TCS Daily


Commodifying Life and Its Critics

By Michael Rosen - September 5, 2006 12:00 AM

In Marxist theory, capitalist drones afflicted by false consciousness are constantly indulging in the fetishism of commodities -- placing material possessions on an absurdly high pedestal.

Likewise, critics of the practice of obtaining patent protection on life forms -- generally found on the neo-Marxist left -- object that by patenting life we heartlessly commodify it.

More fundamentally than either the argument from exploitation (or that from enclosure), the commodification objection confronts the very essence of the practice of patenting life.

If exploitation critics focused on the potential for suffering by one side of the transaction, and if the enclosure opponents railed against unfair gains accruing to the other side of the bargain, commodification objectors attack the internal characteristics of the deal itself. The first two challenge the terms of the bargain, the last, its very existence.

In general, the commodification criticism states that the very practice of patenting -- and, by extension, buying and selling -- forms of life inherently demeans and cheapens those life forms. Some things, according to this latter line of reasoning, simply do not belong on the market.

While this objection runs deeper and implicates more central values than either of the previous challenges to the patenting of life -- examined in the foregoing installments in this series -- it too can be addressed by examining the nature of the transaction and by seeking to understand the fundamental purpose or telos of living beings.

According to the commodification argument, we ought not freely assign monetary value to a given item, especially when such an assignment conflicts with the "proper" way of interacting with the item. When we buy and sell something in a manner inconsistent with the right way of treating it, we offend its dignity and reflect poorly on ourselves.

This argument depends critically, then, on a useful and accurate understanding of what an item's "proper" use or character really is. Unfortunately, such a definition is as elusive as it is crucial.

One attempt at appreciating an item's proper treatment can be found in conventionalism: examine how a society typically views the item and test whether placing it on the market comports with that accepted viewpoint.

Such a method has the virtue of convenience but it slips easily into an almost tautological description: it is (or is not) perfectly acceptable to buy and sell the item because the general public does (or does not) treat the item as something appropriate to buy or sell.

Looking to prevailing custom offers only a shallow, unsatisfying understanding of an item's proper use, not the rich, morally significant meaning that commodification critics seek.

Instead, then, this line of reasoning appeals to the Aristotelian idea of telos or purpose. Commodification objectors seek to tease out, in some deep, conceptual sense, the item's ultimate purpose or intrinsic significance.

In general, this may prove a Herculean task: on what basis can anyone evaluate an item's end purpose?

Yet at least in the context of patenting life, commodification critics might argue that living beings, from animals to single-celled paramecia, deserve to be let alone and to live their own lives. The telos of life, then, is simply to live freely and free from interference from other species.

Such a purpose conflicts fundamentally with the attempts of humans to buy, sell, or otherwise manipulate life for their own purposes. Commodifying living organisms, by this logic, gravely and inherently demeans their worth.

Yet this criticism of patenting life, like its predecessors, is not without its flaws.

First, patenting an item does not necessarily place it on the market. The patent regime is a balancing mechanism, designed to promote public disclosure of inventions while rewarding inventors with a property right, i.e. the right to prevent others from selling or using the invention without a license. In a sense, then, owning a patent over a life form bestows on the patentee one stick of the bundle of all property rights and as such commodifies life.

Yet that single stick is a relatively thin reed, yielding its owner neither the inherent right to practice the invention nor, necessarily, monetary gain in exchange for it. The patent right, properly defined, furnishes the inventor only with the negative right to exclude others from marketing or practicing the invention.

Second, while money almost always insinuates its way into the patent regime through licensing or direct profits, commodification objectors often use monetary arguments as a stand-in for their fundamental objection to genetic manipulation in general. Almost two decades ago, The New Republic editorialized that "invariably, the moral objections to patenting animals are the moral objections to genetic engineering itself."

In its 1988 report on a patent bill relating to transgenic inventions, the House Judiciary Committee argued that "many of the arguments against patenting animals are, in reality, arguments against the existence of the research in the first place. The patent law is not the place to exercise moral judgments about scientific activities."

In short, the red herring of money melts away once one digs deeper beneath the veneer of many commodification critics' claims.

But third and most importantly, granting that, notwithstanding the above, patenting life does indeed implicate commodification issues, the practice nonetheless does not necessarily violate moral norms and may even promote ethical ends. For if many commodification objectors contend that the patent regime corrupts an organism's proper telos of living freely, one might instead propose an alternate purpose.

Perhaps, broadly speaking, the telos of life, to the extent that it has one at all, is to preserve and enhance life itself. Individual life forms do not exist or belong in a vacuum, simply striving to be let alone. Instead, life constitutes a web of interspecies interactions, from bacteria that aid in animal digestion to insects promoting plant reproduction. Life sustains life.

In this context, human attempts to splice the gene in the service of the betterment and preservation of life remains quite consistent with this alternate, and arguably superior, telos.

Bioethicist Leon Kass offers an eloquent statement of this view. In the context of organ donation, Kass argues that far from demeaning the dignity of the human body, the transfer of organs represents "a reaffirmation of the self's embodiment." Others like Dr. John Fletcher, testifying before Congress, have noted that we, as humans, find ourselves "morally obliged to learn how to modify human genes because of the great suffering that might be relieved or avoided."

The patent regime inspires and promotes this process of spreading nature's bounty, its genetic treasures, as widely as possible among all species, whether animal, plant, or bacterial. To be sure, profit as well as altruism motivates scientists' forays into the realm of the genetic. Yet far from corrupting life forms, those inventive adventures inevitably further life's telos of sustaining, lengthening, and enhancing itself.

In this way, the commodification objection comes up short in its attempt to stigmatize patenting life as a cynical and manipulative ploy to dominate other creatures. However, by developing a methodology of defining an item's telos and then insisting that that purpose inform the item's treatment, the commodification concern adds great value to a moral understanding of the propriety of patenting life.

Precisely because the genetic experimentation that the patent regimes underwrites seeks primarily, if not exclusively, to improve life the world over, the patenting of living creatures receives further endorsement from anti-commodification objectors. Fortified by the responses to exploitation and enclosure concerns described earlier, this idea of promoting a major telos of life through the inventive monopoly is a final, potent ethical defense of the practice of patenting life.

Michael M. Rosen, TCS Daily's IP columnist, is an attorney in San Diego. He thanks Harvard Professor Michael Sandel for leading the seminar in which the seed of this series germinated.

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13 Comments

Rational Argument vs. the Irrational Mind
The author's fundamental error is in the attempt to argue rationally against irrational people. I am quite frequently guilty of this same error. When the anti-biotech crowd makes arguments like this "commodification" garbage, they are not attempting to make a rational argument against the patenting of genomes or newly-manufactured forms of life. They are attacking profit, not the violation of the dignity of lifeforms.

The absurdity of the idea of lifeforms other than humans having dignity is obvious to anybody who has ever had to discipline a dog for licking themselves in innappropriate places while in a public area. Dogs simply don't get the idea that this is an improper act until they are trained to do so. This training is required for a simple reason: Dogs do not understand the concept of right and wrong. They simply understand that they will be punished if they do certain things, and rewarded for others.

Dogs are not capable of formulating the principles of right or wrong because they are not capable of abstract thought. They do not have a conception of self, just a set of instincts to avoid things that injure them and to seek out things that are beneficial. True, they may recognize their name. They learn to do so because someone saying their name is generally a cue to them that they are expected to do something or refrain from doing something. They cannot be injured by being commodified, because they are unaware of anything beyond what will get them a treat and what will get them the rolled-up newspaper.

E coli and Staphylococcus are even less capable of understanding the ocnept of dignity or being injured by a reduction in their status, because they do not have brains. They have complex chemical reactions, but Staphylococcus does not feel less valued because someone has sequenced its genome and sold it. If some entity cannot be harmed by a loss of dignity in the eyes of another, who cares if it loses dignity?

So why the argument? Profits. The anti-biotech crowd and the watermelons/environmentalists have always been against capitalism in any form. One of the strategies they typically employ against it is to suggest that capitalism is racist/sexist/bigoted/homophobic/akin to slavery. In this case, I think they will try to use the last suggestion. "You can't sell another living being, that's slavery!" is what they will say. There will also be vague fears about patenting parts of the human genome and the rise of a new "genetic elite." This is just another term for "the rich will get better stuff than the poor."

Profit is the key, not science or semantics. Unfortunately, every new ridiculous argument put out by these fruit loops has to be dealt with publicly, or some idiot somewhere will accept it.

The neo-Marxist left view
Not demeaning to life. Any life form that can enshrine Wayne Newton and Neil Diamond at the pinnacle of Vegas showmanship can be demeaned no further. The critique lies elsewhere.

In commodifying the genetic code we are hobbling ourselves in the search for pure knowledge, and confusing profit with worth. We are putting up gatekeepers in places where there should be an open highway, in much the same way that we would hamper traffic if every road were individually owned, and drivers had to stop and pay at the turnstile every time they turned onto a new road. One result is that people would drive less.

Perhaps more accurate an analogy would be if the person who first invented the alphabet had thought to obtain a patent on the use of its letters. Where would the body of human knowledge be today if we had established the path where everyone who ever used his letters had to pay his company for the privilege?

A profligate author such as Will Shakespeare would have to either edit his work heavily or find a rich patron to fund his efforts-- or else forego writing altogether and get into something more lucrative, possibly cooperage or tending an alehouse.

Geez
Any life form that can enshrine Wayne Newton and Neil Diamond at the pinnacle of Vegas showmanship can be demeaned no further.

What an amazingly tight little package of condescension and envy.

Any life having dignity??
It is a religious concept that any life has dignity, not a logical concept.

Why am I not surprised
that roy considers himself an arbitrar of culture, as well as everything else.

The problem with your view of tollgates, is that there would be no road to go down, if there wasn't someone paying to build the road in the first place.

geezers
"What an amazingly tight little package of condescension and envy."

I've never seen a more succinct summation of roy.

Tollgates
"The problem with your view of tollgates, is that there would be no road to go down, if there wasn't someone paying to build the road in the first place."

I thought you were against taxes. Isn't this the kind of thing we pay them for?

Private ownership of things best kept in the public domain just slows the traffic down, making the process inefficient and needlessly expensive. If you make a better mousetrap, make a lot of them fast. That way you can retire rich before everyone else figures out how you made them.

I would limit all patent and copyright entitlements to a dozen years, tops. Then the knowledge should be freely disseminated.

Mankind's highest achievement
Indeed, it's logical to assume that I must be envious of Wayne Newton.

Indeed
Any life form that can enshrine Wayne Newton and Neil Diamond at the pinnacle of Vegas showmanship can be demeaned no further.

Well, either that or for all the left's claim of "tolerance", you are intolerant of those for whom these entertainers are enjoyable.

If you want to see humanity @ its lowest, see when its supposed most esteemed schools of learning allow a singer of equally limited appeal to lecture on politics, yeah that would be Babs blithering on @ KSG.

Yes, it would be logical to assume that
He has more money than you do, and jealousy of those with more has always been your biggest motivation.

tolls
There are ways to gather tolls, without using gates.

You assume that there is anything that is best kept in the public domain. That is a claim often made, but rarely proven.

You certainly haven't shown that the topic at hand is best kept in the public domain. Just asserted that it is.

some other red herrings
There is only one way of doing something.

SSRI's for example.

citalopram (Celexa, Cipramil, Emocal, Sepram)
escitalopram oxalate (Lexapro, Cipralex, Esertia)
fluoxetine (Prozac, Fontex, Seromex, Seronil, Sarafem, Fluctin (EUR))
fluvoxamine maleate (Luvox, Faverin)
paroxetine (Paxil, Seroxat, Aropax, Deroxat)
sertraline (Zoloft, Lustral, Serlain)

Life has been defined.
Genetics will ultimately solve all of our medical problems.
Socialism and big government will solve all of our problems.
Money is an inappropriate motivator.

well
"and confusing profit with worth",

didn't you mean defining worth exclusively as profit?

No profits, no tax dollars. No tax dollars no social programs.

"A profligate author such as Will Shakespeare would have to either edit his work heavily or find a rich patron to fund his efforts"

He wouldn't have been able to write very much with an alphabet of only four letters.

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