Republicans (okay, and Libertarians) are full of shit, part 2: the "Death Tax"

Curses upon you, Frank Luntz, and all your word-twisting ilk. "Death Tax"? What is that? A tax on death? Who pays it, the dead? And how much is assessed: is it based on the age of the deceased, the manner of death? The answer on all of these being "no", it is obvious that the name does not fit and is not, therefore, useful (much like the moronic "Homocide Bomber", which masked the fundamental nature of suicide bombing that sets it apart from, say, arson, or folks who use remote, timed, or other event-activated controls -- and I notice that Fox News still uses that asinine term). The tax is on property, not death. It is paid by the living -- who themselves do not own it -- not the dead. And it is assessed on the value of the property. It's most useful designation, therefore, is "estate tax", as "estate" is understood as that property pertaining to an individual who has died. It is paid only on estates valuing more than $1 million, and estates valuing more than that are calculated by the IRS to be only 2%. And for the sake of our liberties, it must be preserved.

Yes, it is immoral to use force, threat thereof, or fraud to deprive an individual of life, liberty, or property. At the same time, however, property (if not wealth) is finite, and the logic of capitalism being the concentration of property and wealth into the hands of a minority of the population, it inevitably results in the creation of a property-less class of sufficient size to disrupt and even destroy the capitalist system -- even through "legal" means, like . . . oh, "Directive 10-289". Remember why the citizens gave the U.S. government the authority to tax individuals directly (in the 16th Amendment): because in the early twentieth century, the majority saw the extreme wealth and conspicuous consumpmtion of a minority of citizens, and felt that such citizens should be taxed more. The only way to prevent this, while preserving capitalism, is to systematically and periodically redistribute wealth, thereby, presumably, liquidating property. Given the first sentence of this paragraph, the only just time to take someone's wealth for redistribution is when that individual no longer owns it -- that is, when that individual is dead. Nobody else at that time has the right to the property, because heirs have no more right to property they do not own than any other person.

Bear in mind, however, that the "Gift Tax" is completely immoral, turning on its head the meaning of the saying, "you can't take it with you." The old, facing a much shorter horizon for their lives, are in a position to begin to give away the money they have saved over their lifetimes. Tax laws should favor, or at least not penalize, distribution of that wealth, to family and other institutions -- and certainly not penalize the survivors. The addition of lifetime gifts to the value of the estate must be ended immediately.

I would propose that estate taxes be primarily against real property, wealth not necessarily being finite. Real property existing in a state, that property should be taxed at the state level, not the federal level (so the federal estate tax should be abolished: I'm supporting the concept, not the implementation). This would force land and other such assets to return to the market periodically, and keep it from being concentrated too much. Even if a real estate mogul bought every piece of useful property in a state, at his death, his descendants would have to buy almost all of it all over again. I say almost, because I would argue for a threshold, below which property is safe from taxation. The other solutions to avoid the tax would be insurance, and companies in such an environment would undoubtedly offer estate insurance or somesuch thing to enable heirs to preserve property intact.

There are some implications of this, however. For a time, the owner of the property above the threshold would be the state, which is troubling. There must be some provision for insuring that the property is put on the market and sold quickly, with safeguards against purchase by an agent of the state, or certain individuals. There's no way to systematically prevent individuals from murdering other individuals over land, but remember that children murder their parents, and spouses their spouses, over the assets that the latter hold in life. The key here is to investigate every death to isolate the agent, and prevent such individuals from benefiting from their crimes.

Something that would help satisfy the spirit of this proposal would be a requirement that only individuals, and even citizens of a given state, could own land or real property in that state. The implications would be that any non-real entity -- a corporation, for example -- would have to lease property. That might impose a certain cost and uncertainty on business, but stability would arise: it's not inconceivable that an individual would have a long-term lease with a corporation, and that lease would continue under, and even be a selling-point for, a new owner of the property. Insurance companies might step forward with policies to cover relocation costs in the event of a fickle landlord. But remember that companies would have to sign leases, and their agents would negotiate a deal to mitigate their risk. Similarly, landowners would be responsible for any pollution of their property, and could hold the leasing agent legally culpable under the terms of the lease for any toxic emissions or other contamination. Of course, states neighboring any state that implemented such a policy might take advantage of the situation by not following suit, and long-term detriment in the form of property monopolization would be insufficient to offset that advantage. So this whole paragraph is kind of a mental exercise.

But as far as this silly campaign against the "Death Tax", it misses the real point. We must eliminate the gift calculation on the estate. We should repeal the 16th Amendment entirely. But until we take away the government's ability to tax citizens directly, the least offensive tax is one against the property left ownerless by the death of the owner. Concentrate our efforts in the personal income tax, which affects living individuals.

So help me God. . . .

So this case in North Carolina, about the Muslim who was refused the privilege of swearing on the Qur'an, caught my eye. To cite the Constitution again, (Art. VI), "no religious test shall be used for any trust or office under the United States." So the whole notion of requiring an oath on the Bible is incontestibly unconstitutional (and, again, "the rights of the citizens of each state shall be the same as the rights of the citizens of the several states", so this NC court is federal jurisdiction). Case closed.

Unfortunately, at least from the standpoint of maintaining my righteous indignation, witnesses aren't required to swear on the Bible: a secular oath is just fine in court. The question, then, is whether "Holy Scripture" is a matter of subjective opinion, or of state definition.

Stating it that way, the solution is evident to any rational human: the state cannot define "Holy Scriptures", so each individual may define it himself. But the simplest solution is to require a secular oath: "I swear to tell the truth, the whole truth, and nothing but the truth". Because, really, who is culpable for violation of the oath -- God? Trick question: it's the oath-taker, of course. Our courts are based on the notion that an individual is responsible for his actions, and we generally accept evidence over divine revelation -- so why do we persist in this fantasy that we can count on God to make someone tell the truth? Dispense with any reference to the divine or "Scriptures". The legislatures of every state should define an oath that is not based on a presumption of God, and is therefore appropriate to a trust under a state that respects all beliefs equally.

There's no real valid counter-argument. But feel free to expose your own stupidity if you disagree.

Intellectual property

I guess to start this rant, I should quote the Constitution: Congress is authorized to create legislation "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" (Art. I, Sect. 8, Cl. 8). I start with this because too many persons seem to have forgotten that the purpose of copyrights and patents is to "promote the Progress of Science and the useful Arts," that the "exclusive Right" is granted only to the "Authors and Inventors", and that the right last only "for a limited Time".

To be sure, the purpose is fulfilled by allowing the creator of an idea to reap profit through a monopoly on the idea, so let it not be inferred that I don't think creators should profit from creation. I just think that the monopoly must be temporary and, preferably, non-transferrable, because long-term monopoly over an idea does not advance science or art, but stifles it. This applies not just to, for example, scripts and songsheets, but the information that makes up the recording of a film or compact disc.

The most irritating abuses of legal protection of use of a word or phrase is the trademark. It's infuriating because it embodies something that I really hate: calling things by the wrong name, or by a name that distorts the reality of what it is. (For more on that, see my piece on the "Death Tax".) It's the attempt to create reality that is not there, an effort that lies at the heart of marketing. For example, have y'all seen how many different ways there are to say "blizzard (tm Dairy Queen)"? It verges on the absurd -- nay, it plunges right in. To extend the idea, what if one of these marketing types had been around in 1938, when the word "cheeseburger" came into existence: we might have to buy "hamburgers with cheese" everywhere else, because "cheeseburger" would still be trademarked. And what about pizza, which dates back only to the 1930s? It's one thing to protect the name or emblem of a company -- faking that is identiity theft. And a name-brand is also worth protecting: I saw my share of shady products in Bishkek's kioski, like "Karlboro" cigarettes, complete with the red and white labelling. So I could see "Dairy Queen Blizzard" protected, or "Ford Mustang", but not "Blizzard" or "Mustang", even if they referred to a blended ice cream confection and car respectively. This is all a matter, I guess, for court judges, because they're the ones that decide whether "Victor's Secret" is a violation of "Victoria's Secret"'s trademark (incidentally, I agree with the 6th Circuit Court). Still, I would like to see protection of anything but the actual source or identity of a product or company shot to hell.

The consequences of rulings that consistently limited trademark protection? The activity that would no longer be rewarded economically would be the creation of names. To differentiate products among companies, more effort would go into qualitative descriptions, and real differences, than in coming up with a snappy name. I don't see that production or creative effort would otherwise be hampered.

A little less irritating, but of much greater impact, is the copyright, the Constitutional purpose of which has been almost completely abandoned. For example, in 1998 Congress passed and Clinton signed the Copyright Term Extension Act, which extended to 95 years the copyrights on all works created before 1978. Ninety-five years. Does that not boggle the mind? To preserve somebody's right to restrict use or derive income from use of data for a period of time greater than the expected lifespan of the creator is to stifle expansions on that idea and channel income into an inherently uncreative pursuit. One heavy contributor and equally heavy beneficiary of CTEA was Disney, whose copyright on, say, images of Mickey Mouse, now stretches to 2023 -- 95 years after his appearance in Steamboat Willy. Remember that Walt Disney has been dead since 1966 (that bit about his body having been frozen is an urban legend), and Ub Iwerks has been dead since 1971. Neither of them is being encouraged to create more art by the extension of this copyright, and nobody else can do it either, unless they get agreement from (and, presumably, pay a portion of the profit to) Disney. And Disney gets to stay in business doing nothing else but trotting out the work of dead artists from "the Disney vault".

It's much more far-reaching than that. Suppose I were to write a novel, and as part of the dialogue I had characters quote a song, as sometimes happens, I'm told, in conversations. If that song was written after 1910, I have to find out who wrote the song, who owns the rights, and get their permission to use the lyrics. If a high school wants to put on a play, or, heaven forbid, a musical, and defray the costs of the production by charging admission, they have to get authorization. And Michael Jackson gets a buck everytime somebody prints or performs one of the Beatles' tunes he owns. I remember when John Fogarty was sued by Fantasy Records for copyright infringement for creating "The Old Man Down the Road", which the label said too closely resembled "Run Through the Jungle" (which, incidentally, Fogarty had also written). Fogarty beat the case, but the audacity of Fantasy was simply . . . fantastic.

I recall also efforts by the Recording Industry Association of America (RIAA) in the 1970s to get legislation to prevent individuals from using tape recorders to copy the albums they'd bought. The arguments the RIAA used at the time should sound familiar to anyone living in the age of mp3 file-sharing, and those arguments today are no less full of shit than the ones leveled against the humble cassette recorder. I am also greatly annoyed by my inability to skip the FBI warnings and production company opening sequences in the DVDs I purchase. I bought the damned things, after all. I've got the box to tell me who produced the thing, and a label there reminding me of copyright laws. Why do I have to sit through that crap everytime I want to watch a Buffy episode?

Of course, creation should be rewarded in a manner commensurate with the effort reasonably expected to produce it. For example, in the late nineteenth and early twentieth century, authors of dime-novels got no royalties, only money of the sale of the books to the publishing companies. To survive, therefore, the authors had to produce continually. This system encouraged creation, but not quality, as dime-novels tend to be repetitive, derivative, and in most important respects indistinguishable from each other.

So my solution is to dispense with the 95-year CTEA, and even the life-plus-50 and life-plus-20 standards. Copyrights should last for a generation, or the life of the creator, whichever is less (the creators of many complex works being companies, the former criterion would probably be met first). I would say no more than 20 years, the same length as the term of a U.S. patent. After that period expired, the data, whether a visual image, a poem, a musical recording or a motion picture, would be part of the public domain, freely tranferrable and usable in other works.

This is the most drastic, seemingly, of my solutions, so it's fair to look at the likely effects. The biggest one is that the movie studios and the recording companies would lose a crap-load of income. But so what? They'd still have exclusive right to use the material until that time, and they could reap whatever profit was available in that way. Twenty years is long enough for a first run and release on video/DVD, and I doubt most audiences would wait around that long to view the piece for free. Companies would have to continue to produce works, and they would still be rewarded, as would artists, but that reward would be tied to the act of creating, not the non-action of owning. There would be a general wage deflation in the entertainment industry, but, again, so what? On the other side, local musicians could appeal to nostalgia-buffs with live performances of tunes that were only a generation old. Local actors could put on Annie without paying somebody else for the privelege. Remember, the purpose of the copyright is to encourage art, to increase its variety, quantity, and quality -- not to make sure a bunch of folks can acquire power through the generation of wealth from non-productive ownership of ideas.

It bears mentioning, by the way, that artists don't create only for financial reward. Artists have to survive, but they produce art because they can, desire, and, often, need to. Copyrights enable them to make careers of that ability, desire, and need, but art, music, theater, and literature all predate copyright protection.

Finally, there are patents, about which I don't have much to say. I am mightily annoyed that some individuals and companies file patents on a technology which they have not themselves created, or made feasible, and file applications that are sufficiently vague to cover any similar technology -- but that is a matter for judges. Also vaguely irksome is the practice of extending patents on drug formulae by changing the intended use of the drug. I also dislike the idea of companies and universities attempting to force employees to sign over any patents they might qualify for during their employment by the institution. I would not expect that an employer could get away with that, but, at the same time, an employer can opt not to hire somebody who won't turn over his patents. I, for example, would not surrender any patents, but I've known individuals in the computer software industry who have. I would prefer that an annually renewable exclusive use lease be required of the employee: that is, for one year the company must have exclusive use of the idea, although the patent remains the employee's. This would represent the investment in salary made by the employer, but it would also respect the ownership of the employee. Each year, the employee (or ex-employee, given that the terms of the lease might allow the employee to take early retirement) could renew or cancel the lease, in the latter case leasing use of the patent to another agent. But courts and the US Patents & Trademarks Office should always fall on the side of the ownership by the creator, and not the employer. Hell, the employer still gets the employee's work for the agreed salary, so it's not like they don't get anything out of it.

I welcome posts from patent lawyers and others interested in patents et al., to correct or expand upon anything I've said above. But no part of this post may be reproduced without my written consent, and the payment of a fee which I may arbitrarily set.

Citizenship and Suspicion

I recently returned from a two-week roadtrip through Texas with my wife and then 14-month-old son. A lot of firsts: first road trip with a child (lots of unplanned stops), first time seeing a large body of water for him, first visits with various relatives, first tour of the Alamo. And, while driving from the (Rio Grande) Valley to Austin, I experienced my first interior immigrant checkpoint.

I don't know how many of y'all out there know that these things exist. I know I didn't, not before I met my wife. This is one of several actual checkpoints, like those that one might find at the border, with federal border patrol agents and dogs, located on major north-south arteries from California to Texas. Drivers are obliged to stop and demonstrate in some way that they are American citizens. In my family's case, that consisted of answering in the affirmative to the question: "Americans?"

That's nowhere near as ominous or intrusive as the stern trenchcoated man -- or the armed policeman -- menacingly demanding "Bumagy, pozhuals't'" (papers, please), as I encountered a few times in the former Soviet Union. In saying so, however, I must point out that less "American"-looking folks might have been stopped for longer, subjected to greater and more invasive scrutiny, and inconvenienced quite a bit more than we were. Leaving aside for now the question of the effectiveness of such checkpoints, or the issue of immigration, legal or otherwise, I would assert that no American citizen should ever be obliged to prove his or her citizenship except when accessing those privileges exclusive to citizens.

That last clause opens a can of worms, which I'll toss aside by noting that the only such privilege should be voting. No level of government should be providing services on the basis of citizenship, because each level of government is responsible for protecting the rights of all individuals in its jurisdiction -- and little else besides. The emergency room doctor shouldn't waste time looking for a bleeding patient's green card or visa before offering service (and without going too far out, the unconscious or critically-injured patient shouldn't have to provide evidence of ability to pay before receiving treatment, which is why there shall have to always be some public provision of emergency care); the police officer shouldn't have to ask the pocket-picked person for a passport prior to pursuing the perpetrator; the SAC pilot shouldn't have to get a statistical breakdown of citizens and non-citizens in an area before intercepting an unidentified aircraft bound for that area; the ranger at the gate of a national park shouldn't have to check your ID before accepting your payment of the entry fee. Schools? Okay, I think there shall always have to be public provision of some level of education, which discussion I'll have in another post. But again, the teacher shouldn't have to check the citizenship of each of his students: if the student's not on the list, the student must resolve that situation outside the classroom, and such resolution would involve proof of residency or appropriate school-related registration. So, again, the only time the individual should be obliged to carry state-sanctioned identification is when he walks up to the polling place.

Note that I distinguish here between citizenship and identity, as I can see the need for establishing identity in a lot of situations. Still, the need should be based on the individual's attempt to access a service, or in investigation of a specific crime that has been committed -- not just at random, even to detect a criminal activity. The police should legitimately be stopping individuals and/or vehicles only if they match descriptions or circumstances (such as passing a given point in a specific timeframe) related to an investigation of a reported or observed crime. In such cases, establishment of identity is less important than, say, an alibi, so it is not necessary to provide identification even then. If the individual becomes a suspect, the police should detain the individual, pursuant to existing law and bail procedures; if a material witness, the police should get contact information; if neither, there's no need for identification at all. If only authorized persons are allowed in a given location, it doesn't matter whether the unauthorized (or authorized, I guess) is a citizen or not. If a person is acting in a disruptive or suspicious way in a public place, again, citizenship has no real relevance to the behavior, and at any rate intercepting and searching this individual can fall under the heading of justifiable police activity referred to above. Similarly, certain materials may be so dangerous to the lives or property of individuals that acquisition and possession of said materials might and should be monitored by the state; bonding or some other registration might be required to buy or sell said materials, and transactions might be recorded and evaluated. This falls under the authorized personnel rubric; applying for the authorization would fall under the government service rubric, and unusual purchases might meet the suspected crime criterion. Note that I specify the danger to other individuals or property, so pharmaceuticals, porn magazines, or how-to books on making bombs wouldn't qualify. Additionally, none of the above scenarios requires proof of citizenship (authorizations might be granted irrespective of citizenship), and in all cases, identification is required only upon request of service or suspicion of a committed crime or witness to same.

The reason I'm so down on proof of citizenship or a national ID card is simple, and it actually comes from something my poli econ prof at college said (in reference to South Africa at the time): if the state issues an ID that one must carry, and that can be demanded by any agent of the state, it is possible for any agent of the state to take that ID from you and effectively prevent you from leaving your house, on threat of arrest for walking the streets without identification. My experiences with the former Soviet Union reinforced this: lacking "bumagy" could result at least in inconvenience, the payment of a fine, or detention.

Some of you out there are rolling their eyes at the paranoia inferrable from the above paragraph, and feel free. But never assume that any individual in power, as I discussed in my essay on Law, is immune to error or malice, and that any of you is secure against intentional or unintentional abuse of power on these bases. At any rate, if we don't need the ID, why risk the potential abuse of power? Further, documents can be counterfeited, and in creating the false sense of security that such empty gestures generate, authorization documents actually shelter the very individuals we are trying to filter out. A national ID, internal passport, or other such thing is more trouble than it's worth.

Some of you are also saying, "but we're at war". First, that's a load of crap. Congress hasn't declared such a war. A war on terror is pointless, a war on terrorism is pointless, and a war on terrorists is pointless. We go to war against states, not emotions, ideologies, or associations. If necessary, we should go to (properly authorized) war against specific states that perform or shelter and/or aid those who perform violent acts against Americans. In other cases, we collaborate with internal security agencies of specific states involuntarily hosting terrorists. At home, meanwhile, law enforcement and responsible individuals monitor activity of other individuals, and law enforcement can monitor those materials that are sufficiently dangerous to justify it. That's not war, and does not provide justification for suspending anybody's liberties or granting additional authorities to the state.

More importantly, there is nothing a foreign terrorist can do that an American criminal can't do. The simple presence of Osama bin Laden in my neighborhood does not of itself endanger me: it is his potential actions, just as those of any American walking down the street, that present the threat. The 9/11 hijackers were not dangerous because they were foreigners, or that they had violated the terms of their visas, but because they brought potential weapons onto an airplane -- something nobody is allowed to do, regardless of citizenship. Further, the attacks were made possible not because of a failure of intelligence, or of the INS, or, ultimately, of the airlines, but rather of a flawed assumption about the nature of hijackings. The attacks having eliminated this assumption as a factor, no change to airline security, from nationalization of bag checks to guns in the cockpit, was necessary to prevent a repeat of that kind of attack. Preventing other kinds of attacks involves monitoring production, sale, and formal or informal importation of explosives, dangerous chemicals, dangerous pathogens, and toxic (including radioactive) material on a national scale, and observing individual behavior at facilities that are at risk.

As for immigrants, again, I don't want to get into it. Suffice it to say that I am not harmed when a foreigner takes a job for a wage I won't accept, nor when one lives in a apartment and pays rent that I would reject. If we confine government to those activities necessary to protect all the individuals within its jurisdiction, the fact that such an individual is a non-citizen has no financial impact on me either.

So why do we need internal checkpoints or a national ID?