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Intellectual Property and Computer Crimes

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Peter J. Toren


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

Written by a former federal prosecutor with the Computer Crime and Intellectual Property Section, this complete guide explains the criminal laws that apply to violations of intellectual property rights and unauthorized computer access, as well as civil violations under the Computer Fraud and Abuse Act — and their impact on your clients. 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 detailed analysis of the Economic Espionage Act based on the latest cases; how to calculate damages and the meaning of unauthorized access under the Computer Fraud and Abuse Act; recent prosecutions under the Trademark Counterfeiting Act; state prosecutions for computer hacking and theft of trade secrets; and civil cases brought under the DMCA. 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.

Book #00672; looseleaf, one volume, 872 pages; published in 2003, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-118-7


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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 872
  • ISBN: 978-1-58852-118-7
  • Pub#/SKU#: 672
  • Volume(s): 1

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  • Peter J. Toren
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.

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
§ 2.03 General Copyright Principles
[1] Subject Matter of Copyright
[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
[3] 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
[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
[5] Enforcement Issues
[6] Penalties
§ 3.03 Trafficking in Counterfeit or Illicit Labels
[1] Elements for Conviction Under Section 2318
[2] Penalties
§ 3.04 Trafficking in Sound Recordings of Live Musical PerformancesSection 2319A

CHAPTER 4
Trademark Counterfeiting

§ 4.01 Introduction
§ 4.02 History of the Trademark Counterfeiting ActSection 2320
[1] Elements of Trafficking in Counterfeit Goods or Services
[2] Trafficking in Counterfeit Labels
[3] Importation of a Counterfeit MarkSection 1526
§ 4.03 Defenses to the Crime of Trademark Counterfeiting
[1] Defenses Expressly Provided in Section 2320
[2] Defenses Incorporated from the Lanham Act
[3] General Defenses
§ 4.04 Punishment for the Crime of Trademark Counterfeiting
[1]  Statutory Penalties
[2] Sentencing Guidelines
[3] Forfeiture
[4] Restitution

CHAPTER 5
Economic Espionage and Thefts 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
[3] Additional Section 1831 ElementBenefit a Foreign Entity
[4] Additional Section 1832 Elements
[5] Attempts and Conspiracies
[6] Potential Defenses
[7] Civil Proceedings
[8] Confidentiality
[9] Extraterritorial Application
[10] Construction with Other Laws
[11] Department of Justice Oversight
[12] Penalties
§ 5.04 Prosecutions Under the EEA
§ 5.05 Whether to Make a Criminal Referral? Parallel Proceedings in Trade Secret and EEA Cases
§ 5.06 Federal Versus State Referral
§ 5.07 Prosecution Guidelines
[1] Prosecutorial Discretion
[2] Guideline Factors
§ 5.08 Referral Procedure
§ 5.09 Avoiding or Reducing Corporate Criminal Exposure
[1] Implementation of a Compliance Plan
[2] Elements of a Compliance Plan

CHAPTER 6
Other Federal Statutes

§ 6.01 Introduction
§ 6.02 Interstate Transportation of Stolen Property
[1] Elements of the Offense
[2] Sentencing
§ 6.03 Mail and Wire Fraud
[1] Scheme to Defraud
[2] Intent to Defraud
[3] Mailing/Use of Wires in Furtherance of a Scheme to Defraud
[4] Sentencing
§ 6.04 The Racketeer Influenced and Corrupt Organization Act
[1] Introduction
[2] Elements
[3] Effect on Interstate Commerce
[4] Prohibited Acts
[5] Statutory Penalties
[6] Sentencing Guidelines
§ 6.05 Money Laundering
[1] Introduction
[2] Section 1956
[3] Section 1957
[4] Sentencing
§ 6.06 Conspiracy
[1] Introduction
[2] Elements
[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
[3] Sentencing
§ 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
§ 7.07 Wiretap Act/Electronic Communications Privacy Act
[1] Wiretap Act
[2] Unlawful Access to Stored Communications
§ 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
§ 7.14 CAN-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
[3] Elements of a Computer and Information Security Plan

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
[3] Plain View
[4] Search Incident to a Lawful Arrest
[5] Inventory Searches
[6] Border Searches
[7] 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
[2] Alaska
[3] Arizona
[4] Arkansas
[5] California
[6] Colorado
[7] Connecticut
[8] Delaware
[9] District of Columbia
[10] Florida
[11] Georgia
[12] Hawaii
[13] Idaho
[14] Illinois
[15] Indiana
[16] Iowa
[17] Kansas
[18] Kentucky
[19] Louisiana
[20] Maine
[21] Maryland
[22] Massachusetts
[23] Michigan
[24] Minnesota
[25] Mississippi
[26] Missouri
[27] Montana
[28] Nebraska
[29] Nevada
[30] New Hampshire
[31] New Jersey
[32] New Mexico
[33] New York
[34] North Carolina
[35] North Dakota
[36] Ohio
[37] Oklahoma
[38] Oregon
[39] Pennsylvania
[40] Rhode Island
[41] South Carolina
[42] South Dakota
[43] Tennessee
[44] Texas
[45] Utah
[46] Vermont
[47] Virginia
[48] Washington
[49] West Virginia
[50] Wisconsin
[51] Wyoming
[52] Puerto Rico

Index