Don’t Steal My Train;
Don’t Steal My Recipe:
By Douglas Clark Hollmann, Esq.
It used to be that theft was committed by ‘bad’ people who took someone else’s property without permission. If you were a cowboy, you became a rustler when you ran off your neighbor’s cattle. If you were out of work, you became a thief when you lifted a wallet out of someone’s back pocket. Cases were simple. The things that were stolen were tangible - you could put your hands on them. The thief was caught and usually hung, or, in modern times, put on probation and told not to do it again.
Complications arose when kids started stealing cars to go ‘joy riding.’ Everyone thought this was theft, but a clever lawyer one day convinced a judge that the kid he represented wasn’t really stealing the car he had driven away, he had only borrowed it. Borrowing wasn’t permanent, he argued, so the kid was not guilty of theft. The judge agreed. As a result of this realization, ‘joy-riding’ statutes came into existence that said ‘borrowing’ a car for fun wasn’t theft, but it was something that still merited punishment. The law makers decided to call it ‘unauthorized use.’
When computers came along, the courts had a hard time at first with the theft of computer information (‘How can this be a crime, Mr. Prosecutor, when the data file is still there?’ one judge asked), but everyone now recognizes that what can be stolen has changed. Bits and bytes are property. Something you can’t put in your pocket or drive around for a night can indeed be stolen. Steal it and you’re a thief.
In all these earlier cases, someone intentionally set out to take something that was someone else’s. But now you can get in trouble without even knowing it. Take, for example, the Union Pacific Railroad, which woke up one day and realized it owned a valuable asset – its name and logo – and sued every company that made toy trains with ‘Union Pacific’ on their products. The toy train makers were told to pay a license fee or stop making trains that had ‘Union Pacific’ on them. The toy train makers (including dear old Lionel) agreed. They didn’t know they were ‘stealing’ Union Pacific property: they thought they were just making toy trains. But Union Pacific’s creativity has now been exceeded by a chef who has started adding a pink slip of edible paper to his creations telling diners that the dessert they’re eating is ‘confidential property – patent pending.’ Although the chef hasn’t sued anyone, people are worried that if he gets a patent or the copyright to a recipe, it will open the flood-gates to other chefs, and you might get a call some day that your cookie recipe is infringing someone else’s ‘intellectual property’. And you won’t even have known it!
Protecting ideas is good. Every business should look around and see if it owns something that is intellectual property. Those of us, however, who are just enjoying our own creations at home, or at work in a restaurant, are unknowingly being moved closer and closer to being called a thief. Will some chef suddenly call you ‘thief’ and say stop making your chocolate chip cookies? Could be.
The author is a local attorney specializing in Intellectual Property law and can be reached at LawEur@aol.com.
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