Intellectual Property Crimes

By Barr, Katherine; Beiting, Melissa et al. | American Criminal Law Review, Spring 2003 | Go to article overview

Intellectual Property Crimes


Barr, Katherine, Beiting, Melissa, Grzesinski, Amy, American Criminal Law Review


INTELLECTUAL PROPERTY CRIMES

I. INTRODUCTION
II. THEFT OF TRADE SECRETS
    A. Economic Espionage Act of 1996
       1. Definition of Trade Secret
       2. Elements of the Criminal Offenses
          a. Economic Espionage
          b. Theft of Trade Secrets
       3. Applicability to Conduct Abroad
       4. Prosecutions Under the EEA
       5. Defenses
    B. National Stolen Property Act
       1. Transported in Interstate or Foreign Commerce
       2. Goods, Wares or Merchandise
       3. Minimum Value of $5000
       4. Knowledge of the Same
       5. Stolen, Converted, or Taken by Fraud
    C. Trade Secrets Act
    D. Mail and Wire Fraud Statutes
    E. Racketeer Influenced and Corrupt Organizations Act
    F. State Law Provisions
III. TRADEMARK COUNTERFEITING
    A. Trademark Counterfeiting Act
       1. Defenses
       2. Penalties
    B. RICO and Money Laundering Acts
IV. COPYRIGHT
    A. Copyright Act
       1. Elements of the Offense
          a. Existence of a Valid Copyright
          b. Infringement
          c. Willfulness
          d. Financial Gain or Threshold Violation
       2. Defenses
       3. Penalties
       4. Reverse Engineering
    B. National Stolen Property Act
    C. Mail and Wire Fraud Statutes
    D. Racketeer Influenced and Corrupt Organizations Act
    E. Money Laundering Act
    F. Database Protection
V. ONLINE SERVERS: CRIMINAL VIOLATIONS OF THE COPYRIGHT
   FELONY ACT
    A. Criminal Liability
       1. Infringement Via the Internet
       2. The Financial Gain Requirement or Threshold Violation
       3. The Internet and the First Sale Doctrine
    B. Internet Service Provider Liability
VI. PATENT
    A. False Marking
    B. Counterfeiting or Forging Letters Patent
    C. National Stolen Property Act
VII. ART CRIMES
    A. Federal Statutes
       1. Theft of Major Artwork Act
       2. National Stolen Property Act
       3. Mail and Wire Fraud Statutes
       4. Copyright Felony Act
       5. UNESCO and UNIDROIT: Enforcement by Treaties
    B. State Approaches
VIII. SENTENCING
    A. Economic Espionage Act of 1996
    B. National Stolen Property Act
    C. Trade Secrets Act
    D. Mail and Wire Fraud Statutes
    E. Racketeer Influenced and Corrupt Organizations Act
    F. Trademark Counterfeiting Act and Copyright Felony Act
    G. False Marking and Counterfeiting or Forging Letters Patent

I. INTRODUCTION

State and local governments have been forced in recent years to safeguard intellectual property, (1) largely because the Internet allows rapid, facile dissemination of information, (2) While owners of intellectual property can protect their rights by pursuing civil remedies, the threat of civil sanctions is often insufficient to deter theft of trade secrets or infringement of trademarks, copyrights, or patents. (3) Indeed, some intellectual property thieves view civil damages as simply another cost of doing business. (4) For example, intellectual property theft has become so common that some companies now hire "good hackers" to perform vulnerability assessments of their networks to troubleshoot potential security risks. (5) Intellectual property theft cost rights holders an estimated $300 billion dollars in 1997. (6) Fortune 1000 companies alone lost more than $45 billion from theft of trade secrets in 1999. (7) By 2000, American companies were losing in excess of $1 trillion. (8)

The marked increase in intellectual property crimes, combined with the lack of deterrence provided by civil remedies, has led the federal government (and most states) to enact criminal statutes to prevent the theft of intellectual property rights. (9) The government has also begun a crackdown on trademark and copyright infringement. (10) The FBI's Operation "Counter Copy" and the DOJ's "Intellectual Property Rights Initiative" (11) are evidence of the government's commitment to prosecute intellectual property crimes.

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