Intellectual Property Crimes

Shiffman, Ben, Goldman, Danielle, Pomeroy, Lauren, 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. Computer Fraud and Abuse Act
      F. 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. Mail and Wire Fraud Statutes
      C. Racketeer Influenced and Corrupt Organizations Act
      D. Database Protection
      E. 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
 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 for the federal government in an environment where 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. (8) Examples of the government's continuing commitment to enforce intellectual property law include the President's transmission of the 2010 Joint Strategic Plan on Intellectual Property Enforcement; (9) the creation of the Intellectual Property Task Force by the Department of Justice ("DOJ"); (10) and Operation Network Raider, (11) a domestic and international enforcement initiative targeting counterfeit network hardware originating in China. (12) Over the past few years, the federal government has steadily increased the number of criminal prosecutions of intellectual property crimes. (13)

This Article examines several areas of intellectual property law that provide the bases for criminal prosecutions. Section II examines the theft of trade secrets; Section III discusses trademark counterfeiting; Section IV addresses copyright infringement; Section V examines the problems raised by online servers; Section VI looks at patent violations; Section VII discusses cable television and satellite descrambling; and Section VIII discusses sentencing for intellectual property crimes.

II. THEFT OF TRADE SECRETS

Although trade secret theft may be the largest obstacle faced by U.S. corporations in their global business, (14) no federal criminal statute dealt directly with the theft of commercial trade secrets until the enactment of the Economic Espionage Act in 1996 ("EEA"). (15) Part A of this Section discusses …

Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: Intellectual Property Crimes. Contributors: Shiffman, Ben - Author, Goldman, Danielle - Author, Pomeroy, Lauren - Author. Journal title: American Criminal Law Review. Volume: 49. Issue: 2 Publication date: Spring 2012. Page number: 929+. © 1994 Georgetown University Law Center. COPYRIGHT 2012 Gale Group.

This material is protected by copyright and, with the exception of fair use, may not be further copied, distributed or transmitted in any form or by any means.