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Intellectual Property Rights: Criminal Enforcement Matthew Devlin Assistant United States Attorney United States Attorneys Office Austin, Texas.

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Presentation on theme: "Intellectual Property Rights: Criminal Enforcement Matthew Devlin Assistant United States Attorney United States Attorneys Office Austin, Texas."— Presentation transcript:

1 Intellectual Property Rights: Criminal Enforcement Matthew Devlin Assistant United States Attorney United States Attorneys Office Austin, Texas

2 Agenda Intellectual Property Rights Enforcement and the U.S. Department of Justice Intellectual Property Rights Enforcement and U.S. Law Enforcement What is Intellectual Property? Types of IP Crime –Trademark counterfeiting –Copyright infringement –Theft of trade secret What to Do If Youre a Victim of IP Crime

3 Intellectual Property Rights and the Department of Justice

4 Computer Crime & Intellectual Property Section (CCIPS) Created in 1996 as a Section of the Department of Justices Criminal Division DOJs In-house Experts on Cybercrime Support and Train the Nationwide Network of Cybercrime-Savvy Federal Prosecutors

5 U.S. Attorneys Offices U.S. Attorneys are appointed by the President. The Nationwide Computer Hacking & Intellectual Property (CHIP) Coordinator Network 93 Offices in the U.S. and in the District of Columbia, Guam, the Marianas Islands, Puerto Rico, and the U. S. Virgin Islands. ADVERTISEMENT

6 Computer Hacking & Intellectual Property (CHIP) Units Computer Hacking and Intellectual Property Units in 13 U.S. Attorneys Offices Atlanta, Boston, Chicago, Dallas, Kansas City, Los Angeles, Miami, New York (Manhattan & Brooklyn), San Diego, San Francisco, Seattle, and Alexandria, Virginia

7 U.S. History Lesson Copyright and patent rights are in the U.S. Constitution! Article 1, Section 8, Clause 8 The 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.

8 Who 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.

9 When 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 restitution Common factors affecting whether to charge a criminal violation include: Organized Criminal Involvement Public Health and Safety Concerns Commercial Nature of Violation Amount of Loss & harm Violation of Previous judgment

10 Attorney Generals Intellectual Property Task Force – October 2004 IP rights must be enforced Enforcement is the collective responsibility of IP owners and the federal government DOJ will take lead role in prosecuting the most serious violations of IP laws Punish misuse of innovative technologies, not innovation itself Enforcement also involves coordination and cooperation of foreign governments

11 Intellectual Property Rights and U.S. Law Enforcement

12 IP Enforcement Is a Team Effort! Federal Bureau of Investigation US Immigration & Customs Enforcement (ICE) U.S. Secret Service U.S. Postal Inspections Service State and Local Authorities

13 What is Intellectual Property?

14 Intellectual Property What is intellectual property? –Intangible assets recognized as property by the state –For example, trademarks, copyrights, patents, and trade secrets. What is infringement? –Unauthorized use of intangible assets whose control had been exclusively granted to the owner.

15 Trademarks (®) are intellectual property in a brand (such as Coke®) Copyright law (©) is intellectual property in creative works, such as books, music, and movies (and presentations!). For example: Trademark & Copyright The Happy Birthday song was copyrighted in 1935. Until 2010, royalties must be paid if it is publicly performed.

16 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 … Trade Secrets

17 –The 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)) Trade Secrets The formula for Coke is a trade secret. It has been protected for over 100 years!

18 Commonly Infringed Intellectual Property

19 Why Enforce Intellectual Property Rights?

20 Why is IP Enforcement Important? Harm legitimate producers (artists, musicians, and companies), retailers, distributors (local, importers, and exporters) and exhibitors of intellectual property Intellectual Property Violations Can: Pirated creative works include books, software, music, and movies. SoftwareMusicDVD/Video

21 Why is IP Enforcement Important? Threaten public health and safety: Intellectual Property Violations Can: Counterfeit Airplane PartsDefective Batteries

22 Why is IP Enforcement Important? 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 Intellectual Property Violations Can:

23 Why is IP Enforcement Important? Enforcing IP Rights Can: Improve product-related health and safety Foster growth of economic industries (software, high tech, etc.) Foster creativity Create incentive for investment Fulfill international treaty obligations

24 Types of IP Crime

25 Criminal 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 yrs Trafficking 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. §§ 1201-1205 - 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) Copyrighted Works

26 Trademarks Trafficking in Counterfeit Goods & Services (18 U.S.C. § 2320) - Up to 10 yrs (20 yrs for repeat offender)

27 Trade 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)

28 What to Do If Youre a Victim of Intellectual Property Crime

29 If Youre a Victim of IP Crime Contact law enforcement as soon as possible Thoroughly document any internal investigation Record all investigative activities Carefully preserve all evidence Assist law enforcement as much as possible –Identify stolen intellectual property –Share results of internal investigations or civil lawsuits –Explore confidentiality measures

30 DOJ cybercrime website:

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