No Perm – Law/Scotus/congress

A much different group of scholars is also likely to come to an anti-property conclusion. The skepticism of legal historians is based on lessons learned from the history of infamous English regimes that offered protection for existing knowledge. Queen Elizabeth and King James I raised funds and rewarded successful courtiers by granting rights in existing products and knowledge, including monopolies on saltpeter, alum, ovens and furnaces, window glass, ale, the mining of various metals and ores, sulfur, rapeseed oil, and salt.23 The oppressive nature of those monopolies was known to the framers of the Constitution and inspired the restrictive language of the Intellectual Property Clause: "The Congress shall have the Power ... To Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. '24 By predicating protection on the promotion of "Science," the framers were evidently worried about granting to Congress the same rights that had been abused by the English Crown. With an important exception for new inventions, Parliament ended the era of "odious" monopolies.2 5 The language of the Constitution borrows the same approach, authorizing Congress to grant exclusive property rights only under an incentive theory.26

There are, of course, alternative ways to read English history and to read the Constitution. The point here is that the history of intellectual property law in the United States and England has become a powerful tool for arguing against the creation of new rights.27 Unfortunately for LTOC Advocates, their claim falls squarely within the core of the historical objection. They demand that rights be granted in plant genetic resources and knowledge that already exist. As the Court has remarked, "Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to material already available. Innovation, advancement, and things which add to the sum of useful knowledge are inherent requisites in a patent system .... "28 Attitudes, hardened by history and endorsed by the Supreme Court, make property rights rhetoric unpromising, at least in the United States.

Although mostly active in the debate surrounding copyright issues that affect free speech, libertarians have also become highly skeptical of expanding property rights in information. "Information wants to be free!" is the slogan of the Internet.29 It is primarily information that advocates for long-term occupant communities would like them to control: information about the properties of germplasm; information about where to find valuable plant resources; and information about how to successfully maintain and cultivate them. Those who believe, in the libertarian tradition, that existing information should be available for all to use and exploit are unlikely to be enthusiastic about new property rights in existing knowledge.