Category Archives: Criminal Enforcement of IP

DOJ announces new IP Task Force

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Shourin Sen - 17 February 2010 – 10:25 am
Filed under Criminal Enforcement of IP

On Friday, Attorney General Eric Holder announced the formation of a new Task Force on Intellectual Property. The Task Force will be chaired by Acting Deputy Attorney General Gary Grindler, and includes Associate Attorney General Thomas Perrelli, and representatives from the Criminal Division, Civil Division, Antitrust Division, Office of Legal Policy, Office of Justice Programs, Attorney General’s Advisory Committee, Executive Office for U.S. Attorneys and the FBI.

As per the DOJ press release:

The Task Force . . . will focus on strengthening efforts to combat intellectual property crimes through close coordination with state and local law enforcement partners as well as international counterparts. It will also monitor and coordinate overall intellectual property enforcement efforts at the Department, with an increased focus on the international aspects of IP enforcement, including the links between IP crime and international organized crime. Building on previous efforts in the Department to target intellectual property crimes, the Task Force will also serve as an engine of policy development to address the evolving technological and legal landscape of this area of law enforcement.

As part of its mission, the Task Force will work closely with the recently established Office of the Intellectual Property Enforcement Coordinator (IPEC), housed in the Executive Office of the President and charged with drafting an Administration-wide strategic plan on intellectual property. As part of its mission, the Task Force will assist IPEC in recommending improvements to intellectual property enforcement efforts.

Notes:  There was a firestorm on the internet this summer over what some considered ethically worrisome ties between some administration appointees at the Department of Justice and the recording industry. The thought was, at the time, that many of the appointees may find themselves working on matters at the DOJ in which they represented clients in private practice.

Prior to joining the Department Mr. Perrelli was managing partner and Co-Chair of Jenner & Block’s Entertainment and New Media Practice, where he represented members of the recording industry. President Obama issued an Executive Order on January 21, 2009 which stated that every appointee in every executive agency shall sign and “be contractually committed to” a pledge that includes the following:

I will not for a period of 2 years from the date of my appointment participate in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts.

In May 2009, Main Justice reported (via Ben Sheffner) that a Justice Department Spokesman had confirmed that Mr. Perrelli had not requested any exemptions from the ban. I am curious about whether the two-year period has run, if an exemption was requested, whether the task force is not considered a conflict, or if there has been a policy change.

DWI, Driving With Infringing (DVDs)?

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Shourin Sen - 20 May 2009 – 10:13 pm
Filed under Criminal Enforcement of IP

United States v. Brooks (S.D. Ga. 2009)

There was a somewhat perplexing decision last Wednesday in a criminal copyright infringement prosecution, courtesy of the federal district court in Augusta, Georgia.  Here comes the facts.

Cop received a tip from his narcotics division to be on the lookout for a Hummer, and to tail it for a traffic violation that would provide probable cause for a traffic stop.  Cop encountered a Hummer that went into the middle lane to move around an accident and pulled it over.  Cop ran a background check on the Defendant’s car tag, insurance, criminal background, and outstanding warrants, all of which came back clear.  While the cop was writing the traffic ticket, a second cop pulled up with a narc dog.  Narc dog alerts on the hummer after an open-air sniff search. Cop #2 searched the car and found marijuana “shake” (which apparently means, small pieces of pot) in the center console. Defendant wasn’t given a citation for the pot and it appears that it wasn’t taken into custody or tested (presumably because there wasn’t sufficient quantity).

What did the cops find?  “[S]everal large boxes filled with DVDs that [Cop #2] described as ‘bootleg.’  Again, however, [Cop #2] did not have specific information about the DVDs, such as the number discovered, because he was not the person in charge of counting and/or cataloging the evidence collected.” Following the search of the Hummer, the Defendant was arrested and a search warrant for Defendant’s residence was obtained and executed.

The Defendant was charged with the criminal distribution and reproduction of copyrighted material.  The Defendant filed a motion to suppress contending that the search of his car and house transgressed his Fourth Amendment rights. I’m not going to go into the Court’s analysis of the traffic stop.  Can you pick out the fundamental problem with this case?

[Insert Jeopardy theme song.]

Mere possession of infringing DVDs isn’t illegal. You can drive around with a truck full of them.  You just can’t reproduce or distribute ten or more infringing copies of a copyrighted work which have a total retail value of more than $1,000.  If it wasn’t the marijuana, what in fact was the Defendant arrested for?  And was there probable cause to search the defendants house based only on the possession of material he was legally allowed to carry?

Many, many questions.  Very few answers.

Other Documents:

Is it illegal to carry a gun if you’ve been convicted of criminal infringement?

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Shourin Sen - 12 February 2009 – 9:00 am
Filed under Criminal Enforcement of IP

Dicta from a recent ruling by Judge James in the W. D. of Louisiana suggests that it is.

In 1993, the Defendant pled guilty to felony conspiracy to violate (1) the Communications Act of 1934, and (2) criminal copyright infringement.  This past November, the Defendant was arrested for stalking.  At the time of his arrest he was packing a pistol.

18 U.S.C. 922(g)(1) makes it a crime for “any person … convicted in any court of, a crime punishable by imprisonment for a term exceeding one year … to … possess … any firearm.”  However, 18 U.S.C. 921(a)(20)(A) excludes “Federal or state offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices.”

The Defendant asked for dismissal on the grounds that the felony conviction (based on copyright infringement and violation of the Communication’s Act of ’34) was not an offense that prohibited him from possessing a firearm.

The Court denied on the grounds that the underlying felony conviction was the charged violation (conspiracy), not the facts underlying the conviction (copyright infringement or the violation of the Communications Act).   See Dreher v. U.S. on Behalf of U.S. Bureau of Alcohol, Tobacco and Firearms, 115 F.3d 330 (5th Cir.1997).  So, the Court didn’t ultimately rule on whether a conviction for criminal copyright infringement is  a crime that makes it illegal to carry a firearm.

But Judge James noted in a footnote:

Even if this Court could look to the underlying purpose of the conspiracy, the Court agrees with the Government that, in essence, the unlawful purpose was not an unfair business practice or unfair competition, but theft of copyright-protected satellite programming. See . . . 17 U.S.C. § 506(a) (To prove a violation of the criminal copyright infringement statute, the Government must show (1) a valid copyright, (2) that the defendant/conspirator willfully infringed on the copyright, and (3) that the infringement was for commercial advantage or private financial gain).

United States v. Coleman, 08 cr 00376 RGJ KLH 1, 2009 WL 302169 (W.D. La. Feb. 6, 2009)