Pepsi is suing four Indian farmers for growing a proprietary "Lays" potato, seeking $150,000 each in damages

Originally published at: https://boingboing.net/2019/04/26/spud-co.html

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So how did these farmers get their hands on the seeds for Lays potatoes? Did they buy a bag of chips and plant it?

Maybe there is a new plot point for The Martian in this. Pepsi send a team of lawyers to rip Watney’s food out of the ground, and return satisfied.

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So yesterday CD was all up in arms when a photo of a copyrighted work was used without the authors permission and today he’s all angry at the creator of a work when it gets taken by someone else. Which way is it, CD?

Is it just that it’s a company on one side that upsets him so much?

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‘proprietary lifeform’…my whole future life just rolled out in front of me like a red carpet

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First cubesats, now spudsuits. Pepsi still has to get past Halliburton if it wants to grab the coveted most-hated-multinational corporation crown. What will they do next? Announce they’ve decided to sponsor Eric Prince?

There’s more info available on the lawsuit here:

And some info on the pertinent Indian laws here:


In India, plants are excluded from patent protection, but can be registered in a way that is similar to copyrighting in the US. The Plant Variety Registry allows farmers to create new varietals of a crop and keep exclusive rights to their product for 15 years. But the PVR was specifically intended to protect small and midsized farmers and Pepsico’s lawsuit isnt playing well.

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The law says that a farmer is allowed “to save, use, sow, re-sow, exchange, share or sell his farm produce including seed of a variety protected under this Act” so long as he does not sell “branded seed”.

Seed and potatoes, that might be where it gets complicated.

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An interesting problem.

I usually try to see how much is framing and how much is issue by reversing the situation. If a farmer developed a special variety of potato/fruit/whatever, and a large company simply obtained a sample and started growing them, I’d be really angry.

Since I lean toward the farmers in the actual scenario, I suspect it’s the big vs. little that determines my feeling on this particular matter, rather my feeling about the issue of law.

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Huge mistake. Regardless of the merits, it’s a terrible look for Pepsi. And chips and sodas are the easiest things in the world to boycott/switch from once an anti-Pepsi movement gains traction; which it inevitably will. Pepsi will lose billions off its net for 2019, and some big suit will take a (albeit golden-parachuted) fall.

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“I’m sorry, himnull, but you are the subject of a Cease and Desist Notice and you’ve been recalled by your manufacturer.”

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Do potatoes have seeds? I thought that potato seeds were potatoes?

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Yep - I know we just cut up potatoes to grow more potatoes in our garden when I was a sprout.

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Sure, potatoes flower and produce seeds. What you get if you plant the seed is somewhat unpredictable, but if you are looking for a new variety that’s the traditional way to do it, finding that one plant that is an improvement. The tubers you eat are just part of the root, and you can plant them to get new plants that are identical to their parent, which is what you normally do. Disadvantage is that being genetically identical they are vulnerable to pests.

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Should a breed of plant really be considered a copyrightable work? Maybe legally it is, but I think it’s pretty f’d up. I think it’s messed up that a farmer in america generally can’t legally plant the seeds from the crops they grew on their own land.

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From ye font of all crowd-sourced knowledge:

After flowering, potato plants produce small green fruits that resemble green cherry tomatoes, each containing about 300 seeds.

Potatoes are generally grown from seed potatoes, tubers specifically grown to be free from disease and to provide consistent and healthy plants.

As far as i understand botany, the plants grown from ’seed’ potatoes are essentially clones of the old.

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As the article points out, normally it is not copyrightable. A genetically altered or specially-bred plant might be eligible for patent protection (and normally, patents and copyrights are mutually exclusive domains), which is why it’s weird that the article doesn’t say that. I think India has taken some steps to protect farmers from patents (to protect, for instance, basmati rice production), which may be why Pepsi is trying to weasel around it.

(Also, there’s not really an equivalent to fair use or right of panorama in patent law)

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“Yes, I grew a crop of your patented potatoes; however I did it to comment upon, criticize, and parody your spuds, so, fair use, buddy.”

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Legally, “seed potatoes” (and other vegetatively reproduced plants) are seeds.

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I don’t think anyone questions the logic of an artist holding rights to his own work, but when anyone, corporation or lone human, claims the rights to a living thing (which they are only partly responsible for – it’s not like Pepsi invented the potato out of thin air, potatoes have been around forever) then it’s a strange new territory and worthy of debate. We’re also talking about a food source-- if someone can legally claim the rights to a food source then there are issues about who controls the food and how can a poor farmer survive.

Pedantry alert.

Potatoes, like apples, are not grown from seeds like other plants-- or rather, if you grow a potato from a seed you will get a different variety than what you planned on, not a clone. Usually you get “seed pieces” which are parts of an actual potato (apple trees are usually grafts from other trees that produce the fruit you want.) You can grow another potato plant from a potato.

Wild potatoes in South America are kind of mind blowing in their sheer variety (same as wild apples in Kazakhstan.)
pot

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They can. You can buy non-patent seeds, plant them, harvest them and resow them all you want. The original Roundup-Ready soy is out of patent and on the market for anyone who wants it.

However, if you signed a purchase contract with the developer of the crop’s seeds to NOT replant, and to not sell their harvest to others as seed … you can and will be sued for breaking the contract.

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One person’s seed potato is another’s plate of fries.

That would make it impossible for the farmers to sell the potatoes at all.

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