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Intellectual Property Crimes : Research Tools & Strategies


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Intellectual Property Crimes : Research Tools & Strategies

  1. 1. Professor Jon R. Cavicchi ©2011
  2. 2. Global interdisciplinary culturally relative area of searching…
  3. 3. It is estimated that counterfeiting is a $600 billion a year problem. <ul><li>The Facts: </li></ul><ul><ul><li>Counterfeiting costs U.S. businesses $200 billion to $250 billion annually. </li></ul></ul><ul><ul><li>Counterfeit merchandise is directly responsible for the loss of more than 750,000 American jobs. </li></ul></ul><ul><ul><li>Since 1982, the global trade in illegitimate goods has increased from $5.5 billion to approximately $600 billion annually. </li></ul></ul><ul><ul><li>Approximately 5%-7% of the world trade is in counterfeit goods. </li></ul></ul><ul><ul><li>U.S. companies suffer $9 billion in trade losses due to international copyright piracy. </li></ul></ul><ul><ul><li>Counterfeiting poses a threat to global health and safety. </li></ul></ul><ul><li>Consider the DANGEROUS FAKES : </li></ul><ul><ul><li>The Food and Drug Administration estimates that counterfeit drugs account for 10% of all drugs sold in the United States. </li></ul></ul><ul><ul><li>The Federal Aviation Administration estimates that 2% of the 26 million airline parts installed each year are counterfeit, which equals approximately 520,000 parts. </li></ul></ul><ul><ul><li>In 2003, the Motor and Equipment Manufacturers Association cited safety violations due to counterfeit auto parts: brake linings made of compressed grass, sawdust or cardboard; transmission fluid made of cheap oil that is dyed; and oil filters that use rags for the filter element. </li></ul></ul>
  4. 4. Trade Secret Theft
  5. 7. Melvin F. Jager, Trade Secrets Law § 4:4. Criminal sanctions—Early property emphasis (West, Database updated October 2010)
  6. 9. U.S. Federal Laws
  7. 11. Defines research path <ul><li>Criminal Copyright Infringement—17 U.S.C. § 506 and 18 U.S.C. § 2319 </li></ul><ul><li>Trafficking In Counterfeit Trademarks, Service Marks, and Certification Marks—18 U.S.C. § 2320 </li></ul><ul><li>Theft of Commercial Trade Secrets—18 U.S.C. §§ 1831-1839V. </li></ul><ul><li>Digital Millennium Copyright Act—17 U.S.C. §§ 1201-1205 </li></ul><ul><li>Counterfeit and Illicit Labels, Counterfeit Documentation and Packaging—18 U.S.C. § 2318 </li></ul>
  8. 12. Trade secrets also are protected from disclosure by the following federal statutes: <ul><li>Federal Trade Secrets Act ( 18 U.S.C.A. § 1905 ) National Stolen Property Act( 18 U.S.C.A. § 2314 ) Federal Espionage Act ( 18 U.S.C.A. § 794 ) Federal Toxic Substances Control Act ( 15 U.S.C.A. §§ 2601 – 2629 ) Federal Mail Fraud Statute ( 18 U.S.C.A. § 1341 ) Freedom of Information Act ( 5 U.S.C.A. § 552 ) </li></ul>
  9. 14. Patent Theft as a Business Strategy <ul><li>America's largest big tech corporations are now using a business technique called &quot;efficient infringement,&quot; which means that they calculate the benefits of stealing someone else's patented technology against the possibility of getting caught, tried in court and being forced to pay damages and penalties. If the benefits exceed the costs, they steal. </li></ul><ul><li>What makes patent theft so attractive is that infringement is not a criminal act and those found guilty face no jail time. Paying up is the worst that can happen to the infringer. </li></ul><ul><li>The most aggressive users of this business model are fifteen of America's largest big tech corporations. Led by Cisco, Intel, IBM, Microsoft and HP, these giants have spent millions of lobbying dollars over the past five years trying to buy legislation in Washington that would weaken the existing U.S. laws on patent infringement. </li></ul><ul><li>Irina D. Manta, The Puzzle of Criminal Sanctions for Intellectual Property Infringement , 24 HARV. J.L. & TECH. __ (forthcoming 2011) </li></ul>
  10. 15. One defendant, Solo Cup Co., was accused in a lawsuit of erroneously marking 21 billion items, including lids for Starbucks coffee cups. The company had more than 3,000 molds for its products that were stamped with the erroneous patents
  11. 16. 18 U.S.C. § 497 Letters patent <ul><li>Whoever falsely makes, forges, counterfeits, or alters any letters patent granted or purporting to have been granted by the President of the United States; or </li></ul><ul><li>Whoever passes, utters, or publishes, or attempts to pass, utter, or publish as genuine, any such letters patent, knowing the same to be forged, counterfeited or falsely altered— </li></ul><ul><li>Shall be fined under this title or imprisoned not more than ten years, or both. </li></ul>
  12. 17. Don’t forget to check foreign laws… <ul><li>As regards patents, the legislator has provided for very high sanctions for a crime which, up to now, was interpreted as merely altering or counterfeiting of the patent certificate document. </li></ul><ul><li>Italian law has increased penalties for crimes falling under articles 473 and 474 of the Criminal Code which target trade mark and design counterfeiting but might also encompass patent infringement. </li></ul><ul><li>These two provisions punish, among other things, the production, the introduction into the territory of the state, the possession for sale, and the sale and marketing of goods bearing a counterfeit or an altered sign. Under these articles, as amended, infringers can be punished by imprisonment of between six months and three years and a fine of between €2,500 and €25,000 in cases relating to the manufacture of goods bearing a counterfeit or an altered sign. </li></ul>
  13. 18. <ul><li>Indigenous groups gain from the enforcement of intellectual-property rights. </li></ul><ul><li>The respective traditional knowledge — from rain-forest-based medicines to ancient crops for cultivation — have all been poached in the past by multinational corporations that register patents for their own financial statements. </li></ul><ul><li>Panama 2007, new Penal Code of Panama went into effect and among the reforms that were made in the chapter on crimes against intellectual property rights, a section on crimes against the collective rights of indigenous peoples and their traditional knowledge was included. Those who violate the registered collective rights of indigenous peoples can now be sentenced to four to six years imprisonment. </li></ul>
  14. 21. Dedicated IP crime sources IP sources covering crimes Criminal Law sources covering IP crimes Internet, cyberlaw, computer law sources covering IP crimes General legal materials with sources on IP crime Non-legal sources covering IP crime Treaties & International Agreements
  15. 22. So what type of project are you working on? <ul><li>Legal Research </li></ul><ul><ul><li>Transactional </li></ul></ul><ul><ul><li>Litigation </li></ul></ul><ul><li>How to / training materials </li></ul><ul><li>Client awareness and education </li></ul><ul><li>Public Policy </li></ul><ul><ul><li>Petty criminals treated same as organized crime </li></ul></ul><ul><ul><li>Current legal and enforcement effective use of tax funds? </li></ul></ul><ul><li>News </li></ul><ul><li>Statistics </li></ul><ul><li>Public relations </li></ul>
  16. 23. Examples : Treatises Federal and 50-state coverage of cybercrime law by examining each statute to provide text and analysis of key statutory language, then examines elements of the crimes, classifications of offenses under each statute, penalties, remedies available to victims, sentencing guidelines for corporate defendants, seizure of data and files, triggers of other liability, federal enforcement tools, restitution, and case law developments. 33 books on computer crimes 25 books on counterfeiting 95 books on copyright piracy
  17. 25. Use criminal search terms in foreign law compilations
  18. 27. Same with legal periodicals <ul><li>Joseph W. Cormier et al, INTELLECTUAL PROPERTY CRIMES,46 Am. Crim. L. Rev. 761 (Spring 2009) Search in Legal Resource Index TI,IN(&quot;INTELLECTUAL PROPERTY&quot; PATENT TRADEMARK COPYRIGHT &quot;TRADE SECRETS&quot; COUNTERFEIT! PIRACY & CRIM!) = 411 articles </li></ul>
  19. 29. Lexis 50 state surveys Copyrights - Registration, protection and enforcement of copyrights, including written materials, sound recordings and computer software licensing Trade & Service Marks - Registration, protection, and enforcement of trade names, domain names, trade marks, trade brands and service marks Trade Secrets - Trade secret protections and remedies for misappropriation, highlighting deviations from the Uniform Trade Secret Act
  20. 31. Cases <ul><li>Use Wexis tabs & Libraries </li></ul><ul><li>Use secondary sources </li></ul><ul><li>KeyCite and Shepardize </li></ul><ul><li>Donald M. Zupanec, Criminal Liability for Misappropriation of Trade Secrets, 84 A.L.R.3d 967 (updated weekly) </li></ul>
  21. 32. Federal agencies Repeal of Coordination Council Pro IP Act 2008
  22. 33. 2010 15 New Assistant Attorney Generals
  23. 35. Read Prof. Koepsel’s recent article in Franklin Pierce IP Center Newsletter
  24. 36. Who really is in charge?
  25. 38. Establishing the relationship between IPC and terrorist financing <ul><li>Link between organized crime groups and counterfeit goods is well established. </li></ul><ul><ul><li>Direct involvement where the relevant terrorist group is implicated in the production, distribution or sale of counterfeit goods and remits a significant proportion of those funds for the activities of the group. </li></ul></ul><ul><ul><li>Indirect involvement where sympathizers or militants are involved in IPC and remit some of the funds, knowingly to terrorist groups via third parties. </li></ul></ul><ul><ul><li>D-Company, led by Dawood Ibrahim, major crime syndicate practicing extortion, smuggling, contract killing, and counterfeiting. Alleged funding of 1993 Mumbai bombings, ties with al-Qaeda and Laskhar-e-Taiyiba Consolidated List). </li></ul></ul>
  26. 39. <ul><li>Goals </li></ul><ul><ul><li>enforcement program designed to thwart illicit exports of licensable items and sensitive technology targeted for procurement by terrorists and rogue nations. </li></ul></ul><ul><ul><li>prevent rogue nations, terrorist groups, and international criminal organizations from obtaining conventional and nonconventional weapons and their components, as well as critical technology that could assist parties acting contrary to U.S. national security interests. </li></ul></ul><ul><ul><li>Translation: &quot;No U.S. high-tech goodies for bad guys.&quot; </li></ul></ul>
  27. 40. <ul><li>Intellectual Property Crime Statistics from the Attorney General's Annual Report </li></ul><ul><ul><li>These annual statistics contain summaries of available copyright and trademark statistics, segregated by statutory provision and preceded by a brief description of each offense. Also included are summaries of the overall totals and totals associated with matters and cases referred by the U.S. Customs Service to the U.S. Attorneys.  </li></ul></ul><ul><li>The list of cases on [IP crimes], which was ever intended to be comprehensive, is no longer being updated. They haven’t taken it down either, but they promised to put in a note saying this. I think that’s what we figured out. They advised searching the press releases with the search box on the main page to update the old list. I hope the WestDockets methodology works out, that’s really the best way, I think, but it takes time to edit. </li></ul><ul><li>Katie Zeigler </li></ul><ul><li>Reference Librarian </li></ul><ul><li>US Department of Justice </li></ul><ul><li>1425 NY Ave; Rm. 9004 </li></ul><ul><li>Tel: 202-616-8942 </li></ul><ul><li>Fax: 202-616-8718 </li></ul><ul><li>Email 5/10 </li></ul>
  28. 42. <ul><li>Compiled sources </li></ul><ul><ul><li>Wexis </li></ul></ul><ul><ul><ul><li>Arnold & Porter </li></ul></ul></ul><ul><ul><ul><li>GAO </li></ul></ul></ul><ul><ul><li>IP Library </li></ul></ul><ul><ul><li>Thomas </li></ul></ul>Always look for compiled sources. This example is UNH e-resource LexisNexis Congressional
  29. 43. Congress Refuses Wide Access Look for free and low fee sites UNH IP Mall Open CRS
  30. 44. Troll for Policy Research Sources
  31. 45. Websites & Pubs of Special Interest Groups
  32. 46. IPAA has Country Reports & other stats
  33. 50. Hot topic of numerous conferences & CLE
  35. 52. For Public Policy try Non-legal data <ul><li>Your turn…try to find something on your paper topic using </li></ul>
  36. 53. This is a UNH Law licensed interdisciplinaray database with international policy documents
  38. 56. International Law Enforcement
  39. 57. Regional : Europe The Directive on the enforcement of intellectual property rights such as copyright and related rights, trademarks, designs or patents was adopted in April 2004. The Directive requires all Member States to apply effective, dissuasive and proportionate remedies and penalties against those engaged in counterfeiting and piracy and so creates a level playing field for right holders in the EU. It means that all Member States will have a similar set of measures, procedures and remedies available for rightholders to defend their intellectual property rights (be they copyright or related rights, trademarks, patents, designs, etc) if they are infringed.
  40. 58. National IP Offices
  41. 59. News <ul><li>Web pages </li></ul><ul><ul><li>Industry specific </li></ul></ul><ul><ul><li>Popular e.g. CNN </li></ul></ul><ul><ul><li>RSS feeds </li></ul></ul><ul><li>Email newsletters </li></ul><ul><li>Blogs </li></ul><ul><li>Clipping services and alerts </li></ul><ul><li>Social media </li></ul>
  42. 61. Social media
  43. 62. Fact research other universe of sources…
  44. 63. Private Investigators
  45. 64. The end is only the beginning…the Library and Librarians are your collaborators to success