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The results of these tests show the presence of the patented gene in a range of 95-98% of the canola sampled.

This would indicate that he planted the patented seeds, whether knowingly or not. A lucky random mutation wouldn't spread out to an entire field in a single generation.

Can you point to a specific case where a farmer was sued by Monsanto for what was legitimately a case of GM seed blowing into a non-GM farm?

Every case I've read about this has ended with the facts being determined that the farmer was lying. Here is a rather damning one (pay attention to sections 124-126): http://decisions.fct-cf.gc.ca/en/2001/2001fct256/2001fct256.html

Agreed. He was using Round Up on those crops.. a pesticide that kills unmodified crops, demonstrating that he knew what he was doing.

No, he wasn't using Round-Up on those crops. The Court specifically ruled that he didn't have to pay Monsanto any damages because he did not use Round Up on his crops, and therefore did not benefit from using Monsanto's patent without a license. He only noticed it was Round-Up resistant because he sprayed Round-Up in an adjacent ditch to kill weeds which were getting close to his crop. Some Canola which was also growing in the ditch survived the Round-Up. He never used Round-Up on his crop fields.

It is the use of Round Up on Round Up Ready crops which is what the patent describes and what the farmer was violating.

No, that was a miscarriage of justice. Monsanto argued that even though Schmeiser had no way of knowing the crop's Round-Up resistance was due to carrying the Monsanto gene, he should have known that was the reason why some of the canola survived being sprayed with Round-Up. The Court bought this argument hook, line, and sinker:

"I find that in 1998 Mr. Schmeiser planted canola seed saved from his 1997 crop in his field number 2 which seed he knew or ought to have known was Roundup tolerant, and that seed was the primary source for seeding and for the defendants' crops in all nine fields of canola in 1998."

That quote from the decision contains a glaring assumption which has since been proven false. The court assumed (accepting Monsanto's argument without question) that the only way for a plant to be resistant to Round-Up was for it to contain Monsanto's patented gene. It has since been shown that plants can develop a natural resistance to Round-Up. Therefore, the Court erred in ruling that Mr. Schmeiser "ought to have known" that the plants which resisted Round-Up spraying contained Monsanto's patented gene. In light of the development of Round-Up resistance in weeds, we now know that short of extensive genetic testing, there was no way to Mr. Schmeiser to have known whether the resistance was natural or came from Monsanto's patented gene.

"I heard a story..."

This one?

http://decisions.fct-cf.gc.ca/fct/2002/2002fca309. html

The farmer most certainly knowingly violated the patent. Whether you think patents are good things is another matter.

Schmeiser saved seed he knew was roundup ready (he sprayed that field with roundup and found 60% of the plants survived) from 1997 and used that seed in 1998 to plant his entire canola crop for the year. You can read the court findings yourself here. He should have contacted Monsanto to get them to remove the plants from his property as two other farmers testified they had done.

Here in Canada, it is perfectly legal to backup a DVD that you own. The recent Supreme Court of Canada case, CCH v. Law Society of Upper Canada, although dealing with print media, suggests that private personal copying would fall under 'fair dealing' (we don't have 'fair use' in Canada). Note: this reasoning was applied in the subsequent Federal Court case regarding P2P downloading.

In the U.S., no one can precisely know unless they challenge the DMCA on the issue of fair use. However, the previous unsuccessful deCSS cases predict that although backing up a DVD may be fair use, circumventing CSS is still illegal.

This is precisely the concern expressed by Godwin: that ancillary legislation, ostensibly crafted to address technological concerns, are simply pretexts to erode rights Americans have enjoyed until now under existing copyright regimes.

The CRIA lost because:

1. They screwed up their key affidavit, which was sworn on information and belief but failed to state the source of the belief. You can use hearsay in a proceeding like this, but you have to state your source and why you belief that what you're repeating is true. The Court found that there were other employees of CRIA's antipiracy contractor who would have been in a better position to give evidence, and they should have done so.

2. The affidavit didn't say how they had linked IP addresses to kazaa pseudonyms, and the Court wasn't prepared to infringe the privacy of the IP address holder without evidence on this point.

3. They didn't show that Kazaa itself wouldn't be able to provide the information more easily than the ISPs. 4. It looked like it was going to be a real nightmare for the ISPs to comply with an order, based on their own affidavits, and might not even be possible. Even on the best case, the ISP can't say who was actually using the computer, only who owns the account. These mistakes could be fixed (although the second part of point 4 is a killer for the CRIA). The next points are the important ones:

5. The Court held that the CRIA hadn't shown that the John Does had authorized any copyright infringement or that they had themselves distributed files. Copying music to their own computer was legal (held, without discussion, to be private use under s.80 of the Canadian Copyright Act), so any infringement had to be in the sharing. The Court wrote:

Thus, downloading a song for personal use does not amount to infringement. See Copyright Board of Canada, Private Copying 2003-2004 decision, 12 December 2003 at page 20.

No evidence was presented that the alleged infringers either distributed or authorized the reproduction of sound recordings. They merely placed personal copies into their shared directories which were accessible by other computer user via a P2P service.

As far as authorization is concerned, the case of CCH Canada Ltd v. Law Society of Canada, 2004 SCC 13, established that setting up the facilities that allow copying does not amount to authorizing infringement. I cannot see a real difference between a library that places a photocopy machine in a room full of copyrighted material and a computer user that places a personal copy on a shared directory linked to a P2P service. In either case the preconditions to copying and infringement are set up but the element of authorization is missing.

The Supreme Court of Canada earlier this month held, in the context of photocopiers in libraries that "Courts should presume that a person who authorizes an activity does so only so far as it is in accordance with the law." So, since canadians could download the music legally, the Court would presume that the sharers had authorized downloading of their files only to the extent permitted under Canadian law.

6. The Court held that sharing was NOT distribution without some further positive act like advertising the files were there, and without distribution or authorization of infringement, the CRIA had no prima facie case and no right to an order for the names.

7. Based on point 4-6 above, the public interest in disclosing the information didn't outweigh privacy interests, especially because the records might not even be accurate and could identify the wrong person.

This ain't legal advice and if you rely on it (or anything you see posted in an internet forum), you're a moron and you deserve what you get.

http://www.fct-cf.gc.ca/bulletins/whatsnew/T-292-0 4.pdf

(2004 FC 488) Decision rendered on March 31, 2004, IN THE MATTER OF BMG Canada Inc. et al v. Jane Doe et al

read it here [in pdf]:
http://www.fct-cf.gc.ca/bulletins/whatsnew/T-292-0 4.pdf

Here is the Litigation on Tarrif-22 Well they are trying to levy Bell, AT&T and Sprint (Internet Access Providers). However "IANAL" but this is the grounds of the CRTC in canada and is quite out of the joursdiction of the Copyright board. Also Bell, AT&T, Rogers, Sprint have very good teams of layers, once they recive wind of this the CRTC's involvement will be quite messy and amuseing :)

What? No, in fact the judge ruled that plants which grow on the farmer's land, even if they are blown in or are carried there by pollen, are the outright property of the farmer and the farmer enjoys the same property rights over them that anyone enjoys over their own property. The catch is that one has no right to infringe a patent with one's own property. For example, I might own a semiconductor fabrication plant (I don't, in actual fact) and I might own a bunch of semiconductor materials, but if I were to use them to manufacture microprocessors which, say, infringed an Intel patent, I'd probably hear from their lawyers. And if I were to argue "but I owned all the physical property involved", it probably wouldn't carry much weight. This is why Percy Schmeiser's protest "but I harvested the seed from plants I found growing on my own property" has cut very little weight with the courts. It is a patent infringement case. It is not a "misusing someone else's physical property" case.

In his defense, Schmeiser showed his own farm-based evidence that the fields ranged from nearly zero to 68% Roundup Ready. These tests were confirmed by independent tests performed by research scientists at the University of Manitoba, in Winnipeg, MB.

Yes. Except that there were also independent tests which indicated the plants growing in his fields in 1998 had the gene for glyphosate resistance present at a much higher rate. The results you quote are the anomalous ones among the selection of tests performed.

I quote the first court ruling:

[105] A variety of tests were conducted on samples of canola from the defendants' field or from beside those fields. The evidence of these tests of Mr. Schmeiser's 1997 and 1998 canola crops may be summarized as follows.

[106] The 1997 samples, taken by Mr. Derbyshire from road allowances bordering fields number 2 and 5, were used for two grow-out tests, in 1997 at the University of Saskatchewan for Mr. Mitchell, and in 2000 at the university for Dr. Downey. In both tests, with the exception of one of six samples, of the seeds that germinated 100% of the plants survived spraying with Roundup herbicide, i.e., they were Roundup tolerant.
[107] The HFM samples of untreated and treated seed withheld from Mr. Schmeiser were provided
1) to Mr. Mitchell for Monsanto in 1998 and by him
a) were subject to a "quick test" which indicated to him that both samples tested were positive for the presence of the patented gene;
b) were subject to a grow-out test by Prairie Plant Systems in January, 1999 with germinating seed sprayed with Roundup and 30 samples of leaf tissue from surviving plants, tested by Monsanto US, proved positive for the presence of the patented gene in the DNA of the leaf tissue; and
c) a subsample was sent to counsel for Schmeiser in April 1999 and by him to Mr. Freisen at Winnipeg for a grow-out test, in which 95 to 98% of germinating plants survived spraying with Roundup;
2) to Mr. Schmeiser in July 1999 which he
a) used in part for a grow-out test in his yard, results of which showed 63 to 65% germinating plants survived spraying with Roundup; and
b) forwarded to University of Manitoba for testing by Mr. Freisen who recorded results generally similar to those of Mr. Schmeiser;
3) to Mr. Freisen directly from Saskatchewan Wheat Pool in April 2000 for grow-out test from which a very high portion, 95-98%, of germinating seed survived spraying with Roundup.
[108] The July 1998 leaf samples, by Mr. Shwydiuk, from the road allowance borders of Schmeiser's nine fi

[38] As we have noted Mr. Schmeiser testified that in 1997 he
planted his canola crop with seed saved from 1996 which he believed came
mainly from field number 1. Roundup-resistant canola was first noticed in
his crop in 1997, when Mr. Schmeiser and his hired hand, Carlysle Moritz,
hand-sprayed Roundup around the power poles and in ditches along the road
bordering fields 1, 2, 3 and 4. These fields are adjacent to one another
and are located along the east side of the main paved grid road that leads
south to Bruno from these fields. This spraying was part of the regular
farming practices of the defendants, to kill weeds and volunteer plants
around power poles and in ditches. Several days after the spraying, Mr.
Schmeiser noticed that a large portion of the plants earlier sprayed by
hand had survived the spraying with the Roundup herbicide.

[39] In an attempt to determine why the plants had survived the
herbicide spraying, Mr. Schmeiser conducted a test in field 2. Using his
sprayer, he sprayed, with Roundup herbicide, a section of that field in a
strip along the road. He made two passes with his sprayer set to spray 40
feet, the first weaving between and around the power poles, and the second
beyond but adjacent to the first pass in the field, and parallel to the
power poles. This was said by him to be some three to four acres in all,
or "a good three acres". After some days, approximately 60% of the plants
earlier sprayed had persisted and continued to grow. Mr. Schmeiser
testified that these plants grew in clumps which were thickest near the
road and began to thin as one moved farther into the field.

[40] Despite this result Mr. Schmeiser continued to work field
2, and, at harvest, Carlysle Moritz, on instruction from Mr. Schmeiser,
swathed and combined field 2. He included swaths from the surviving canola
seed along the roadside in the first load of seed in the combine which he
emptied into an old Ford truck located in the field. That truck was
covered with a tarp and later it was towed to one of Mr. Schmeiser's
outbuildings at Bruno. In the spring of 1998 the seed from the old Ford
truck was taken by Mr. Schmeiser in another truck to the Humboldt Flour
Mill ("HFM") for treatment. After that, Mr. Schmeiser's testimony is that
the treated seed was mixed with some bin-run seed and fertilizer and then
used for planting his 1998 canola crop.

It's not a case about accidental/natural seed contamination. That question has already been settled conclusively: natural/accidental seed contamination does not constitute patent infringement. End of that story. (this is covered in the http://decisions.fct-cf.gc.ca/fct/2002/2002fca309. htmlFederal Court of Appeal's ruling.) However, Percy Schmeiser is not arguing that the plants in question growing in his fields (in 1998) were an instance of accidental contamination. He is arguing that the came into his hands via accidental contamination (in 1997), but he does not dispute that once he discovered he had it growing on his property and had identified it as glyphosate resistant, seeds were harvested from it and used to plant his next year's crop. Note that the claim against him is "patent infringement" i.e. use of a patented invention without the patent-holder's permission. It is not "illicitly getting his hands on Monsanto's seed". There is no law against getting your hands on genetically modified canola seed. There is, however, a law against planting it and cultivating it unless you hold a patent to do so. Which is why he's lost the first two rounds of the case.

The following paragraphs from the first ruling may be illuminating as to what Percy Schmeiser's position actually is:

[38] As we have noted Mr. Schmeiser testified that in 1997 he planted his canola crop with seed saved from 1996 which he believed came mainly from field number 1. Roundup-resistant canola was first noticed in his crop in 1997, when Mr. Schmeiser and his hired hand, Carlysle Moritz, hand-sprayed Roundup around the power poles and in ditches along the road bordering fields 1, 2, 3 and 4. These fields are adjacent to one another and are located along the east side of the main paved grid road that leads south to Bruno from these fields. This spraying was part of the regular farming practices of the defendants, to kill weeds and volunteer plants around power poles and in ditches. Several days after the spraying, Mr. Schmeiser noticed that a large portion of the plants earlier sprayed by hand had survived the spraying with the Roundup herbicide.

[39] In an attempt to determine why the plants had survived the herbicide spraying, Mr. Schmeiser conducted a test in field 2. Using his sprayer, he sprayed, with Roundup herbicide, a section of that field in a strip along the road. He made two passes with his sprayer set to spray 40 feet, the first weaving between and around the power poles, and the second beyond but adjacent to the first pass in the field, and parallel to the power poles. This was said by him to be some three to four acres in all, or "a good three acres". After some days, approximately 60% of the plants earlier sprayed had persisted and continued to grow. Mr. Schmeiser testified that these plants grew in clumps which were thickest near the road and began to thin as one moved farther into the field.

[40] Despite this rsult Mr. Schmeiser continued to work field 2, and, at harvest, Carlysle Moritz, on instruction from Mr. Schmeiser, swathed and combined field 2. He included swaths from the surviving canola seed along the roadside in the first load of seed in the combine which he emptied into an old Ford truck located in the field. That truck was covered with a tarp and later it was towed to one of Mr. Schmeiser's outbuildings at Bruno. In the spring of 1998 the seed from the old Ford truck was taken by Mr. Schmeiser in another truck to the Humboldt Flour Mill ("HFM") for treatment. After that, Mr. Schmeiser's testimony is that the treated seed was mixed with some bin-run seed and fertilizer and then used for planting his 1998 canola crop.

>Instead, it seems if some disgruntled seed
>saleman is pissed that you didn't want to buy
>their patented seed, he can just plant some on
>your property, and sue you for the cost after >the fact. Now that's insane.

It would be if the case you describe were judged to constitute patent infringement, but the Federal Court of Appeal has already ruled in this case that involuntary contamination does not constitute patent infringement. There is only patent infringement if the seeds were put there by the person accused of the infringement, and if that person had knowledge that the seeds were glyphosate resistant. See paragraphs 55-58 of the Federal Court of Appeal's
ruling:

[55] Counsel for Mr. Schmeiser submitted that a finding for Monsanto in this case would be highly prejudicial to any farmer who does not wish to grow Roundup Ready Canola. That is because glyphosate resistant canola can appear in a field without having been planted there, but a farmer cannot detect it without spraying Roundup, thereby killing any conventional canola in the field.

[56] There is considerable force to the argument that it would be unfair to grant Monsanto a remedy for infringement where volunteer Roundup Ready Canola grows in a farmer's field but its resistance to glyphosate remains unknown, or if that characteristic becomes apparent but the seeds of the volunteer plants are not retained for cultivation. It is often said that intention is not material to a finding of infringement: H. Fox, The Canadian Law and Practice relating to Letters Patent for Inventions, 4th ed. (1969), at page 381; Computalog Ltd. v. Comtech Logging Ltd. (1992), 44 C.P.R. (3d) 77 (F.C.A.). That principle was developed in the context of patents for conventional inventions: see, for example, Stead v. Anderson (1847), 2 W.P.C. 156, Wright v. Hitchcock (1870), L.R. 5 Ex. 37, Young v. Rosenthal (1884), 1 R.P.C. 29 (Q.B.), Skelding v. Daly et al. (1941), 1 C.P.R. 266 (B.C.C.A.). Clearly, in most cases of patent infringement, to allow a defence of ignorance or lack of intention to infringe would destroy the efficacy of the patent, because the actual content of any particular patent is known to very few people.

[57] However, it seems to me arguable that the patented Monsanto gene falls into a novel category. It is a patented invention found within a living plant that may, without human intervention, produce progeny containing the same invention. It is undisputed that a plant containing the Monsanto gene may come fortuitously onto the property of a person who has no reason to be aware of the presence of the characteristic created by the patented gene. It is also reasonable to suppose that the person could become aware that the plant has that characteristic but may tolerate the continued presence of the plant without doing anything to cause or promote the propagation of the plant or its progeny (by saving and planting the seeds, for example). In my view, it is an open question whether Monsanto could, in such circumstances, obtain a remedy for infringement on the basis that the intention of the alleged infringer is irrelevant. However, that question does not need to be resolved in this case.

[58] In this case, Mr. Schmeiser cultivated glyphosate resistant canola plants. His 1998 canola crop was mostly glyphosate resistant, and it came from seed that Mr. Schmeiser had saved from his own fields and the adjacent road allowances in 1997. Although the Trial Judge did not find that Mr. Schmeiser played any part initially in causing those glyphosate resistant canola plants to grow in 1997, the Trial Judge found as a fact, on the basis of ample evidence, that Mr. Schmeiser knew or should have known that those plants were glyphosate resistant when he saved their seeds in 1997 and planted those seeds the following year. It was the cultivation, harvest and sale of the 1998 crop in those circumstances that made Mr. Schmeiser vulnerable to Monsanto's infringement claim.

All we've heard is that the GE plants were growing in a ditch & they contaminated his crops. Here are the court decisions. My basic understanding is that they're arguing about different things... so yes Monsanto should keep it's IP rights (whether this is a good thing or not is a different discussion) and yes, farmers shouldn't have to suffer from contaminated crops.

Text of orignal court decision
Exposing the Organic Myth

Again, simply not true. There is a strip of publicly owned land along the side of the roads so that the government can do things like put in utility poles etc. Mr. Shmeiser planted his crops right up to the edge of the roads, onto the publicly owned land. This is customary among farmers and is accepted and legal. Monsanto took their initial samples from this public property without going onto his private property. On the basis of the results from these samples they went to court and got a court order allowing them to take samples from within his fields. It's all in the Federal Court of Canada judgement, if you're actually interested in getting actual, true, facts in the case. Of course, I think most people don't care what actually happened because they like to demonize Monsanto, so if the facts aren't in agreement with this, they seem to like to make up ones that are.

Your sources -- anti-GM activists and Percy Shmeiser -- might possibly not be the best for accurate facts. Take a look at the actual judgement in the case, which recaps the evidence. Mr. Shmeiser intentionally and knowingly switched his farming business over to GM canola. He obtained a quantity of seed that he knew to have an extremely high level of glyphosate resistance and planted his fields with it. This is a matter of public record and was never contested by Mr. Shmeiser, at least not in court under penalty of perjury. And that's his own testimony.

His argument was that he had found GM canola growing in his fields in earlier years, and had selected out the glyphosate resistant plants by treating them with glyphosate to kill the non-glyphosate resistant ones. Thus he hadn't violated any license agreement with Monsanto.
Unfortunately, he was sued for patent infringement, and in patent infringement it doesn't matter where you got the materials from.
All that matters is whether you're using an invention that someone has patented.

It's simply not true that he was sued for minor or accidental contamination of his crops. He was growing 9 fields - 1030 acres - of entirely (actually 95-98% gene-bearing i.e. commercial levels) genetically modified canola, and he put it there knowing what it was, by his own testimony in court.

(Strictly speaking, he never said he knew the gene
was in the plants. He knew that they survived spraying with Round-Up. But he did know that they were Round-Up resistant.)

One might also note that the judge made a finding of fact in the case that the original source of GM canola in Mr. Shmeiser's fields was not any of the possible unintentional sources he described, since none of them could reasonably have gotten that much GM canola into his fields to allow him to plant 1030 acres of it one year later. It's not like there were seed-carrying trucks overturning on the road near his farm in gale-force winds every day, for instance. Reading between the lines, the judge was saying Mr. Shmeiser was lying about where he got the seed from.

IANAL, but here is more information about the Monsanto case:
Federal Court Canada Decision

From this document it would seem that if those seeds accidentally blew into your field and grew without your knowledge/intent, it's not an issue. However, if you noticed that they were resistant to RoundUp and collected the seeds, planting them the following year and selling the canola ... well, then you might have a problem.

Y.S.

P.S. (And OT!)
This drives me NUTS. The media presents something, later the facts show a different side of the story, but if it's not sexy, it doesn't get presented. (It seems to be really bad in the area of scientific/health research, though I imagine that it's also a problem in other areas ...)

Even if someone is trying to say, do a web search on the topic to gather more information, the facts are often buried in tough-to-read technical, scientific or legal documents that are much harder for the regular reader to wade through than some of the less-factual websites out there. It's no wonder that many people get waylaid by misinformation some of the time.

So how do we make the facts more accessible? Or the media more accountable?