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【書摘】Against Intellectual Property | N. Stephan Kinsella


摘錄:Against Intellectual Property | N. Stephan Kinsella

文:吳莉瑋
圖:Ludwig von Mises Institute

前段時間為了找尋論文提案的靈感,挖到許多探討專利理論的文章,其中最讓人感到豁然開朗的,是 N. Stephan Kinsella 在 Ludwig von Mises Institute 裡的若干散文,這是我第一次接觸到奧地利學派的經濟學,由於 Mises Institute 上有大量的免費但又經過嚴謹編輯的電子書資源,如獲至寶地下載了一些較為淺顯易懂的入門選,沒想到卻是一頭栽進研讀思考的世界,吸收這樣一套主張「純粹自由」,論述簡單、嚴謹、又令人信服的理論,逐漸內化為自己的人生哲學,回過頭來再看一回當初的入門磚,論述的力道依然堅固。

作者是美國專利律師,這個背景很有趣,同時也是純私契約社會的無政府主義者,他讓我體會到,分清楚在作的事情與想作的事情兩者間的微妙差異,以及堅持原則的人生滿足感。

Page 12 | Added on Monday, April 09, 2012, 11:39 AM
Wealth maximization is not the goal of law; rather, the goal is justice—giving each man his due. Even if overall wealth is increased due to IP laws, it does not follow that this allegedly desirable result justifies the unethical violation of some individuals’ rights to use their own property as they see fit.
Page 13 | Added on Monday, April 09, 2012, 11:44 AM
It is possible that companies would have an even greater incentive to innovate if they could not rely on a near twenty-year monopoly.
Page 14 | Added on Monday, April 09, 2012, 11:46 AM
To ask whether a law should be enacted or exist is to ask: is it proper to use force against certain people in certain circumstances? ... pie growth does not justify the use of force against the otherwise legitimate property of others.
Page 19 | Added on Monday, April 09, 2012, 12:09 PM
the fundamental social and ethical function of property rights is to prevent interpersonal conflict over scarce resources.
Page 20 | Added on Monday, April 09, 2012, 12:14 PM
Property rights must be demonstrably just, as well as visible, because they cannot serve their function of preventing conflict unless they are acceptable as fair by those affected by the rules.
Page 21 | Added on Monday, April 09, 2012, 12:16 PM
Property rights are not applicable to things of infinite abundance, because there cannot be conflict over such things. ... IP rights are not scarce; and, further, that such property rights are not, and cannot be, allocated in accordance with the firstoccupier homesteading rule,
Page 22 | Added on Monday, April 09, 2012, 12:22 PM
IP laws create an artificial, unjustifiable scarcity.
Page 23 | Added on Monday, April 09, 2012, 12:24 PM
Bouckaert maintains that “only naturally scarce entities over which physical control is possible are candidates for” protection by real property rights. For ideal objects, the only protection possible is that achievable through personal rights, i.e., contract
Page 24 | Added on Monday, April 09, 2012, 02:50 PM
IP rights change the status quo by redistributing property from individuals of one class (tangible-property owners) to individuals of another (authors and inventors). ... therefore, IP law trespasses against or “takes” the property of tangible property owners, by transferring partial ownership to authors and inventors.
Page 26 | Added on Monday, April 09, 2012, 02:59 PM
First occupation, not creation or labor, is both necessary and sufficient for the homesteading of unowned scarce resources. ... Palmer correctly points out, “occupancy, not labor, is the act by which external things become property.” ... The problem with the natural rights defense of IP, then, lies in the argument that because an author-inventor “creates” some “thing,” he is “thus” entitled to own it. The argument begs the question by assuming that the ideal object is ownable in the first place; once this is granted, it seems natural that the “creator” of this piece of property is the natural and proper owner of it. However, ideal objects are not ownable.
Page 28 | Added on Monday, April 09, 2012, 03:11 PM
Thus, because ideas are not scarce resources in the sense that physical conflict over their use is possible, they are not the proper subject of property rights designed to avoid such conflicts.
Page 30 | Added on Monday, April 09, 2012, 03:17 PM
Just because a rule can be proposed does not mean that it is workable or just.
Page 31 | Added on Monday, April 09, 2012, 03:23 PM
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.
Page 35 | Added on Monday, April 09, 2012, 03:39 PM
Palmer writes: The separation and retention of the right to copy from the bundle of rights that we call property is problematic. Could one reserve the right, for example, to remember something? Suppose that I wrote a book and offered it to you to read, but I had retained one right: the right to remember it. Would I be justified in taking you to court if I could prove that you had remembered the name of the lead character in the book?
Page 37 | Added on Monday, April 09, 2012, 03:44 PM
Rothbard and others are sidetracked into the mistaken notion that ideas and labor can be owned. If we recognize that ideas cannot be owned (they are not scarce resources), that creation is neither necessary nor sufficient for ownership (first occupancy is), and that labor need not be “owned” in order to be a homesteader, then the trouble caused by these confused notions disappears.
Page 38 | Added on Monday, April 09, 2012, 03:47 PM
We must not lose sight of this crucial libertarian point. If I own a 100-acres of land, I can prance around naked on it, not because the land is imbued with some “right-to-prance-naked,” but because I own the land and it does not (necessarily) violate the property rights of others for me to use my property in this fashion.
Page 39 | Added on Monday, April 09, 2012, 03:57 PM
There is clearly no warrant for the view that reserved rights can somehow prohibit third parties from using knowledge they acquire.
Page 71 | Added on Tuesday, April 10, 2012, 11:39 AM
It does not lose anything from its capacity to produce however often it is used; its productive power is inexhaustible; it is therefore not an economic good.
Page 74 | Added on Tuesday, April 10, 2012, 11:50 AM
“A ’right’ is a moral principle defining and sanctioning a man’s freedom of action in a social context.”