Those Lawyers


April 9, 2005


Browse in Agriculture

Lawyers occupy the top tier in the demonology of the Bush Administration, right next to taxes and Saddam Hussein. Lawyers are responsible for high medical costs, the shortages of flu vaccines, the travails of small businesses and the flight of U.S. jobs abroad. As representatives of “judicial process”, they even share the blame for the nation’s vulnerability to terrorists, according to a new Administration report.

But while the polemical brush is broad, the actual target is more specific. In actuality, the Administration doesn’t have a problem with most lawyers; some of the President’s closest advisers fall into that group. The lawyers he doesn’t like are the ones that represent ordinary people injured in some way by interests that give Republicans a great deal of money, such as medical doctors and major corporations. When the shoe is on the other foot — when those interests are suing ordinary people and using the “judicial process” to extort money from them and harass them to death — then it ‘s a different story.

The latest evidence comes in the form of a report from the Center for Food Safety called Monsanto vs. U.S. Farmers. ( The report documents the legal thuggery the Monsanto corporation commits upon U.S. farmers — many of them totally innocent and unsuspecting — to enforce the patents on its genetically modified seeds. The company has turned the genetic commons into a corporate police state; and if that sounds inflammatory and extreme, then check out the report.

Or if you don’t trust the report, track down the farmers involved in the 96 lawsuits cited in the appendix, and get their views for yourself.

As the report points out, the Monsanto corporation has gained virtual control over the U.S. market in seeds for cotton, soybeans, canola and corn. It has bought or merged with most of the major seed companies, and it has built a wall of strategic patents that pretty much shuts out the competition. Today it owns — yes, that’s the word — half the germ plasm in corn crops, and controls most of the soybean market.

Often farmers are hard pressed to find an alternative even if they want one. “You can’t even purchase them in this market,” an Indiana soybean farmer said. “They’re not available.”

That’s what Professor Friedman calls “Free to Choose.” Having secured control of the market, Monsanto then exacts its kilo of flesh in the form of a “technology agreement” that farmers have to sign in order to plant the seeds. It’s a lot like the “agreement” you click off on the first time you use your Microsoft software, except that it is even more draconian and arcane. Under the terms of this “agreement”, farmers give Monsanto the right to search their fields, property, and financial records to find evidence of patent infringement. Legal actions brought under the “agreement” must be in St. Louis, where Monsanto is based, rather than the farmer’s home state.

Worst of all, the “agreement” prohibits farmers from doing something that they have done for thousands of years — save seeds from one crop to plant the next. The wonders of intellectual property have brought the throwaway culture to the farm, a place that used to be an exemplar of genuine economy.

At least with Windows, you know Bill Gates’ agents probably won’t come in the middle of the night if you loan your disc to a housemate. With Monsanto by contrast no one is safe. The company has a staff of 75 devoted to policing the use of its seeds, and a budget of at least $10 million. They have entered fields, conducted stake-outs, used helicopters for surveillance; the company’s agents even infiltrated an AA chapter to dig up information on a local farmer.

Monsanto has dragged more than a hundred of these farmers into court, and has exacted settlements from many more. Apparently the company has been listening to the same consultants that launched the recording industry on its shock and awe campaign against teenage file sharers. But in many cases, and probably most, the farmers under attack didn’t know they were violating Monsanto’s “agreement.” Many didn’t even know that the patented seeds were in their fields to begin with. Monsanto sics its lawyers even if the seeds blew over from a neighbor’s fields, or if they fell off a passing truck. Incredibly, the courts have agreed.“Farmers are being sued for having GMOs (genetically modified organisms) on their property that they did not buy, do not want, will not use and cannot sell,” a North Dakota farmer said.
Others get sued because Monsanto agents find “volunteers”, which are seeds planted one year that don’t sprout until the next. Farmers have no control over these. Short of sifting through every inch of dirt on the farm, they have no way to know they exist. Monsanto sues anyway. Then there are the many cases in which seed dealers never gave the “agreement” to the farmer, or forged the farmer’s name on it. Makes no difference; the courts hold the farmer liable anyway.

Farmers have been forced to pay damages in the hundreds of thousands and sometimes millions of dollars. In one case, a farmer by the name of Hendrik Hartkamp moved to the U.S. from Holland after selling his dairy farm there. He bought a ranch in Oklahoma; but unknown to him, the grain bin contained some of Monsanto’s patented seeds. Monsanto sued, and the legal costs drove Hartkamp to near destitution. He sold the ranch and left for Belize.

Welcome to the land of the free, bud.

Farmers have had to resort to extraordinary measures to ward off such legal harassment. One North Dakota farmer, who paid $200,000 in legal fees to defend himself against Monsanto, now sprays his conventional soybeans, tests their genetic material, and hires an engineering firm to document his
plantings with a Global Positioning System. The total cost is $12,200, per year. We hear endless railing from ruling party in Washington about the “defensive medicine” that doctors must practice to forestall malpractice suits. I wonder when we will hear similar complaints about the defensive agriculture that farmers must practice because of the litigiousness of the campaign contributors of these same politicians.

A few states have tried to step into the breach. Both Indiana and North Dakota for example have passed laws that prevent plant patent holders from conducting searches and seizures on a farmer’s fields without permission. Indiana also requires that lawsuits concerning seed contracts must be brought in Indiana, thus eliminating Monsanto’s monopoly on home field advantage.

But a real solution has to come from Congress, because the source of the problem is the U.S. patent system. This is where things get truly strange. It turns out that the legal bullying and extortion rest upon a shaky legal foundation. Congress passed the Plant Variety Protection Act in 1970 to extend the patent system to such things as genetically-modified seeds, and this law specifically exempts farmers who save seeds to plant the next year’s crop.

It was the Supreme Court that decided that Monsanto et al can get standard “utility” patents that include no such exemption. This was despite the existence of the PVPA, which Congress clearly intended to apply to seeds, and despite the lack of specific statutory authority for the Patent Office to patent seeds in the first place. Yet there has been no bellowing from the Right about arrogant judicial activists such as Clarence Thomas who wrote the opinion and Antonin Scalia who concurred.

Maybe they’ve been preoccupied with the Schiavo case and all, and just haven’t gotten around to it. But I’m sure they will. Otherwise people might think that they aren’t really against litigious lawyers and activist judges, just those who speak up for the little guy. Yes, I’m sure they will.