Federal Intellectual Property Crimes
The US laws extend protection to its citizens in various ways. Our laws are designed to protect ourselves, our property and even our ideas.
In fact, the USC contains many sections designed to protect the ideas of creative individuals to encourage inventions, works of art, and designs without fear of their works being duplicated without proper credit.
The following laws discussed involve infringement on the rights of an idea, the illegal reproduction also known as forgery or counterfeit, and enforcement of duplications.
Criminal Copyright Laws
As stated in the US Constitution Article I, the government has the right to provide authors and creators with protection for their ideas. This is done through the United States Code Title 17. This section details the laws of copyright.
Basically, a copyright is a claim on a particular idea, invention, photograph or other intangible ideas that protects it from being ‘stolen’ from the original creator. It does not apply to general ideas or concepts, but rather singular creations.
This encourages the community to grow and invent new concepts. Copyrights grant the owner exclusive rights to recreate these into other alternatives, make copies, perform the work and to spread/and out their idea.
You place yourself at risk for a copyright violation when you attempt to duplicate or recreate an already claimed idea.
In order for the prosecution to press charges they must show:
- Copyright is in place and is valid
- You violated the copyright of the owner
- You committed the act willingly/intentionally
- You gained an advantage in business or made money
You are out at the movie theater to see the latest blockbuster. You’ve heard great reviews of this movie and can’t wait to see it for yourself. During the previews, you have a great idea. You take out your cell phone and video the movie. Then you can watch it later, your friends your favorite part, and even maybe make a copy for your buddy who was sick and couldn’t come.
Later on, you send a copy to your sick friend and download it to a disk for later. You paid for your ticket, so you have a right to the show…right? No. You have placed yourself at risk and opened the door for criminal copyright infringement. The movie in the theater, you paid to see the production there and did not purchase the rights to the film. By recording this and distributing it, you have violated copyright intentionally in this example.
Statute of Limitations
There is a five-year time span, also known as the statute of limitations, in which you can have files charged to you criminally. The federal government makes the decision to charge criminally based on the odds of success and seriousness. They also prosecute many cases in which there has been a successful civil suit and repeat/ongoing offenders.
For your first offense, the penalties are lighter and include up to five years in prison and/or up to $250,000 in fines. The judge has the option to do a combination of fines and jail depending on the offense. If you do so again, or never stop, you can face up to 10 years in jail and up to a million dollars in fines.
In any case, it is important to contact legal representation. Due to your individual circumstances in the example, an attorney may argue that you did not make a profit and therefore are not eligible to be prosecuted or that you did not distribute more than ten copies. There is a very fine line in which you walk when you risk with this example. A legal representative can help to guide you and review your individual case.
Similar to a copyright, a patent is awarded to an inventor to claim rights to their specific idea. For example, a patent on an invention in which it holds 2 or more pieces of paper together with a small metal clip (a paperclip). It is important to understand what is considered an infringement first. A similar, but not an infringement, the patent would be a small metal clip that holds 2 or more pieces of paper together (a binder clip). The two serve the same function, but do so differently and are therefore not violations of the patent. These are designed to protect inventors rights and allow them ownership of their ideas.
Patent infringements occur frequently but are not often prosecuted for two important reasons. The first, it is VERY expensive to file civil suits to show patent infringement and the second is the patent owner is unaware that their patent is violated. When considering filing a patent suit, it is important to determine if the legal costs will be outweighed by the case.
In order to show a violation in patent law, it must be shown where a design was used or is very similar to the original idea. There can be awards given in the amount of loss of profit, court costs, and via injunctions, a court order telling them to stop production. The cases are brought up via civil court and can result in fines and confiscation. Currently, there are no criminal penalties for patent infringement. Cases are tried and monetary awards are given but imprisonment is not a penalty.
You are at a local market and witness a vendor selling a new product. This innovation peels fruit gets pits and cores out and even can juice! Seeing this amazing product, you believe you can make an even better one. Your product does all of the same features and comes in a variety of colors. Since you changed the color, it makes it look different, despite performing the same functions. This would be a patent infringement.
The inventor of the original sees you at another local fair and notices your device. Being that your device functions the same, looks similar and is derived from the original idea, you are forced to stop selling your version of the product. Guess you’ll have to use a paring knife to cut your fruit for a while. The penalties for this violation can include forfeiture of the profits you made and a civil suit from the inventor.
This particular offense sounds like something you would see on television, however, this is a very real threat that many corporations face. In its simplest terms, economic espionage occurs when a foreign government or agency knowingly buys/steals a trade secret from a US-based entity and uses it to their own advantage- which in turn causes a loss for the US.
There are various principles that have to be proven in order to show economic espionage. The following must be shown by the prosecution:
- Obtaining of a trade secret via illegal purchase or stealing
- Use of trade secret and knowing that it was obtained illegally
- Knowledge of the trade secret benefiting outside countries or entities
There are multiple versions of how this could be accomplished. The law dictates that it can be via photocopy, emailing, sketches, downloads and any means of sharing or destroying the trade secret. In doing this, a trade secret allows for the foreign company to produce or use the resource at lower costs and causes for a loss for the original US-based company.
A recent case of economic espionage involved a US citizen who allegedly sold trade secrets in 2011. He sold the secrets to an undercover agent, so the information was not released to foreign assets. The Massachusetts resident had worked at an accounting agency and offered any and all of his knowledge to benefit them. In doing this he released the names of contracts, contacts, information, and secure information. He was convicted of 6 months imprisonment, 6 months house arrest and $25,000 for his attempt. Had his secrets been released, the technological firm could have lost research, funds, security and more.
When working with foreign assets and trade secrets, that could potentially make or break a company, an attorney should always be on hand. While it is not illegal to do business with foreign entities, selling certain information can be dangerous. Due to the complexities of the business industry, it is essential to know what information can be shared, what is confidential and how to operate ethically on a day to day basis.
Forgery: the first thing that comes to mind is a fake rendition of a masterpiece of art. However, there are many different versions of forgery that come into play in US law. USC Title 18 Chapter 25 has sections 470-514 detailing the various versions and laws relating to types of forgery.
By definition, a forgery is to bear a false instrument. This can be done by altering a current document, signing with a different name, or any legal document with the intention of committing fraud. Any legal document such as a will or check qualifies under this protection.
In order to be charged with forgery, there must be four elements met:
- The manipulation of a document (or creation)
- The capability to defraud- meaning the document is able to be passed off as genuine
- The intent to defraud
- A legal significance
In order to be charged with forgery, first you have to actually do the forging. Any document that is altered, signed under a different name, created under false pretenses, or any legal purpose can be considered a forgery. If the document looks legitimate to attempt to use and its purpose is to deceive another individual then you can be guilty. This includes some famous cases of art forgery, signing of fake checks, The prosecution would need to prove all of these to a certain degree for you to be guilty of forgery. There are varying degrees: first, second and third.
Forgery in the first and second degree are considered felonies. They are possession with intent to defraud. The first degree involves the attempt to use the document for fraud. Forgery in the third degree is considered a misdemeanor and can include just possession of a fake document. All three of these hold varying degrees of punishment that can include: imprisonment, fines, restitution, and even community service.
You are headed to the bank as a favor for your mother. She asks you to cash her social security check for her so that she can pay her bills since you’re going to be out anyways you agree. When you arrive at the bank, you pull through the drive-through and hand over your debit card, ID and note the check isn’t signed. Mom won’t mind, so you sign the check, trying to remember how you did her name on school permission forms, and submit it to the teller. From the look on the teller’s face, she can tell you are not your mother who signed the check and the police are contacted. Seeing as you signed the check under your mother’s name, this is a forgery.
Depending on the state, you can be tried in the third degree as a misdemeanor- as you had no intentions to defraud your mother or the government. This could also be seen in the first or second degree as you attempted to cash a federal government check with a forged signature. In any case, an attorney would look at your individual case and advise you. With any case, the circumstances are unique and an attorney could argue your side to help for the best possible outcome.
Theft of Trade Secrets
Similar to Economic Espionage, stealing of a trade secret can be prosecuted in two ways: foreign and economic espionage. A trade secret is a business principle, chemical formula or other unknown practice/principle which gives them an edge over the competition. Some examples of trade secrets include marketing plans, business contacts, a recipe – like Coca-Cola, and even computer software. Depending on the jurisdiction, the exact definition of a trade secret can vary.
Theft of a trade secret can be done through many various methods. In can include but is not limited to: photography, upload, download, sketches, replicates, emails transmits or any other form of communication without permission. By possessing any means of trade secret, and knowing that you should not have it, you could be charged. Accidental possession or mistake does not constitute grounds, however this is unlikely as many companies go to great lengths to protect their property.
Conviction of theft of a trade secret ties in with economic espionage and foreign espionage. Fines of up to $250,000 and 10 years imprisonment are punishments for economic espionage conducted by an individual. Fines can be up to 5 million dollars if large corporation or organization is involved. If a foreign entity is involved, the punishment is increased to $500,000 and up to 15 years in prison.
Due to rising costs, there have often been cases of counterfeit goods sold and produced in the US. Over $1.7 billion in counterfeit assets were seized at the US border in 2013. A counterfeit is a product, often made from cheaper materials, which allows them to be sold at a lower price that imitates a different brand or trademark. Often times there can also be other illegal factors such as child labor, no taxes, and it could be funding illegal organizations such as terrorism or drug trafficking. (What is Counterfeiting? IACC). These products steal business from legitimate sources due to their lower costs of production and can cause economic destruction.
You can be charged for possession, distribution, and production of counterfeit goods. Knowingly purchasing the goods and transporting them into the country are also illegal. Should you chose to do business in these goods, you place yourself at high risks. Prosecution merely needs to show that you replicated a protected trademark and sold the goods. Offenders are usually caught during online sales, in which case the company will issue a cease and desist and then sue civilly if you do not.
This business model is contingent on not getting caught with the fake goods, and when discovered the implications can be severe. You risk the loss of business goods, personal goods, and up to 3x the financial loss plus legal fees to the trademark owner. Various agencies have set up anonymous reporting outlets and are encouraged to report illegal competition.
Should you decide to pursue this avenue, legal representation should be on board immediately. As soon as you are discovered, which at some point you will be, you open yourself up to the financial disaster. The first time offender maximum penalty is up to 2 million dollars in fines and 10 years in prison. The punishments only worsen to 5 million dollars and 15 years in prison if you are caught a second time. If you were dealing as large scale cooperation, you could suffer 15 million dollars. A lawyer can help to soften the blow, discussing your case with the parent company and hopefully reach compromise.
Counterfeit and Illicit Labels
As if dealing in counterfeit goods is not enough of a punishment, there are added punishments for the labeling of the goods. This can be added to other charges as well. The counterfeit label is defined as a container or label that looks real but isn’t. This is misleading to the consumer. A label attached to any work of art, movie, computer program or picture is protected by 18 US Code section 2318. This section details the protected works and defines the parameters for the label. The original law was written for the protection of computer programs and software, but its protection was expanded on to include films and other works of art.
When being charged with trafficking in counterfeit or illicit labels, there is consideration given to the work that the label was affixed to, the funds lost to the owner, court fees and damages imposed to the rightful owner. The maximum penalty set forth includes fines up to $250,000 and 5 years in prison. Both can be administered as seen fit.
If you are facing charges for trafficking in counterfeit and illicit labels, you are more than likely being pursued other charges as well. Having an attorney at your side to mitigate the damage and negotiate for you could be the difference between large fines AND jail or a cease and desist.
When dealing with big brands and large corporations, there are many laws to protect their brands and products. One such act is the Lanham Act. This act prohibits the modification or placement of a trademark on a non-qualifying item. This is important as it prevents a trademark for being placed on a counterfeit good. The protection extends to the logo, brand, symbol and other recognizable features of that trademark such as the Nike check mark or the Supreme name logo.
To be convicted of Trademark Counterfeit, there must be certain elements met by the prosecution:
- The mark on the product is fake
- The mark is on a trafficked product
- The mark is the same or unable to the distinguished from the original
- The mark is registered, in use, and protected by the US code
- The mark is meant to confuse or deceive the consumer
Once these conditions are met, a civil lawsuit can be filed and damages ensue. The plaintiff can ask for damages in relation to the profits lost, seizure of the goods, and legal fees associated with the suit. In addition to the monetary awards given, the business will be shut down and the goods seized. This will prevent them from being sold on the market and causing more loss to the original owner.
If you are facing charges for Trademark Counterfeit, you should already have an attorney on speed dial. The punishments for the violation involve monetary awards that extend into your business and personal life. In addition to the seizure of the assets. With the help of a skilled attorney, the losses can be minimized and negotiated with the company to reduce the impact. If you are the plaintiff filing suit, it is important to note that legal representation can ensure you receive the maximum compensation for the counterfeit, the loss of funds, and prevention of future losses.
Wines are considered one of the luxuries in life, with various brands and styles that can be manufactured for everyday consumption to very fine qualities. These are regulated by the ATF, Alcohol Tobacco and Firearms, in the US. Wines can be considered counterfeit in two ways: mixing and false identification.
Placing a fake label to the bottle of wine, marketing it as a more fine brand, is one of the main types of forgery. In this manner the wines are passed off for a more expensive brand and sold at higher prices, despite being a more common type. The other method of counterfeit wine involves mixing. The fine wines are mixed with other brands that are less expensive to make more wine, but then sold as ‘pure’ and passed off as the original.
In dealing in fake wines, the charges can vary from illegal production of alcohol, illicit labeling, and even fraud. The charges depend on the type of forgery committed and the monetary amount involved.
When dealing with different types of memorabilia, there is a possibility of counterfeit or forged items. These items can be forged via an autograph, time frame/backstory, and even their origin. It is important to find the primary source for memorabilia and possess a certificate of authenticity when applicable.
If you suspect that you are in possession of a forgery, it is recommended to contact the seller. They are required to provide you with a refund and can be tried for a civil suit for the forgery. The counterfeit market is a billion dollar industry that produces a wide array of products. From memorabilia to clothing, there is a vast market for these. In dealing with these, it is important to consider the source of your goods.
When selling these wares, you walk a fine line on what is considered legal by selling off-brand, and selling forged or counterfeit goods. An attorney should be contacted as soon as possible and consulted with regarding your business. Though not illegal to sell the knock-off brands, it is important to understand where the line begins and ends for those products before you cross over into the illegal market.
Digital Millennium Copyright Act
The Digital Millennium Copyright Act, DMCA, was passed in 2000 to expand on copyright laws. This act allows for owners of content to submit a complaint to an unauthorized user of their information, demanding it be taken down. When a DMCA notice is sent, the information collected such as name, contact information and material in question is sent to the user for review. The user is then responsible for removal of content and to take it down. After removal of the content, the complaint is filed and then it’s over.
There is not typically a civil suit, investigation or charges. A suit would only occur if the material in question is argued- that the content was original and not stolen- or refusal of the owner to take the material down. In these cases, an attorney can be contacted to file a civil suit and a cease and desist notice.
The DMCA also provided leeway for internet service providers that host content. It does not hold them liable if a user uploads protected material if they are unaware of it. They are made aware of the content and then are to enforce the takedown.
A prime example would be YouTube. Due to the copious amount of videos uploaded daily, they could not review each video and inspect the content. Instead, they leave it up to the users to police and monitor each other. When an infringement occurs, YouTube is notified and enforces the user to take down the content, but they are not held liable for the content being uploaded. The law also allowed for education, testing and privacy exceptions in which a password can be used to gain access to the material for download. This prevents users from using a password to gain content they did not purchase unless it is being done for one of those three purposes.
What is “Fair Use?”
Finally, the Digital Millennium Copyright Act provides a definition for “fair use.” This is when content that is copyrighted is allowed to be used by other users. This includes for educational, recreational and even research purposes. It provides that you use the material to benefit society and expand on the concept. Continuing with the YouTube example, this allows for creators to use content from another user for commentary purposes, thus making the content their own featuring comments.
If you receive a cease and desist letter or feel as though your copyright material is being infringed upon, then contacting an attorney could protect the rights of your works. You can issue the notice yourself, involving contacting the individual through the DCMA site. You can also involve an attorney to force the user to stop using the content and impose civil penalties if they do not cease.
Intellectual Property Theft/ Piracy Division of FBI
Intellectual Property Theft is defined as the stealing of an ideas, concept, or a creative expression. These ideas are used without the consent of the creator and can cause massive financial losses. These can include but are not limited to loss of jobs, money and resources that would have been used to create the original content, but not needed for the copied stolen material.
The Piracy Division of the FBI focuses on the use of illegal material. They search for material such as information, ideas and trade secrets that impact the safety and health of consumers. The information is safeguarded with a seal of anti-piracy by the FBI and awarded protections from unauthorized use. The piracy division of the FBI deals solely with the selling and use of materials without the consent of the creator. The seal is downloaded from the FBI using the information of the creator and the copyright so that it can be enforced.
National Intellectual Property Rights Coordination Center
The NIPRCC focuses on copyright and illegal usage of material on a global spectrum. Through partnerships with other countries such as the UK, Mexico and European nations, they can monitor, enforce and train officers to look for stolen materials that circulate. This prevents the material from being used without fair use, which could contribute to global economic suffering.
By preventing the materials from being illegally used, this allows for the original creators to produce the content using the legal resources. This protects jobs and resources on the global scale. The offices enforce the removal of the illegal material and also allow for new officers to be trained for enforcement as well.
Recent Press Releases Involving Federal Intellectual Property Crimes:
Press Release #1:
Joshua Adam Schulte was charged with:
- Copyright infringement
- Possession of child pornography
- Making false statements to the FBI
- Influence of a juror
- Theft of public money
- Multiple charges in relation to illegal and sensitive classified information
Schulte was a former CIA employee who is being detained for charges related to child pornography. He is accused of releasing sensitive classified information and transmitting it to an outside source. He is being tried on multiple counts including copyright infringement as well. He faces the maximum penalties, but has not been sentenced as of yet.
Press Release #2:
Arnaldo Vazquez, Awildo Jimenez, and Higinio Lamboy are charged with:
- Copyright infringement
- Conspiracy to circumvent protective measures
- Trafficking in technology meant to circumvent protective systems
- Use of technology meant to circumvent protective measures.
These three men are residents of Puerto Rico. They devised a complex scheme in which they provided Dish services to residents of Puerto Rico for a fee that they kept. The men were able to obtain pirated material from Dish and then sold it to residents. They have not yet been sentenced and are facing trial.
Press Release #3:
Sedikey Sankano was charged and plead guilty to:
- Conspiracy to commit Copyright infringement
- Trafficking counterfeit goods
- Trafficking counterfeit labels
Sankano was a part of a ring of individuals who were tried in regard to CD and DVD counterfeits. He and his co-conspirators were involved in production, labels, sales and distribution of illegal counterfeit goods. Each man was sentenced to various lengths in prison or probation and fines. Sankano was ordered to pay restitution of just over $3,000 and serve 24 months in prison.
Press Release #4:
Xioqing Zheng was charged with:
- Economic Espionage
- Theft of trade secrets
- Making false statements to the FBI
His case involves his work in NY working with General Electric, GE. He was accused of stealing trade secrets involving some of their turbine technologies and selling them to China. These secrets would have allowed for replication and theft of the technology. He is facing trial at this time and has not yet been sentenced. He faces fines up to five million dollars and 20 years in prison for each count.
Press Release #5:
Blanca Ruiz was charged with
- Conspiracy to commit healthcare fraud
She has been sentenced to 72 months in prison. Her fraud along with her partner resulted in 62 million dollars in Medicare fraud. They forged patient records and documents, submitted false claims to Medicare for payment and submitted false documents to support claims for medical treatments that were not necessary and often not performed. They also received illegal kickbacks for patient referrals to their hospital.
- 17. U.S. Code Section 506- Criminal Offenses. (n.d) Retrieved from https://www.law.cornell.edu/uscode/text/17/506#a_1_A
- 18 U.S.C. Section 1831. U.S. Annotated Title 18. Crimes and Criminal Procedures. Economic Espionage. (n.d.) Retrieved from https://codes.findlaw.com/us/title-18-crimes-and-criminal-procedure/18-usc-sect-1831.html
- 18. U.S.C. Section 2318. US CODE. Unannotated Title 18 Crimes and Criminal Procedure section 2318. Trafficking in counterfeit labels, illicit labels, or counterfeit documentation or packaging (n.d.) Retrieved from .https://codes.findlaw.com/us/title-18-crimes-and-criminal-procedure/18-usc-sect-2318.html
- 18 US Code Section 2320. Trafficking in Counterfeit Goods or Services. (n.d.) Retrieved from https://www.law.cornell.edu/uscode/text/18/2320
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- Broadley, Claire. 4/17/19. DMCA Notices: Here’s Everything You Need to Know in 2019. https://www.whoishostingthis.com/resources/dmca/
- Brookline Man Sentenced for Economic Espionage. 12/19/11. Retrieved from https://archives.fbi.gov/archives/boston/press-releases/2011/brookline-man-sentenced-to-for-foreign-economic-espionage
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- Fake Goods, Real Dangers. 11/14/18. Retrieved from https://www.cbp.gov/FakeGoodsRealDangers
- FBI Anti-Piracy Warning Seal. (n.d.) Retrieved from https://www.fbi.gov/investigate/white-collar-crime/piracy-ip-theft/fbi-anti-piracy-warning-seal
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- Global-Tech Appliances Inc vs. SEA S.A. https://www.leagle.com/decision/insco20110531000t
- National Intellectual Property Rights Coordination Center. (n.d.) Retrieved from https://www.iprcenter.gov/about
- Prosecuting Intellectual Property Crimes. (n.d.) Retrieved from https://www.justice.gov/sites/default/files/criminal-ccips/legacy/2015/03/26/prosecuting_ip_crimes_manual_2013.pdf
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- What is “economic espionage”? (n.d.) Retrieved from https://www.fbi.gov/about/faqs/what-is-economic-espionage