Category Archives: laws

Willful blindness

C. P. Surendran thinks the protest over Rushdie’s aborted India visit is without merit, and that it the invite to him might even be a cunning publicity stunt on the part of the organizers of the lit. festival. He then uses the stale and irrelevant why-didn’t-the-protestors-protest-this-or-that argument to dismiss the legitimacy of the protest. Apparently, unless people who believe in freedom of expression are willing to be beaten up by Sena goons or thick-skulled members of the Hindutva brigade, they cannot earn the privilege to protest Islamic censorship. Better still, die at the hands of the (“idiot[ic]”) terrorists in Kashmir to prove your beliefs/credentials-

The actual test for literature is outside Diggy Palace, far beyond the ramparts of Jaipur Fort and DSC largesse. How about getting off the plane at Srinagar, standing in the town square and reading passages from The Satanic Verses? In the process, some idiot might cut you down with an AK-47, but what could be braver and better than dying for the words you believe in? Or better still, why not sacrifice one’s bleeding, agonised word-hungry soul for the freedom of speech in Kashmir, where if you throw a word at the State, you gets bullets in your mouth in return?

Forget all that Rushdie went through for a moment. Despite the best efforts of a now-dead Iranian lune, he is alive, for now. Theo van Gogh is not. And so many people have faced death threats and have had their lives permanently disrupted for having the temerity to “offend” Islam that glib commentary of this nature on the issue is not just regrettable, but condemnable more so because it recommends self-censorship.

All religion is based on faith in some nebulous, fictional entity. Some people believe in God-by-any-name; others swear by Batman. And offering protection to the “sentiments” of such people is not good jurisprudence, but lunacy.

Greenwald writes about the perennially stamped-upon US Fifth Amendment-

The Indictment is a classic one-side-of-the-story document; even the most mediocre lawyers can paint any picture they want when unchallenged. That’s why the government is not supposed to dole out punishments based on accusatory instruments, but only after those accusations are proved in an adversarial proceeding.

Whatever else is true, those issues should be decided upon a full trial in a court of law, not by government decree. Especially when it comes to Draconian government punishments — destroying businesses, shutting down websites, imprisoning people for life, assassinating them — what distinguishes a tyrannical society from a free one is whether the government is first required to prove guilt in a fair, adversarial proceeding. This is a precept Americans were once taught about why their country was superior, was reflexively understood, and was enshrined as the core political principle: “no person shall be deprived of life, liberty, or property, without due process of law.” It’s simply not a principle that is believed in any longer, and therefore is not remotely observed.

Advertisements

The Theory of Hurt Sentiments

“Hurt sentiments” are a strange thing. X decides he does not like what Y has written, or said, or done, and then goes to court about it. It’s not as if he was thrashed by Y; more like he thrashed himself and then held Y responsible for his own actions. The idea of libel/slander/defamation, and (nearly) all censorship is based on this ridiculous notion. The Americans are the only people in the world who, thanks to the first-rate minds behind the First Amendment, enjoy some measure of protection under law when it comes to censorship; even they are not immune from persecution for libel. The rest of humanity is at the mercy of lunatics and barbarians.

The comment by a judge of the Delhi HC warning Google and Facebook that the judiciary would “go China” on them unless they get their act together is par for the course as far as India is concerned. Politicians and judges indulge in this behavior only because the majority of people in the country are in favor of such enforcement.

Mencken was right.

A contract

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.

Oliva writes-

[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.

(About the trials, court cases, in The Fountainhead, K.M. linked to this interesting analysis a few months back.)

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]

The land of the free

From an Ars interview with a US Congresswoman-

You know, these guys in the content industry, they came to us when I was in the Congress when we did the Digital Millennium Copyright Act. They wanted to go farther; at one point, the original draft outlawed Web browsing, which I thought was interesting.

We did the bill, and they’re complaining. It’s what they wanted, but it’s not enough. Now they want to do something else, which is really pretty draconian, and I think out of step with the American tradition of due process. They’re not using the remedies available to them right now, and if this passes, in a couple years they’ll come back with something even more draconian. I don’t have a lot of patience for that, really.

I found this clip from a Marx Brothers film thanks to a quote on this website that covers censorship news from that fount of all things insane: the UK-

You can read the lyrics at the end of this page.

Annoyance

The Indian IT Act of 2000/2008 already prescribes punishment for causing “annoyance” via electronic means. According to new rules prescribed under the act, which is being seen as a “blogger control act,” now “intermediaries” are required to take “due diligence” and see to it that their users (bloggers/commenters etc) fall in line by warning them against publishing/storing/etc etc information which:

is harmful, threatening, abusive, harassing, blasphemous, objectionable, defamatory, vulgar, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;

or

causes annoyance or inconvenience or deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;

or

threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation.

etc etc etc.

I would have been surprised had I been under the illusion that the constitution guarantees certain fundamental rights, or that we were a civilized country. Since none of the above is true and similar language can be found in nearly every act passed by the Indian parliament, the “rules,” the secretions of an authoritarian mind, are simply business as usual.