Computer Crime & Intellectual Property Section
U.S. Department of Justice
INTRODUCTION ... i
I. THE PROTECTION OF INTELLECTUAL PROPERTY -- AN OVERVIEW ... 1
A. INTRODUCTION ... 1
B. COPYRIGHTS, TRADEMARKS, TRADE SECRETS, AND PATENTS ... 1
A. INTELLECTUAL PROPERTY ENTITLED TO COPYRIGHT
A. CRIMINAL COPYRIGHT INFRINGEMENT: 17 U.S.C. § 506(a) AND
B. TRAFFICKING IN SOUND RECORDINGS OF LIVE MUSICAL
C. OTHER TITLE 17 CRIMINAL PROVISIONS PROTECTING
D. OTHER TITLE 18 OFFENSES ... 42
E. STATUTE OF LIMITATIONS ... 47
F. FORFEITURE ... 47
G. REPORTING REQUIREMENTS ... 49
H. ALTERNATIVE STATE REMEDIES ... 50
IV. PROTECTION OF TRADEMARKS ... 51
A. INTELLECTUAL PROPERTY ENTITLED TO TRADEMARK
B. THE CRIMINAL LAW ... 55
C. PENALTIES ... 64
D. CONTRASTING THE TRADEMARK AND THE COPYRIGHT ACT ... 67
E. CHARGING BOTH CRIMINAL COPYRIGHT AND TRADEMARK
A. INTRODUCTION ... 70
B. THE ECONOMIC ESPIONAGE ACT OF 1996 ... 71
C. OTHER POSSIBLE CHARGES ... 85
B. COPYRIGHTS, TRADEMARKS, TRADE SECRETS, AND PATENTS
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1. This text is not intended to create or confer any rights, privileges or benefits to prospective or actual witnesses or defendants. It is also not intended to have the force of law or of a United States Department of Justice directive. See United States v. Caceres, 440 U.S. 741 (1979).
2. The terms "bootlegging," "piracy," and "counterfeiting" are similar but not synonymous. "Bootlegging" generally refers to the unauthorized recording and distribution of musical performances. "Piracy" involves the unauthorized reproduction of an existing copyrighted work or distribution of an infringing copy. However, the original packaging or graphics of the genuine merchandise are not copied. "Counterfeiting," by contrast, occurs when an infringer not only reproduces and distributes infringing merchandise, but also copies the genuine packaging of the product. In such cases, the counterfeiter is attempting to pass off his or her products as legitimate goods produced by the original manufacturer.
3. A 3.5 inch high-density computer disk can store approximately 720 pages of text.
4. "A work is 'fixed' in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." 17 U.S.C. § 101.
5. 18 U.S.C. § 1905 provides, inter alia, misdemeanor sanctions for the unauthorized disclosure of government information, including trade secrets, by a government employee.
6. In general, the test of whether a foreign company can be prosecuted under 18 U.S.C.§ 1831 is whether "the activities of the company are from a practical and substantive standpoint, foreign government directed." 142 Cong. Rec. S12201, S12201 (daily ed. Oct. 2, 1996). Of course, if this requirement cannot be met, the foreign company can still be prosecuted under 18 U.S.C. § 1832.
7. The popular notion that a patent grants the patentee the exclusive right to make, use, and sell his invention is erroneous. A patent gives you the right to exclude others from making, using or selling your invention. For example, if a chair with a seat and four legs is patented by inventor A, inventor B may obtain a patent for a chair with a seat, four legs and an armrest, but this patent does not allow him to make, use, or sell his chair because that would infringe A's patent for a chair with four legs and a seat.
8. As of this writing, Congress has not provided criminal penalties for reproduction or distribution of goods
that infringe patents. Congress has relied instead on affording plaintiffs a civil cause of action that makes treble
damages and attorney's fees available for willful infringement. See 35 U.S.C. §§ 281-294. The only federal
criminal statute currently dealing with patents makes it a felony to make, forge, counterfeit, or otherwise alter letters
patent, or to pass or publish same knowing them to have been forged. 18 U.S.C. § 497.