Cocoa Genome Released... But Is It Really In The Public Domain?

from the the-public-domain-has-no-restrictions dept

Thu, Sep 23rd 2010 5:42am — Mike Masnick

Last week, a PR person working for Mars (makers of M&Ms and such) sent me an email about how scientists from Mars along with the USDA and IBM (among others) had sequenced the cacao genome and that "the results of the research will be made available to the public with permanent access," at the accurately named Cacao Genome Database. Sounded interesting, but it was a busy week, and I wasn't able to spend much time digging into it. I was intrigued, however, by the claim in the press release that the team had "released the preliminary findings of their breakthrough cacao genome sequence and made it available in the public domain". It's so rare to hear of some big companies doing research and release it into the public domain, that it, alone, seemed newsworthy, and something I wanted to explore.

Thankfully, before I even got the chance to, I saw Glyn Moody point me to Glen Newton's analysis of the claims of public domain and open access for the data, only to discover it's not true. While they are making the data available, it's hardly public domain. You have to agree to a license that has some serious restrictions in it (and some contradictions). For example, it lists out the ways you can use it -- and leaves out commercial use. Real public domain doesn't care (and doesn't require a license).

Then there's this:

The User shall not transfer the information referred to in this agreement, or any copy of them, to a third party without obtaining written authorization from the Providers which will only be provided subject to the third party user entering into this same IAA.

I'm kind of wondering if this is just boilerplate that the lawyers threw into this not understanding what public domain means. But it seems pretty silly to (a) create a license for supposedly public domain data which (b) doesn't allow you to tell anyone about what's in the license!

There is a nice bit in the "license" where it says you can't use the data in a patent application, but one would hope that the data being in the public domain would exclude it from being used in a limited fashion elsewhere anyway (sans license agreement). Separately, someone in the comments notes that the original license agreement said that if you used the data, you couldn't publish any articles about your findings until some period in the future -- but that clause was later removed (though, it's unclear if those who signed in prior to the removal still need to live by that).

However, I do have a pretty serious question: is this data in the public domain? Last year, we pointed out how difficult it is to put something into the public domain. Here, we have a case where Mars, the main company behind the research, has put out a press release, which clearly states:

Today, Mars, Incorporated, the U.S. Department of Agriculture-Agricultural Research Service (USDA-ARS), and IBM released the preliminary findings of their breakthrough cacao genome sequence and made it available in the public domain.

Thus, one could easily read that and believe these findings are public domain. But, then, when you go to the actual site, it claims all sorts of license restrictions. So, if someone goes and copies all the data and puts it on their own site, is that legal? It certainly looks like the company put the info into the public domain via the press release, and once something is in the public domain, you can't reverse that (well, unless you're the 10th Circuit appeals court). So, it certainly looks like someone could make the argument that the license Mars is trying to put on this data is meaningless. The company has already declared it in the public domain, and thus, no license applies. But, here's where the lack of any clear rules for how you officially make something public domain come into play. Would Mars claim that the press release "misrepresented" the company's position?

I don't mean to come down too hard on Mars. It's actually quite nice that a company would do such research and try to make it "open" and try to prevent it from being locked up in patents. I really do commend such actions, and don't wish to negate that point. But, I think the public domain is a really important thing, and if a company wants to put content into the public domain, they should be clear about what's really in the public domain.

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Filed Under: cocoa, genome, licenses, public domain
Companies: ibm, mars, usda

19 Comments

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Anonymous Coward, 23 Sep 2010 @ 6:00am

With the population on earth approaching 9 billion people fast, some people are seeing the writing on the wall already.

Food will be scarce, climate change gave a glimpse of what could happen in the future this year wiping out crops and making food scarce in some parts of the world triggering revolts, and they want to be in the right place to capitalize on those things.
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Karl (profile), 23 Sep 2010 @ 6:28am

I'm guessing that "not locked up due to copyright and patent restrictions" is, to them, "public domain."

To people who are used to thinking of ideas as "intellectual property," this might seem reasonable. But it is not accurate: for example, a GPLv3 license isn't a "public domain" license.

But hell, those of use who actually study IP law often get confused. It shouldn't surprise anyone when an IP-friendly industry makes the same mistake.
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out_of_the_blue, 23 Sep 2010 @ 6:43am

Would you please state whether it's stated to be "public domain"?
I'm not doing my own digging for the basic fact you omitted.

If it *is* stated to be "public domain", then rest of the legalities are irrelevant, especially as to ownership by a corporation.
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Killer_Tofu (profile), 23 Sep 2010 @ 6:47am

Public domain of a genome?
I thought stuff naturally occurring in nature couldn't be locked down? I could understand maybe if they had some special process they apply to it maybe (only under the current system), but isn't the genome itself supposed to not be able to be locked up at all?
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Anonymous Coward, 23 Sep 2010 @ 6:56am

Query
Does this mean that a Hershey bar is infringing?
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Dark Helmet (profile), 23 Sep 2010 @ 7:10am

Re: Query
"Does this mean that a Hershey bar is infringing?"

Yes, and when you eat that hershey bar and your intestines break it down into separate nutrients, your body is guilty of violating the anti-circumvention clause of the DMCA....
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Anonymous Coward, 23 Sep 2010 @ 7:52am

Referred to in this comment.
doesn't allow you to tell anyone about what's in the license!

I think you're reading that wrong. Wouldn't "the information referred to in this agreement" by the database information, not the agreement itself.
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Anonymous Coward, 23 Sep 2010 @ 7:54am

Re: Re: Query
I wonder to what extremes this could be taken...
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Anonymous Coward, 23 Sep 2010 @ 7:59am

Re: Would you please state whether it's stated to be "public domain"?
From Mike's article above: Here, we have a case where Mars, the main company behind the research, has put out a press release, which clearly states ... [they] released the preliminary findings of their breakthrough cacao genome sequence and made it available in the public domain.

So, yes, it's *stated* to be in the public domain, but that doesn't change the other facts, like they won't release it to you until you agree to their liscence.
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Anonymous Coward, 23 Sep 2010 @ 8:19am

Re: Would you please state whether it's stated to be "public domain"?
Oh no! The government must have installed a chip in your brain that prevents you from being able to read articles! Quick, tinfoil!
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that_id (profile), 23 Sep 2010 @ 8:32am

Doesn't the very involvement of the USDA (publicly tax funded)in these findings automatically imply it is public domain?
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Marcus Carab (profile), 23 Sep 2010 @ 8:40am

Re: Would you please state whether it's stated to be "public domain"?
You need to read the linked Techdirt post about what is involved in actually making something legally public domain.

http://www.techdirt.com/articles/20090116/0348223430.shtml

It makes perfect sense that you assumed by saying it was public domain they were making it so, and rendering other legalities irrelevant. That seems to make sense, but sadly it's not the case. Putting something in the public domain is damn near impossible.

For example, the way the law works, I now have certain copyrights on this comment, whether I want them or not. I cannot easily divest myself of those, and definitely not just by saying "THIS COMMENT IS PUBLIC DOMAIN"
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Greg G, 23 Sep 2010 @ 8:42am

Re: Re: Query
And not long after ingesting said Hershey bar, my body will let them know what it thinks of violating the anti-circumvention clause of the DMCA.
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Marcus Carab (profile), 23 Sep 2010 @ 8:45am

Re:
Another totally sensible but unfortunately incorrect assumption.
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PRMan, 23 Sep 2010 @ 9:01am

Isn't it a fact of nature?
They didn't invent cocoa, they just researched it. It's a fact of nature. Of course it's public domain.

Any parts where they may do something that's unnatural with it (such as combining it with fish genes to make it resistant to frost or something) might be protected, but the natural state of a cocoa plant cannot be protected. It's a simple fact.
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Marcus Carab (profile), 23 Sep 2010 @ 11:33am

Re: Isn't it a fact of nature?
By that logic (read: good logic) every single scientific paper would be public domain (which would be awesome). Sadly not the case.
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Killer_Tofu (profile), 23 Sep 2010 @ 1:12pm

Re: Isn't it a fact of nature?
Yah, basically the same thing I was asking. I think you worded it better though. I was also wondering.
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Alan Bennett, 25 Sep 2010 @ 9:55am

Cocoa genome database access
The problem with genome database access is that the underlying gene sequences that have been publicly released are subjected to "parasitic patenting" by database users who make so-called improvements to the database sequences. Note that over 30% of the human genome is claimed in patents and patent applications and that most of these were filed AFTER the public release of the human genome. If one agrees with my definition of the public domain as "a place where creative works are affirmatively protected against private appropriation" then the cocoa genome Information Access Agreement serves this purpose. By the way, the agreement does not restrict commercial exploitation of products (i.e. improved trees or plants) but protects the upstream genes from appropriation.
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newsreader, 28 Oct 2010 @ 9:26am

conflict of interest?
Perhaps Dr. Bennett should reveal his associations with MARS company and then explain to us if the MARS company is also bound by the agreement set forth? What I don't understand is why they would want to block people from filing patents on something when our entire economic system is built on the incentives granted by the patent system? OK if someone patents a cocoa gene for use on one invention, it dosn't stop someone else from inventing something else with the same gene. Also, the patent will expire, and others can do whatever they want. Why remove the incentive to translate science into useful inventions? Maybe they just want a competitive edge? They wouldnt do that would they....?......
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