Open-source biotechnology

The core point of the book is that biological hacking is quickly headed toward becoming yet another engineering discipline. The "device physics" of standard parts are being worked out, the development tools are becoming more sophisticated, and the level of skill required to do interesting things is dropping. The annual International Genetically Engineered Machine competition which is intended, among other things, to increase the number of "biological parts" available, is getting high-scoring entries from high school students. The amount of hacking on biological substrates is increasing quickly, and will continue to do so.

The amount of creativity we will be seeing in this area inspires both hope and outright terror. Biological hacking has the potential to transform health care, address energy problems, mitigate climate change, and more. Or it could wreak environmental devastation and facilitate horrifying attacks by either individuals or governments. Carlson strongly advocates openness as the best policy for dealing with this technology. Only through openness, he says, will we develop the kind of economy we need to make the best use of this new technology while simultaneously understanding what others are up to and defending ourselves against mistakes and abuses. Trying to keep technology under wraps never works. Your editor might compare attempts to restrict biotechnology with governmental efforts to restrict encryption technology a generation ago.

Openness does not just mean freedom from regulatory interference, though; Carlson takes a long look at the possibility of creating a successful commercial ecosystem based on the open source model. At an abstract level, the idea looks compelling: it is not hard to see programming with nucleotides as being fundamentally the same task as programming with bits. A nucleotide is able to encode two bits rather than one, and the underlying processor is smaller, wetter, and smellier, but it's a program nonetheless. Given that tools for working with DNA are following a path similar to that of computers - they are rapidly becoming smaller, cheaper, and more powerful - there is a lot to be said for the creation of freely-licensed libraries based on genetic programs developed in garages and basements.

There are some efforts afoot to do exactly that. The BioBricks Foundation is working toward the creation of a set of freely-available biological components. Another initiative is Biological Open Source, appropriately known as BiOS. These efforts are promising, but there is a large problem looming - one which will be familiar to LWN readers.

That problem, of course, is patents. Genetic sequences are currently patentable in the US and elsewhere, so companies operating in this area are accumulating as many of them as possible. Things are quickly getting to the point where it is difficult to work commercially in biotechnology without running into patents held by others - patents which, often, cover fundamental natural phenomena. Carlson brings up some interesting history; it seems that the automotive and aviation industries both ran into this problem; in both cases, it got to where companies could not do anything because they were forever caught up in patent litigation. In both cases, in the US, the government intervened, forcing the creation of patent pools so that companies would stop suing each other and get back to doing interesting things with the technology.

Patent pools (like patents in general) favor large, established corporations over smaller companies. But it's the small companies which are the source of most innovation in any field. Carlson worries that the US is headed toward a situation where those companies cannot afford to exist and innovation will be strangled. An open-source-like approach to biotechnology might just be a way out of that situation.

But doing open source in this field, despite its similarities with software, is going to be hard. Software gets copyright protection worldwide; that makes it easy to use copyright licensing to create a legal regime where people (and companies) feel that it is in their interest to contribute. Genetic sequences have no such protection, so patents are the only way to go for anybody feeling the need to gain a degree of control over how a discovery is used. Copyleft-style patent licensing is possible, but it is more awkward, and, in any case, the high cost of obtaining patents creates a barrier to entry that does not exist for licensing based on copyrights. Lone biohackers working in their garages are not going to be contributing components to a community based on patents.

As a result of the different legal environment, open-source-like efforts in biotechnology must form their understandings under different terms than the software community uses. BioBricks must be placed in the public domain; the draft BioBrick Public Agreement - a contributor agreement, not a license - requires contributors to give "An irrevocable promise not to assert any property rights held by the Contributor over Users of the contributed Materials." BiOS, instead, is organized more like a patent pool with a fee to enter. Neither of these approaches is seen (by Carlson) as being ideal, but he also admits to being short of better ideas.

What may be required, in the end, is a new and different legal regime for biological discoveries. As Carlson notes, neither patents nor copyrights are mentioned by name in the US Constitution; they are legislative creations. Someday, maybe, a legislature rather more enlightened than those governing us now will find a way to foster open biotechnology development that works at all levels. It will be interesting to see whether the recent US District Court ruling throwing out genetic patents inspires any useful thinking in that direction.

One need not be a speculative fiction author to imagine a future world where the freedom to use, modify, and distribute biological code is (at least) as important as those freedoms applied to software running on silicon. We do not seem to be building a world which includes those freedoms, though; we do not even really have a good sense for what that world would look like. The biotechnology industry, it seems, is in need of its own personalities to fill the roles Richard Stallman, Linus Torvalds, and the many others who have helped to make free software work.