Proprietary Grapes Come With Draconian End User License Agreement

“The recipient of the produce contained in this package agrees not to propagate or reproduce any portion of this produce, including ‘but not limited to’ seeds, stems, tissue, and fruit."
October 14, 2020, 1:00pm
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They did EULA to a grape.

A company put an end user license agreement (EULA) on a bag of grapes: “The recipient of the produce contained in this package agrees not to propagate or reproduce any portion of this produce, including ‘but not limited to’ seeds, stems, tissue, and fruit,” read the EULA on a bag of Carnival brand grapes posted on Twitter by user Tube Time.

When you purchase a bag of delicious and sugary Carnival brand grapes, you enter into an agreement whereby you will consume the grapes and do nothing else with them. This kind of warning against reproduction is something we’re used to with digital products like video games, but is jarring to see spread to the world of consumer produce.

“It’s always shocking and more than a little absurd to find these licenses on everyday consumer products, especially at the grocery store,” Aaron Perzanowski, a law professor at Case Western Reserve University and the co-author of The End of Ownership, told Motherboard in an email.

In the broader world of agriculture, however, there's actually quite a lot of precedent for this. And patented seeds with specific restrictions is a constant sore point for farmers. Agriculture giant Monsanto has patented a whole host of proprietary seeds that are weed- and insect-resistant, and threatens to sue farmers who harvest and replant them from year-to-year. In fact, the Supreme Court has already ruled on this.

“There actually is a solid legal basis for this sort of license. The Supreme Court decided a case called Bowman v. Monsanto a few years back that held a patent owner had the right to restrict the use of soybeans by prohibiting the reharvesting and replanting of seeds in subsequent seasons,” Perzanowski said. “So if the grape variety here is subject to a patent, buying the grapes at the store doesn’t necessarily entitle you to grow new ones.”

The Cotton Candy, a sugary version of the common grape, is indeed patented by horticulturalist David Cain. Perzanowski said he disagrees with the Supreme Court’s ruling. “For a product like a seed, I’d argue that replication is inherent in the product itself,” he said. “So making new copies is a normal and expected use that purchasers ought to be able to engage in and that no license can take away.”

Being that seeds are a natural "product" that are designed to reproduce, there are all sorts of other interesting wrinkles here, many of which have not been solved, legally speaking. For example, plants grown from Monsanto-patented seeds can be naturally replanted by insects, birds, and humans by accident (in the way that plants have replicated naturally for millions of years.) They can also be cross-pollinated with unpatented (or open-source pollen/plants, if you will), creating a new strain of plant. Are those plants subject to patent? Is Monsanto going to sue a bird for taking a seed and "planting" it somewhere else?

The grape situation is a little bit different. With Monsanto's seeds, farmers are purchasing them directly from the manufacturer (or a licensed seller). With Cotton Candy grapes, an end-user (uhh, grape eater) did not plant or grow the seeds and is merely purchasing the fruit at the store. They are not purchasing the grapes (and thus the seeds) directly from the manufacturer or the farmer who grew them, they are buying it from a grocery store. The seeds have thus been re-sold several times.

According to the patent, the grapes are 18% sugar. “As for the fruit itself? Not that great, they're just too sugary for my tastes,” Tube Time said on Twitter. Although not allowed to propagate or reproduce the fruit, Tube Time was able to make them more palatable by freezing them and turning them into Grapesicles.