[Taxacom] The Hoser Problem and Cash for Names: Can taxonomic and nomenclatural acts be considered IP under law?

[Richard Wells]

Distinguished Colleagues and Others:

Look over the listserv arguments and published record of how the ‘establishment’ has handled the problem of Raymond Hoser's attempt at saturate the world with new names in herpetology and you could be forgiven for thinking that it could have been done more than a bit smarter. From someone looking on from the sidelines I must say that it seems that much of the reaction to Hoser's offerings has been underwhelming at best, but here is not the time or place to dredge up who said what, when, where and why. It need only be said that new lows are plumbed with every swipe that is made now – and of course I include Hoser's routinely vitriolic responses against the infamous "Wuster Gang" – which now probably has more mentions on the Internet than the Sicilian Mafia thanks to you know who. And given the almost cavalier disregard Hoser seems to have for the opinions of others, he will, in all likelihood, continue spraying his toxic taxonomic pox over global herpetology well into the future and in the process precipitate even louder protests from the offended ones.

Without doubt, Hoser is being actively inflamed simply by the way his critics are responding to his actions and this must only be viewed as a retrograde step in trying to get matters on a more even keel. Instead, the obvious mishandling of the issue runs the risk of it degenerating into very serious long-term damage for the entire system of nomenclature – if it hasn’t already reached that point.

Some researchers now may well be asking when will this Hoser Apocalypse ever end?  But many are also probably wondering how the hell has the issue gained such traction in the wrong direction?  Well, if I may be blunt I think that he has become his enemies worst nightmare and it is largely through their failures that he has become so.

To some, Hoser just seems to be a pain in the bum that will go quietly away if he is loudly told to bugger off. Well I can tell you straight out that this assessment is a big mistake and a mistake that anyone who really knows him here in Australia would scream out like an ambulance siren if asked. It clearly appears that some of those taking on Hoser in this group don’t know who or what the hell they are dealing with. To see some of the comments from persons who are actually Commissioners with the ICZN or more concerning, those from highly qualified specialists in the very area of dispute and it really make you wonder about where this is all going.

>From my observations, he acts more in the manner of a cunning psychopath than a thoughtful empath - and anyone has their hands full if they want to try to bulldoze him with their point of view. I consider that he is NOT your average man of reason - but he IS however very smart - and not just in a smart-arse sort of way. He has a deep and complex memory so I can assure everyone that they should have absolutely no doubt that he is likely setting up for legal action certain targets over their statements and actions made regarding his ‘contributions’. In my view you are all being sucked into something much more serious than a mere argument over classifying animals. Make no mistake about it, he can be as cunning as a house rat, so only a fool would under-estimate him. He is more like a street-smart bully boy that thrusts his narcissistic needs onto anyone within range and he can be viciously self-protective when he doesn't get his way. These traits can bring out the worst in even the best taxonomic scholar, so not surprisingly, the responses to Hoser can take on a tit-for-tat maelstrom that in many ways make both sides look disturbingly similar to each other. Any academic herpetologist who foolishly proffer solutions to Hoser issues that in effect makes a critic no different ethically, actually undermines their own argument before getting to first base.

Take Scott Thomson a noted expert in herpetology – albeit only in regards to a small group of freshwater turtles – but nevertheless a good nomenclaturist by any reasonable measure. He just seems to have become fixated with such a bias towards his own agenda that he is starting  to go on like a bit of a dill over Hoser. As a distraction, wherever possible he also still likes to get in an essential swipe at that Wells and Wellington pair at any chance to attack Hoser. Thomson should really stick to his Don Quixote-like path to his dream of becoming a Commissioner of the ICZN sometime before the year 2100. Scott mate here’s a quick heads up - just give it a rest – poor old Wells and Wellington have moved on – it’s over 30 years later now and they have got new wives, become property speculators and are searching the skies for incoming asteroids instead of swimming in formalin, being bitten by snakes and arguing with morons. Also consider the ramblings of that leading light Commissioner of the ICZN Dr Doug Yanega whenever he tries to bitch-slap Hoser – just pathetic, comments so ordinary as to be almost laughable. He treats Hoser and anyone else who intimately knows the Code as though they are complete idiots in how he applies the Code against the issue. His premature weaponizing of the non-mandatory Recommendations in the Code by treating them with the effective sanctity of the mandatory Articles is not the magic bullet against Hoser that he would hope. Such misuse of the Code misfires badly because it only lowers the debate to straw-grasping at the lower end in the range of offenses against better nomenclatural judgement…Doug, have you ever thought of becoming a waiter mate? Wolfgang Wuster is another  protagonist that comes across as quite a reasonable and intelligent sort of guy with a formidable understanding of matters pertaining to the Code to boot, but his proposed use of the Code’s provisions against Hoser have more twists and turns than a bag of Brown Snakes and they have a slickness about them that makes you feel like you are shaking hands with a slippery eel. Stop the game-playing if you can’t play by the Rules people. It's not been a total disaster though. Thorpe and Dubois and a scant few others have managed to maintain a measured and thoughtful approach to Hoser and in so doing appear to me to have a real grasp on the issue – and on the guy too by the way - at least as far as this listserv debate goes. It is little surprise though that Hoser kicks back against the current because his personality does not seem to respond well to rejection or criticism when it is wrapped in a patina of abuse. In my opinion most respondents to Hoser haven’t got a clue about the kind of person he is.

Reacting to criticism is always dicey in academic pursuits everyone knows that – but when it turns into snarling almost identical to a rabid dog you really have to ask yourself do you need to go there…In the early days of the reactions to what he was doing I tried to warn him not to over-react and as the years slipped by and the yelling over his actions became louder, I repeatedly told Hoser to just suck it up and stop being a dickhead about it by stirring everyone up with even more abuse. I told him that academic criticism comes in many forms (and reasonable, rational, logical criticisms are among the rarest) and that it just goes with the territory of sticking your head up - but to no avail. I also not-so-politely pointed out that classifying organisms is like throwing your weight around in a mob of thugs that likes a fight…if you want to have a go, you just better start swinging with all the proof that you have otherwise you'll end up on the mat. Hoser doesn't do that, he just doesn’t get it that he is part of a community where ideas live and die by the cut and thrust of argument, reason and intellectual analysis. Hoser always had to just put up or shut up and in my view, that he doesn’t do that is not because he won't do it, it's just that he probably can't do it. You could drive a proverbial truck through most of his taxonomic arrangements in the areas that I am most familiar with, and I dread to think of what the rest is like if he has buggered up his own countries’ herpetofauna…in my humble view much of what he has written has the legs of a slug and it’s going to go nowhere fast. This is simply because he has written on many (I’d say most) groups that he has scant experience and knowledge of and although he has managed to put forward a few original hypotheses and many unoriginal interpolations, much of what he has done reeks of bitterness and revenge rather than constructive dialogue of a scientific nature. Yes, he will succeed in having created a pile of names and actions, but compared to the Invertebrate taxonomic arena Hoser is a slacker by his out-put to date. His contributions are more annoying than impressive and if that’s the best he can do, well the Mollusca, Coleoptera and Diptera workers around the world must be just politely giggling at his efforts while they try to get their heads around classifications so complex that would do Hoser’s head in like a beer can under a bulldozer. So Hoser and the Hoser-bashers alike really need to up their game. Laboured claims of unethical conduct from Hoser as well as from the peanut gallery - no matter how well-founded - take a poor second place to any objective analysis of a piece of  'work' and are even further removed by highly questionable responses by both sides that underpin the over-writing of contentious nomina with 'approved' synonyma.

Unfortunately, and in light of the above, I see the ICZN being progressively drawn into a debacle of potentially epic proportions. Hoser and his opponents are rapidly turning a relatively simple nomenclatural issue into a scene reminiscent of a Fawlty Towers farce with some Commissioners of the ICZN actively competing for leading roles. Doug Yanega is competing very strongly for the starring role – but he seems to be presently flip-lopping between Basil Fawlty and Manuel the Waiter – but my hope is that he’ll go for the Waiter…

Anyway, I think that this listserv should seriously attempt to extricate itself from the mire that it is rapidly finding itself slipping into by being very careful indeed how it responds in future to Hoser. To be frank, to date you guys have really made a dog’s breakfast out of Hoser’s recipe for chaos by giving him a standing that he does not at all deserve. I find it curious how otherwise intelligent people have quite underestimated Hoser in their greedy haste to put a stop to his actions through idiotic plans and actions to actually rename taxa and redo or uncritically ignore his nomenclatural acts. Piling the shit higher and deeper does not fix the sewer - it only serves to spread the stink further.

In the longer view, the Hoser issue may all be seen in hindsight as just a messy part of the froth and bubble of Science, so not be too great a cause for worry or concern. I would caution however, that the current participants are very much part of the here-and-now, so I can foresee that this situation will likely get much worse before it settles down - unless it goes legal of course - then all bets are off in quick time. Hence my interest in the latest Rant from Ray that is currently circulating among those with the stomach to still read or care what he thinks. Frustrated by the growing chorus of disapproval and obvious intent to suppress his work, Hoser is now seriously considering taking legal action against all and sundry who threaten his Intellectual Property of all things. And this development bears some serious consideration too in my humble opinion.

Hoser is now starting to flag his intentions through emails to legally defend what he believes to be his Intellectual Property in regards to his ‘contributions’ in systematic herpetology - a notion that borders on the oxymoronic when it comes to some of his taxonomic arrangement some might say. So partly in response to the way some have responded to his efforts, and partly as a consequence of his own particular personality traits, Hoser has, in effect, indicated that he actually considers taxonomic and nomenclatural acts as IP. This could be viewed as a potentially, or even highly, contentious issue for global classification yet it has received virtually no attention (as yet). Hoser now considers himself not only a stake-holder but also a rights-holder in the classification of life and this has enormous implications for the potential financial value of IP used in biological research at the very foundation level of the organism’s name ! On the surface this IP ploy might appear to be just another piece of preposterous Hoser hyperbole out of the same mother ship that brought us that tsunami of unmemorable jaw-breaking binomials, trinomials and all manner of stunning patronomials that have flowed from his poison pen. But this is not an original Hoser idea by any means as it has been quietly rumbling around for years in one form or another following in the dust of various forays into the late 20th century commercialization of life through concepts like Plant Variety Rights legislation, advances in DNA technology and the innumerable biological product discoveries derived from bio-prospecting and the like. He seems to have seized upon this intent as a bulwark against moves by other herpetologists as well as systematists on the ICZN and elsewhere to make unavailable the majority of his published new names and nomenclatural acts. This is not all that surprising as it was something that both Ross Wellington and I also seriously considered (but dismissed) back in 1987 during a similar conflict from some of the same persons now going after Hoser. It seems the more the things change, the more they stay the same in some cases. Of course the big idea of the here and now is simply (in the most diabolically complex way) it could also mean that an eventual Ruling by the ICZN to suppress his Journal and/or his names and/or nomenclatural actions - should that be seriously considered - could be eventually challenged in the courts and potentially found to be unlawful and worse, expose the responsible parties to damages actions by Hoser ipso facto! Boy will that throw the proverbial Mouse to the Death Adder. It could also have implications for other Hoser taxa and actions that have been over-written by others and so further expose parties to other damages actions by him.

But forget the Hoser focus (if you can) and just consider the potential broader inflationary effects wrought by taxonomic IP cost increases for everything from biologically-based pharmaceuticals derived from even animal testing - headache pills and anti-depressants immediately come to mind. The need to pay royalties to every stake-holder taxonomist (AND even nomenclaturist if full credit is to be applied) could be loaded onto any species used in any research. Imagine the nice little money-spinners that Rattus rattus and Mus musculus will become – pity Linnaeus couldn’t be around to scoop that pile up…unless of course someone does the old switcheroo and ‘redefines’ (I mean ‘redescribes’) long-established concepts. Hold on, did I just hear Hoser calling or was that the moaning of a chill wind?

Look, all banter aside, if names and actions in classification can be treated as Intellectual Property, it should be taken very seriously indeed. It could potentially impact upon vast areas of biology, not least of course the ICZN if it reaches its potential for application - the very capacity of the ICZN to apply the Code in matters requiring the use of its plenary powers and doubtless even its more general uses as well would come to pass - make no mistake about that.

So, will this apparent absurdity actually get legs and start tumbling through the Courts? If Hoser feels threatened, it is a distinct possibility in my view for reasons that I have already outlined. Well, he’s cashed up after his latest successful round of IP and other criminal litigation activities in Australia, he's had a haircut, bought some flash new suits and he's on the prowl for victims - and to make matters worse, he has never been one to be shy about throwing money in the gutter. Unless averted by cooler heads, this scenario has got all the ingredients for a veritable perfect storm of almost biblical proportions - and once started it might only be averted by something like the Sun blowing up if Hoser has his way.

Of course I don't want to cause a rush to the life rafts, so I must quickly state that I am not able to answer this IP question with any certainty or authority as I am not in the position to have an informed legal opinion in such matters. I’m not a lawyer or even a know-it-all academic in some god-forsaken backwater university that values opinions delivered on some crowded pin-head platform that no one really cares about anyway.

But I am at the very least, rather cautious about the possibility that such a situation might germinate from this Hoser issue, because a disaster like that may be all the more likely the more unpredictable its root cause. Thinking about this crazy possibility though might allow some kind of understanding of an issue whose time might be approaching irrespective of the current causative agent. It really gets the juices flowing when you think about the potential implications of its effects…like imagining a near-future when the naming and partitioning of organisms may soon require peer review by an IP lawyer as well as the usual club members rubber-stamping their mate’s papers for publication. The potential financial implications could also seriously under-write biological research for millennia to come once all the snouts find the money trough. Just think of the cheques in the mail from Big Pharma that may start flowing to compensate the original author/s of descriptions/acts that have been used to define the very basis of products derived from that organism. If names and nomenclatural acts for that matter are actually protected by International Intellectual Property Law then is it really all that unreasonable that taxonomists (and presumably their institutional employers) are potentially sitting on the mother-lode....Good bye the old days of sitting on research for decades without describing so much as a new intention...finally the academic publishers will again be pumping out papers like Zootaxa on steroids! Damn it – I always knew that I should have said something about the nomenclatural position of Homo sapiens back in the 80s but primates have always been over-rated if not over-valued among herpetologists.

But let’s get back to basics. It will be interesting to see if Hoser has the balls to ‘bung this caper on’ as we say in Oz. Will he dare to commercialize classification, in effect turning a pig’s arse into a silk purse to save his own bacon? Does this madness have any legs at all? But more importantly, will Hoser ever shut up taxonomically long enough for us to get ahead of his game? These are questions that are begging for answers, so come on ICZN listserv gang give it a go (whoops !...sorry about the ‘gang’label – it was just a slip).

So my thoughts on the surface might just be the wild ramblings of a broken taxonomist of course, but personally, I do not believe that the Code is actually exempt from the provisions of Statute Law - although I would readily admit, and openly support the notion that it should be – if only to ensure freedom of scientific discourse remains untrammelled by the filthy lucre of the geneticists and their hi-tech mates.

Despite all of the above, and only in my opinion of course, Hoser is clearly going down that IP yellow brick road judging by his perambulations in our civil and criminal courts here in Australia so I would expect that he will be mass-litigating rather soon. I expect that quite a number of potential victims will be rounded up and herded into courthouses by Hoser’s inquisitors – and the hapless victims will not only reside in the ranks of the ICZN, but also include some very significant members of the scientific community as well as the academic institutions that they represent, multi-national corporations of course and certain big publishers as a result of their reactions to his ‘contributions’.

Yes, I think he has telegraphed enough of his punches to make it pretty clear that the gloves are off and he’s dancing around the ring looking to deliver a knock-out punch. I hope I am wrong, but I don’t think so. Again in my opinion, it would also appear to me that on the surface Hoser may have grounds for some pretty significant actions at that, although if the truth be openly stated he might be playing with a double-edged sword – meaning his own actions against the work of others are possibly not without risk to himself as well. It really is unknown territory that the potential combatants are rolling around in, so it’s watch this space I suppose.

So what I am saying is simply this. If the ICZN isn't very careful indeed how it handles the Hoser issue, I think it may rapidly devolve into the status of something akin to a nomenclatural vomitocracy and, its Opinions will start looking more like a Hoser paper - pouring out like shit from a Goose and no one will want to be anywhere near it...and Hoser will have cooked their Goose well and truly in the process - AND actually used them to do it!

Hoser’s interest in pursuing an outcome in the Courts using Intellectual Property Law may signify that the end game is fast approaching and the “Names for Cash” initiative used to fund taxonomic research in the recent past might end up being a “Cash for Names” windfall if 'the Snakeman' has anything to do with it…

Best Regards

Richard Wells