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March 2010
Vol. 24, No. 2
Letters
Mayor Disagreement
While researching information concerning my father, Nicolas Castellanos, the last constitutional mayor of Havana, Cuba, I came across an article by Robert H. Miller (“Waiting for Fidel,” April 2007). While I welcome and respect everyone’s opinion, the malicious lies contained in Mr. Miller’s article amount to defamation of character.
Miller writes: “Second in power only to the president, the mayor of Havana was also one of Cuba’s richest men. Nicolás Castellanos controlled the most lucrative sources of illegal income on the island.” Anyone who knew my father could tell you that he was far from being one of the richest men in Havana, and certainly one of the few honest politicians of the era. Even if disregarding public opinion, Miller should be aware that good journalism relies on solid research.
He should have made certain that his opinion, most likely based on hearsay due to the fact that he was only a child at the time of his narrative, was backed by some basic measure of research. Members of my family have conducted extensive research on my father and this is the first time we’ve come across anything as ludicrous as this. Miller should keep his false and incorrect opinions to himself.
On behalf of my family, and of my father’s good name, I respectfully request a retraction from your publication, and a removal of this flawed article from the website.
Maria V. Castellanos Flores
Miami, FL
Miller responds: First of all let me profoundly apologize to the Castellanos for any inaccuracies in my article, “Waiting for Fidel.” My allegations, as Maria Castellanos Flores correctly infers, were not based on personal recollections as I was too young to evaluate such weighty matters; but neither were they based on hearsay. Mine and my family’s relations with the Castellanos, our next-door neighbors, were excellent as far as I can recollect and I have nothing but affection and respect for the ex-mayor and his family. I’ll now try to put into context the statement in the article.
I used many sources for the article but the relevant source, “Fidel Castro,” by Robert E. Quirk, asserts, “As the year [1950] began, leaders of the four largest parties negotiated with the cagy Castellanos, who had become an instant millionaire when he took over city government . . . After the president, the mayor of Havana controlled the most lucrative sources of illegal income in Cuba . . . Building contracts would provide an ever-flowing wellspring for the private fortune of Castellanos” (pp. 34–5, W.W. Norton, 1993).
Although Robert E. Quirk is a respected scholar with no visible reason to disparage the ex-mayor of Havana, I have no idea what his politics are. It is well to remember that one person’s freedom fighter might be another’s terrorist. For the purposes of my article, those were minor details. However, for a member of the Castellanos family, they can understandably strike a sensitive nerve. Nevertheless, exactly what Quirk meant by his characterization of the mayor of Havana’s power is open to interpretation. After all, from a certain political perspective, even my father might be categorized as corrupt, as evidenced by the extant warrant for his arrest on his return to the island in 1962. But if someone alleged he was corrupt, I too would bristle defiantly.
Modern political systems that evolved from Roman tradition — a tradition based more on personal loyalty, patronage, and nepotism than ideology — are often perceived as corrupt by those wholly nurtured within Enlightenment political tradition. The Roman tax collection system is particularly instructive. The government collected taxes by selling the position of Tax Collector to the highest bidder. The price was determined by an estimate of the possible taxes that could be collected. The revenue agent then pocketed whatever he could garner from taxpayers — that was the return on his investment.
The Empire Strikes Back
History is important. Therefore, Jamie McEwan’s so-called “review” of Adrian Goldsworthy’s “How Rome Fell” (“Does Empire Work?”, December 2009) compels me to comment.
McEwan doesn’t talk much about the book, seemingly unable to get beyond Goldsworthy’s (accurate) description of the empire in the mid-2nd century as a fairly decent place in which to live (in the context of its times) and the use of the word “unfortunately” somewhere in the text which he inexplicably takes as damning evidence that Goldsworthy is a lover of empire who desires to make the Roman Empire the “hero” of the narrative. After that, McEwan simply rants against the empire and Roman Christians, and never bothers to mention, let alone analyze, Goldsworthy’s actual thesis.
“In many areas,” McEwan writes, in apparent seriousness, “Roman culture seems to have had little lasting effect.” In particular, he points to Britain. That would have been a surprise to the generations of educated Englishmen inculcated in Cicero, Virgil, Ovid, Seneca, and St. Augustine, and anyone who studied law, based directly on Roman theories of jurisprudence. Students of government recognize the stamp of Roman thought and institutions (largely initially derived during the republic but disseminated through the empire). Despite large-scale evacuation of the island in the early 5th century, the Roman cultural legacy, including Christianity, was reintroduced to Britain, flowered anew, and was an indispensable part of the foundation of the Enlightenment in Britain as well as throughout continental Europe.
“The Romans added very little to the Greek cultural legacy,” McEwan continues, “the Roman Empire was an impediment to progress . . . The institution of slavery in itself guaranteed that there would never be a Roman Industrial Revolution.” Well, let’s be fair. There wasn’t any Industrial Revolution in the ancient world, and there wouldn’t be one until 13 centuries after Rome’s fall. Western Europe initially digressed culturally and economically after Rome’s fall, and took several centuries before it started to demonstrate meaningful progress on any front. Most civilizations prior to Rome (including classical Greece), and most that succeeded it, had slavery. The fact is, despite its faults, Rome added quite a bit to the Greek cultural legacy in art, literature, philosophy, and religion. And though it did not produce an industrial revolution, it did make great advances in engineering, invented concrete, and harnessed water power for use in the first ancient “factories.”
McEwan does not consider that the Roman Empire was a much different place in the 1st and 2nd centuries than it was in the 4th and 5th. For the better part of two centuries, Rome amazingly administered a multiethnic empire, much of it previously attained through war, in relative peace, prosperity, and, yes, even relative freedom. Many communities in the provinces such as Spain and Gaul had significant autonomy, retained local traditions, and rarely saw a legionnaire. And through the second century the populace, for the most part, did benefit from being part of an integrated empire, consisting of peoples who were quite content (for the most part) to be a part of that empire. Peace, prosperity, and justice were, of course, subject to the whim of government authorities, as is always the case with authoritarian regimes. Roman rule degenerated, became increasingly oppressive, and diseased with corruption — which is the story of Rome’s decline and fall.
Yes, the Roman Empire had to fall for modern Europe to evolve. But we should not deny the Romans their achievements, just as we should strive to learn from their failures. If the Roman Empire had been extinguished by pillaging Germanic tribes in the 1st century rather than the 5th, the result would not have been the accelerated advancement of European culture, science, and industry that McEwan claims, but rather a catastrophic stunting of human progress.
Brandon Crocker
San Diego, CA
McEwan responds: Mr. Crocker seems to be under the impression I was seriously promoting the theory that, if the Roman Empire had fallen 400 years sooner, human progress would have been accelerated such that we might be colonizing the solar system today. I thought that by leading off this section by saying “let us go ahead and play the fascinating, if artificial, game of dealing with history in broad strokes,” and finishing by including this, my conceit, in what I called the “wild speculations” engendered by “How Rome Fell,” I was making it clear enough that I was, well, wildly speculating. I should have been more careful to distinguish wild speculation, with ironic intent, from serious claims. I apologize for any confusion this may have caused Mr. Crocker or any other reader.
Crocker improves upon the book by saying rather more in support of Adrian Goldsworthy’s assumptions than does Goldsworthy himself. But in so doing, he makes explicit the underlying absurdity of sweeping historical judgments. Crocker’s claim, given without equivocation or irony: that the fall of Rome in the 1st century, rather than the 5th, would have resulted in “a catastrophic stunting of human progress.” His confidence in his own ability to predict the result of the interactions of millions of human beings over a period of well over a thousand years is astonishing — or should be astonishing, if we had not become jaded through having encountered such presumed omniscience many times before. It is convenient of Crocker to provide a concise example of the hubris I was attempting to criticize in Goldsworthy.
Yes, I think we’d be terraforming Venus about now . . .
Philosophizing IP
Thanks to Stephan Kinsella for questioning the justice of intellectual property (“Intellectual Property and Libertarianism,” December 2009). Like many libertarians, he posits property rights as the foundation of libertarian political theory, and suggests that because it is a derivative concept, we stop calling the nonaggression principle an “axiom.” So far so good. But Anthony de Jasay suggests that the concept of “property” itself should in turn be considered derivative, from the still more fundamental principle of liberty of contract. De Jasay also defines “rights” and “liberties” more carefully and usefully than most libertarians, who use these loaded words all too loosely — Kinsella included. (See de Jasay’s “Choice, Contract, Consent,” or “Before Resorting to Politics,” reprinted in “Against Politics.”)
Kinsella’s attempt to show that no well-formulated property rights can apply to pure information seems dubious. Yes, information can escape physical confines and reproduce in ways that physical objects can’t, but so what? Perhaps the real question is not whether IP should be classified ontologically with other forms of “property,” but whether voluntary agreements can be reached (without the help of legislatures) that would make revelation, or publication, or mishandling of information a tort. Clearly some can; what of contracts to protect trade secrets, and other nondisclosure agreements?
Never mind that the concept of “self-ownership” has philosophical problems that Kinsella does need to take more seriously. I’ve been suspicious of “property rights reductionism” ever since I noticed that it led Rothbard to believe in his own IP rights as an author of copyrighted writings, even as he disparaged the IP rights of professional inventors. At least Kinsella avoids this inconsistency (if that’s what it is).
Kinsella is right to seek the philosophical foundations of the IP question; let’s hope he keeps digging.
Lew Randall
Freeland, WA
What Would Edison Do?
It was a pleasure reading Stephan Kinsella’s piece “Intellectual Property and Libertarianism.” I’m in agreement with its content as regards the nature and source of property rights. What I find impossible to accept is the view that there is no good utilitarian argument in support of legislated patent and copyright law. Would Thomas Edison and his financial backers have invested so much time, effort, and money just for the pleasure of exercising intellectual creativity? I certainly wouldn’t, and I suspect I’m not alone. Having said this, in a free society, would it be a legitimate government function to establish rights where none “naturally” exist, even if the consequence of such legislation would foster an improvement in the quality of human existence? By establishing such rights, or should I say “privileges,” wouldn’t the freedom of action of others be curtailed? Formulated this way I opt for principle over utility, as the slippery slope comes to mind.
Howard Shafran
Shelter Island, NY
The Property of the Mind
Before finally getting around to the topic of his article on intellectual property, Stephan Kinsella trumpets the proposition that each person “owns” his own body; he “inhabits” it; he is its “occupant” — and Kinsella uses those very words. He dismisses as “silly wordplay” the objection that each person just is himself or his body. But who is perpetrating wordplay? Who is tainting sound political philosophy with dubious metaphysics?
Kinsella echoes the old mind-body dichotomy, the notion of the self as “the ghost in the machine” (Gilbert Ryle’s derogatory description of Descartes’ dualism). On the contrary, each person’s mind and consciousness are functions, remarkable functions, of his body and specifically his brain. Does Kinsella really mean that the self is distinct from the body? Does the one survive dissolution of the other? (Does the self exist even before its body is born?) Does Kinsella believe in ghosts or angels? What evidence, beyond very dubious evidence, can he cite? If Kinsella does not really mean what he says, he should use more exact words.
The self-ownership slogan finds some resonance in libertarian circles. But libertarians should go beyond displaying their authenticity to each other; they should try to persuade nonlibertarians. They should avoid irrelevant metaphysics. They should put their best foot forward, not their worst. I do not mean that they should dilute their libertarianism; rather, they should present it attractively.
Perhaps Kinsella could find some (feeble) excuse for his metaphysics, but he would still be putting a worst foot forward.
Leland Yeager
Auburn, AL
Copy Shop
Stephan Kinsella’s argument against IP is seriously flawed. For instance, he states that copyright is “received automatically, whether you want it or not, and is hard to get rid of.” Copyright, that is, the right to make copies of your work, is inherent in the creation of the work. It is not “received” by law. You can waive your copyright easily by simply making copies and distributing them without the required copyright notice. Copyright law recognizes, defines, and controls to some extent your rights to control the copying and dissemination of your work.
He also states that “We libertarians already realize that . . . the right to a reputation protected by defamation law” is illegitimate. This libertarian does not realize such illegitimacy. The libertarian principle is that no person has the right to initiate aggression against another. Spreading lies or untruths to destroy the reputation of another person is clearly within the definition of aggression.
Kinsella makes a number of references to “homesteaders,” mainly, I believe, to emphasize the difference between property that you can hold in your hand, i.e., the soil from your farmland, and the more ephemeral IP which is snatched out of thin air and dissipates in the wind, i.e., the sound of a melody. However, this comparison overlooks the intellectual content of real estate (property) improvement. A farmer who homesteads a parcel of land must decide what crop will be successful on that land. A pineapple ranch in North Dakota will not succeed. Once the crop is chosen, the farmer must implement a plan for the planting and harvesting of the crop. In the case of, say, music, running a melody over in your head or tinkering on a piano is just the beginning of the creative process. It must be transcribed and carefully inspected to make sure that each note is properly chosen and placed. Then you can make your copies, register the copyright and begin selling copies of your work. With a little luck, someone may make a successful recording.
Patents are similar. You come up with the idea, develop it into a saleable product, manufacture copies and sell them. When a buyer buys a copy of your work, either invention or literary work, what does he buy? Under the law, he buys that one copy of your invention. Defining what is embodied in that one copy can get messy because the human mind is messy, but the buyer does not buy anything other than that one copy. He cannot make copies and distribute them.
So what can you do with your copy of the work or invention? You can write a critique of the song or story, quoting reasonably from the work itself to illustrate your points of argument. You can read the story or sing the song to your friends for their enjoyment. You can take your copy of an invention and modify it to suit your needs. You can strip it of unnecessary decoration that does not make it work better. You can take it apart to see how it works, or to repair it or to improve the design so much that you feel justified in applying for a patent on your improvement. You can sell it to someone else. You cannot, however, begin manufacturing the item and selling it. That is true whether the item is a widget, a book, a sheet of music, or a recording.
David Kirkpatrick
Klamath Falls, OR
Body of Work
Although Stephan Kinsella’s article on intellectual property moves smoothly enough from premises to conclusions, those conclusions are (to me at least) so counterintuitive that the argument acts as a reductio ad absurdum, undercutting his premises rather than proving his conclusions.
Let us say that a given work exists only in the memory of the author’s computer. At this time the work could not be more obviously the author’s; in a keystroke he can change it in any way, or abolish it forever. Overnight a hacker invades the machine, copies the work, and reproduces it. This is theft, is it not? If so, then the author retains ownership of the work even after it has left his hard drive. Why, then, would his ownership suddenly be reduced to naught at the instant that he sends it off to a prospective publisher? Reportedly, a British firm offered to publish “Lolita” if Nabokov would consent to the removal of four sentences. Nabokov refused, and the book was not released in Britain until a year later, by a different publisher. Surely this was right.
Kinsella takes it as axiomatic that one’s property rights begins with one’s own body. I think that many authors would consider their ownership of their works as more intimate, and more obvious, than their ownership of their bodies.
Jamie McEwan
Lakeville, CT
Kinsella responds: Mr. Randall asks whether trade secret and nondisclosure agreements could be used to construct a form of IP. I do not believe they can, because such agreements cannot bind third parties. Only by assuming that knowledge is a form of property can you bind third parties, but this assumes there is IP. I address this in further detail in the “Contract vs. Reserved Rights” section of “Against Intellectual Property,” available at StephanKinsella.com. As for philosophical problems with the notion of “self-ownership” — self-ownership just means that you have the right to decide who touches or uses your body, not some other person. What could be more libertarian, or less controversial or problematic?
Mr. Shafran is no doubt right that Edison or other patentees may have benefitted from the patent monopolies granted to them by the state. But the utilitarian case requires a benefit to the economy as a whole, not merely to particular beneficiaries of wealth redistribution. Studies almost universally conclude that there is no such gain — that patents actually restrict innovation. See the post at tinyurl.com/pat-innov for more information on these studies.
Professor Yeager misunderstands my comments. I am, like him, nonreligious. Viewing the mind as distinct from (though not unrelated to or independent of) the brain, and the self as distinct from the body, does not imply a soul or ghosts or angels. It does not imply that there can be a self without the body, or a mind without the brain. It merely implies a distinction. One may think of the mind as an epiphenomenon of the brain, but it is not the brain itself. Likewise I can run and remember with my body but running and remembering are not the same as my body. The “silly wordplay” I referred to is the use of the trite observation that we “are” our bodies (in some real sense) to object to the idea of self-ownership. But atheism is not contrary to self-ownership. Self-ownership is the libertarian idea that you have the say-so over who uses your body — that others need your permission. Self-ownership is the rejection of slavery and aggression. It is perfectly compatible with the idea that there is no soul; that you die when your body dies. In any event, Yeager’s atheism does not prove there are intellectual property rights, or that we are not self-owners.
Mr. Kirkpatrick upbraids me for stating that copyright is received automatically. He asserts that copyright may be waived “by simply making copies and distributing them without the required copyright notice.” Wrong. Copyright notice is not re-quired at all, nor is copyright registration. See Sections 102 and 401 of the Copyright Act, or the “Copyright Basics” brochure at copyright.gov. Copyright notice has not been needed since 1989, when the law was amended per the Berne Convention.
As for reputation rights, Murray Rothbard explained in “The Ethics of Liberty” why there can be no reputation rights: your reputation is merely what third parties believe about you. You do not own their brains or what they think about you; they are entitled to change their minds about you. Kirkpatrick writes, “If I grow a potato in my back yard, it is my potato. If I write a song in my kitchen, it is my song. They are both my property.” By such reasoning one could argue that you own your wife, your parents, and your country (note the possessive pronoun!); if you discover that the earth is round then “it is my discovery” and you could own that fact. The mistake here is in failing to realize that not every “thing” that one can conceptually identify is an ownable type of thing. Scarce resources are capable of being owned because of the possibility of conflict over use of such things. Other things, such as “songs,” information, and patterns are not ownable things at all. In acting, humans select scarce means to achieve desired ends. Their choice of ends, and means, is guided by information. To successfully act, the scarce resources employed as means need to be owned, because by their nature as scarce resources only one person may use them; but the actor need not “own” the information that guides his choice of means, since he can use this information even if thousands of other people also use this information to guide their own actions.
Mr. McEwan is correct that the hacker is a thief, since he is using the author’s property (his computer) without his permission. But this does not mean that the information he gains access to is property. If the author revealed some private fact — say, that he had a glass eye — and the hacker discovered this and revealed it to the world, the author would have no right to demand that everyone forget this fact or not act on it. Likewise if the information was a novel, musical composition, recipe for a nice soup, or schematic for an improved mousetrap.
The Good Book
The article by David Puller on whether the Hebrew and Christian scriptures support redistributionist policies (“Mr. Obama, Lay Down That Bible!”, Jan.–Feb.) was excellent. I would offer some additional scholarly material that supports the author’s points.
Jesus’ destructive actions in the temple were not a “cleansing” that called for separating religion from the profanation of commerce and trade. His overthrowing of tables and chairs was instead a parable acted out in life and intended to prophesy the destruction of the temple by Rome. On this, see the opening chapter in E.P. Sanders’ pathbreaking “Jesus and Judaism” (1985). Jesus was endeavoring to create an alternative to the temple establishment. This is argued by the eminent biblical scholar N.T. Wright in “Jesus and the Victory of God” (1996). Wright argues further that when Jesus referred to “thieves” during the incident he was criticizing political nationalists.
The best scholarly discussion of community of property in Acts may be found in two books by Luke Timothy Johnson: “The Literary Function of Possessions in Luke-Acts” (1977) and “Sharing Possessions: Mandate and Symbol of Faith” (1981). In the latter, Johnson writes: “The scriptural basis for community of possessions as an ideal way for Christians to share goods is slender, superficial, selective, and suspect.”
In essence, the description of sharing by early Christians is meant by the author of Acts to liken the Christians to the ancient Hebrews who shared during the exodus wanderings. A scholarly but accessible discussion of this topic can also be found in John R. Schneider’s “The Good of Affluence” (2002).
Williamson M. Evers
Stanford, California
Puller responds: I thank Prof. Evers for his compliments. I would, however, caution against any reading which regards parsimony to the poor as biblically sustainable. Although the Gospels and Epistles do not support a mandatory, confiscatory redistribution of wealth, they clearly support a voluntary redistribution of wealth. And they state quite clearly that wealth is sinful (e.g. 1 John 3:17, James 2:15–16, Matt. 19:24, 25:31–46).
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