Intellectual Property Legal Resources
The Department of Justice continually provides informal guidance to prosecutors and investigators as they work through complex substantive, procedural and practical elements of intellectual property crime cases. While this guidance does not provide any legal rights or obligations, it is helpful to law enforcement as they address challenging questions of law, policy or practice. For example, the manual, Prosecuting Intellectual Property Crimes, written by the Computer Crime and Intellectual Property Section, provides guidance to law enforcement on the investigation and prosecution of violations of federal intellectual property laws. You may access these documents via the links below.
Prosecuting Intellectual Property Crimes Manual
This manual, written by the Computer Crime and Intellectual Property Section, provides guidance to law enforcement on the investigation and prosecution of violations of federal intellectual property laws. A new and extensively revised edition of the manual was published in 2006 and is available online.
Federal Criminal Intellectual Property Statutes
The following is a list of federal criminal statutes relating to intellectual property. In light of increasing legislation in this area, please check other outside sources and ensure the version you are viewing is current.
Alternative sources for the U.S. Code include:
- Copyright and Related Offenses
Note: Most of these are no longer kept at USSOC and will need to be locasted with one of the services provided above.
- Digital Millennium Copyright Act (DMCA)
- 17 U.S.C. 1201 (Circumvention of Copyright Protection Systems)
- 17 U.S.C. 1202 (Integrity of Copyright Management Information)
- 17 U.S.C. 1204 (Criminal Penalties for Violations of 1201, 1202)
- Trademark Offenses
- 18 U.S.C. 2320 (Trafficking in Counterfeit Goods and Services)
- Economic Espionage Act (18 U.S.C. § 1831 et seq.; see separate discussion of the E.E.A.)
- 18 U.S.C. 1831 (Economic Espionage)
- 18 U.S.C. 1832 (Theft of Trade Secrets)
- Other Offenses Often Applicable in IP Cases
- 18 U.S.C. 1341 (Mail Fraud)
- 18 U.S.C. 1343 (Wire Fraud)
- 18 U.S.C. 2512 (Trafficking in Interception Devices)
- 47 U.S.C. 553 (Unauthorized Reception of Cable Service)
- 47 U.S.C. 605 (Unauthorized Publication of Use of Communications
Federal Sentencing Guidelines for Intellectual Property Offenses
- 2004 Federal Sentencing Guidelines Manual
- §2B5.3. Criminal Infringement of Copyright or Trademark
- As with federal IP statutes, the Guidelines are subject to amendment, and continue to be revised.
For example, in October 2005, the U.S. Sentencing Commission issued new amendments to the guidelines provisions applicable to intellectual property offenses.
- 2005 Amendments to the U.S. Sentencing Guidelines for IP Offenses (October 2005)
- 2000 Amendments to Sentencing Guidelines for IP Offenses (May 2000)
Archived Legal Resource Items
- Novel Criminal Copyright Infringement Issues Related to the Internet, David Goldstone and Michael O’Leary, USA Bulletin (May 2001)
- Copyright law is based on a simple premise enshrined in Anglo-American legal tradition: For a limited time, an original work in fixed form may not be copied (or otherwise infringed) without the permission of the copyrightholder. The basis of copyright in federal law is as old as the Constitution,U.S. Const. art. I, § 8, cl. 8; infringement of a copyright has been a federal crime since 1909. See Act of March 4, 1909, ch. 28, 35 Stat.1082. The legal right of control over a creative work has long been recognizedas an essential incentive for authors to create such works.
Additional information on this subject is available via the link below.
- The Economic Espionage Act of 1996: An Overview, George "Toby" Dilworth, USA Bulletin (May 2001)
- In January 1998, Caryn Camp was unhappy with her job at IDEXX Laboratories, a world-leading manufacturer of veterinary diagnostics products based in Maine. She started searching the internet for another job, and sent an email with her resume to a company called Wyoming DNAVaccine ("WDV"). Steven Martin, WDV's chief scientific officer, responded enthusiastically. Martin and Camp began corresponding regularly by email. Much of the early correspondence related to mundane topics about their lives in Maine and the west coast. However, as the correspondence progressed, Martin began emailing questions about IDEXX's manufacturing methods, customer base, and pricing schedule. Camp emailed her answers back to Martin. After Camp expressed reservations about sending information to Martin and WDV, a potential competitor to IDEXX, Martin emailed her claiming that he did "not want to know anything confidential about IDEXX." He said he only wanted public information.!
Additional information on this subject is available via the link below.
- Deciding Whether to Prosecute an Intellectual Property Case, David Goldstone, USA Bulletin (March 2001)
- Federal prosecutors know that deciding whether to prosecute a particular case requires the exercise of judgment and discretion, which can take years of experience to develop. But what if you are presented with an intellectual property ("IP") case and you have not done many of them before, if any? How should you decide whether a particular case of counterfeit computer chips, pirated music or software sold (or given away for free) over the Internet, or stolen satellite signals should be charged, even if an investigator provides evidence to prove all the elements? What special considerations, if any, come into play?
- OLC Memorandum on Whether Government Reproduction of Copyrighted Materials Invariably is a "Fair Use" under Section 107 of the Copyright Act of 1976 (April 30, 1999)
- There is no "per se" rule that government reproduction of copyrighted material -- including, in particular, government photocopying of copyrighted materials for internal government use -- automatically qualifies as a fair use under section 107 of the Copyright Act of 1976. However, government photocopying would in many contexts be noninfringing because it would be a "fair use"; and there are good reasons that, if an agency decides to negotiate photocopying licensing agreements, it should seek to limit the scope of any such arrangement to cover only those government photocopying practices that otherwise would, in fact, be infringing. Analysis of these issues is provided via the link below:
- The No Electronic Theft (NET) Act (Background and Early Prosecutions)\
- Software Pirate Guilty of Copyright Infringement in First NET Act Trial
- On May 11, 2001, a federal jury in the Northern District of Illinois found Christian Morley of Salem, Massachusetts, guilty of conspiracy to infringe software copyrights. Morley was indicted last year along with 16 other defendants from across the United States and Europe for conspiring to infringe the copyright of more than 5,000 computer software programs available through a hidden Internet site located at a university in Quebec, Canada.
- Software Pirate Guilty of Copyright Infringement Under NET Act (May 15, 2001)
- Nine Indicted in Chicago in $1 Million "Fastlane" Software Piracy Conspiracy (Feb. 16, 2001)
A former North Carolina man who was arrested last fall and eight new defendants across the United States who allegedly were associated with the underground software piracy group known as "Fastlane" were indicted on February 15, 2001, for pirating more than $1 million of copyrighted computer software, games, and movies through non-public Internet sites. All nine defendants were charged in a nine-count indictment that was returned by a federal grand jury in Chicago, where the investigation was conducted, Scott R. Lassar, United States Attorney for the Northern District of Illinois, and Kathleen McChesney, Special Agent-in-Charge of the Chicago Field Division of the Federal Bureau of Investigation, announced on February 16, 2001. More information on this cases is available via the link below:
- Brian Baltutat was sentenced on January 30, 2001, to 3 years probation, 180 days home confinement, restitution to software manufacturers, and 40 hours of community service. On October 12, 2000, Baltutat pleaded guilty to software copyright infringement. He had offered approximately 142 software programs for free downloading on a web site called "Hacker Hurricane."
- Man Pleads Guilty to Internet Piracy of Star Wars Film
On December 15, 2000, the United States. Attorney for the Northern District of California announced that Jason Spatafore pled guilty to a one count information charging criminal copyright infringement in violation of 17 U.S.C. § 506(a)(2) and 18 U.S.C. § 2319(c)(3). The defendant willfully infringed a copyright by reproducing and distributing by electronic means copies of parts of the film Star Wars Episode I: The Phantom Menace. He did this by posting copies of parts of the film on various web sites so others could download copies of the film from the Internet. He also encouraged others to download copies of the film from those sites.
- U.S. Indicts 17 in Alleged International Software Piracy Conspiracy
On May 4, 2000, Scott R. Lassar, United States Attorney for the Northern District of Illinois, and Kathleen McChesney, Special Agent-in-Charge of the Chicago Field Division of the Federal Bureau of Investigation announced the indictment of seventeen defendants from across the United States and Europe. The defendants allegedly conspired to infringe the copyright of more than 5,000 computer software programs. If convicted, conspiracy to infringe a copyright carries a maximum penalty of five years in prison and a $250,000 fine, or, as an alternative, the Court may impose a fine totaling twice the gross gain to any defendant or twice the gross loss to any victim, whichever is greater. Restitution is mandatory.
- On December 22, 1999, the Department of Justice, United States Attorney for the District of Columbia Wilma A. Lewis, and Assistant Director in Charge of the Federal Bureau of Investigation's Washington Field Office Jimmy C. Carter announced the guilty plea of Eric John Thornton to a charge of criminal infringement of a copyright. Mr. Thornton pleaded guilty to a violation of the No Electronic Theft ("NET") Act. Mr. Thornton faces up to one year in jail and a fine of up to $100,000.00. He is scheduled to be sentenced on March 3, 2000.
- First Felony Conviction and Sentencing Under No Electronic Theft Act
The Justice Department and the United States Attorney for the District of Oregon announced the first conviction under the No Electronic Theft (NET) Act on August 20, 1999. Jeffrey Levy, a 22 year old University of Oregon senior, pled guilty to illegally posting computer software programs, musical recordings, entertainment software programs, and digitally-recorded movies on his Internet web site, allowing the general public to download these copyrighted products. On November 23, 1999, Levy was sentenced to a two year period of probation with conditions. Since December, 1997, The NET Act punishes Internet piracy as a felony, even if the activity is not for profit. Assistant Attorney General for the Criminal Division, James K. Robinson said at the time of the plea, "This is theft, pure and simple."
On Tuesday, December 16, 1997, President Clinton signed into law H.R. 2265, the No Electronic Theft (NET) Act. The NET Act provides for enhanced protection of copyrights and trademarks by amending provisions in titles 17 and 18 of the U.S. Code. Most notably, the NET Act permits federal prosecution of large-scale, willful copyright infringement even where the infringer does not act for a commercial purpose or for private financial gain. This amendment closes the gap in statutory protection discussed in United States v. LaMacchia, 871 F. Supp. 535 (D. Mass. 1994). A summary of the statutory amendments, as well as a draft of the statute as amended (both with and without redlining) may be accessed via the links below:
- Statement of Kevin DiGregory on the NET Act
Computers are changing the way that copyrighted goods are being illegally copied and distributed, creating new challenges for copyright owners and for law enforcement.
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