Presentation on theme: "Intellectual Property Rights: Criminal Enforcement"— Presentation transcript:
1Intellectual Property Rights: Criminal Enforcement Matthew DevlinAssistant United States AttorneyUnited States Attorney’s OfficeAustin, Texas
2AgendaIntellectual Property Rights Enforcement and the U.S. Department of JusticeIntellectual Property Rights Enforcement and U.S. Law EnforcementWhat is Intellectual Property?Types of IP CrimeTrademark counterfeitingCopyright infringementTheft of trade secretWhat to Do If You’re a Victim of IP Crime
3Intellectual Property Rights and the Department of Justice
4Computer Crime & Intellectual Property Section (CCIPS) Created in 1996 as a Section of the Department of Justice’s Criminal DivisionDOJ’s In-house Experts on CybercrimeSupport and Train the Nationwide Network of Cybercrime-Savvy Federal Prosecutors
5U.S. Attorneys’ Offices U.S. Attorneys are appointed by the President. ADVERTISEMENTU.S. Attorneys’ OfficesU.S. Attorneys are appointed by the President.The Nationwide Computer Hacking & Intellectual Property (CHIP) Coordinator Network93 Offices in the U.S. and in the District of Columbia, Guam, the Marianas Islands, Puerto Rico, and the U. S. Virgin Islands.
6Computer Hacking & Intellectual Property (CHIP) Units Computer Hacking and Intellectual Property Units in 13 U.S. Attorneys’ OfficesAtlanta, Boston, Chicago, Dallas, Kansas City, Los Angeles, Miami, New York (Manhattan & Brooklyn), San Diego, San Francisco, Seattle, and Alexandria, Virginia
7Copyright and patent rights are in the U.S. Constitution! U.S. History LessonCopyright and patent rights are in the U.S. Constitution!Article 1, Section 8, Clause 8The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.We know its important because it’s in the Constitution.The Constitution anticipated copyright and patent protection.Article 1, Sec. 8, Cl. 8 states:The reference to “Science” is patent and “Arts” is copyright.
8Who Protects Intellectual Property in the United States? Majority of IP enforcement is civil action undertaken by intellectual property owner. The U.S. Government is not a litigant.In civil enforcement, the burden is on the intellectual property owner to show infringement by a “preponderance of the evidence.”A successful rights-holder can collect injunctive relief; monetary damages; or extraordinary remedies.
9When Does the US Government Bring Criminal Charges? Criminal charges can be brought when there is willful or knowing infringement.Criminal cases require a higher burden of proof: “Beyond a reasonable doubt”Remedies: incarceration, fines, and restitutionCommon factors affecting whether to charge a criminal violation include:Organized Criminal InvolvementPublic Health and Safety ConcernsCommercial Nature of ViolationAmount of Loss & harmViolation of Previous judgment
10Attorney General’s Intellectual Property Task Force – October 2004 IP rights must be enforcedEnforcement is the collective responsibility of IP owners and the federal governmentDOJ will take lead role in prosecuting the most serious violations of IP lawsPunish misuse of innovative technologies, not innovation itselfEnforcement also involves coordination and cooperation of foreign governments
11Intellectual Property Rights and U.S. Law Enforcement
12IP Enforcement Is a Team Effort! Federal Bureau of InvestigationUS Immigration & Customs Enforcement (ICE)U.S. Secret ServiceU.S. Postal Inspections ServiceState and Local Authorities
14Intellectual Property What is “intellectual property”?Intangible assets recognized as “property” by the stateFor example, trademarks, copyrights, patents, and trade secrets.What is “infringement”?Unauthorized use of intangible assets whose control had been exclusively granted to the owner.
16Trade Secrets Defined at 18 U.S.C. 1839: all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if …”
17Trade SecretsThe owner has taken reasonable measures to keep such information secret (§ 1839(3)(A))The information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, the public (§ 1839(3)(B))The formula for Coke is a trade secret. It has been protected for over 100 years!
20Why is IP Enforcement Important? Intellectual Property Violations Can:Harm legitimate producers (artists, musicians, and companies), retailers, distributors (local, importers, and exporters) and exhibitors of intellectual propertySoftwareMusicDVD/VideoPirated creative works include books, software, music, and movies.
21Why is IP Enforcement Important? Intellectual Property Violations Can:Threaten public health and safety:Counterfeit Airplane PartsDefective Batteries
22Why is IP Enforcement Important? Intellectual Property Violations Can:Foster growth of a lawless underground economy that escapes accountability (such as paying taxes on sales)Provide funding for violent domestic and foreign-based organized crime syndicates
23Why is IP Enforcement Important? Enforcing IP Rights Can:Improve product-related health and safetyFoster growth of economic industries (software, high tech, etc.)Foster creativityCreate incentive for investmentFulfill international treaty obligations
25Copyrighted WorksCriminal Infringement of a Copyright (18 U.S.C. § 2319 & 17 U.S.C. § 506) - Up to 5 yrs (10 yrs for repeat offenders)Trafficking in Counterfeit Labels for Software & Music (18 U.S.C. § 2318) - Up to 5 yrsTrafficking in Recordings/Videos of Live Musical Performances (18 U.S.C. § 2319A) - Up to 5 yrs (10 yrs for repeat offenders)Circumvention of Copyright Protection Systems (17 U.S.C. §§ Up to 5 yrs (10 yrs for repeat offenders)Unauthorized Reception of Cable Services (47 U.S.C. § 553) - Up to 6 mos (individual use) / 2 yrs (commercial gain) / 5 yrs (repeat offenders)The elements are pretty straight forward.“Traffic” is defined under 2320(e)(2) as transport, transfer, or dispose of as consideration for anything of value.There are some snags in the application of the statute however.
26TrademarksTrafficking in Counterfeit Goods & Services (18 U.S.C. § 2320) - Up to 10 yrs (20 yrs for repeat offender)The “counterfeit mark” issue poses some interest issues for the prosecution. The dictionary defines a “spurious mark” as lacking validity or authenticity. This is no help.Must be an registered for those goods and services.And the use much be likely to cause confusion, to cause mistake or deceive.For example, the most recognizable trademark there is...
27Trade Secrets Economic Espionage (18 U.S.C. § 1831) - Up to 15 yrs Theft of Trade Secrets (18 U.S.C. § 1832) - Up to 10 yrs (corporate offender - up to $5M fine)Confidentiality- Protective orders and other actions authorized (18 U.S.C. § 1835)The “counterfeit mark” issue poses some interest issues for the prosecution. The dictionary defines a “spurious mark” as lacking validity or authenticity. This is no help.Must be an registered for those goods and services.And the use much be likely to cause confusion, to cause mistake or deceive.For example, the most recognizable trademark there is...
28What to Do If You’re a Victim of Intellectual Property Crime
29If You’re a Victim of IP Crime Contact law enforcement as soon as possibleThoroughly document any internal investigationRecord all investigative activitiesCarefully preserve all evidenceAssist law enforcement as much as possibleIdentify stolen intellectual propertyShare results of internal investigations or civil lawsuitsExplore confidentiality measuresAt the same time, computers are making the copying of such material that much easier and the Internet is making distribution of this material that much simpler.It is also making copying and distribution in violation of copyright more prevalent.