Intellectual Property Crimes

By Coenen, Ronald D., Jr.; Greenberg, Jonathan H. et al. | American Criminal Law Review, Spring 2011 | Go to article overview

Intellectual Property Crimes


Coenen, Ronald D., Jr., Greenberg, Jonathan H., Reisinger, Patrick K., American Criminal Law Review


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
           a. Independent Development
           b. Reverse Engineering
           c. Lack of Secrecy
     B. National Stolen Property Act
        1. Transported in Interstate or Foreign Commerce
        2. Goods, Wares, or Merchandise
        3. Minimum Value of $5,000
        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. Computer Fraud and Abuse Act
     G. State Law Provisions

III. TRADEMARK COUNTERFEITING
     A. Trademark Counterfeiting Act
        1. Relation to the Lanham Act
        2. The 2006 Amendment
        3. The PRO-IP Act of 2008
        4. Elements of Criminal Offense
        5. Defenses
        6. Other Federal Statutes
     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
     G. State Law Provisions

V.   ONLINE SERVERS: CRIMINAL VIOLATIONS OF THE COPYRIGHT
     FELONY ACT
     A. Individual 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. CABLE TELEVISION AND SATELLITE DESCRAMBLING

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
      H. Cable Television and Satellite Descrambling

I. INTRODUCTION

Intellectual property accounts for a large part of today's economy. (1) Protecting the rights of intellectual property owners is, therefore, a critical task of the federal government in the current environment in which the distribution of illegitimate goods can be achieved on scales like never before. (2) While owners of intellectual property can protect their rights by pursuing civil remedies, the threat of civil sanctions is often insufficient to deter infringing activities. (3) Some intellectual property thieves simply view civil damages as another cost of doing business. (4) Moreover, because the theft of intellectual property often does not involve tangible goods, and in most cases does not require direct contact with the rights holder, many victims are unaware of the damages they sustain until an investigation is undertaken. (5) Conservative estimates indicate that U.S. companies lose $200 to $250 billion and 750,000 jobs each year to intellectual property theft. (6) In addition to monetary damages, intellectual property theft may also compromise the safety of the general public due to the use of counterfeit materials in pharmaceuticals, auto parts, and other such goods. (7)

The marked increase in intellectual property theft, combined with the ineffective deterrence provided by civil remedies, has led the federal as well as state and local governments to enact criminal statutes to protect intellectual property. …

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