An old Mises post from Skip Oliva.
Stephan Kinsella has previously written regarding Ayn Rand, Objectivists, and intellectual property:
First, note the extreme, almost Galambos-like importance [Objectivists] attach to intellectual property. For example, [Ayn Rand] actually wrote: “patents are the heart and core of property rights.” I kid you not. (See Rand and Marx.) One pro-IP Objectivist even equates humans-as-inventors to “gods” (Inventors are Like Unto …. GODS…..). (The Randians’ deification of intellectual creation reminds of Galambos, who believed that man has “primary” property rights in his thoughts and ideas, and secondary property rights in tangible goods; see Against Intellectual Property.)
Indeed, Rand’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.
Roark convinces the jury to acquit him despite admitting guilt. Roark claims he had an absolute right to destroy 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.
Now let’s stop and think about the message that Rand – via Roark – is trying to convey here. Roark did not own the land Cortlandt was built on, nor any of the materials used in its construction. Roark possessed no tangible property rights here. But he claims that his intangible rights in Cortlandt’s design make him the true owner.
Except for one thing: Roark wasn’t the designer of Cortlandt! The whole impetus for Roark’s actions was that the design was altered – “disfigured” – from the plans he gave to Keating. But the actual Cortlandt wasn’t Roark’s design. It was an amalgamation of Roark’s design and whoever made the alterations. But Roark has no more claim to “intellectual property” in Cortlandt’s design than Keating or anyone else involved with the design.
Then there’s the matter of Roark’s verbal contract with Keating. Roark claims his “payment” for services rendered was seeing Cortlandt built exactly to his design. Since Keating didn’t own Cortlandt any more then Roark, however, such a promise is meaningless. A superior, rational man like Roark should have known this. And even if Cortlandt had been built according to the Roark design, what about future changes made by the owners? If the design is altered five years after Cortlandt opens, can Roark come in one night, demand the evacuation of all tenants, and dynamite the place then?
And let’s not overlook the fact that Roark had an agreement with Keating, not Cortlandt’s owners. Cortlandt owed Roark no payment, intangible or otherwise. Roark doesn’t even have a case against Cortlandt for fraud. Roark complains, “the owners of Cortlandt got what they needed from me.” But they never asked him for anything! Roark voluntarily designed Cortlandt using Keating as a front. Cortlandt’s owners were never aware of Keating’s side agreement with Roark and its implied “right to dynamite” clause.
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.
Just imagine the real-world implications of the Roark Doctrine. In an earlier post today, Mr. Kinsella wrote:
If you carve a statue using your own hunk of marble, you own the resulting creation because you already owned the marble. You owned it before, and you own it now. And if you homestead an unowned resource, like a field, by using it and thereby establishing publicly visible borders, you own it because this first use and embordering gives you a better claim than latecomers. So creation is not necessary.
And suppose you carve a statue in someone else’s marble — either without permission, or with permission, such as when an employee does this with his employer’s marble by contract — then you do not own the resulting statue, even though you “created” it. If you are using marble stolen from another, your vandalizing it does not take away the owner’s claims to it. And if you are working on your employer’s marble, he owns the resulting statue.
Under the Roark Doctrine, however, the carver does acquire the “right” to the marble if he can prove the original owner was really an “altruist” whose stubborn clinging to tangible property rights interfered with the rationally selfish carver’s need to create the statute for his own enjoyment. It takes the “creation as a source of property rights” argument to a whole new level.
Now, when I first raised these concerns about Rand’s arguments to some Objectivists, they dismissed me by saying we shouldn’t take Roark’s speech literally. That’s hardly convincing. The speech itself is part of Objectivist canon, and it’s generally considered Rand’s essential defense of her views on the “virtues of selfishness.” Rand certainly supported intellectual property and state enforcement of patents, copyrights, et al. There’s no reason to believe Rand saw her Roark scenario as metaphorical or allegorical. She clearly believed Roark’s actions were moral given the context of his situation. So why wouldn’t she apply this same standard to a real-world situation?