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Intellectual Property and Computer Crimes


$510.00 PRINT + ONLINE $485.00 ONLINE ONLY Get a Discounted Group Account or Site License .

Author Name

Peter Toren

810 Pages

Published date

2011

ISBN no.

978-1-58852-118-7

Title

Dedication and Acknowledgment

Preface

About the Author

Chapter 1: Overview

§ 1.01 Introduction

§ 1.02 Copyrights

§ 1.03 Patents

§ 1.04 Trade Secrets

§ 1.05 Trademarks

§ 1.06 The Digital Era

§ 1.07 Why Impose Criminal Sanctions?

§ 1.08 Computer Crime

Chapter 2: Criminal Copyright Infringement

§ 2.01 Introduction

§ 2.02 History of Criminal Penalties 1897-1982

[1] Copyright Felony Act of 1992

[2] Developments in Criminal Copyright Infringement

[3] No Electronic Theft Act

[4] Artists’ Rights and Theft Prevention Act

[5] Prioritizing Resources and Organization for Intellectual Property Act of 2008

[6] Further Developments in the Law

§ 2.03 General Copyright Principles

[1] Subject Matter of Copyright

[a] Originality

[b] Fixation

[2] Formalities

[3] Rights Obtained Through a Copyright

[4] Period of Protection

§ 2.04 Elements of Criminal Copyright Infringement

[1] Ownership

[2] Proof of Infringement

[a] Access

[b] Substantial Similarity

[3] Willfulness

[a] Generally

[b] Willfulness in Criminal Copyright Infringement

[c] Willfulness Under the NET Act

[d] Proving Willfulness

[4] Commercial Advantage or Private Financial Gain

[5] Work Being Prepared for Commercial Distribution

§ 2.05 Punishment for Criminal Copyright Infringement

[1] Statutory Penalties

[2] Forfeiture

[3] Sentencing Guidelines

[a] Generally

[b] Corporations

[i] Introduction

[ii] Remedying Harm from Criminal Conduct

[iii] Restitution-Organizations

[iv] Remedial Orders-Organizations

[v] Effective Compliance and Ethics Program

[vi] Fine

[4] Restitution

§ 2.06 Defenses to Criminal Copyright Infringement

[1] Statute of Limitations

[2] First Sale Doctrine

[3] Fair Use

§ 2.07 Section 506 of the Copyright Act

[1] Protection of Copyright Notices

[2] False Representation in Copyright Applications

§ 2.08 Federal Prosecution

Chapter 3: Other Federal Criminal Laws that Protect Creative Works

§ 3.01 Introduction

§ 3.02 Digital Millennium Copyright Act

[1] Section 1201: Circumvention of Technological Protection Measures

[2] Section 1202: Integrity of Copyright Management Information

[3] Civil Remedies

[4] Requirements for Criminal Violations of the DMCA

[a] Commercial Advantage or Private Financial Gain

[b] Willfulness

[c] Additional Section 1202 Mens Rea Elements

[5] Enforcement Issues

[6] Penalties

§ 3.03 Trafficking in Counterfeit or Illicit Labels

[1] Elements for Conviction Under Section 2318

[a] Trafficking

[b] Counterfeit or Illicit Labels or Documentation

[c] Defendant “Knew” the Items Were Counterfeit

[d] Federal Jurisdiction

[2] Penalties

§ 3.04 Trafficking in Sound Recordings of Live Musical Performances—Section 2319A

Chapter 4: Trademark Counterfeiting

§ 4.01 Introduction

§ 4.02 History of the Trademark Counterfeiting Act—Section 2320

[1] Elements of Trafficking in Counterfeit Goods or Services

[a] Trafficking or Attempting to Traffic in Goods or Services

[b] The Defendant’s Trafficking, or Attempt to Traffic Was Intentional

[c] The Defendant’s Use of a “Counterfeit Mark” on or in Connection with Goods or Services

[i] The Counterfeit Mark Must Be “a Spurious Mark”

[ii] Trafficking in Goods or Services

[iii] Counterfeit Mark Must Be Identical

[iv] Registration

[v] Likelihood of Causing Confusion

[d] The Defendant Knowingly Used the Counterfeit Mark

[2] Trafficking in Counterfeit Labels

[3] Importation of Counterfeit Marks—Section 1526

§ 4.03 Defenses to the Crime of Trademark Counterfeiting

[1] Defenses Expressly Provided in Section 2320

[a] Overrun Goods Exemption

[b] Gray Market Goods

[c] Repackaging Genuine Goods

[2] Defenses Incorporated from the Lanham Act

[a] Fraud in Obtaining Trademark Registration

[b] Abandonment

[c] Misrepresentation or Unclean Hands

[d] Fair Use

[i] Right to Use One’s Own Name

[ii] Right to Use a Descriptive Term

[iii] Right to Use a Geographic Term

[e] Innocent Prior Use

[f] Antitrust

[g] Equitable Defenses: Laches, Estoppel, and Acquiescence

[3] General Defenses

§ 4.04 Punishment for the Crime of Trademark Counterfeiting

[1] Statutory Penalties

[2] Sentencing Guidelines

[a] Individuals

[b] Corporations

[3] Forfeiture

[4] Restitution

Chapter 5: Economic Espionage and Theft of Trade Secrets

§ 5.01 Introduction

§ 5.02 Background: Need for Legislative Reform

§ 5.03 Analysis of the Act

[1] Introduction

[2] Elements Common to Section 1831 and Section 1832

[a] Trade Secret

[i] Novelty

[ii] Degree of Secrecy

[iii] Reasonable Measures

[iv] Accidental Disclosure

[v] Independent Economic Value

[vi] Identifying the Trade Secret

[b] Misappropriation

[c] Knowledge

[3] Additional Section 1831 Element—Benefit a Foreign Entity

[4] Additional Section 1832 Elements

[a] Economic Benefit to a Third Party

[b] Intent to Injure the Owner of the Trade Secret

[c] Interstate or Foreign Commerce

[5] Attempts and Conspiracies

[6] Potential Defenses

[a] Parallel Development

[b] Reverse Engineering

[c] General Knowledge

[d] First Amendment

[e] Statutory Challenges

[f] Advice of Counsel

[g] “Tool Kit”

[7] Civil Proceedings

[8] Confidentiality

[9] Extraterritorial Application

[10] Construction with Other Laws

[11] Department of Justice Oversight

[12] Penalties

[a] Forfeiture

[b] Restitution

[c] Statutory Criminal Penalties

[d] Sentencing Guidelines

[i] Offense Level

[ii] Loss

§ 5.04 Prosecutions Under the EEA

§ 5.05 Whether to Make a Criminal Referral

§ 5.06 Federal Versus State Referral

§ 5.07 Prosecution Guidelines

[1] Prosecutorial Discretion

[2] Guideline

[a] Information Qualifies as a Trade Secret

[b] Type of Information

[c] Evidence of Theft and Consciousness of Guilt

[d] Cooperation of the Victim

[e] Availability of Defenses

[f] Value of the Trade Secret

[g] Availability/Sufficiency of Civil Remedies

[h] Timing of the Referral

§ 5.08 Referral Procedure

§ 5.09 Avoiding or Reducing Corporate Criminal Exposure

[1] Implementation of a Compliance Plan

[2] Elements of a Compliance Plan

[a] Standards and Procedure

[b] Oversight

[c] Due Care in Delegation of Authority

[d] Communication and Training

[e] Monitoring and Auditing

[f] Discipline

[g] Reporting

[h] Custom Design

[i] Certifications

Chapter 6: Other Federal Statutes

§ 6.01 Introduction

§ 6.02 Interstate Transportation of Stolen Property

[1] Elements of the Offense

[a] Goods, Wares and Merchandise

[b] Interstate or Foreign Commerce

[c] Stolen, Converted or Taken by Fraud

[d] Value

[2] Sentencing

§ 6.03 Mail and Wire Fraud

[1] Scheme to Defraud

[a] Tangible Rights

[b] Intangible Rights

[2] Intent to Defraud

[3] Mailing/Use of Wires in Furtherance of a Scheme to Defraud

[a] Causing the Mails or Wire Communications To Be Used

[b] In Furtherance

[4] Sentencing

§ 6.04 The Racketeer Influenced and Corrupt Organization Act

[1] Introduction

[2] Elements

[a] Pattern

[b] Enterprise

[4] Effect on Interstate Commerce

[5] Prohibited Acts

[6] Statutory Penalties

[7] Sentencing Guidelines

§ 6.05 Money Laundering

[1] Introduction

[2] Section 1956

[a] Domestic Money Laundering

[b] International Money Laundering

[c] Sting Operations

[3] Section 1957

[4] Sentencing

§ 6.06 Conspiracy

[1] Introduction

[2] Elements

[a] Agreement

[b] Illegal Goal

[c] Knowledge, Intent and Participation

[d] Overt Act

[3] Defenses

[4] Sentencing

§ 6.07 Smuggling

§ 6.08 Patent

[1] False Marking

[2] Counterfeiting or Forging Letters Patent

§ 6.09 Theft of Government Information

§ 6.10 Trade Secrets Act

§ 6.11 Truth in Domain Names Act

Chapter 7: Computer Crimes

§ 7.01 Introduction to Computer Crime

§ 7.02 Scope of the Problem

§ 7.03 The Computer Abuse Law of 1984

§ 7.04 The Computer Fraud and Abuse Act of 1986

§ 7.05 Text of the CFAA

[1] Introduction

[2] Criminal Offenses Under the CFAA

[a] Protection of Classified Government Information

[b] Protection of Financial, Government and Other Computer Information

[c] Protection for Government Computer Systems

[d] Unauthorized Use of Computers

[e] Protection from Damage to Computers

[f] Trafficking in Passwords

[g] Protection from Threats Directed Against Computers

[3] Sentencing

[a] Statutory Penalties

[b] Sentencing Guidelines

§ 7.06 Civil Liability Under the CFAA

[1] Damage or Loss

[2] Protected Computers

[3] Access

[4] “Without Authorization” or “In Excess of Authorization”

[5] Commonly Alleged Violations

[a] Section 1030(a)(2)(C)

[b] Section 1030(a)(4)

[c] Section 1030(a)(5)

[d] Form: Jury Instruction

§ 7.07 Wiretap Act/Electronic Communications Privacy Act

[1] Wiretap Act

[a] Introduction

[b] Unauthorized Interception of a Communications

[c] Disclosing an Intercepted Communication

[d] Using an Intercepted Communication

[e] Statutory Exceptions

[f] Criminal Penalties

[g] Civil Violations

[2] Unlawful Access to Stored Communication

[3] Sentencing

[4] Civil Violations

§ 7.08 Fraud in Connection with Access Devices

§ 7.09 Communications Decency Act of 1996 and Child Online Protection Act of 1998

§ 7.10 Child Pornography Prevention Act of 1996

§ 7.11 Transmitting Information About a Minor

§ 7.12 Threats

§ 7.13 Internet False Identification Prevention Act of 2000

§ 7.14CAN-SPAM Act

[1] Introduction

[2] Offenses Under the CAN-SPAM Act

[3] Enforcement

[4] Civil Remedies

[5] Criminal Penalties

§ 7.15 Computer and Information Security Plans

[1] Introduction

[2] Types of Attacks

[a] Internet

[i] Coordinated Attacks

[ii] Session Hijacking

[iii] Spoofing

[iv] Relaying

[v] Trojan Horses

[vi] Computer Viruses

[b] Over the LAN

[i] Sniffing Traffic

[ii] Application Hijacking

[c] Locally

[3] Elements of a Computer and Information Security Plan

[a] Risk Assessment Review

[b] Preventing Unauthorized Access to Systems

[c] Communication and Training

[d] Technology

[e] Encryption

[f] Insider Abuse

[g] Monitoring and Updating

[h] Incident Response and Disaster Recovery

[i] Contacting Law Enforcement

[j] Cyberinsurance

Chapter 8: Searching and Seizing Computers

§ 8.01 Introduction

§ 8.02 Fourth Amendment Protections

[1] Introduction

[2] Reasonable Expectation of Privacy

[3] Searches by Private Parties

§ 8.03 The Warrant Requirement

[1] Introduction

[2] Particularity of Warrants

[3] Probable Cause

[4] Off-Site Computer Searches

§ 8.04 The Privacy Protection Act

§ 8.05 Exceptions to the Warrant Requirement

[1] Introduction

[2] Consent

[a] Co-Users

[b] Spouses

[c] Parents

[3] Plain View

[4] Search Incident to a Lawful Arrest

[5] Inventory Searches

[6] Border Searches

[7] Workplace Searches

[a] Private Sector Workplace Searches

[b] Public Sector Workplace Searches

§ 8.06 Return of Equipment

§ 8.07 Title II of the Electronic Communications Privacy Act

[1] Introduction

[2] Use of a Subpoena

[3] Use of a Subpoena with Prior Notice to the Subscriber or Customer

[4] Section 2703(d) Order

[5] Section 2703(d) Order with Prior Notice to the Subscriber or Customer

[6] Search Warrant

[7] Voluntary Disclosure

[8] Remedies

§ 8.08 Electronic Surveillance

[1] Prohibited Acts

[2] Orders for Electronic Surveillance

[3] Exceptions

[4] Suppression

Chapter 9: State Intellectual Property and Computer Crime Laws

§ 9.01 Introduction

[1] Trademark

[2] Theft of Trade Secrets

[3] Computer Crime

§ 9.02 State and Other Jurisdiction Laws

[1] Alabama

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[2] Alaska

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[3] Arizona

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[4] Arkansas

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[5] California

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[6] Colorado

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[7] Connecticut

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[8] Delaware

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[9] District of Columbia

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[10] Florida

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[11] Georgia

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[12] Hawaii

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[13] Idaho

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[14] Illinois

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[15] Indiana

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[16] Iowa

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[17] Kansas

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[18] Kentucky

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[19] Louisiana

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[20] Maine

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[21] Maryland

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[22] Massachusetts

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[23] Michigan

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[24] Minnesota

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[25] Mississippi

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[26] Missouri

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[27] Montana

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[28] Nebraska

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[29] Nevada

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[30] New Hampshire

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[31] New Jersey

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[32] New Mexico

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[33] New York

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[34] North Carolina

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[35] North Dakota

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[36] Ohio

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[37] Oklahoma

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[38] Oregon

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[39] Pennsylvania

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[40] Rhode Island

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[41] South Carolina

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[42] South Dakota

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[43] Tennessee

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[44] Texas

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[45] Utah

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[46] Vermont

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[47] Virginia

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[48] Washington

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[49] West Virginia

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[50] Wisconsin

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[51] Wyoming

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

[52] Puerto Rico

[a] Trademark

[b] Theft of Trade Secrets

[c] Computer Crime

Index

“A must-have desk reference.... A practical all-in-one legal resource on intellectual property and computer crimes....” —The Vermont Bar Journal

This timely treatise explains the laws that criminalize violations of intellectual property rights and unauthorized computer access—and how they may affect your practice. It also includes discussions of general principles of intellectual property law as well as in-depth analysis of the increasing use of the Computer Fraud and Abuse Act (“CFAA”) and the Electronic Communications Privacy Act (“ECPA”) in civil litigation. Intellectual Property and Computer Crimes examines criminal infringement, the expanded scope of computer hacking laws, and the important legal issues that arise when these crimes are prosecuted.

Coverage includes: criminal misappropriation of intellectual property; computer crimes; civil actions for computer hacking; guidelines to determine whether to prosecute thefts of trade secrets; government search and seizure of computers; techniques to prevent intellectual property theft; and computer hacking and civil liability under the CFAA and ECPA. In addition to analysis of laws aimed specifically at intellectual property violations, you'll find discussion of how general criminal laws are used to prosecute intellectual property crimes.

Whether you are a criminal lawyer seeking guidance on intellectual property issues or a civil lawyer with questions about criminal law or the use of criminal statutes in civil litigation, this book is an invaluable reference.

FirstName :	Peter J.
LastName :	Toren
BIO :	Peter J. Toren is a partner at Weisbrod, Matteis, & Copley in Washington, D.C. He is an experienced litigator and, in 1992, was appointed to be one of the first five attorneys with the Computer Crime and Intellectual Property Section of the United States Department of Justice. During his seven-year tenure as a federal prosecutor, he was the lead prosecutor on one of the first prosecutions ever brought by the government under the EEA for theft of trade secrets and was also in charge of prosecuting other intellectual property rights violations including criminal copyright and trafficking in counterfeit goods. He also prosecuted a number of high profile cases involving computer hacking. Since entering private practice, Mr. Toren has successfully tried patent, trademark, copyright, and trade secret cases involving complex legal issues and concerning technologies including computer software and hardware, light emitting diodes, bio-technology, semiconductor manufacturing and fabrication, optics and medical devices, as well as business methods. He has also handled a number of internal investigations for large corporations involving alleged violations of the Economic Espionage Act as well as other federal criminal laws. His outstanding trial work was featured in "The Winning Ways of Six IP Trial Teams," IP Law and Business (August 2003). He has also argued numerous times before the Second, Fifth, Ninth and Federal Circuits involving patent, copyright, and trademark law. He regularly handles pro bono matters including representing a client in the Goggle book settlement, and recently appeared before the Alabama Court of Criminal Appeals seeking a writ of habeas corpus for a death row inmate. Mr. Toren has been recognized in New York Super Lawyers 2006, 2007, 2008, 2009 and 2010. The latest on criminal IP developments and intellectual property in general can be found at Mr. Toren's Web site, www.petertoren.com.

Intellectual Property and Computer Crimes

by Peter Toren

Release 19

Highlights

Release 19 for Intellectual Property and Computer Crimes features an analysis of the approximate 125 prosecutions that the government has brought to date under the Economic Espionage Act. This is a statistically meaningful number for drawing conclusions about the nature of the cases the government is pursuing. The information includes: (1) the location of the cases: (2) the extent of foreign government involvement; (3) relationship of the defendant to the victim; (4) the nationality of the defendant/purpose of theft; (5) the type of trade secrets misappropriated; (6) the adequacy of protective measures; (7) dispositions; and (8) sentences.

Other topics discussed in this Release include:

Circuit split between what it means to access a computer “without authorization” or “in excess of authorization” under the Computer Fraud and Abuse Act.
Requirements for bringing a civil action under the Computer Fraud and Abuse Act.
Recent developments under the Digital Millennium Copyright Act.
Requirements for bringing a civil action under the Electronic Communications Privacy Act.
Secondary liability under the Stored Communications Act.

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