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Prosecuting Intellectual Property Cases

Prosecuting Intellectual Property Cases. Arnold H. Huftalen Assistant U.S. Attorney U.S. Department of Justice arnold.huftalen@usdoj.gov. When Do U.S. Authorities Bring Criminal IP Charges? How Does the US Prosecute? Recent IPR Prosecutions. Some Enforcement Issues. AGENDA.

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Prosecuting Intellectual Property Cases

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  1. Prosecuting Intellectual Property Cases Arnold H. Huftalen Assistant U.S. Attorney U.S. Department of Justice arnold.huftalen@usdoj.gov

  2. When Do U.S. Authorities Bring Criminal IP Charges? How Does the US Prosecute? Recent IPR Prosecutions. Some Enforcement Issues. AGENDA

  3. When Do U.S. Authorities Bring Criminal IP Charges? • Majority of IP enforcement actions in U.S. are civil, not criminal • Effective civil system • Burden of proof more difficult in criminal cases • Civil = “preponderance of evidence” • Criminal = “beyond a reasonable doubt”

  4. Factors Affecting Decision to Prosecute When Do U.S. Authorities Bring Criminal IP Charges? • Federal Law Enforcement Priorities • Nature and Seriousness of Offense • scale of infringement (scope, amount of loss, harm) • commercial purpose • health/safety issues • Organized Criminal Involvement • Adequate alternative non-criminal remedies • Adequate Civil Enforcement; Repeat Offender; Deterrent Effect • Other: culpability, cooperation with investigation, subject to prosecution elsewhere

  5. How Are IP Cases Prosecuted in the U.S.? • Computer Crime & Intellectual Property Section (CCIPS) in Washington, D.C. • Computer Hacking and Intellectual Property (CHIP) Coordinators in all 94 U.S. Attorney Offices • Office of Consumer Litigation • Federal Law Enforcement Agencies • Victim Industry Partnerships

  6. CCIPS • 39 Attorneys in Washington, DC • 13 Dedicated to IPR • Work daily with prosecutors in U.S. • Work regularly with prosecutors around the world

  7. CHIP Coordinators • CHIP Coordinators in all 94 Districts • Created in 2001 • Prosecute crimes; provide technical assistance within district; provide multi-district assistance; provide training and community outreach

  8. OFFICE OF CONSUMER LITIGATION • U.S. DOJ Civil Division • Handles civil & criminal cases involving intellectual property laws that protect public health and safety

  9. U.S. FEDERAL LAW ENFORCEMENT AGENCIES • Federal Bureau of Investigation (FBI) • Bureau of Immigration & Customs Enforcement (BICE) • Customs & Border Patrol (CBP) • U.S. Postal Inspection Service • U.S. Secret Service • U.S. Food and Drug Administration (FDA)

  10. VICTIM INDUSTRY PARTNERSHIPS • Examples • Microsoft • Cisco • Motion Picture Association of America (MPAA) • Recording Industry Association of America (RIAA)

  11. RECENT IPR PROSECUTIONS • Counterfeit Computer Network Hardware • Counterfeit Pharmaceuticals • Warez • Counterfeit CDs & DVDs • Counterfeit Luxury Goods

  12. COUNTERFEIT COMPUTER NETWORK HARDWARE • February 2008 • Joint U.S & Canada investigation • 400 seizures • $76,000,000 counterfeit network hardware seized

  13. COUNTERFEIT PHARMACEUTICALS • Cholesterol lowering medications • Antibiotics • Lifestyle medication • Viagra & Cialis

  14. WAREZ-Software Piracy • Significant U.S. prosecutions • Operation Buccaneer • Operation Digital Piratez • Operation Bandwidth • Operation FastLink • Operation Higher Education • Operation Site Down • Operation Summer Solstice

  15. Rip/Crack Testing Packing Drop Box WAREZ GROUPS Supplier To Couriers Distribution

  16. OPTICAL DISC PIRACY • Operation Remaster-2006 • 2 charged • 500,000 pirated music CDs • 5,500 high-speed, high quality stampers

  17. ONLINE MUSIC PIRACY • 2003-2008 • Apocalypse Crew (APC) • 15 convictions • Pre-release music • Global distribution within hours

  18. LUXURY GOODS • Counterfeit watches • Counterfeit handbags & wallets • 2005--Virginia • More than 50,000 handbags & wallets seized • Worth more than $2,000,000 • 2006--Massachusetts • More than 20,000 handbags & wallets seized • Worth more than $1,400,000

  19. SOME ENFORCEMENT ISSUES . . . • Large scale infringement without profit motive (WAREZ) • Proof issues: quantity and identity of infringing items • Disclaimers by distributors • Obtaining assistance of victims • Is defendant responsible for infringement: control over content and maintenance of infringement facility

  20. OTHER ENFORCEMENT ISSUES • U.S. • Balancing rights of customers, inventors and content providers • Increasing IP enforcement resources • Training of prosecutors and agents • Charging IP offenses • Educating (victims and public)

  21. OTHER ENFORCEMENT ISSUES • International • Same issues as domestic • International cooperative agreements • Uniformity of criminal violations • Coordination • Cumbersome formal legal process • Informal contacts

  22. QUESTIONS Thank you, Arnold H. Huftalen Assistant United States Attorney U.S. Department of Justice arnold.huftalen@usdoj.gov

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