Intellectual Property, WAS Re: another Money Store ad
Kip Keil (kip@VSNET.COM)
Thu, 1 Jul 1999 09:50:12 -0600
The First Amendment does not guarantee the right of any person (real or
legal) to usurp the property of another, regardless of the form of the
property. In this instance, the property is the creative work and
intellectual property of the Boy Scouts of America. No other person may
use that creative work without expressed permission of the property's
owner. Members of the Scouting Division of BSA are authorized to use
this creative work and intellectual property. Other persons (real or
legal) do not have such authorization.
BSA does not have a policy requiring that a person (real or legal) who
purchases a uniform or emblems that contain creative work that is the
property of BSA provide proof of membership or other expressed
authorization to such materials. This is because doing so would inhibit
providing that creative work to those who are authorized to use it. For
example, if my parents (Silver Beaver recipients both, but now retired
and living 'way out in the boonies,' making continued participation in
Scouting not viable for them.) decided to give my son a second uniform,
they would not be able to make the purchase if the seller were required
to verify that the buyer is a member of BSA or otherwise authorized to
use BSA's creative work. If my son's sister decided to give him an
Official BSA canteen for his birthday, she couldn't buy under such a
requirement. And, yes, you could argue that I, registered in several
capacities, could make the purchase for her, but that brings up another
problem.
If BSA were to require that anyone selling materials containing BSA's
creative works verify the buyer is authorized to use those creative
works, you can bet the attorneys would certainly make the wording such
that it would be a violation for me, an authorized user of BSA's
creative works, to purchase the materials containing such creative works
with the intent of providing those materials to person not authorized to
use BSA's creative works.
The concept Steve offers also opens up other huge areas pertaining to
intellectual property. Under the concept of First Amendment rights as
applied here, I (or you, or we together) could freely use IBM all over
mine/your/our materials. We could also use Apple, Cisco, TWA, Ford,
Caterpillar, Intel, Nike, Sony, Piper, et cetera ad infinitum -- and we
could do so using the exact same signage and emblems as the companies
whose names and property these words/phrases are. We could also freely
make and sell products without regard for the need to license the
manufacturing process or other miscellania appertaining thereto. Why?
Well, isn't it within my First Amendment rights to do so?
I mean no disrespect to Steve, but our system of jurisprudence
recognizes intellectual ownership as a right equal to that of Free
Speech. 700 years of adjudication (British Common Law, and on down --
going, back to the Magna Charta) has established that certain Rights
infringe upon other Rights and that limitations are needed and expected
to control to what degree those certain Rights override or impinge upon
those other Rights.
For example, "fighting words" are not protected by the First Amendment.
Slander and Libel are not protected. "Knock offs" of trademarked
products are not protected. Piracy of software, plagiarism of written
works are not protected. Patent infringements are not protected. But,
one could argue that any of these is form of free expression. But the
law recognizes that only the first person to use the "free expression"
gets to use it for free -- everyone else gets to pay for that use (plus
tax).
YiS
Kip
steve wrote:
> The company's using the uniforms in their advertising have done
> nothing wrong, they are probably in their first amendment rights to do
> so. The people to blame would be the ones who purchased the uniforms
> and are not living up to the agreement they make when becoming scouts
> or the store who sold them without checking for BSA membership cards.
--
Kip Keil, Sr. Programmer, V i s i o n N e t
http://www.vsnet.com | http://kip.vsnet.com
MC, Ad Hoc P-3055; MC, Advancement T-1022; MC, Ad Hoc T-175
AA, Ceremonies Tsah Dibe Chapter, El-Ku-Ta 520,
Great Salt Lake Council, BSA . . . . . "I used to be a bear . . . "
--We all learn from history . . .
...either by study, or by repetition.
-- Kip Keil, 1998
