Back in September*, I had linked to this post by S. Oliva at the Mises blog and had said I would write about it “one of these days.” Given that there’s a new “discussion” on the validity of intellectual property going on between the Randians and Rothbardians, this is a good time to do it.
[R]and’s defense of intellectual property outshines even the most litigious pharmaceutical company. Consider a core argument of the Randian canon – Howard Roark’s trial defense in The Fountainhead. Roark manages to justify trespassing and physical destruction of another person’s tangible property, all in the name of preserving the sociopathic architect’s “right” to avoid looking at a building that was similar – but not identical – to one he designed.
For those unfamiliar with the novel, Roark is an architect who spends his career in relative obscurity despite his obvious talent. Roark personifies Rand’s concept of pure egoism: He designs and constructs buildings primarily for his own satisfaction. The climax of the novel involves Roark designing a government housing project called Cortlandt. Roark makes a deal with Peter Keating, the architect who actually holds the commission for Cortlandt: Roark will design Cortlandt for Keating anonymously and free of charge provided the complex is constructed to Roark’s exact specifications. Keating cannot change the design. Keating, in turn, secures a similar promise from Cortlandt’s owners, but they ignore this and make changes. When Roark sees the “deformed” Cortlandt, he sneaks onto the property and blows it up with dynamite.
He’s right for the most part, and has more to say on the subject (I will come to that later), but here’s the situation again. Cortlandt is a government housing project whose units would be let out at a low rent to people whose income is below a particular threshold. Keating gets the commission, but Toohey, the man who has the power to recommend an architect, knows that there’s only one person who can create Cortlandt, Roark. And that if Keating does come up with the plans, the man behind him would have to be Roark. Now what does Roark think about the whole thing?
I hate the whole blasted idea of [housing]. I think it is a worthy undertaking—to provide a decent apartment for a man who earns fifteen dollars a week. But not at the expense of other men. Not if it raises the taxes, raises all the other rents and makes the man who earns forty live in a rat hole. That’s what’s happening in New York. Nobody can afford a modern apartment—except the very rich and the paupers. Have you seen the converted brownstones in which the average self-supporting couple has to live? Have you seen their closet kitchens and their plumbing? They’re forced to live like that—because they’re not incompetent enough. They make forty dollars a week and wouldn’t be allowed into a housing project. But they’re the ones who provide the money for the damn project. They pay the taxes. And the taxes raise their own rent. And they have to move from a converted brownstone to an unconverted one and from that into a railroad flat. I’d have no desire to penalize a man because he’s worth only fifteen dollars a week. But I’ll be damned if I can see why a man worth forty must be penalized—and penalized in favor of the one who’s less competent.
I don’t believe in government housing. I don’t want to hear anything about its noble purposes. I don’t think they’re noble. But that, too, doesn’t matter. That’s not my first concern. Not who lives in the house nor who orders it built. Only the house itself. If it has to be built, it might as well be built right.
So we know his stand on the morality of government housing, and why he would do it regardless.
Then he lays down the conditions under which he will do the project-
Your government housing, among other things, has made all building so expensive that private owners can’t afford such projects, nor any type of low rent construction. And I will never be given any job by any government.
Peter, I love this work. I want to see it erected. I want to see it real, living, functioning, built. But every living thing is integrated. Do you know what that means? Whole, pure, complete, unbroken. Do you know what constitutes an integrating principle? A thought. The one thought, the single thought that created the thing and every part of it. The thought which no one can change or touch. I want to design Cortlandt. I want to see it built. I want to see it built exactly as I design it.
[H]ere’s what I’m offering you: I’ll design Cortlandt. You’ll put your name on it. You’ll keep all the fees. But you’ll guarantee that it will be built exactly as I design it.
You’ll have to get yourself an ironclad contract with your bosses and then fight every bureaucrat that comes along every five minutes for the next year or more. I will have no guarantee except your word.
Sign it…. [a] contract between us, stating the terms of our agreement….It would probably have no legal validity whatever. But I can hold it over your head. I couldn’t sue you. But I could make this public.
This…is a contract between Roark and Keating. Keating has a different contract with the government, which then goes on to ignore it. Roark dynamites the monstrosity, and this is what he has to say in his defense-
Now you know why I dynamited Cortlandt.
I designed Cortlandt. I gave it to you. I destroyed it.
I destroyed it because I did not choose to let it exist. It was a double monster. In form and in implication. I had to blast both. The form was mutilated by two second-handers who assumed the right to improve upon that which they had not made and could not equal. They were permitted to do it by the general implication that the altruistic purpose of the building superseded all rights and that I had no claim to stand against it.
I agreed to design Cortlandt for the purpose of seeing it erected as I designed it and for no other reason. That was the price I set for my work. I was not paid.
I do not blame Peter Keating. He was helpless. He had a contract with his employers. It was ignored. He had a promise that the structure he offered would be built as designed. The promise was broken. The love of a man for the integrity of his work and his right to preserve it are now considered a vague intangible and an inessential. You have heard the prosecutor say that. Why was the building disfigured? For no reason. Such acts never have any reason, unless it’s the vanity of some second-handers who feel they have a right to anyone’s property, spiritual or material. Who permitted them to do it? No particular man among the dozens in authority. No one cared to permit it or to stop it. No one was responsible. No one can be held to account. Such is the nature of all collective action.
I did not receive the payment I asked. But the owners of Cortlandt got what they needed from me. They wanted a scheme devised to build a structure as cheaply as possible. They found no one else who could do it to their satisfaction. I could and did. They took the benefit of my work and made me contribute it as a gift. But I am not an altruist. I do not contribute gifts of this nature.
Oliva attacks this sequence of events in various ways. One, Roark has no “intellectual property,” or any kind of property right in the design of the actual Cortlandt Homes. Two, Roark’s contract, “the promise,” with Keating is meaningless because Keating is not the owner of Cortlandt. Three, Roark has no case of “fraud” against the government because he didn’t enter into a contract with the government, but with Keating.
Rand did have very strong views on IPR, and her distinction between first-handers and second-handers in The Fountainhead could, if one wants to, be read as a support for IPR. But I don’t think looking at this from an IPR perspective is going to provide any solutions. A very strong reason: the Stoddard fiasco. Roark built the “temple,” knew later on that he had been baited by Toohey, lost the suit filed against him, quietly paid up the damages sought, and watched his building being desecrated by louts like Prescott, Webb and others. Rand describes what happened to the temple which was converted to “The Hopton Stoddard Home for Subnormal Children”-
The original shape of the building remained discernible. It was not like a corpse whose fragments had been mercifully scattered; it was like a corpse hacked to pieces and reassembled.
Writing about what he calls the “Roark Doctrine,” Oliva says-
But the most offensive part of Roark’s defense is that his intangible “right” to destroy a building with a similar-but-not-identical design to his supersedes the tangible property rights of – wait for it – altruists. Since Cortlandt’s owners had an “altruistic purpose,” this effectively negated any rights they had in their own physical property, including their right to change a building design without the permission of an architect they never actually hired.
If that were the case, one wonders why Roark didn’t demolish the modified “temple.” It wasn’t fear that stopped him. He had been paid for his work. He knew he had been had. It taught him to stop building structures to abstractions that people would struggle to understand.
Which is why the Cortlandt case is not about IPR, but breach of contract. Before I make the case for breach of contract, I would say that whatever one’s opinion about the legalities of IPR, there does exist something called a moral right. One does find declarations in books where authors assert their “moral right” to be recognized as such. Regardless of whether one pays for one’s copy of The Fountainhead, or lifts it from a server and redistributes it for free, it would be disingenuous for him to claim that he wrote the book. Anyone interested in Human Action, author George W. Bush?
Okay, breach of contract. Roark has an agreement with Keating. Keating has one with the government which incorporates his “promise” to Roark. But this is ignored.
When Keating invoked his contract, he was told: “All right, go ahead, try to sue the government. Try it.”
Roark sold his services, the economical design for Cortlandt, to Keating and demanded as payment the construction of the project “exactly as I design[ed] it.” Unless Keating pays him for the same, Keating is not the rightful owner of the design, or any part of it. Keating’s contract with the government is of a similar nature. And thus, if Roark is not paid, the government cannot make use of his design. If anyone argues (rightly) that contracts only bind the contracting parties, like Stephan Kinsella does in his Against Intellectual Monopoly-
Suppose, for example, that A writes a book and sells physical copies of it to numerous purchasers B1, B2 . . . BN, with a contractual condition that each buyer B is obligated not to make or sell a copy of the text. Under all theories of contract, any of the buyers B becomes liable to A, at least for damages, if he violates these provisions.
But the advocates of the contractual approach to IP are mistaken if they believe that private contract can be used to recreate the same type of protection afforded by modern IP rights. Patent and copyright are good against all third parties, regardless of their consent to a contract. They are real rights that bind everyone, in the same way that my title to a parcel of land binds everyone to respect my property—even if they do not have a contract with me. A contract, by contrast, binds only parties to the contract. It is like private law between the parties. It does not bind third parties, i.e., those not in “privity” with the original parties.
I would say: true, but we have two contracts between three parties, and one of them incorporates the conditions specified in the other. If Webb & Co. had broken into Roark’s offices and copied the designs and then sold them to the government, or if they had merely copied the design of one of Roark’s existing buildings, or if Keating had not signed a contract with the government, that would have been a different matter. In such cases, Roark wouldn’t have any case against the owners of Cortlandt, but only against Webb, Keating etc.
But that’s not what has happened here. Even someone who does not believe in IPR has to acknowledge that Roark “worked” on Cortlandt, and was not paid for it. The government broke its agreement with Keating, which automatically resulted in the breach of his contract with Roark. If the case had gone to a proper court, the judge would realize after consulting the books of accounts and the tendering process of the project that it was not the balconies added by Webb, the “alteration,” or the bricks and cement supplied by someone else but Roark’s design that was the mainstay of the project. And he would have assessed damages accordingly, the government being liable to compensate Keating, and Keating, Roark. But where’s the drama in that? Rand’s resolution of the Cortlandt case—Roark dynamiting the project, but being freed by the jury in spite of “confessing” to the “crime”—accomplishes the same result in a far more satisfying manner.
In a civilized, capitalist, society with a proper legal system, there would be no need for a “right” to dynamite something. In a decaying society where rights are not protected and the government simply takes what it wants without paying for the same, there is.
[*Except the last paragraph or so, and minor edits, everything else is as written in December '09]