A Generation of Racketeers? Eliminating Civil RICO Liability for Copyright Infringement

This article addresses questions raised in recent years by the increasingly severe penalties for copyright infringement, focusing on potential civil RICO liability as illustrated by a hypothetical peer-to-peer file-sharing example. Because civil litigation has been, by a wide margin, the favored means for pursuing copyright violators, the criminal copyright infringement statute remains largely untested, and the few cases that address its provisions offer conflicting interpretations. Now that RICO penalties are available in civil copyright infringement cases, courts faced with resolving the ambiguities in the application of the criminal copyright infringement provisions will need to reconcile divergent policies. To effectuate its remedial purpose, courts broadly interpret the RICO statute--even beyond the scope intended by Congress--yet rely heavily on the legislative history of the Copyright Act to balance the interest of copyright owners in controlling their works with that of the public in accessing them

Optimal Copyright Protection: Civil Law vs. Criminal Law

We consider optimal copyright protection strategies from the government and producer perspectives. Our model assumes that the government sets the penalty for infringement, and that the producer is responsible for monitoring illegal activity. We find that depending on the production cost of the goods, the government should set copyright penalties either to zero or to a level that makes the producer's profit zero. We also show that the social surplus is greater under a civil law scheme than a criminal law scheme when the production cost of the goods is high. On the other hand, it is better to apply penalties under criminal law when the production cost is low.

Crimes Involving Intangible Property

[Excerpt] “A well-known cliché came to life when “[t]he pope’s butler was convicted . . . of stealing the pontiff’s private documents and leaking them to a journalist . . . .” His lawyer’s unsuccessful argument—that taking “only photocopies, not original documents” should not be criminal—prompted this paper. When tangible property is taken, owners retain nothing. When documents or equivalents are duplicated, however, even if owners retain originals, they suffer loss of control and may lose substantial present and potential advantages, not necessarily economic. Civil redress for such losses has therefore long been available through copyright and trade secret laws. Indeed, it has often been available when injuries occasioned by unauthorized reproduction seem unrelated to goals traditionally advanced by either body of law. Thus, the way information is expressed may be protected by copyright and, until published, if it otherwise qualifies, information as such may also enjoy trade secret protection. When civil remedies are inadequate to deter theft and vindicate interests of owners and the public, civil remedies can be augmented with criminal penalties. Differences between tangibles and intangibles, however, are often seen to warrant different prosecutorial requirements and penalties. The second part of this paper explains how federal courts, recognizing those differences, have come to find the National Stolen Property Act (“NSPA”) inapplicable to theft of at least some intangibles. Ones addressed there fall within the scope of the Federal Copyright Act (“FCA”) and the Economic Espionage Act of 1996 (“EEA”). … The paper concludes, first, by echoing a suggestion that lack of uniformity in state law justifies federal penalties and expanded jurisdiction. It also advocates more uniformity and better articulation of the subject matter contemplated by the term “intangibles” in, for example, the Model Penal Code. Finally, the paper argues that even when tangibles such as media are taken, courts should, for example, not base their value on the value of its intangible contents.

Copyright Back on Congressional Agenda

When the 110th Congress began in January there seemed to be little interest in copyright legislation. The newly elected Democratic majority was focused on reviewing Bush Administration policies on terrorism and privacy. There was continuing interest in patent reform, but a flurry of copyright bills that had been proposed at the end of the 109th Congress-including orphan works proposals, digital fair use reform, and copyright modernization–failed to emerge in 2007. A couple of proposals were offered to harmonize copyright licensing and to clarify the DMCA’s fair use provisions, but there was no “buzz” about copyright. Until recently, that is. Quietly, in November, then with a bit of a bigger splash in December, bills providing for enhanced copyright enforcement provisions were introduced in the Senate and House respectively. Neither bill deals with digital fair use or orphan works, but hearings on the House bill raised the glimmer of broader copyright reform being in Congress’s future

Deceptive Practices 2.0: Legal and Policy Responses

Reviews recent online misinformation campaigns and "cyberfraud" to suppress voting and skew elections, mainly in minority communities. Examines whether federal and state laws can sufficiently deter and punish perpetrators. Makes policy recommendations

The desirability of criminal penalties for breaches of part IV of the trade practices act

Following the introduction of criminal sanction, including jail terms, for hard core cartelisation in the United Kingdom, the Dawson Review has recently recommended that criminal penalties be introduced in Australia for individuals and corporations found to have engaged in hard core cartels. A number of reasons have been advanced to justify the introduction of criminal sanctions for this type of conduct, the most common of which are that it would bring Australia in line with other competition regimes and that criminal sanctions are more likely to provide an effective deterrent. This article evaluates those reasons, and others, to determine whether there is any adequate justification for the proposed criminal regime

Awaking the Sleeping Dragon: The Evolving Chinese Patent Laws and its Implications for Pharmeceutical Patents

Part I of this Comment will discuss the development of the Chinese IP system and discuss why it has been ineffective in protecting pharmaceutical patents by comparing it to the US patent system. Part II analyzes the third amendment to the Chinese patent law and how it protects patents, particularly pharmaceutical ones, and deters counterfeiters from infringing upon the patents. Part II also presents different views on the effectiveness of the third amendment to protect patents. Part III argues that even though the third amendment is a great leap forward, pharmaceutical counterfeiting will continue to happen if the local governments do not cooperate with the central government in enforcing patent protection laws