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

[Doug Yanega]

Like Scott, I generally don't rise to the bait when I'm trolled, but I 
don't much enjoy being insulted, either.

On 10/7/17 8:08 AM, Richard Wells wrote:
> 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?
A few things: there are more than 20 active Commissioners, but very few 
of them make public comments on Code-related issues (outside of BZN 
published opinions), and even fewer make comments regarding "The Hoser 
Issue". That's entirely their choice, just as it is my choice not to 
remain silent. Given that the Commission seems to routinely be 
criticized FOR remaining silent, it seems a little odd that when we 
choose NOT to, we are also criticized for that. Damned if we do, damned 
if we don't. Be that as it may, since I archive my e-mails, I'll point 
out that in the last 3 years prior to the present exchange, I've posted 
about Hoser exactly three times, between Jan 26 and Feb 3 of 2015, and 
that was in direct response TO Ray's postings. That hardly seems to 
qualify me for a "starring role".

I don't equate my opinions with the Commission's opinions (since we are 
by no means unanimous on anything), nor do I fail to discriminate 
between what I say and what the Code says. Much of what I *have* said on 
this topic can be summed up as three basic things, which are neither 
bitch-slapping, nor treating people as idiots, though maybe they are 
ordinary:

(1) The only mechanism presently built into the Code which can *resolve* 
a controversy like this via consensus is Article 79 (approval of a LAN), 
but as I have pointed out, this mechanism is designed such that it is 
largely ineffective if the names that a community of taxonomic 
specialists wants to suppress are still being actively published. But, 
right now, that's the only thing the Code gives taxonomists as a tool to 
exert quality control over their own nomenclature, and it's a blunt tool 
at best for this particular situation. That Article could be redesigned 
and streamlined so it COULD be effective in real time, but that would be 
a matter for the next iteration of the Code. At present, the way the 
community *is* dealing with it is via boycott, which is something 
entirely outside of the Code, and over which the Commission has no control.

(2) The "Call for Comments" that Commissioner Mark Harvey and I 
initiated was an attempt to see if taxonomists supported the idea of 
taking the Recommendations in the Code which dealt with ethics, and 
"promoting" them to full Articles, rather than being left as 
Recommendations. We were asking for input from the community on whether 
the Commission should allow petitions asking for names to be rejected if 
they are not ethically proposed or published, and you seem comfortable 
categorizing this as "premature weaponizing of the non-mandatory 
Recommendations", which I think is more than a bit exaggerated. Ethics 
only seems like a weapon from the perspective of the potential target, 
perhaps. Heck, none of the Ten Commandments say anything at all about 
non-lethal violence, but I doubt you'll get many theologians who will 
endorse it just because it's excluded from the list. If your sole 
defense for committing atrocities is that your particular atrocity is 
not against the law, you're still a terrible person. If you are 
criticized as such, then you do not get to claim that you are the 
victim. And maybe, just maybe, the sensible approach is to close any 
such "loophole."

(3) I and other Commissioners are capable of speaking both as 
Commissioners, and as scientists, and some opinions fall under only one 
of those two categories. Since the aforementioned ethical clauses in the 
Code are NOT disqualifying conditions, for example, my stance on the 
matter changes depending on which proverbial hat I'm wearing. As a 
Commissioner, I might have to turn a blind eye, but in my role as a 
scientist, I think I am entitled to some degree of outrage at unethical 
behavior. That being said, my role as a Commissioner DOES entail being 
concerned very explicitly with the stability of nomenclature, and since 
the present situation is indeed greatly destabilizing herpetological 
nomenclature, I am entitled to address the issue accordingly.
> 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…
At the risk of belaboring the obvious and saying something ordinary 
again, the Commission acts at the behest of the community we represent, 
and the community adheres to the ICZN's rules - or not - as they see 
fit, accountable only to the opinions of other taxonomists. We are 
nominated and elected, and we all strive to do our best to serve the 
community's interests, even if we don't agree how best to accomplish 
this. If we are being "drawn into a debacle," then it is because so many 
in the community have already been drawn in, and they look to us for 
something - anything - to suggest that we are paying attention. We are. 
At least from some perspectives, the present rules don't offer any easy 
solutions (i.e., solutions that have a clear consensus of support), so 
if we accept that premise (which is itself open to debate) we face only 
two functional alternatives: either a solution will have to be found 
that exists outside of those rules, or the rules themselves will need to 
be changed. There is a third path, but it's a lot less certain that it 
would come about via consensus.

Sincerely,

-- 
Doug Yanega      Dept. of Entomology       Entomology Research Museum
Univ. of California, Riverside, CA 92521-0314     skype: dyanega
phone: (951) 827-4315 (disclaimer: opinions are mine, not UCR's)
              http://cache.ucr.edu/~heraty/yanega.html
   "There are some enterprises in which a careful disorderliness
         is the true method" - Herman Melville, Moby Dick, Chap. 82