Preface

• Jurisdiction: United States
• Publication year: 2020

Preface

There can be no doubt that the protection of intellectual property is becoming increasingly important both to the economic well-being and to the security of the United States. Intellectual property is one of the primary building blocks of the economy, social welfare, and international competitiveness of the United States. When intellectual property is not adequately protected, the United States loses not only jobs, production, and profits today, but also the ability to undertake investments and research that leads to the technology of tomorrow. The failure to adequately protect intellectual property today, therefore, also may harm future generations. As Judge Richard Posner has stated "[t]he future of the nation depends in no small part on the protection of intellectual property."¹

For most of the history of the United States, the protection of intellectual property rested almost exclusively with the private sector. United States companies concerned about the protection of their intellectual property assets took steps to better protect such assets and to recover damages from companies and individuals who may have infringed or misappropriated these assets. Indeed, there were no federal criminal laws protecting intellectual property until over one hundred years after the passage of the first federal copyright act in 1790 and the first federal law that made the misappropriation of intellectual property rights a felony was not enacted until 1982 but even then this law was extremely limited in scope.

Despite the absence of strong criminal laws in this area, companies were generally successful in protecting their intellectual property in the pre-digital era since existing technology made it very difficult for copyright pirates, for example, to reproduce recordings of popular music on a mass scale for sale to the public. Similarly, an employee involved in the theft of trade secrets was limited by the amount of information that could be memorized or physically copied and removed without attracting attention.

Now, however, not only has the increased value of intellectual property made it far more lucrative to steal, but the physical constraints that limited such theft in the pre-digital era have been removed. Digital works, such as music CDs, DVDs and computer programs, can be reproduced easily, inexpensively and perfectly, with the millionth copy being of the same quality as the original. Similarly, because valuable and proprietary information is also stored on computers, a thief no longer has to physically copy such documents, but simply can make an electronic copy of that information and transmit it over the Internet to anywhere in...