This is actually a good, simple example of a common side effect of regulating many industries. The quality or safety requirements seem reasonable and often just good practice to existing operators. For new operators, especially those doing things differently (like running a free library) it can be a serious hurdle.
I don't like Monsanto, but nothing I've read indicates this alone is sufficient to lose a lawsuit. In the case I assume you're referring to, the farmer didn't lose because harvested a few plants that had blown into his field. He lost because he then killed off his non-resistant plants with Roundup, intentionally collected the seeds from the remaining Monsanto plants, and replanted his entire field with them the next year.
http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2147/index....
Well that's just not true.
http://www.npr.org/blogs/thesalt/2012/10/18/163034053/top-fi...
There is an element omitted, which was that he harvested those seeds (in accordance with his established business practice of keeping seeds from his field) in the knowledge that they were Roundup resistant, since he had sprayed his field with Roundup to see what would happen, and what happened was some of his wheat lived.
Roundup isn't patented or controlled in any way. So what would happen if I took up the hobby of growing a few patches of wheat every year and spraying them with Roundup? Over time, the magic of selection should produce Roundup-resistant wheat, which would be free of any Monsanto influence. Would I be violating Monsanto's IP?
If you think I wouldn't be violating Monsanto's IP by growing, and selecting, my own Roundup-resistant wheat, take note that Schmeiser didn't do anything I didn't describe myself doing in the thought experiment.
>Schmeiser didn't do anything I didn't describe
Yes he did. He didn't develop his own Roundup resistant seeds, he grabbed them from Mansanto plants.
>the magic of selection
It doesn't work like that. What you would end up with is years of nothing but dead plants until you get bored and forget about it.
I don't want to defend Mansanto, but you're being ridiculous. This argument is repeated over and over and it's just not true.
The additional "action" you ascribe to Schmeiser is purely metaphysical. In the thought experiment where I grow wheat as a hobby, I do the following:
1. Purchase, and grow, wheat seeds, not from Monsanto.
2. Spray my wheat with freely-available Roundup.
3. Harvest and replant whatever happens to survive.
4. Purchase additional non-Monsanto wheat in the case where I don't get any seeds in step (3).
There are two things we can say about Schmeiser:
1. Schmeiser took steps 1-3 above.
2. Schmeiser didn't do anything other than steps 1-3 above.
There was reason to believe that they'd work for him faster than they would work for me. But all of his actions were unquestionably above-board. What produced the ruling against him wasn't anything he did -- it was something his neighbor did.
Consider a different scenario. Schmeiser, the eccentric farmer, decides to devote a patch of his land to independently developing Roundup-resistant wheat. He does exactly what I described, seeing little success. Three years later, his neighbor starts purchasing and planting Roundup-ready wheat. Schmeiser continues to do the same thing he's been doing for three years. Is it now illegal?
And if you want to bet your farm on you being the one to magically find Roundup resistant wheat, you go right ahead. But no farmer is going to do that. and Schmeiser certainly didn't.
You want to argue, go argue with the judge who heard all of the facts. But please, don't spread false information like "Monsanto sues farmers for accidents". It's not true.
He had Roundup-ready wheat in his field legally.
He legally sprayed it with Roundup.
He legally collected seeds from his own wheat.
He legally planted seeds that he owned legitimately.
But it all works out to be illegal because he's a bad person? Why would whether it's OK to do something depend on whether you've done it before?
from kevinpet: "The Monsanto patents are for the method of using a particular herbicide in combination with the modified plant seeds.... Has Monsanto ever sued anyone who was not trying to use the combination of the GMO crops and the herbicide they are tolerant to?"
from tptacek: "the behavior Monsanto pursues is planting unlicensed Roundup-Ready seeds and then spraying them with glyphosphate-based ("Roundup") herbicides. You can spray Roundup without a patent license. You can probably plant RR crops without a license. But if you do both (commercially, at least), Monsanto sues. The point of RR seeds is that they resist Roundup, which is a broad-spectrum herbicide that will kill non-RR crops. In the commercial suits, it becomes tricky to argue that you planted RR crops unwittingly when you are later shown to have sprayed them with an herbicide that would have certainly ruined your harvest but for inbred RR resistance."
There are a lot of actions that, if we described the component behaviors, would sound legitimate -- but taken in aggregate are clearly wrong. It's legal to be in the forest and it's legal to discharge a firearm, but it becomes illegal if you knowingly target a person in the forest with that firearm. It's legal to change your clothes and wear a fake beard, and normally legal to go into a grocery store, but it becomes illegal if you disguise yourself to circumvent a store ban. And it's legal to have RR seeds in your field and it's legal to spray roundup, but it becomes illegal if you intentionally try to circumvent Monsanto's patents by using roundup to isolate their seeds and then intentionally replant those so that you'll be able to use roundup on your crops without destroying your crops and without paying the standard fee.
This isn't a good example; it's not legal to hit the other person whether you're in the forest or not. If you mean targeting but missing, that's also illegal no matter where you are, but hard to punish without good evidence of malice (again, no matter where you are). There's an element of the offense which is (a) clearly not included under "be in the forest" or "discharge a firearm" (for example, if I was Superman and I just threw a bullet into someone at speed, that would be just as illegal as using a gun to do it), and (b) definitely illegal no matter the context.
> It's legal to change your clothes and wear a fake beard, and normally legal to go into a grocery store, but it becomes illegal if you disguise yourself to circumvent a store ban.
I don't really object to this example, though if the law is as described I object to that. What recourse does the store have? Is disguising yourself actually part of the offense, or is the offense purely that you entered the store?
Though the point is less the examples and more the principle: that an offense can be made up of multiple inoffensive-sounding parts which are only problematic when taken together.
Disguising yourself being an additional, quasi-separate offense puts it into the pattern of hate crimes, where a legal action harshens the penalty for an illegal one. But it doesn't illustrate the idea that an offense can be composed solely of actions which are all individually OK; if you're banned from a store you commit an offense by entering it, and entering in disguise necessarily involves entering.
It's probably worth mentioning blackmail, which is a standard example of a crime made up solely of legal acts. But that very property of blackmail has meant that judges (and some legal theoreticians) hate it and try not to extend what sorts of conduct might be considered blackmail or draw analogies to blackmail when considering other crimes.
it's a big stretch from "I didn't happen to describe any perfectly" to "there aren't any".
> "an offense can be composed solely of actions which are all individually OK"
An offense can be composed of actions which all sound like they're OK when described without the context of the other actions. (See, for example, https://news.ycombinator.com/item?id=6235034 -- changing IPs is OK and accessing a website is OK, but when you've received a C&D letter and you circumvent an IP ban, that's lawsuit-worthy.)
Going back to the Monsanto case, it sounds like it's OK to grow the seeds you happen to have, and it sounds like it's OK to spray your crops with roundup, and it sounds like it's OK to replant seeds that survive. But the combination, clearly intended to acquire a RR crop (and use roundup on it) without paying the appropriate fee, is illegal.
I don't see how this differs from the situation of entering a store while banned (and optionally disguised). It's quite clear that visiting the website was an offense regardless of IP cloaking.
> Craigslist gave the world permission (i.e., “authorization”) to access the public information on its public website. Then, just as Brekka instructed that an “authority” can do, it rescinded that permission for 3Taps. Further access by 3Taps after that rescission was “without authorization.”
> The banned user has to follow only one, clear rule: do not access the website.
The IP ban was considered evidence that the requirement to stay off the website was properly communicated, but the C&D is surely sufficient for that purpose.
(Orin Kerr actually blasts the judge for misunderstanding the law, saying that in his [Kerr's] view accessing the website after receiving a C&D would not in itself be an offense... but the judgment is officially the law, and Orin Kerr isn't.)
Taking this back to the original point about Monsanto: it's not legal to isolate their seeds and then grow them while using roundup, without first paying the fee to have their patented roundup-ready seeds. Because it's illegal to skip the license fee. Several layers of posts back, you described certain farmers' actions in ways that sound legit, but when you take the actions all together they're clearly attempting to use the special properties of Monsanto's seeds without paying, which is illegal.
You can "misleadingly describe" something by leaving information out, as when I describe fatally shooting someone as "discharging a firearm". But that isn't just phrasing something in a way that makes it sound better, that's leaving information out.
In all the examples you've discussed, one of the component actions is a violation on its own; it's not possible to decompose them into actions which are actually innocuous (as opposed to "phrased to sound innocuous"). There is an element of illegality which remains present as you decompose the offense. That isn't true for the case of spraying your legally-obtained Roundup-ready wheat with Roundup.
It appears to me that the reasoning here goes "if we do the obvious thing, a patent on Roundup-ready wheat will be worthless, and so therefore we need to contort the legal system until such a patent has value". But that isn't even a legal principle; it's quite possible to obtain various privileges through the legal system such that the normal benefits of those privileges cannot be extracted (even if I have a trademark on White (tm) brand paper, I can't stop other paper vendors from calling theirs white).
The need to contort the legal system is an indication that patents on wheat varieties are a bad idea. At root, this is because wheat has volition of its own; it wants to spread. There is analogous law for animals which makes the owner responsible for what (say) his dog does; if that system were adopted here, the licensed RR-wheat grower would be liable for something like facilitating or contributing to patent infringement.
I've assumed that a situation where a crime can be decomposed into parts that are entirely legal represents an undesirable twisting of the legal system. The closest analogy I know is the crime of blackmail, which is composed of entirely legal actions (if you threaten to do something illegal, it's actually a different crime, extortion). Legal scholarship is divided over blackmail; many people don't think it should be criminal at all precisely because it involves taking only legal actions. This establishes a couple of things: (1) Even if you don't think there's any value in the principle "two non-crimes don't make a crime", a lot of people do, which makes it a very reasonable criticism of a situation that violates it, and (2) crimes of this kind are extremely unusual, which means it's definitely worthy of comment, and requires a little more justification than a typical law.
All of that is basically by way of saying the judgment represents a bad idea, and atypical law. The difficulties involved in giving meaning to a wheat patent suggest that we shouldn't try -- it's the same argument you see against drug and alcohol prohibition, price controls, commanding the tide to recede, etc.
Going back to the original comments, I responded to someone saying that "Monsanto has sued someone for having his neighbor's seeds blown into his field, and won" was untrue. I maintain that the person I responded to was wrong, and his parent was correct, because it is acknowledged by all sides that, if his neighbor's seeds hadn't blown into his field, Schmeiser, taking the same actions he did take, would not have been violating Monsanto's patent. The germination of his neighbor's wheat, over which Schmeiser had no control, transformed his legal action into a crime.
Indeed, much of US law centers around phrases like "knowingly" or "with intent". And if you decompose the offense without leaving something out -- specifically, without leaving out the intent to utilize the special GMO property of Monsanto seeds without paying for Monsanto seeds -- then the element of illegality remains in your description.
It's not "the germination of his neighbor's wheat" that turned Schmeiser's action into a crime; it's his intent to transform his commercial farm from a non-RR to an RR operation by isolating RR seeds rather than paying for RR seeds. The guy you claim was wrong was actually right -- Monsanto didn't sue the guy because his neighbor's seeds blew in; they sued him because he intentionally isolated those seeds in order to use them without paying for their use. Had the seeds not blown in, Schmeiser would have had no reason to take the actions he did -- but it's his actions following the seeds blowing in, not the seeds blowing in itself, that got him sued.
You can argue it's a bad law for other reasons, but the particular approach you're taking is weak.