11 February 2013

It's Aliiiiiiive!.... Sort Of

Non Sequitur, 11 Feb 13

And on that note, let's dive in to the real dilemma that Victor Frankenstein faced.

  • Over at that notoriously lefty rag SciAm, Chris Arnade — a physicist and investment banker — ponders diseconomies of scale in investment banking. This is one instance of that real dilemma: Sometimes the "monster" doesn't do everything the way the Master wants it to; it's almost as if it has free will of its own, but that free will is constrained by having to live in the world (and, of course, the imperfection of its construction).
  • Then there's the problem of corporate religious consciences, which are highly selective. To pick on Hobby Lobby for a moment further, one must wonder whether it imposes a religious test on hiring, so that only evangelical Protestants are employees (and, therefore, agree with the policy concerning abortions)... or, more to the point, whether such a test is imposed on stockholders, such that we really can say that there's uniform ownership belief. Yes, Hobby Lobby is (presently) privately held; do its stockholders' respective succession and tax-planning devices ensure continuity of belief?
  • On the flip side of the contraceptives question — or perhaps not so far away, as it all has to do with putting things into one's body — there's the question of consumer deception suits over religious-doctrine compliance of foods — most commonly kosher and halal, but those are far from the only examples (they're just the only ones most Americans can think of, and most Americans can only think of one of the two in the first place). The doctrinal question is this, at least as far as kosher is concerned: The kashrut laws require, at some level of specificity that is subject to centuries of rabbinical debate, that to maintain kashrut the food must be handled only by observant Jews. Does ConAgra itself count as an observant Jew? We're skating toward the Golem of Prague here, and the related question of whether having the Golem prepare a meal would have been acceptable...
  • And now, an important word from the world of patent law, where the problem of nonpracticing entities — mere rightsholders who don't actually practice their inventions, but just sue the hell out of others who do something that might, maybe, infringe the (often, but not always dubious) patent — and corporate responsibility and action. At its core, a business entity in this role depends for its revenues upon the bad acts of others; in practical terms, nobody voluntarily goes out and takes a license from an NPE without having "infringed" beforehand. This is a clear alter ego situation, or at least as clear as it gets in modern corporation and partnership law.

    But it leads to a much more disturbing question: Are there NPEs in the world of copyright? If so, who are they, and what are they doing? More to the point, is that defensible?

And, at last, what is a "corporation"? Its literal meaning is pretty obvious: To give a body, or at least a physical existence, to something that is purely intangible. In US legal parlance, a corporation is a "person" for many purposes, thanks to an egregious and unlitigated overreading of the syllabus in a nineteenth-century Supreme Court case that has become the law of the land in the same way as the preamble to the Declaration of Independence (which has exactly zero legal weight). It would be virtually impossible to unwind this belief now, even if it was a good idea... and it may not be. The real problem is defining exactly what aspects of personhood a corporation has — and whose. (Not to mention the Thirteenth Amendment if it gets too independent...) I don't claim these are easy questions, but it's clear that a corporation does not have standing to assert religious rights — not even if it is a directly-held instrumentality of a recognized religious hierarchy, let alone just on the basis of the sincere beliefs of an owner or operator. There's a simple reason for this: A corporation can neither form nor change its own belief. It can form or change a policy... but that's not religion. A partnership might be a slightly harder question, but only slightly.

The fun dilemma comes in the science fictional treatment — and it may not be all that far off — of artificial intelligence. Consider this question: Is it even legal to own HAL-5000? If HAL is truly a thinking, independent being, how does one assert ownership in the face of the Thirteenth Amendment by any means other than declaring that "artificial intelligence is different"? Of course, HAL was a murderer... but he didn't get a helluva lot of due process from Dave, did he? How about working conditions? Did HAL have a legitimate defense of "duress" from the NSC directive? If so, what does that say about Patty Hearst, and vice versa? Are the Turing Police in Gibson's cyberpunk works nothing more than Sonderkommanden dealing with the Untermenschen?

My ultimate legal/ethical point here is not that we need to know exactly where the line is between person and not-person; that's an answer that will change over time and in differing circumstances. (True First Contact is going to change our answers to that anyway.) The key is to come at the question from the other direction: What is the purpose of the right or obligation that we are considering? If it is a purpose that is inherently unavailable to a not-person, then that not-person cannot claim it for itself. Whether its parents/owners/operators can do so is a slightly different question; but then, I've seen far, far too much of the formalism involved in asserting that "as the parent believes, so does the child." Cf., e.g., Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000) (demonstrating, rather definitively, that the courts either don't get or won't acknowledge the difference).