Summary
Twenty-Fifth Edition of the Annual Survey of White Collar Crime
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Extract
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 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) By 2000, U.S. companies had lost over $1 trillion from intellectual property theft, (6) costing Americans approximately $250 billion every year. (7) 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. (8) 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. (9) Examples of the government's continuing commitment to prosecute intellectual property crimes include "Operation Buccaneer," (10) a collaborative effort by the U.S. Customs Service and the Department of Justice ("DOJ"); the joint anti-piracy initiative, (11) which involves the FBI; and Operation Site Down, (12) a global campaign against organized piracy. (13) Enforcement efforts are also getting more sophisticated and aggressive. The DOJ launched Operation D-Elite in May 2005 to crack down on peer-to-peer (P2P) piracy networks. (14) In October 2006, the DOJ completed its first successful "criminal enforcement action against copyright infringement on a P2P network using BitTorrent technology." (15) Over the past few years, the federal government has steadily increased the number of criminal prosecutions of intellectual property crimes. (16) 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 ...See the full content of this document
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