Vanity Fair has a multi-thousand word exposé on Monsanto that is a reminder of just how capital-C crazy our food chain is in this country. The article, by the famed investigative duo Donald Barlett and James Steele, goes deep into Monsanto's m.o. This is a company that surveils farmers going in and out of seed stores. It pursues its many patents with a vigor that Microsoft would find unsettling. And we've centralized nearly every step of our very food system -- from seed engineering to food production -- into the hands of companies like this.

Monsanto is sorta like Google of the food world, without the "don't be evil" ethos or the transparency that comes from being an online company. Of course, Google just handles our searches and online advertising and calenders and mapping and... But Monsanto is shaping the very food we eat and the morsels we put in the hungry maws of our kiddies. While it's CNN.com banner news when someone complains that Google Street View has an image peeking into their living room, biotech companies like Monsanto and Dow Agro file patents on seventeen different varieties of corn and thirteen different soybean strains and we don't bat an eye.

It's great to see a major piece in a popular general-interest magazine like Vanity Fair for that reason. I've started to think that one way of thinking about our food system in the U.S. as "black box food," meaning that we don't know what goes into it and don't really understand what comes out of it. Great to see a little light shined into that box.

Nancy Scola: The mission statement of the "Save Scrabulous" Facebook group -- 48,000 members strong and growing -- asserts this: "The copyright infringement is obvious and, in retrospect, the developers of Scrabulous should have done more to create their own spin on it." Do you agree with them that what we're looking at in this situation is a clear case of copyright infringement?

Alex Curtis: I haven't read the formal claims, but from parsing through what the Reuters article wrote it's not clear that this is a case of copyright infringement but instead one of trademark infringement. It's possible because of at least the close spelling that consumers might confuse the source of the makers of "Scrabulous" with the makers of "Scrabble." It's still unclear, but at a minimum it appears to be a misstatement by the media that this is a copyright claim, and is instead a move to protect a trademark.

Copyright grants an exclusive right to the creator of an original work expressed in a tangible medium. It doesn't protect ideas, per se, it's the specific expression of those ideas. The protection of ideas is the purview of patent. Trademark is a different kind of "intellectual property," because instead of being exclusive rights based it's more of a consumer protection. Trademark is used to help consumers identify the source of a product or service. The creators of Scrabble would use trademark to protect the name "Scrabble." Copyright might be used to protect the specific expression of the layout of the board and maybe the specific look of the tiles, except to the extent that those expressions are functional.

The functional aspects of the game -- how many tiles are on the board, strategic placement of the tile multiplier spots, those are more than likely functional parts of the game and not a "creative" work that copyright would protect. The functional ideas, those again, would be protected by patent, and you can look that up for Scrabble -- it's application #02752158, dated June 26, 1956.

I don't know if Hasbro/Mattel are claiming copyright protection here or not. A trademark claim makes sense, a copyright claim doesn't so much. That's because how a game is played -- the rules -- can't be copyrighted. It's functional, and that needs to be protected by a patent. Now, lets say that the Scrabulous creators went and bought a Scrabble box off the shelf, grabbed the instructions of how to play, and copied them word-for-word onto the Scrabulous Facebook application page. That'd be a violation of copyright, because the Scrabble people own a copyright in the specific way they expressed the instruction manual. But there's a difference in how a game is played (not copyrightable), and how someone explains how to play the game (copyrightable). The first is functional, the second is creative.

Scola: Pretend for that you're counsel for Hasbro/Mattel and you just stumbled across Scrabulous. The name is clearly a takeoff on the name of one of the games in your stable. This thing looks and plays just like Scrabble, down to the point values on the tiles. Users of Facebook, a giant and growing web platform, are clearly smitten with it. How would you have advised them to proceed?

Curtis: I'd advise them to contact the creators of Facebook and Scrabulous and let them know clearly that we thought the name of their game, Scrabulous, could cause confusion as to the source of the owner of our game, Scrabble. However, I don't think that I could advise my clients, at least not with a straight face, that there was a copyright claim. I'd have to explain to my clients that, essentially, the game play of Scrabble is in the public domain in the way that dominos, poker, and mahjong are, but that they could protect the name of the game. And the specific expressions of their version of the game -- how the gameboard looks, how we express the rules, and other non-functional aspects of the game -- via copyright.

Scola: So much of the reporting on this situation -- from the BBC to Wired News -- has attached the phrase "copyright infringement" to Scrabulous without much explanation or any substance to back up those claims. After years of RIAA aggressiveness on copyright, those words are enough to strike fear in the heart of the strongest among us. How much of this is a language problem rather than a legal one?

Curtis: I think you've hit the nail on the head--and it's the point that John Bergmayer hammered home on our blog. It's what groups like ours are combatting all the time -- general copyright ignorance of what copyright protects and of consumer rights under the law. If reporters or the public don't know the works that copyright can protect and not protect, how can they know their legal rights if the RIAA knocks on their door with an infringement claim? I don't want to blame the journalists about miscommunicating the facts here because I don't have the claims in front of me, but not challenging where the specific copyright claims were is a problem here. I would have helped immensely if one of these mass publications could have drawn a little chart to explain what IP (copyright/patent/trademark) does what, as a little cheat sheet to educate the reader.

Thanks so much for sharing your expertise, Alex. Public Knowledge's website offers primers on copyright, trademark, and patents. And should Scrabulous go offline, there's always Facebook Texas Hold 'Em.

Finding an email in my inbox from Richard Stallman is not the way I start most mornings, but on a recent morning, there it was. Richard is the force behind the free software movement -- the mind behind "free as in free speech, not free as in free beer." He took issue with my use of the terms "intellectual property" and "intellectual property protections" when referring to Monsanto's seed patents in an article on genetically-modified farming in India and Iraq. Richard was kind enough to allow me to reprint this initial email to me, and I thank him for that. Here it is:

I've made a link to your article from stallman.org, but please forgive me for asking you to consider changing one aspect of the article: its use of the term "intellectual property".  After 17 years of campaigning against patents in the software field, I have come to the conclusion that that term must be rejected totally.  I firmly refuse to use it.

To illustrate the problems the term causes, I cite a couple of the passages in your article.

What Order 81 did was to establish the strong intellectual property protections on seed and plant products

More precisely, what it establishes are patents.  Referring to them as "intellectual property protections" is gratuitous vagueness, and the result is to confuse patents with copyrights and trademarks, which in fact are entirely different.  People who think they understand patents (or copyrights) in terms of "intellectual property" actually have got a false understanding.

The term "intellectual property" is also propaganda for Monsanto's side. Why else would they use the term so much?  It frames the issue in a way favorable to them.

("Protection" is also propaganda for Monsanto's side.  It suggests that these restrictions on farmers are needed to prevent some sort of unjust destruction, which is the opposite of the truth.  So I reject that term also as a description for what patents do.)

when it comes to engineered seeds like Bt cotton, Monsanto owns the tiny speck of intellectual property inside each hull,

A patent is an abstraction, a monopoly created by fiat.  Reifying it, speaking as if the patent were some speck of substance inside a seed that Monsanto owns, plays into Monsanto's hands.

Most of us are in favor, more or less, of property rights for physical things, such as a plant or a seed.  If the patent meant that some speck inside the seed were Monsanto's physical property, rejecting Monsanto's claim to own it would be very radical, and that would be a handicap for our cause.

That is not how it works.  Every part of the physical seed is the property of the farmer that grows it.  The patent is a restriction imposed on the farmer's use of his property.  It is nothing at all like property rights for physical objects; it is a radical new kind of power, which had never existed anywhere in the world 50 years ago. Rejecting physical property rights is radical, but rejecting Monsanto's power is conservative.  If we educate citizens to recognize this, we will eliminate the spurious handicap, and have a better chance to defeat Monsanto and others like it.

I think it's fair to say that Richard is an anti-"IP" absolutist. In his critiques of my piece, I think he's in large part right. I goofed; my use of it was sloppy here.

"Intellectual property" is such a loaded term because it carries with it all the positive associations that "property" enjoys, at least in modern American society. That's why those among us who control the most stuff use it so aggressively. (See, for example, the U.N.'s "World Intellectual Property Organization.") Though, to nitpick, I'm not sure I entirely agree with the distinction Richard makes between patents and copyright. I'd argue that copyright is an abstraction, too, as well as a "monopoly created by fiat."

It can be tough to come up with alternate phrasing the twelfth time you've written about patents/copyrights/trademarks in a single post or article. And "intellectual property" is a useful short-cut for explaining the control over ideas and creations to general audiences. But I know better, and should have made the extra effort not to use it in the way that I did. Thanks to Richard for helping me to see the light.

A few correspondents asked, in response to my Order 81 story from last week, why India had let Monsanto to start selling genetically-modified seeds in-country when they had kept them out for so long. My response, somewhat to my embarrassment, was largely "dunno." But an anthropologist by the name of Keith Hart, who I'm hoping won't mind being cited here, sketched out a possible answer: India passed the Patents Amendments Act in 1999 to conform to the WTO's TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement -- partly because it really wanted to enter into a nuclear deal with the U.S. Seems plausible to me.

Thom Hartmann spent a little bit of time on his show today discussing my Order 81 article, which was of course completely awesome. The mp3 of that is here. There's also a good and informative discussion going on in the comments over on AlterNet, and it's not too late to Digg the story if you find it worthy.

AlterNet has a story up today that I wrote about Order 81, which is the directive issued by Paul Bremer back in 2004 establishing the legal framework for the respect of patented genetically-modified seeds in Iraq. I'm all into patents, and am newly obsessed with the future of food, so had been intrigued by Order 81 for a while now. But alas, there hasn't been too much to learn about it; the great Molly Ivins called it "one of the 10 biggest stories ignored or under-covered by mainstream media."

Then I started hearing about how Indian farmers were killing themselves by the thousands, when I started digging into it, it turned out that they were responding to same sort of Monsanto-driven, genetically-modified agricultural system that Bremer had introduced to Iraq. GM seeds promise great rewards, but when crops fail and harvests are smaller than promised, farmers find themselves in far deeper debt than they would have been had they stuck with traditional farming.

So that's the story I wrote, making the connection between the patented seeds we introduced to Iraq and how a similar scheme in India is driving farmers there to death. Again, it's up now and I'm hoping that you'll read it and keep the conversation going by offering your thoughts in the comments. And if your so inclined, go ahead and give it a Digg. (I swear, I didn't put it there nor do I know who did.)

As for the image above -- I'm calling it a "story card." It was a design exercise for myself but also a protest against the fact that so much of what we on the political left do is visually boring or just plain ugly. But I tend to think in pictures, even though I prefer to express what I'm thinking by writing it down. Consider it a challenge to better designers than me to come up with better ways of showing to go along with all our telling.