[This post has been substantially cross-posted on Awkward Utopia]

The consensus amongst scholars and students of intellectual property seems to be that the waves of IP protection must recede. Some radicals believe in the outright abolition of IP (such as myself, for the time being), but many more advocate something more piecemeal and reasonable: the reduction in the length and scope of protection. Don’t take my word for it:  copyright authority Bill Patry agrees and Michael Crichton thinks so too! This flies in the face of the trend toward increasing protection and ever more draconian penalties for violating IP rights — such as copyright infringement. Perhaps one of the fields that will be most strongly impacted is biotechnology. An article in the Washington Post discussed the portent of intellectual property in one field of biotech:

Now researchers are poised to cross a dramatic barrier: the creation of life forms driven by completely artificial DNA. Scientists in Maryland have already built the world’s first entirely handcrafted chromosome — a large looping strand of DNA made from scratch in a laboratory, containing all the instructions a microbe needs to live and reproduce. […] The cobbling together of life from synthetic DNA, scientists and philosophers agree, will be a watershed event, blurring the line between biological and artificial — and forcing a rethinking of what it means for a thing to be alive.

More pertinently:

At the core of synthetic biology’s new ascendance are high-speed DNA synthesizers that can produce very long strands of genetic material from basic chemical building blocks: sugars, nitrogen-based compounds and phosphates. Today a scientist can write a long genetic program on a computer just as a maestro might compose a musical score, then use a synthesizer to convert that digital code into actual DNA. Experiments with “natural” DNA indicate that when a faux chromosome gets plopped into a cell, it will be able to direct the destruction of the cell’s old DNA and become its new “brain” — telling the cell to start making a valuable chemical, for example, or a medicine or a toxin, or a bio-based gasoline substitute. […]

If biology is to morph into an engineering discipline, it is going to need similarly standardized parts, Knight said. So he and colleagues have started a collection of hundreds of interchangeable genetic components they call BioBricks, which students and others are already popping into cells like Lego pieces.

John Robb of Global Guerrillas, one of the best blogs you’re probably not reading, had this reaction:

Essentially, the tinkering networks we see in the software industry will be mirrored in synbio. Further, the skill sets associated with synthetic biology will be as widely dispersed as software programming is today and the tools will be just as inexpensive/ubiquitous.

Robb is concerned with the applications of synbio for “open source warfare” and they are admittedly very interesting. But I would hope that this spells the end for intellectual property protections. It isn’t reasonable to make intellectual property protections for entities that maintain their rights when they slightly alter an inert molecule of a drug formula or one of the purposefully placed inert amino acids with another. Our copyright law says that you can’t copyright an idea, and that’s well and good, but often the line is very blurred. Take, for instance, the famous Satava v. Lowry case where an artist was not able to protect his jellyfish designs:

It follows from these principles that no copyright pro­tection may be afforded to the idea of producing a glass-in-glass jellyfish sculpture or to elements of expression that naturally follow from the idea of such a sculpture. See Aliotti v. R. Dakin & Co., 831 F.2d 898, 901 (9th Cir. 1987) (“No copyright protection may be afforded to the idea of producing stuffed dinosaur toys or to elements of expression that necessarily follow from the idea of such dolls.”).

Satava may not prevent others from copying aspects of his sculptures resulting from either jellyfish physiology or from their depiction in the glass-in-glass medium. See id. (“Appellants therefore may place no reliance upon any similarity in expression resulting from either the physiognomy of dinosaurs or from the nature of stuffed animals.”).

Satava may not prevent others from depicting jellyfish with tendril-like tentacles or rounded bells, because many jellyfish possess those body parts. He may not prevent others from depicting jellyfish in bright colors, because many jellyfish are brightly colored. He may not prevent others from depicting jellyfish swimming vertically, because jellyfish swim vertically in nature and often are depicted swimming vertically. See id. at 901 n.1 (noting that a Tyrannosaurus stuffed animal’s open mouth was not an element protected by copyright because Tyrannosaurus “was a carnivore and is commonly pictured with its mouth open”). Satava may not prevent others from depicting jellyfish within a clear outer layer of glass, because clear glass is the most appropriate setting for an aquatic animal. See id. (noting that a Pterodactyl stuffed animal’s depiction as a mobile hanging from the ceiling was not protectable because Pterodactyl “was a winged creature and thus is appropriate for such treatment”). He may not prevent others from depicting jellyfish “almost filling the entire volume” of the outer glass shroud, because such proportion is standard in glass-in-glass sculpture. And he may not prevent others from tapering the shape of their shrouds, because that shape is standard in glass-in-glass sculpture.

Satava’s glass-in-glass jellyfish sculptures, though beautiful, combine several unprotectable ideas and standard elements. These elements are part of the public domain. They are the common property of all, and Satava may not use copyright law to seize them for his exclusive use.

What, then, is protectible? According to the court:

We do not mean to suggest that Satava has added nothing copyrightable to his jellyfish sculptures. He has made some copyrightable contributions: the distinctive curls of particular tendrils; the arrangement of certain hues; the unique shape of jellyfishes’ bells.

If you think that the court is really struggling, you’re wrong. The court knows what it’s doing. It knows very well that in copyright there is an extremely blurry line between uncopyrightable ideas and copyrightable expressions of ideas. Many might argue that the line is so unreasonable that we should be able to try to mimic others paintings, as various industrial artists do in China and have done as a timeless practice throughout the world motivated by the profits to be had. Where will this be a problem in synbio?

Any one of several ways. Different genotypes can lead to exactly the same phenotype. Would it be fair to copyright the phenotype but not the underlying genotype or vice versa? Is one an idea or are both expressions of an idea? Also: both RNA and DNA can be replicated a billion times relatively quickly and painlessly, but during replication errors will occur sometimes substantially altering both the expression and the idea of the genes (my favorite book on the subject of selection is this one). Can we protect those as derivative works? And on and on.

Alas, I do not believe that the system conveys a net benefit to any society be it here or especially abroad. Unlike in biotech, there is nothing natural about the distortion that is intellectual property.

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