Marquette University Law School Faculty Blog

How Can Software Licensing Help Farmers in the Developing World?

Post author:Michael M. O'Hear
Post published:May 15, 2010
Post category:Environmental Law Intellectual Property Law Legal Scholarship

Answer: By providing a model for licensing agreements that can protect the farmers’ intellectual property rights in the seed that they use.

I recently posted on the problem of biopiracy — the appropriation of genetic resources from developing nations by pharmaceutical and other companies. Similar concerns have been raised about agro-companies obtaining exclusive intellectual property rights in plant genetic resources that have been first developed and used by farmers in developing nations.

Fortunately, 3L Ryann Beck has come up with a clever solution that involves adapting the open source licencing systems commonly used for computer software. Under Ryann’s proposal, a nonprofit steward would obtain intellectual property rights in plant genetic materials on behalf of the farmers who developed them. Packages of the seeds would then be labeled with a “copy-left” license that would preclude purchasers from obtaining enforceable intellectual property rights in the seeds or derivatives of the seeds.

Ryann’s proposal is contained in a new paper on SSRN. Her paper got a nice write-up on the IPKat blog a few days ago, and is forthcoming in the Arizona Journal of Environmental Law and Policy. The abstract appears after the jump.

The Constitutionality of Health Reform’s “Individual Mandate”

Post author:Joel Teitelbaum
Post published:May 14, 2010
Post category:Constitutional Interpretation Federal Law & Legal System Federalism Health Care

As noted in my blog post last week (“The Beginning of Health Reform“), pushback against the federal Patient Protection and Affordable Care Act was swift. Members of nearly 40 state legislatures have proposed legislation or constitutional amendments limiting or opposing certain provisions of the Act, with most of the proposals targeting the Act’s requirement that individuals have health insurance coverage or subject themselves to financial penalties (the “individual mandate”). Virginia, Idaho, and Utah are the only states thus far to have enacted new statutes (each of which more or less prohibits compliance with any law that imposes a fine on an individual for declining to enter into a contract for health insurance coverage), and their validity is sure to be challenged in court on Supremacy Clause and other grounds. Idaho has also passed a non-binding resolution “urging Congress to take action forthwith to amend the United States Constitution by adding a Twenty-eighth Amendment to provide that Congress shall make no law requiring citizens of the United States to enroll in, participate in or secure health care insurance or to penalize any citizen who declines to purchase or participate in any health care insurance program.”

Most dramatic, though—if drama is measured by the amount of media coverage generated—is the lawsuit initiated by the Attorney General of Florida and joined by 19 other state Attorneys General maintaining that several components of the health reform law violate Article I of and the Tenth Amendment to the U.S. Constitution. The argument that is drawing the most attention concerns the constitutionality of the Act’s individual mandate. Like the contention at the heart of the state proposals, the Florida lawsuit argues that the Act’s requirement that individuals have health insurance coverage or pay a tax penalty amounts to an unconstitutional mandate that cannot be upheld under the Constitution’s Commerce or Spending Clauses.

The lawsuit seems unlikely to ultimately succeed, given the procedural and substantive hurdles it has to clear.

When Do Police Have Reasonable Suspicion That You Are a Non-Citizen?

Post author:Jessica E. Slavin
Post published:May 13, 2010
Post category:Human Rights Immigration Law Political Processes & Rhetoric

For the past couple of weeks I have been stewing about how to respond to Rick’s post in which he tried to analogize the outcry against Arizona’s new immigration law to the Tea Party’s blowout bash against the new federal health care legislation. He called the left out for hypocrisy in its condemnation of the accusations of “socialized medicine” and “death panels,” asserting that the left is “is just as over the top as the most silly Tea Party [when it terms the Arizona law] ‘racist,’ ‘hysterical nativism,’ and evocative of Nazi Germany and Communist Russia. It is cause, we hear, to read Arizona out of the civilized community.”

His rhetorical approach was really effective, I think, so I am going to copy it: starting with a concession to gain your trust, before pointing out the flaw I see in Rick’s argument.