it’s just a tomato. Some of the conference participants were motivated by the concern that the planet’s genetic and biological diversity was threatened by big agriculture, which tends to plant only a few varietals. So it was through Seed Savers that I had my first encounter with lossless duplication. These campers were essentially taking it upon themselves to copy and disseminate DNA. They planted heirloom varietals in isolated, uncontaminated gardens; saved their seeds; and met once a year to distribute the genetic codes around the country. You can’t quite download a tomato, but in sharing seed, you can sort of upload it.
Monsanto seeds, as I mentioned, you’re not allowed to save. While farmers buy the seed, they only license the the technologies inside it. And this is why Apple and Monsanto find themselves in such similar positions.
Rap fans and crop farmers are perfectly capable of duplicating the products that they purchase. To protect and maximize their earnings, Apple and Monsanto must find ways to prevent Rick Ross MP3s and Roundup Ready® sugarbeets from being copied at home in a way that would detract from future sales.
Both companies are employing similar strategies to respond to the challenge. Below, I’ve compared Apple’s iTunes Store Terms and Conditions with the Monsanto Technology/Stewardship Agreement:
Both companies limit the way you can use what you buy.
Apple maintains a list of limits collectively called “Usage Rules.” Monsanto maintains a list of limits collectively called the “TUG,” or Technology Usage Guide.
Apple says, “You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the iTunes Service in any manner.” Monsanto growers agree “Not to transfer any Seed containing patented Monsanto Technologies to any other person or entity for planting.”
It’s worth noting that both companies prevent you from transferring ownership of what you’ve purchased. Usually we’re able to sell the things we own: bikes, clothes, even used CDs can be traded, bought, or loaned to friends.
To buy their products, consumers must agree to be monitored.
When you use iTunes, you agree only to do so in the United States. As stated in their terms and conditions: “Apple may use technologies to verify your compliance.”
When growers sign up with Monsanto, they agree “To provide Monsanto copies of any records, receipts, or other documents that could be relevant to Grower’s performance of this Agreement,” and to ensure compliance, Monsanto may request “aerial photographs.”
Both companies aggressively limit consumers’ understanding of the purchased product.
Monsanto’s license states that a “Grower may not conduct research on grower’s crop…other than to make agronomic comparisons and conduct yield testing for Grower’s own use.”
Apple is known for making products whose parts are very difficult to access. Most of the iPhone 4 units, for example, are held together with pentalobular screws instead of standard screws. (Looking down at them, you’d see a little flower shape with five petals, instead of the classic plus sign of a Phillips head.) So for a while, you couldn’t open the thing without first finding someone to sell you a strange little screwdriver with a flower tip. Nancy Sims, an attorney and the Copyright Program Librarian at the University of MN, hepped me to the fact that there’s even a If-You-Can’t-Open-It,-You-Don’t-Own-It techie manifesto. (You can buy t-shirts and all sorts of stuff emblazoned with the phrase.)
By preventing crop research and by using “tamper-proof” screws, both companies make their products black boxes. You can’t look inside to see how the thing works.
These rules and regulations can undermine our fundamental ideas of what it means to actually own something. In most of our purchasing lives, we pay for product and then we can do with it as we like. As long as I’m not endangering others, I can throw the thing into the air, I can write in the margins of it, I can mail it, or strip it for parts. So If I’m only allowed to interact with my purchase in meticulously prescribed ways…it starts to feel less like mine. Like a pet I’m not allowed to touch or see.
But if you don’t abide by license agreements, bad things can happen. According to its own site, Monsanto has sued 145 farmers for saving seed. Hundreds of thousands of people have been sued for illegally downloading digital content (though not by Apple—movie makers are the busiest filers of lawsuits, mostly for films downloaded from torrent sites).
Losslessly reproducible technologies are just complicated things to own. And when you really think about what you’re buying (not the jewel case, not the disc, but a particular and incorporeal sequence of binary code) it’s easy to start sounding like a burnt-out stoner, pondering the impossibility of the whole transaction through a haze of weed smoke. “You can’t, like, own a song dude.”
Even as recording musician, I’m not sure you can actually own a song in the same way you own other stuff.
When I was an elementary kid, our American history lessons still had a good deal of the Noble Savage narrative in the curriculum. I remember learning that some tribes didn’t have a tradition of real property rights—land just wasn’t something you could own. So, according to our textbooks’ (rather hasty) explanation, everybody shared everything and generally got along. My little mind was blown by this alternate utopian paradigm.
I wondered then, and still wonder, what sort of things are okay to call ‘mine.’ Can you privatize water? Chile and South Africa think so, and the issue is debated here too. Can you own air? A gesture? An idea? What’s really ownable? isn’t as high-ass a question as it sounds; it warrants some rigorous consideration. Keep in mind that, historically, we’re not very good at recognizing what’s ownable. We tried to own people.
In many ways, the whole ownership model just seems poorly suited to duplicable technology. Square peg, pentalobe hole. When we try to force new technology into the old model, our contracts end up sounding really, well, creepy. In fact, some licensing contracts stipulate that the people who sign them are not allowed to talk about what’s written in them. That just doesn’t sound like our best work. Instead of asking, Whose is this, who gets paid for it, and how much?, the conversation might be better reset by asking What is this, who made it, who uses it, and what’s fair?
