The Year's Best Science Fiction & Fantasy 2015 Edition

by Rich Horton

  It wouldn’t have been the first time.

  Though doubts about the historicity of the narrative must be acknowledged, and despite the fact that we are much more scientifically-minded nowadays (magic? There is no magic; there is only nature, and what we don’t understand now we will in time. While a close reading of the text reveals hints that Bairen gave his own extra life-energy to the greenstuffs vendor—hence the regrowth of her fingers—which she then used to perform the magical act of stilling the winds, of course this is merely a remnant of a folktale motif. The items Bairen collected over his years of thievery must have been used to construct a machine, perhaps an early version of the devices employed today to divert the path of hurricanes; the greenstuffs vendor’s death was likely a result of a mechanical malfunction, the long period of oral transmission transmuting this into another common folktale motif: the mage’s sacrifice), it is difficult to look out the window and see the sun, winter and summer, the only grayness that of cloud-cover or fog, or to step outside and feel the breeze, the only wild winds those of storms that come in their seasons and pass on, without the occasional urge to murmur, Thank you, to the named and the unnamed, to those whose names have been lost but might still be recovered, and to all whose names will never be known.

  Trademark Bugs:

  A Legal History

  Adam Roberts

  The following discussion document has been produced by a working group comprising academics from the UK’s Royal Psychological and Somatic Law Institute (Birmingham) and the Russian Federation’s Academic Law University (Академический правовой университет, АПУ). It aims to summarise the legal position with respect to so-called ‘Trademark Bugs’, and is not intended to have the force of a policy proposal or political statement. The management board of the АПУ in particular wish to distance themselves from the conclusion in section 5. For more discussion on these matters see Kokoschka et al 2099.

  1. The Three ‘Porter Rules’

  The first court case directly relevant was filed under UK legislation, not because the first Trademark Bugs were developed or distributed in that country, but because the UK’s unilateral renegotiation of their national relationship to the ‘Madrid System’ (which was in turn part of their withdrawal from EU copyright jurisdictions) created a more favourable balance of proof for INTA, USPTO or WIPO prosecution. Protocols governing the dissemination of these new products meant that the bugs were not at first distributed in areas that had suffered calamitous natural disaster (earthquake, tsunami, plague) in the previous five years, although this was later reduced to 12-months and subsequently—as of 2031—abandoned altogether. As a consequence of this, Porter-addend.2031d clarifies the extent to which the original Rules must be considered consonant with international law.

  Porter’s original ruling laid down the so-called three ‘Porter Rules’ for Trademark Bugs. These are:

  That the pathology itself must not be ‘excessively physically distressing’ or entail any long-term hazard to health, wellbeing or longevity. These latter terms, of course, have proved hard to define precisely as salients under legal challenge.

  That the pathology itself must be no more virulent than the baseline virus or bacterium, prior to any genetic adaptation. This applies the legal principle, common from other aspects of EU Genetics Law, of balanced hazard equilibrium.1

  That the pathology itself must be preventable by some means (later modified to ‘at least one mean’) not trademarked to the distributing company. The meaning of preventable in this context has generated a great deal of discussion, with legal authorities divided between interpreting this so-called ‘Third Porter Rule’ either (a) strictly, in terms of legal consent—briefly, that plaintiffs need only show that they did not knowingly and competently opt-in to the relevant pathology; or (b) broadly, in terms of reasonable precaution—the argument advanced by Goober, Thwaite and Associates, known popularly as the ‘soap and water’ test. This latter holds that, as with the common cold, everyday precautions such as washing one’s hands with soap and water be enough to avoid infection for it to come within the meaning of the act. Accordingly people who, compos mentis and of legal majority, elect not to take such common-sense precautions have ipso facto given consent to being infected by Trademark Bugs. The rulings of Ito (Ito-2025c) and Carallan (Carallan-2024d-2025a) confirmed the ‘broad’ definition to have legal grounding. Since 2034 this has only been challenged in court once (Boothby-2037b-d), a case which eventually tested the legal status of all three of the Porter Rules. The ‘broad’ interpretation of Rule 3 was eventually upheld.

  Several early legal challenges stalled because the plaintiffs exhausted their funding. It is worth noting this fact because there is a widely held though erroneous belief that the case of Lukas vs. Glaxco (Reinhart-2029a-d) established any legal precedent. Passages from the speeches delivered in court by Milo Lukacs have passed into popular currency as if they had legal basis; although in fact the case was later suspended for non-disbursement of legal stipends and no judgment was arrived at.

  Let us not lose sight of the key issue: corporations are not only manufacturing genetically tweaked versions of the common cold, they are releasing them into the environment via multiple vectors. We have not yet been able to prove in court that such releasing itself constitutes corporate delinquency, but we do know this: polls have consistently shown that the general public thinks of these actions in exactly those terms—as delinquency, quasi-criminal activity and worse. People are getting sick with genetically tagged flu viruses for which the only cure is manufactured by these same corporations! People are being forced into the position where they have to purchase medication, manufactured by the same corporations that made them sick, in order to bring them back to the baseline position of health. This practice is profoundly inhumane, unethical, and monopolistic. This practice is wicked.2

  Lukacs also put before the court various financial estimates that have been contested. He claimed that over the tax-year ’28-’29, the three biggest pharmaceutical companies made €875 billion profit on Trademark Bugs alone; and that over the previous five years the profit from Trademark Bugs was double that of all other pharmaceutical sales combined. These claims were themselves the cause of two legal challenges: one on the grounds of their inaccuracy (it was argued in court that the €875 billion figure was gross, not net; although a countersuit [Abnett-2030a] sought to show that, when EU tax-incentives for medical research and charitable donations were included, the tax rate on this profit was zero) and in the grounds that disclosure of profits violated the corporations’ legal rights (legally functional as ‘individuals’) to privacy. This was upheld by Rinn-2031b, but without retrospective force. Accordingly all sums cited for post-’31 profits, including ones included in this paper, are estimates (legally permitted under the Corporate Oversight Act of 2035) and in no way intended to intrude upon the privacy of corporations qua individuals.

  Balance requires us to quote from the chief legal representative for Glaxco, Magrat Helmansdottir KC, who said:

  The soap-and-water test is no mere legal fiction, but an actual, measurable social good. Drugs have their part to play in humankind’s perennial war against illness, but it is a small part compared to the role played by simple hygiene. Hygiene has saved more lives than all the drugs ever produced. The distribution of Trademark Bugs (free at point of issue, I might add) is an actual, measurable and positive incitement to people to live more hygienic lives. Glaxco themselves sell one-cent bars of proprietary soap through all the major supermarkets; and expend considerable sums advertising the need to wash hands every hour and avoid spreading infections—all such transmissible infections, not merely those bugs Trademarked to Glaxco. Furthermore, Glaxco has invested €1.1 billion in the science of Epidemiology, including endowing the Glaxco Chair in Epidemiological Science at Harvard, and funding forty annual PhD scholarships in the discipline. It is no exaggeration to say that this investment is the single most significant
investment in this science ever made. What the prosecution are calling for would devastate the advances made in medical science and materially diminish human wellbeing. Quite apart from our moral duty to uphold the laws protecting the sanctity of commercial free enterprise and encouraging self-reliance and independence in consumers—quite apart from that, what the prosecution proposes would have a measurably negative impact upon world health.

  Outside the courtroom, during media interviews, Helmansdottir added: ‘I appreciate it sounds counter-intuitive; I understand that many people feel that these corporations are deliberately infecting them with designer germs in order to increase their profits by selling them the cures—but the facts are the facts. None of that is true. Trademark Bugs have made the world cleaner and healthier. We can’t afford to undo the advances we have made.’ She later—successfully—resisted a prosecution petition that this speech be entered into evidence, arguing that the clause ‘these corporations are deliberately infecting them with designer germs in order to sell them the cures’, abstracted from context, would be prejudicial to the legal process.

  Following the collapse of Lukas vs. Glaxco (Reinhart-2029a-d), 47 private prosecutions were brought against various corporations by individuals who claimed they had caught Trademarked diseases and suffered, in one way or another, in excess of the discomfort permitted by the Porter Rules. All but one were conducted under the no-win-no-fee remit. Of these 5 were abandoned, 3 went to court (the plaintiffs losing in each case) and 39 were settled out of court. The next legal milestone was Glaxco vs The Guardian (Gesswyn 2033a), when the company successfully sued the UK-based media conglomerate for repeating claims that eleven distinct strains of Trademark Bug were ‘monopolistic’.

  The editor at the time, Jean Ebner, conceded that this defeat ‘stung and enraged’ her senior staff. After a popular campaign and fundraising effort (‘Goldenbugs’) the Guardian took Glaxco to court under US legal jurisdiction (presiding justice Natch Greys, Guardian Corps v. Glaxco, 676 F.3d 854, 862 (9th Cir 2036); [EU citation format: Greyes-2036c-2039a]). The grounds of the suit were ingenious: a Guardian reporter, Po Lok Tam, deliberately contracted one of Glaxco’s most widely disseminated Trademark Bugs, a common-cold tweak called ‘Sapphire Sniffles’, the cure for which—‘Azure 7’ (available as pill, or nanoneedle diffuser)—was amongst the cheapest in the Glaxco range.3 The symbolic significance of the ‘four-shots-a-dollar’ cure was part of the intended effect. Po Lok Tam refused to buy the cure and suffered the symptoms of the bug: raised temperature, headache, runny nose and sore throat, advertised as ‘lasting depending on the state of the sufferer’s immune system between three and eight weeks’.4 There were, she claimed, other symptoms; but only the ones specified in the Glaxco promotional material were entered into evidence without dispute from either side. The force of the Guardian suit was that the sore throat, by impairing the ability of the plaintiff to speak, illegally restricted her first amendment rights to free speech under the US constitution.

  2. Guardian v. Glaxco (2036-39): a summary

  Initial reports of this trial expressed the opinion that it would soon be thrown out of court: none of the symptoms breached Porter Rules, and neither side denied that Ms. Po could still express herself in writing—in previous cases concerning the right to freedom of speech (see Grohmann, 2088 for a summary of this legal history) this had been deemed sufficient to satisfy the constitutional requirement. In fact, Guardian v. Glaxco became one of the longest, most fiercely fought and expensive in the history of Trademark Bug law. We can only provide the merest sketch of the arguments and counter-arguments, here (Malahat 2090 has a more detailed account). The main theses and antitheses can be summarised as follows:

  1. A first move by Glaxco to dismiss the case as lacking prima facie validity (the plaintiff having unimpeded access to text-based modes, including an artificial voice app on her phone, was able fully to actualise her first-amendment rights, irrespective of her sore throat). Motion was denied.

  2. A move to early resolution by the plaintiff on the grounds that Ms. Po gave no explicit consent to losing her voice. Denied, after the Glaxco team satisfied the court that Ms. Po had, intentionally, gone out of her way to catch the bug.

  3. Glaxco legal team attempted to prove that, since many other Trademark Bugs produced symptoms that left the throat and voice unaffected—and since the plaintiff could have elected to catch any of these—she had no legal right to complain about loss of voice following a Bug she specifically elected to catch.

  4. Over several months, the Guardian team attempted to persuade the court that Trademark Bugs diminished or denied not only first amendment rights, but basic constitutional rights to life liberty and the pursuit of happiness. Since Ms. Po’s life was not in danger, the legal debate concentrated on the criteria of ‘liberty’ and ‘happiness’. The Guardian attempted to bring before the court testimony of hundreds of sufferers of common colds who had, by their own admission, been left ‘housebound’, hoping to show that this impaired their liberty. They also argued that being ill contravened the right to happiness, on the grounds that being ill makes people unhappy. Glaxco counter-argued that being ill did not prevent an individual from pursuing happiness, if they so chose; and that it was this latter right that was constitutionally guaranteed. Justice Greyes concurred.

  5. One woman (Paula de Chirico, from Waco, TX) gave evidence for sixty days, after Justice Greyes admitted her evidence. Having caught a Glaxco bug called ‘Nosy Rudolf’ she had ordered the cure ($9.95 for three tablets) online, but delivery was held-up by a postal strike. She had gone to work mildly ill, had inadvertently sneezed on her boss, who had thus also caught the bug. The boss had fired Ms. de Chirico. The Guardian sought to argue that this demonstrated that Glaxco Trademark Bugs had interfered with Ms. de Chirico’s constitutional rights. The court debated for several weeks on the admissibility of a completely different Trademark Bug; the relevance of an individual other than the plaintiff; and the relative liability of the postal company. Eventually Justice Greves ruled that the burden of liability rested with de Chirico, for not maintaining hygienic practice with respect to her own contagion or spreading her contagion to others.

  6. Following this, many of the plaintiff’s claims were rolled back. Glaxco again moved the case be dismissed.

  7. The Guardian pressed the freedom of speech angle. At the heart of this was their claim that for eight days in the first instance, and for a later 12-hour period, Ms. Po had been denied her right to free expression by Glaxco’s bug. The Glaxco team brought in expert witnesses to show that Ms. Po had received far greater media exposure during those three days that at any other time in her career.

  8. There was a long discussion as to whether ‘media exposure’ amounts to ‘freedom of speech’. Dozens of expert witnesses were called by both sides. This debate was eventually parked by Justice Greves, as ingermane and vexatious.

  9. The final months of the case were characterised by a series of increasingly complex blocking motions by the Guardian. Eventually Justice Greve guillotined further blocking, and ruled in favour of Glaxco. In his summing up, he declared: ‘there may yet be a legal challenge that could be mounted on the grounds that Trademark Bugs violate a citizen’s first amendment rights; but such a challenge will need to take as its plaintiff somebody other than a professional journalist mounting a clear and exploitative publicity stunt’.

  10. Seven different appeals followed, on grounds both of the due process and the Justice’s final summing up. Two of these were unresolved or abandoned for financial reasons. Five upheld the judgment.

  “This is a bad day for democracy,” Jean Ebner declared from the courthouse steps. “The judge has said, in effect, that people who work for the media cannot challenge these wicked corporations, and their terrible diseases, because they work for the media! He has left open the possibility that so-called ‘ordinary citizens’ could mount a legal challenge, but how will they ever be able to afford it?”

  “Wit
hout the support of the Guardian and the public fund-raising campaign,” Ms. Po added, “I would never have been able to bring my case. This judgment puts corporate profit above the needs of common human decency.” It was not obvious at the time (although posterity has made clear) that this court-case was the last serious legal challenge to the marketing of Trademark Bugs. The Guardian Conglomeration never recovered from the expense of mounting and then losing the suit, and ceased trading two years later.

  Throughout the early 2040s there were several attempts to raise the funding necessary to challenge the big Trademark Bug manufacturers in courts; but none of these progressed beyond initial stages. The ‘big three’ pharma companies—Pfizer-Novartis, Glaxco and Bayer—expanded operations. Bayer developed anti-addiction medication, which it sold alongside its own-brand tobacco, stimulant and euphoric products. P-N developed respirant illnesses that spread what it called ‘one-quarter-asthma’ (this label has been several times challenged in court as deliberately misrepresenting the degree of respiratory distress experienced by sufferers) alongside several models of ‘fashion accessory inhalers’. The marketing of these to children resulted in a fad for carrying the devices, often expensively personalised, across much of Europe, South America and East Asia during the later 2040s.

  3. Change in generational attitudes

  Evidence that younger generations had a different attitude to Trademark Bugs than their parents and grandparents has been gathered by Rakesh Bandari (Bandari 2089).

  For people growing up in the ’40s and ’50s most of the diseases that had afflicted humanity for millennia had been cured. Nobody expected those cures to be distributed free. Moreover, the sense that ‘disease’ in the abstract still had a place in the ontological ecosystem of human life was deep-rooted, and many young people found it easy to accept that the big 3 Pharma companies filled a niche that would otherwise be supplied by unpredictable feral viruses and bacteria. The situation was helped by canny PR by all three: PN and Glaxco by 2053 (and Bayer by 2055) guaranteed student loans at 1% under the bank rate to all university students. A mass-market campaign established them as ‘cool’ with younger demographics. Sports events, game and music products and TV—all of it was heavily subsidised by Pharma money. Advertising presented the Trademark Bugs as a way of unofficially ‘taxing’ those too old and foolish to follow simple hygiene regimens, syphoning their money for the benefit of the young. That the young (especially the very young) were disproportionately affected by Trademark Bugs did not adversely affect this impression. By 2055 Pharma Companies overtook Munitions Companies as the largest donors to political parties; and after the ’58 reforms they donated huge sums to Legal Infrastructure too. By 2060 few could deny that the industry as a whole, and the Big Three in particular, represented the most politically powerful group on the planet.