| ACCESS CONTROLS | |
| V.A.2. | Key Concepts: Access Controls vs. Copy Controls, Circumvention vs. Trafficking |
| V.A.2.a. | Access Controls vs. Copy/Use Controls |
| V.A.2.b. | Circumvention vs. Trafficking in Circumvention Tools |
| V.A.3. | Differences Between the DMCA and Traditional Copyright Law |
| V.B.1. | Circumventing Access Controls, 17 U.S.C. §§ 1201(a)(1) and 1204 |
| V.B.1.a. | Circumvented |
| V.B.1.b. | Technological Measures That Effectively Control Access (an "Access Control") |
| V.B.1.c. | To a Copyrighted Work |
| V.B.1.d. | How Congress Intended the Anti-Circumvention Prohibition to Apply |
| V.B.1.e. | Regulatory Exemptions to Liability under § 1201(a)(1) |
| V.B.2. | Trafficking in Access Control Circumvention Tools and Services—17 U.S.C. §§ 1201(a)(2) and 1204 |
| V.B.2.a. | Trafficking |
| V.B.2.b. | In a Technology, Product, Service, or Part Thereof |
| V.B.2.c. | Purpose or Marketing of Circumvention Technology |
| V.B.2.c.1. | Primarily Designed or Produced |
| V.B.2.c.2. | Limited Commercially Significant Purpose Other Than Circumvention |
| V.B.2.c.3. | Knowingly Marketed for Circumvention |
| V.C.2. | Librarian of Congress Regulations |
| V.C.5. | Reverse Engineering and Interoperability of Computer Programs |
| V.C.6. | Encryption Research |
| V.C.10.a. | Congress's Constitutional Authority to Enact § 1201 of the DMCA |
| V.C.10.b.i. | Facial Challenges |
| V.C.10.b.ii. | "As Applied" First Amendment Challenges to the DMCA |
| VIII.C.1.h. | Decryption or Circumvention of Access Controls Increases the Offense Level—U.S.S.G. § 3B1.3 |
| ACCESSIBLE TO MEMBERS OF THE PUBLIC | |
| II.B. | Elements |
| II.B.3.c. | Distribution of a Work Being Prepared for Commercial Distribution, by Making It Available on a Publicly-Accessible Computer Network, If the Defendant Knew or Should Have Known the Work Was Intended for Commercial Distribution |
| II.B.3.c.ii. | Making the Work Available on a Computer Network Accessible to Members of the Public |
| ACTUAL CONFUSION | |
| III.B.4.b. | The Counterfeit Mark Must Be Identical to or Indistinguishable from a Genuine Mark Owned by Another |
| III.B.4.g. | Likelihood of Confusion, Mistake, or Deception |
| ACTUAL DISSEMINATION | |
| II.B.3.a.ii. | Distribution |
| II.B.3.c.i. | Distribution |
| ACTUAL LOSS | |
| VIII.C.2.c.i. | Use Greater of Actual or Intended Loss |
| VIII.C.2.c.iii. | Methods of Calculating Loss |
| ADMINISTRATIVE FORFEITURE | |
| VIII.E.2.a. | Administrative Forfeiture Proceedings |
| VIII.E.2.b. | Civil and Criminal Proceedings |
| VIII.E.2.c. | Table of Forfeiture Provisions Arranged by Criminal IP Statute |
| VIII.E.3. | Choosing a Forfeiture Procedure |
| VIII.E.4.b. | Infringing Items, Other Contraband, and Facilitating Property |
| see also FORFEITURE | |
| ADVICE OF COUNSEL DEFENSE | |
| IV.C.4. | Advice of Counsel |
| IV.C.5. | Claim of Right—Public Domain and Proprietary Rights |
| see also IGNORANCE OF THE LAW | |
| AFFIRMATIVE DEFENSES | |
| II.B. | Elements |
| II.C.4.b. | Affirmative Defense or Part of the Government's Case-in-Chief? |
| III.C.4. | Lanham Act Defenses |
| III.C.5. | Statute of Limitations |
| V.C.10.d. | Fair Use |
| AFFIXED | |
| III.B.4.a. | Definition of Counterfeit Mark Generally: Not Genuine or Authentic |
| III.B.4.b. | The Counterfeit Mark Must Be Identical to or Indistinguishable from a Genuine Mark Owned by Another |
| VI.B. | Elements |
| VI.B.1. | The Defendant Acted "Knowingly" |
| VI.B.2. | The Defendant Trafficked |
| VI.B.3. | Trafficking in Labels Affixed to, Enclosing, or Accompanying (or Designed to be Affixed to, Enclose, or Accompany) a Phonorecord, Computer Program, Motion Picture or other Audiovisual Work, Literary, Pictorial, Graphic, or Sculptural Work, |
| VI.B.4. | The Labels, Documentation, or Packaging Materials are Counterfeit or Illicit |
| VI.B.5. | Federal Jurisdiction |
| VI.E.4. | Forfeiture |
| VI.E.5.a. | Retail Value of Copyrighted Goods vs. Counterfeit Labels, Documentation, and Packaging |
| VIII.E.5.b. | Infringing Items, Other Contraband, and Facilitating Property |
| AIDING OR ABETTING | |
| II.C.4.d. | Special Rules for Rental, Lease, and Lending |
| II.E.2. | Sentencing Guidelines |
| III.B.3.b.i. | General Definition |
| III.B.3.c. | Goods and Services [after March 16, 2006: and Labels, Patches, Stickers, Wrappers, Badges, Emblems, Medallions, Charms, Boxes, Containers, Cans, Cases, Hangtags, Documentation, or Packaging of Any Type or Nature] |
| III.B.4.e. | Use of the Counterfeit Mark "On or In Connection With" Goods or Services |
| III.B.4.f. | The Counterfeit Mark Must Have Been Used for the Same Type of Goods or Services for Which the Genuine Mark Was Registered |
| III.E.5. | Sentencing Guidelines |
| III.F. | Other Charges to Consider |
| VI.D.1. | Electronic Copies of Labels, Documentation, or Packaging |
| VI.F. | Other Criminal Charges to Consider |
| VIII.C.1.e. | Manufacturing, Importing, or Uploading Infringing Items Increases the Offense Level by 2—U.S.S.G. § 2B5.3(b)(3) [Before October 24, 2005: § 2B5.3(b)(2)] |
| VIII.E.5.b. | Infringing Items, Other Contraband, and Facilitating Property |
| APPLICABLE PATENTS | |
| VII.C. | False Marking of Patent—35 U.S.C. § 292 |
| ARCHIVAL EXCEPTION | |
| II.A.6. | The Rights Protected by Copyright |
| II.C.4.a. | Operation of the Doctrine |
| II.C.6. | "Archival Exception" for Computer Software—17 U.S.C. § 117 |
| ATTORNEYS' FEES | |
| II.A.5. | When Copyright Protection Begins and Ends |
| II.B.1.d.ii. | Unpublished or Pre-Release Works |
| VIII.D.3. | Determining a Restitution Figure |
| VIII.E.3. | Choosing a Forfeiture Procedure |
| IX.B.2. | The Nature and Seriousness of the Offense |
| IX.D. | The Adequacy of Alternative Non-Criminal Remedies |
| X.B.3.a. | Private Civil Remedies |
| AUDIOVISUAL RECORDING DEVICE | |
| II.E.2. | Sentencing Guidelines |
| VIII.E.5.b. | Infringing Items, Other Contraband, and Facilitating Property |
| AUTHORIZED-USE DEFENSE | |
| III.C.1. | Authorized-Use Defense: Overrun Goods |
| III.C.2. | Authorized-Use Defense—Gray Market Goods |
| AUTOMOBILE AND AIRLINE PARTS | |
| I.A. | Why Is Intellectual Property Enforcement Important? |
| BERNE CONVENTION IMPLEMENTATION ACT OF 1988 (BCIA) | |
| II.B.1.f. | Copyright Notice |
| V.A.1. | DMCA's Background and Purpose |
| BOAT HULLS | |
| IV.B.3.a.vii. | Reasonable Measures to Maintain Secrecy |
| V.A.4. | Other DMCA Sections That Do Not Concern Prosecutors |
| BOOTLEGGING | |
| I.A. | Why Is Intellectual Property Enforcement Important? |
| II.E.2. | Sentencing Guidelines |
| V.C.10.a. | Congress's Constitutional Authority to Enact § 1201 of the DMCA |
| VI.B.4. | The Labels, Documentation, or Packaging Materials are Counterfeit or Illicit |
| VI.F. | Other Criminal Charges to Consider |
| VIII.C.1. | Offenses Involving Copyright (Including Bootleg Music, Camcorded Movies, and the Unauthorized Use of Satellite, Radio, and Cable Communications), Trademark, Counterfeit Labeling, and the DMCA |
| VIII.C.1.a. | Applicable Guideline is § 2B5.3 |
| VIII.C.1.e. | Manufacturing, Importing, or Uploading Infringing Items Increases the Offense Level by 2—U.S.S.G. § 2B5.3(b)(3) [Before October 24, 2005: § 2B5.3(b)(2)] |
| VIII.D.1. | Restitution is Available—and Often Required—in Intellectual Property Prosecutions |
| VIII.E.2.c. | Table of Forfeiture Provisions Arranged by Criminal IP Statute |
| VIII.E.4.a. | Proceeds |
| VIII.E.5. | Criminal Forfeiture in IP Matters |
| VIII.E.5.b. | Infringing Items, Other Contraband, and Facilitating Property |
| X.B.3.a. | Private Civil Remedies |
| BUSINESS ORGANIZATIONS | |
| IV.B.4. | Additional 18 U.S.C. § 1831 Element: Intent to Benefit a Foreign Government, Foreign Instrumentality, or Foreign Agent |
| IX.E. | Special Considerations in Deciding Whether to Charge Corporations and Other Business Organizations |
| CABLE AND SATELLITE SERVICE | |
| II.B.4.b. | Legal Standard |
| II.E.2. | Sentencing Guidelines |
| VIII.C.1. | Offenses Involving Copyright (Including Bootleg Music, Camcorded Movies, and the Unauthorized Use of Satellite, Radio, and Cable Communications), Trademark, Counterfeit Labeling, and the DMCA |
| VIII.C.1.a. | Applicable Guideline is § 2B5.3 |
| VIII.C.1.c.iii. | Retail Value |
| VIII.D.1. | Restitution is Available—and Often Required—in Intellectual Property Prosecutions |
| VIII.D.2. | Victims Include Owners of Intellectual Property and Consumers Who Were Defrauded |
| CAMCORDING | |
| II.E.2. | Sentencing Guidelines |
| VIII.E.2.c. | Table of Forfeiture Provisions Arranged by Criminal IP Statute |
| VIII.E.5. | Criminal Forfeiture in IP Matters |
| VIII.E.5.b. | Infringing Items, Other Contraband, and Facilitating Property |
| CASH | |
| II.B.2.a. | Legal Standard |
| X.C.1.a. | Applicable Law |
| X.C.1.b.iii. | Cash |
| X.C.1.c.iii. | Acceptance of Gifts |
| CERTIFICATION MARKS | |
| II.E.2. | Sentencing Guidelines |
| III. | Trafficking In Counterfeit Trademarks, Service Marks, and Certification Marks—18 U.S.C. § 2320 |
| III.A.1. | Overview of the Chapter |
| III.A.2. | Why Criminal Law Protects Trademarks, Service Marks, and Certification Marks |
| III.F. | Other Charges to Consider |
| VIII.D.1. | Restitution is Available—and Often Required—in Intellectual Property Prosecutions |
| VIII.E. | Forfeiture |
| VIII.E.1. | Property Subject to Forfeiture |
| VIII.E.4.b. | Infringing Items, Other Contraband, and Facilitating Property |
| CHILDREN | |
| II.B.3.b.i. | Generally |
| III.A.2. | Why Criminal Law Protects Trademarks, Service Marks, and Certification Marks |
| V.C.6. | Encryption Research |
| VIII.C.1.c.iii. | Retail Value |
| CHIP UNITS | |
| I.C. | Why Criminal Enforcement? |
| IX.B.1. | Federal Law Enforcement Priorities |
| CIRCUMVENTION | |
| IV.C.6. | The First Amendment |
| V.A.1. | DMCA's Background and Purpose |
| V.A.2. | Key Concepts: Access Controls vs. Copy Controls, Circumvention vs. Trafficking |
| V.A.2.b. | Circumvention vs. Trafficking in Circumvention Tools |
| V.A.3. | Differences Between the DMCA and Traditional Copyright Law |
| V.A.4. | Other DMCA Sections That Do Not Concern Prosecutors |
| V.B. | Elements of Anti-Circumvention and Anti-Trafficking Provisions |
| V.B.1. | Circumventing Access Controls, 17 U.S.C. §§ 1201(a)(1) and 1204 |
| V.B.1.a. | Circumvented |
| V.B.1.b. | Technological Measures That Effectively Control Access (an "Access Control") |
| V.B.1.c. | To a Copyrighted Work |
| V.B.1.d. | How Congress Intended the Anti-Circumvention Prohibition to Apply |
| V.B.1.e. | Regulatory Exemptions to Liability under § 1201(a)(1) |
| V.B.2. | Trafficking in Access Control Circumvention Tools and Services—17 U.S.C. §§ 1201(a)(2) and 1204 |
| V.B.2.a. | Trafficking |
| V.B.2.b. | In a Technology, Product, Service, or Part Thereof |
| V.B.2.c. | Purpose or Marketing of Circumvention Technology |
| V.B.2.c.1. | Primarily Designed or Produced |
| V.B.2.c.2. | Limited Commercially Significant Purpose Other Than Circumvention |
| V.B.2.c.3. | Knowingly Marketed for Circumvention |
| V.B.3. | Trafficking in Tools, Devies, and Services to Circumvent Copy Controls -- 17 U.S.C. §§ 1201(b)(1) and 1204 |
| V.B.3.a. | Circumventing |
| V.B.3.b. | Technological Measure That Effectively Protects a Right of a Copyright Owner Under This Title ("Copy Control") |
| V.B.5. | Falsifying, Altering, or Removing Copyright Management Information -- 17 U.S.C. § 1202 |
| V.C. | Defenses |
| V.C.2. | Librarian of Congress Regulations |
| V.C.3. | Certain Nonprofit Entities |
| V.C.5. | Reverse Engineering and Interoperability of Computer Programs |
| V.C.6. | Encryption Research |
| V.C.10.a. | Congress's Constitutional Authority to Enact § 1201 of the DMCA |
| V.C.10.b.i. | Facial Challenges |
| V.C.10.b.ii. | "As Applied" First Amendment Challenges to the DMCA |
| V.C.10.c. | Vagueness |
| V.C.10.d. | Fair Use |
| VIII.C.1.a. | Applicable Guideline is § 2B5.3 |
| VIII.C.1.c.iii. | Retail Value |
| VIII.C.1.e. | Manufacturing, Importing, or Uploading Infringing Items Increases the Offense Level by 2—U.S.S.G. § 2B5.3(b)(3) [Before October 24, 2005: § 2B5.3(b)(2)] |
| VIII.C.1.h. | Decryption or Circumvention of Access Controls Increases the Offense Level—U.S.S.G. § 3B1.3 |
| VIII.D.2. | Victims Include Owners of Intellectual Property and Consumers Who Were Defrauded |
| COLLECTIVE MARKS | |
| III.A.1. | Overview of the Chapter |
|
COMMERCE CLAUSE see INTERSTATE AND FOREIGN COMMERCE |
|
COMMERCIAL ADVANTAGE see PURPOSES OF COMMERCIAL ADVANTAGE OR PRIVATE FINANCIAL GAIN |
|
COMMERCIAL ECONOMIC ESPIONAGE see ECONOMIC ESPIONAGE |
| COMMERCIAL SPEECH | |
| V.B.2.c.3. | Knowingly Marketed for Circumvention |
| COMPUTER FRAUD ABUSE ACT OF 1986 | |
| V.C.6. | Encryption Research |
|
COMPUTER HACKING AND INTELLECTUAL PROPERTY (CHIP) COORDINATORS see CHIP UNITS |
| COMPUTER NETWORKS | |
| II. | Criminal Copyright Infringement—17 U.S.C. § 506 and 18 U.S.C. § 2319 |
| II.A.7. | When Infringement is Criminal |
| II.B. | Elements |
| II.B.3. | Infringement of the Copyright |
| II.B.3.a. | Infringement by Reproduction or Distribution |
| II.B.3.c. | Distribution of a Work Being Prepared for Commercial Distribution, by Making It Available on a Publicly-Accessible Computer Network, If the Defendant Knew or Should Have Known the Work Was Intended for Commercial Distribution |
| II.B.3.c.i. | Distribution |
| II.B.3.c.ii. | Making the Work Available on a Computer Network Accessible to Members of the Public |
| V.C.4. | Information Security Exemption |
| V.C.9. | Security Testing |
| VIII.C.1.c.v. | Cross-Reference to Loss Table in U.S.S.G. § 2B1.1 |
| X.C.1.b.i. | Assistance from Victims and Related Parties |
| CONSCIOUS AVOIDANCE | |
| III.B.5. | The Defendant Used the Counterfeit Mark "Knowingly" |
| VI.B.1. | The Defendant Acted "Knowingly" |
| CONSPIRACY | |
| II.B.3.a.ii. | Distribution |
| II.B.3.b.ii. | Definition of "Retail Value" in this Context |
| II.C.2. | Jurisdiction |
| II.C.3. | Venue |
| II.C.4.d. | Special Rules for Rental, Lease, and Lending |
| II.E.2. | Sentencing Guidelines |
| III.B.3.b.i. | General Definition |
| III.B.3.c. | Goods and Services [after March 16, 2006: and Labels, Patches, Stickers, Wrappers, Badges, Emblems, Medallions, Charms, Boxes, Containers, Cans, Cases, Hangtags, Documentation, or Packaging of Any Type or Nature] |
| III.B.4.d. | The Genuine Mark Must Have Been in Use by the Mark-Holder or Its Licensee |
| III.B.4.e. | Use of the Counterfeit Mark "On or In Connection With" Goods or Services |
| III.B.4.f. | The Counterfeit Mark Must Have Been Used for the Same Type of Goods or Services for Which the Genuine Mark Was Registered |
| III.B.6. | Venue |
| III.D.7. | Units of Prosecution |
| III.E.5. | Sentencing Guidelines |
| III.F. | Other Charges to Consider |
| IV.B.1. | Overview |
| IV.B.3. | Elements Common to 18 U.S.C. §§ 1831, 1832 |
| IV.B.3.a.i. | Generally |
| IV.B.3.a.ii. | Employee's General Knowledge, Skill, or Abilities Not Covered |
| IV.B.3.a.vi. | Disclosure's Effects |
| IV.B.3.b.v. | Mere Risk of Misappropriation Not Prosecutable, But Attempts and Conspiracies Are |
| IV.B.6. | Attempts and Conspiracies, Including the Impossibility Defense |
| IV.C.6. | The First Amendment |
| VI.D.1. | Electronic Copies of Labels, Documentation, or Packaging |
| VI.E.5.a. | Retail Value of Copyrighted Goods vs. Counterfeit Labels, Documentation, and Packaging |
| VI.F. | Other Criminal Charges to Consider |
| VIII.C.1.c.ii. | Number of Infringing Items |
| VIII.C.1.e. | Manufacturing, Importing, or Uploading Infringing Items Increases the Offense Level by 2—U.S.S.G. § 2B5.3(b)(3) [Before October 24, 2005: § 2B5.3(b)(2)] |
| VIII.C.2.a. | Applicable Guideline is § 2B1.1, Except for Attempts and Conspiracies |
| VIII.C.2.c.iii. | Methods of Calculating Loss |
| VIII.D.2. | Victims Include Owners of Intellectual Property and Consumers Who Were Defrauded |
| CONTRABAND | |
| III.B.3.b.iii. | Making and Obtaining Counterfeits vs. Possession with Intent to Traffic |
| VI.B.2. | The Defendant Trafficked |
| VIII.E.1. | Property Subject to Forfeiture |
| VIII.E.2.c. | Table of Forfeiture Provisions Arranged by Criminal IP Statute |
| VIII.E.4.b. | Infringing Items, Other Contraband, and Facilitating Property |
| VIII.E.5.b. | Infringing Items, Other Contraband, and Facilitating Property |
| COOKIE FILES | |
| V.C.6. | Encryption Research |
| COPY CONTROLS | |
| IV.B.3.a.vi. | Disclosure's Effects |
| IV.C.6. | The First Amendment |
| V.A.2. | Key Concepts: Access Controls vs. Copy Controls, Circumvention vs. Trafficking |
| V.A.2.a. | Access Controls vs. Copy/Use Controls |
| V.A.2.b. | Circumvention vs. Trafficking in Circumvention Tools |
| V.A.3. | Differences Between the DMCA and Traditional Copyright Law |
| V.B.1. | Circumventing Access Controls, 17 U.S.C. §§ 1201(a)(1) and 1204 |
| V.B.3. | Trafficking in Tools, Devies, and Services to Circumvent Copy Controls -- 17 U.S.C. §§ 1201(b)(1) and 1204 |
| V.B.3.a. | Circumventing |
| V.B.3.b. | Technological Measure That Effectively Protects a Right of a Copyright Owner Under This Title ("Copy Control") |
| V.B.4. | Alternate § 1201(b) Action—Trafficking in Certain Analog Videocassette Recorders and Camcorders |
| V.C.5. | Reverse Engineering and Interoperability of Computer Programs |
| V.C.10.a. | Congress's Constitutional Authority to Enact § 1201 of the DMCA |
| V.C.10.c. | Vagueness |
| V.C.10.d. | Fair Use |
| VIII.C.1.h. | Decryption or Circumvention of Access Controls Increases the Offense Level—U.S.S.G. § 3B1.3 |
|
COPYRIGHT see generally Chapter II see also | |
| I.A. | Why Is Intellectual Property Enforcement Important? |
| I.B. | What Is Intellectual Property? |
| I.C. | Why Criminal Enforcement? |
| III.B.3.b.i. | General Definition |
| III.B.4.c. | The Genuine Mark Must Be Federally Registered on the U.S. Patent and Trademark Office's Principal Register |
| III.F. | Other Charges to Consider |
| IV.B.3.a.iv. | Novelty |
| IV.B.3.a.vi. | Disclosure's Effects |
| IV.C.2. | Reverse Engineering |
| IV.F. | Other Possible Charges |
| V. | Digital Millennium Copyright Act—17 U.S.C. §§ 1201-1205 |
| V.A.1. | DMCA's Background and Purpose |
| V.A.2. | Key Concepts: Access Controls vs. Copy Controls, Circumvention vs. Trafficking |
| V.A.2.a. | Access Controls vs. Copy/Use Controls |
| V.A.2.b. | Circumvention vs. Trafficking in Circumvention Tools |
| V.A.3. | Differences Between the DMCA and Traditional Copyright Law |
| V.A.4. | Other DMCA Sections That Do Not Concern Prosecutors |
| V.B.1. | Circumventing Access Controls, 17 U.S.C. §§ 1201(a)(1) and 1204 |
| V.B.1.a. | Circumvented |
| V.B.1.b. | Technological Measures That Effectively Control Access (an "Access Control") |
| V.B.1.c. | To a Copyrighted Work |
| V.B.1.d. | How Congress Intended the Anti-Circumvention Prohibition to Apply |
| V.B.1.e. | Regulatory Exemptions to Liability under § 1201(a)(1) |
| V.B.2. | Trafficking in Access Control Circumvention Tools and Services—17 U.S.C. §§ 1201(a)(2) and 1204 |
| V.B.2.c.1. | Primarily Designed or Produced |
| V.B.3. | Trafficking in Tools, Devies, and Services to Circumvent Copy Controls -- 17 U.S.C. §§ 1201(b)(1) and 1204 |
| V.B.3.a. | Circumventing |
| V.B.3.b. | Technological Measure That Effectively Protects a Right of a Copyright Owner Under This Title ("Copy Control") |
| V.B.4. | Alternate § 1201(b) Action—Trafficking in Certain Analog Videocassette Recorders and Camcorders |
| V.B.5. | Falsifying, Altering, or Removing Copyright Management Information -- 17 U.S.C. § 1202 |
| V.C.4. | Information Security Exemption |
| V.C.5. | Reverse Engineering and Interoperability of Computer Programs |
| V.C.6. | Encryption Research |
| V.C.9. | Security Testing |
| V.C.10.a. | Congress's Constitutional Authority to Enact § 1201 of the DMCA |
| V.C.10.b.ii. | "As Applied" First Amendment Challenges to the DMCA |
| V.C.10.c. | Vagueness |
| V.C.10.d. | Fair Use |
| VI.A. | Distinguished From Trademark and Copyright Statutes |
| VI.B. | Elements |
| VI.B.1. | The Defendant Acted "Knowingly" |
| VI.B.3. | Trafficking in Labels Affixed to, Enclosing, or Accompanying (or Designed to be Affixed to, Enclose, or Accompany) a Phonorecord, Computer Program, Motion Picture or other Audiovisual Work, Literary, Pictorial, Graphic, or Sculptural Work, |
| VI.B.4. | The Labels, Documentation, or Packaging Materials are Counterfeit or Illicit |
| VI.B.5. | Federal Jurisdiction |
| VI.D.2. | Advantages of Charging a § 2318 Offense |
| VI.E.5.a. | Retail Value of Copyrighted Goods vs. Counterfeit Labels, Documentation, and Packaging |
| VI.E.5.b. | Number of Infringing Copyrighted Goods vs. Number of Labels, Documents, or Packaging Items |
| VI.F. | Other Criminal Charges to Consider |
| VII.A. | Overview of Patent |
| VIII.C.1. | Offenses Involving Copyright (Including Bootleg Music, Camcorded Movies, and the Unauthorized Use of Satellite, Radio, and Cable Communications), Trademark, Counterfeit Labeling, and the DMCA |
| VIII.C.1.a. | Applicable Guideline is § 2B5.3 |
| VIII.C.1.c.ii. | Number of Infringing Items |
| VIII.C.1.c.iii. | Retail Value |
| VIII.C.1.c.v. | Cross-Reference to Loss Table in U.S.S.G. § 2B1.1 |
| VIII.C.1.e. | Manufacturing, Importing, or Uploading Infringing Items Increases the Offense Level by 2—U.S.S.G. § 2B5.3(b)(3) [Before October 24, 2005: § 2B5.3(b)(2)] |
| VIII.C.1.f. | Offenses Not Committed for Commercial Advantage or Private Financial Gain Reduces the Offense Level by 2—U.S.S.G. § 2B5.3(b)(4) [before October 24, 2005: § 2B5.3(b)(3)] |
| VIII.C.1.i. | Upward Adjustment for Harm to Copyright- or Mark-Owner's Reputation, Connection with Organized Crime, or Other Unspecified Grounds |
| VIII.D.1. | Restitution is Available—and Often Required—in Intellectual Property Prosecutions |
| VIII.D.2. | Victims Include Owners of Intellectual Property and Consumers Who Were Defrauded |
| VIII.D.3. | Determining a Restitution Figure |
| VIII.E.1. | Property Subject to Forfeiture |
| VIII.E.2.a. | Administrative Forfeiture Proceedings |
| VIII.E.2.c. | Table of Forfeiture Provisions Arranged by Criminal IP Statute |
| VIII.E.4. | Civil Forfeiture in IP Matters |
| VIII.E.4.a. | Proceeds |
| VIII.E.4.b. | Infringing Items, Other Contraband, and Facilitating Property |
| VIII.E.4.c.ii. | Victims' Ability to Forfeit Property |
| VIII.E.5. | Criminal Forfeiture in IP Matters |
| VIII.E.5.b. | Infringing Items, Other Contraband, and Facilitating Property |
| IX.C. | Whether the Person is Subject to Prosecution in Another Jurisdiction |
| IX.D. | The Adequacy of Alternative Non-Criminal Remedies |
| X. | Victims of Intellectual Property Crimes—Ethics and Obligations |
| X.B.3.a. | Private Civil Remedies |
| X.C.1.b.i. | Assistance from Victims and Related Parties |
| X.C.1.b.iv. | Storage Costs in Counterfeit or Infringing Products Cases |
| COPYRIGHT ACT OF 1976 | |
| II.A.4. | Federal Preemption |
| II.C.1. | Statute of Limitations: 5 years |
| COPYRIGHT MANAGEMENT INFORMATION | |
| II.E.2. | Sentencing Guidelines |
| V.A.1. | DMCA's Background and Purpose |
| V.B.5. | Falsifying, Altering, or Removing Copyright Management Information -- 17 U.S.C. § 1202 |
| COPYRIGHT NOTICE | |
| II.B.1.b. | Copyrights vs. Registrations vs. Certificates |
| II.B.1.f. | Copyright Notice |
| II.B.2.b. | Proof at Trial |
| V.B.5. | Falsifying, Altering, or Removing Copyright Management Information -- 17 U.S.C. § 1202 |
| COPYRIGHT PROTECTION SYSTEMS | |
| V.A.1. | DMCA's Background and Purpose |
| V.A.2.a. | Access Controls vs. Copy/Use Controls |
| COPYRIGHT TREATY | |
| V.A.1. | DMCA's Background and Purpose |
| COPYRIGHTABILITY | |
| II.B.1.a. | Copyrightability |
| II.B.1.d. | Whether Registration or Preregistration is Required to Prosecute |
| II.B.3.c.iii. | Work Being Prepared for Commercial Distribution |
| COST OF REPAIRS | |
| VIII.C.2.c.iii. | Methods of Calculating Loss |
| COUNTERFEIT DOCUMENTATION AND PACKAGING | |
| II.E.2. | Sentencing Guidelines |
| VI. | Counterfeit and Illicit Labels, and Counterfeit Documentation and Packaging -- 18 U.S.C. § 2318 |
| VI.A. | Distinguished From Trademark and Copyright Statutes |
| VI.B.3. | Trafficking in Labels Affixed to, Enclosing, or Accompanying (or Designed to be Affixed to, Enclose, or Accompany) a Phonorecord, Computer Program, Motion Picture or other Audiovisual Work, Literary, Pictorial, Graphic, or Sculptural Work, |
| VIII.D.1. | Restitution is Available—and Often Required—in Intellectual Property Prosecutions |
| VIII.E.5.b. | Infringing Items, Other Contraband, and Facilitating Property |
| COUNTERFEIT GOODS OR SERVICES | |
| I.A. | Why Is Intellectual Property Enforcement Important? |
| II.B.4.b. | Legal Standard |
| III.A.2. | Why Criminal Law Protects Trademarks, Service Marks, and Certification Marks |
| III.B.3.b.i. | General Definition |
| III.B.3.c. | Goods and Services [after March 16, 2006: and Labels, Patches, Stickers, Wrappers, Badges, Emblems, Medallions, Charms, Boxes, Containers, Cans, Cases, Hangtags, Documentation, or Packaging of Any Type or Nature] |
| III.B.4.g. | Likelihood of Confusion, Mistake, or Deception |
| III.B.5. | The Defendant Used the Counterfeit Mark "Knowingly" |
| III.B.6. | Venue |
| III.C.1. | Authorized-Use Defense: Overrun Goods |
| III.D.1. | High-Quality and Low-Quality Counterfeits |
| III.D.2. | Counterfeit Goods with Genuine Trademarks |
| III.D.7. | Units of Prosecution |
| VI.B.2. | The Defendant Trafficked |
| VI.E.5.b. | Number of Infringing Copyrighted Goods vs. Number of Labels, Documents, or Packaging Items |
| VIII.D.1. | Restitution is Available—and Often Required—in Intellectual Property Prosecutions |
| VIII.E.1. | Property Subject to Forfeiture |
| VIII.E.5.b. | Infringing Items, Other Contraband, and Facilitating Property |
| IX.B.2. | The Nature and Seriousness of the Offense |
|
COUNTERFEIT LABELS see generally Chapter VI see also | |
| II.E.2. | Sentencing Guidelines |
| III.B.1. | The Trademark Counterfeiting Crime in General |
| III.B.3.c. | Goods and Services [after March 16, 2006: and Labels, Patches, Stickers, Wrappers, Badges, Emblems, Medallions, Charms, Boxes, Containers, Cans, Cases, Hangtags, Documentation, or Packaging of Any Type or Nature] |
| III.B.4.f. | The Counterfeit Mark Must Have Been Used for the Same Type of Goods or Services for Which the Genuine Mark Was Registered |
| III.B.5. | The Defendant Used the Counterfeit Mark "Knowingly" |
| III.C.1. | Authorized-Use Defense: Overrun Goods |
| III.D.7. | Units of Prosecution |
| III.E.5. | Sentencing Guidelines |
| III.F. | Other Charges to Consider |
| VIII.C.1. | Offenses Involving Copyright (Including Bootleg Music, Camcorded Movies, and the Unauthorized Use of Satellite, Radio, and Cable Communications), Trademark, Counterfeit Labeling, and the DMCA |
| VIII.C.1.a. | Applicable Guideline is § 2B5.3 |
| VIII.C.1.c.iii. | Retail Value |
| VIII.C.1.e. | Manufacturing, Importing, or Uploading Infringing Items Increases the Offense Level by 2—U.S.S.G. § 2B5.3(b)(3) [Before October 24, 2005: § 2B5.3(b)(2)] |
| VIII.E.4.a. | Proceeds |
| VIII.E.5.b. | Infringing Items, Other Contraband, and Facilitating Property |
| X.B.3.a. | Private Civil Remedies |
|
COUNTERFEIT MARKS see generally Chapter III see also | |
| I.B. | What Is Intellectual Property? |
| II.B.3.b.ii. | Definition of "Retail Value" in this Context |
| VI.A. | Distinguished From Trademark and Copyright Statutes |
| VI.B.2. | The Defendant Trafficked |
| VIII.C.1.c.ii. | Number of Infringing Items |
| VIII.D.1. | Restitution is Available—and Often Required—in Intellectual Property Prosecutions |
| VIII.D.3. | Determining a Restitution Figure |
| VIII.E.2.c. | Table of Forfeiture Provisions Arranged by Criminal IP Statute |
| VIII.E.4. | Civil Forfeiture in IP Matters |
| VIII.E.4.b. | Infringing Items, Other Contraband, and Facilitating Property |
| VIII.E.5. | Criminal Forfeiture in IP Matters |
| VIII.E.5.a. | Proceeds |
| VIII.E.5.b. | Infringing Items, Other Contraband, and Facilitating Property |
| X.B.3.a. | Private Civil Remedies |
| COUNTERFEIT PHARMACEUTICALS | |
| VIII.C.1.j. | Vulnerable Victims—U.S.S.G. § 3A1.1(b) |
|
COUNTERFEIT TRADEMARKS see generally Chapter III see also | |
| II.E.2. | Sentencing Guidelines |
| III. | Trafficking In Counterfeit Trademarks, Service Marks, and Certification Marks—18 U.S.C. § 2320 |
| III.B.3.c. | Goods and Services [after March 16, 2006: and Labels, Patches, Stickers, Wrappers, Badges, Emblems, Medallions, Charms, Boxes, Containers, Cans, Cases, Hangtags, Documentation, or Packaging of Any Type or Nature] |
| III.B.6. | Venue |
| III.C.1. | Authorized-Use Defense: Overrun Goods |
| III.C.3. | Repackaging Genuine Goods |
| III.C.5. | Statute of Limitations |
| III.D.7. | Units of Prosecution |
| III.E.5. | Sentencing Guidelines |
| III.F. | Other Charges to Consider |
| VI.A. | Distinguished From Trademark and Copyright Statutes |
| VI.E.5.b. | Number of Infringing Copyrighted Goods vs. Number of Labels, Documents, or Packaging Items |
| VIII.C.1.a. | Applicable Guideline is § 2B5.3 |
| VIII.C.1.e. | Manufacturing, Importing, or Uploading Infringing Items Increases the Offense Level by 2—U.S.S.G. § 2B5.3(b)(3) [Before October 24, 2005: § 2B5.3(b)(2)] |
| VIII.D.1. | Restitution is Available—and Often Required—in Intellectual Property Prosecutions |
| VIII.D.2. | Victims Include Owners of Intellectual Property and Consumers Who Were Defrauded |
| VIII.E. | Forfeiture |
| VIII.E.1. | Property Subject to Forfeiture |
| VIII.E.4.b. | Infringing Items, Other Contraband, and Facilitating Property |
| VIII.E.4.c.ii. | Victims' Ability to Forfeit Property |
|
CRIMINAL FORFEITURE see FORFEITURE |
| CRIMINAL SUBPOENAS | |
| V.A.4. | Other DMCA Sections That Do Not Concern Prosecutors |
| CUSTOMER LISTS | |
| IV.A. | Introduction |
| IV.B.3.a.i. | Generally |
| IV.B.3.a.viii. | Independent Economic Value |
| DE MINIMIS NON CURAT LEX | |
| IX.B.2. | The Nature and Seriousness of the Offense |
| DECALS | |
| VI.D.1. | Electronic Copies of Labels, Documentation, or Packaging |
| DECRYPTION | |
| V.B.1.a. | Circumvented |
| V.B.1.b. | Technological Measures That Effectively Control Access (an "Access Control") |
| V.B.1.d. | How Congress Intended the Anti-Circumvention Prohibition to Apply |
| V.C.5. | Reverse Engineering and Interoperability of Computer Programs |
| V.C.10.b.ii. | "As Applied" First Amendment Challenges to the DMCA |
| VIII.C.1.h. | Decryption or Circumvention of Access Controls Increases the Offense Level—U.S.S.G. § 3B1.3 |
| VIII.D.1. | Restitution is Available—and Often Required—in Intellectual Property Prosecutions |
| VIII.D.2. | Victims Include Owners of Intellectual Property and Consumers Who Were Defrauded |
| see also ENCRYPTION | |
| DEEP LINKS | |
| V.B.2.a. | Trafficking |
| DELIBERATE IGNORANCE | |
| III.B.5. | The Defendant Used the Counterfeit Mark "Knowingly" |
| VI.B.1. | The Defendant Acted "Knowingly" |
| DEPOSITIONS | |
| IV.B.3.a.iii. | Specification of Trade Secrets |
| IV.D.2. | Confidentiality and the Use of Protective Orders |
| VIII.E.3. | Choosing a Forfeiture Procedure |
| DERIVATIVE WORKS | |
| I.B. | What Is Intellectual Property? |
| II.A.6. | The Rights Protected by Copyright |
| II.B.1.d.iii. | Registration of Particular Versions of a Work |
| II.B.3. | Infringement of the Copyright |
| II.C.5. | Fair Use |
| V.A.2.a. | Access Controls vs. Copy/Use Controls |
| V.B.3.b. | Technological Measure That Effectively Protects a Right of a Copyright Owner Under This Title ("Copy Control") |
| V.C.10.a. | Congress's Constitutional Authority to Enact § 1201 of the DMCA |
| DIGITAL AUDIO TRANSMISSION | |
| II.A.6. | The Rights Protected by Copyright |
| II.B.5. | Misdemeanor Copyright Infringement |
| DIGITAL IMAGE FILES | |
| VI.D.1. | Electronic Copies of Labels, Documentation, or Packaging |
| DIGITAL LOCKS | |
| V.A.1. | DMCA's Background and Purpose |
| V.A.2.a. | Access Controls vs. Copy/Use Controls |
|
DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) see generally Chapter V see also | |
| II.B.3.a.ii. | Distribution |
| II.E.2. | Sentencing Guidelines |
| VIII.C.1. | Offenses Involving Copyright (Including Bootleg Music, Camcorded Movies, and the Unauthorized Use of Satellite, Radio, and Cable Communications), Trademark, Counterfeit Labeling, and the DMCA |
| VIII.C.1.a. | Applicable Guideline is § 2B5.3 |
| VIII.C.1.c.ii. | Number of Infringing Items |
| VIII.C.1.c.iii. | Retail Value |
| VIII.D.1. | Restitution is Available—and Often Required—in Intellectual Property Prosecutions |
| VIII.D.2. | Victims Include Owners of Intellectual Property and Consumers Who Were Defrauded |
| VIII.E.2.c. | Table of Forfeiture Provisions Arranged by Criminal IP Statute |
| VIII.E.4. | Civil Forfeiture in IP Matters |
| VIII.E.5. | Criminal Forfeiture in IP Matters |
| X.B.3.a. | Private Civil Remedies |
| DISCLOSING GOVERNMENT TRADE SECRETS | |
| IV.F. | Other Possible Charges |
| DISCLOSURES TO THE GOVERNMENT | |
| IV.B.3.a.vi. | Disclosure's Effects |
| DISTANCE LEARNING | |
| V.A.4. | Other DMCA Sections That Do Not Concern Prosecutors |
|
DMCA see DIGITAL MILLENNIUM COPYRIGHT ACT |
| DONATED RESOURCES | |
| X.C. | Offers of Assistance From Victims and Related Parties |
| X.C.3. | Strategic and Case-Related Issues |
| E-BOOKS | |
| V.B.1.e. | Regulatory Exemptions to Liability under § 1201(a)(1) |
| ECONOMIC ESPIONAGE | |
| II.E.2. | Sentencing Guidelines |
| IV.A. | Introduction |
| IV.B. | The Economic Espionage Act of 1996, 18 U.S.C. §§ 1831-1839 |
| IV.B.1. | Overview |
| IV.B.3.a.vi. | Disclosure's Effects |
| IV.B.3.b.ii. | Memorization Included |
| IV.B.5.a. | Economic Benefit to a Third Party |
| IV.B.5.c. | Product Produced for or Placed in Interstate or Foreign Commerce |
| IV.B.6. | Attempts and Conspiracies, Including the Impossibility Defense |
| IV.E.1.a. | Imprisonment and Fines |
| VIII.C. | Sentencing Guidelines |
| VIII.C.1.a. | Applicable Guideline is § 2B5.3 |
| VIII.C.2. | Offenses Involving the Economic Espionage Act |
| VIII.D.1. | Restitution is Available—and Often Required—in Intellectual Property Prosecutions |
| VIII.E.2.c. | Table of Forfeiture Provisions Arranged by Criminal IP Statute |
| VIII.E.4. | Civil Forfeiture in IP Matters |
| VIII.E.5.a. | Proceeds |
| VIII.E.5.b. | Infringing Items, Other Contraband, and Facilitating Property |
| ECONOMIC ESPIONAGE SPONSORED BY A FOREIGN GOVERNMENT | |
| IV.E.1.a. | Imprisonment and Fines |
| ELECTRONIC TRANSMISSION OF A GENUINE CERTIFICATE | |
| VI.D.1. | Electronic Copies of Labels, Documentation, or Packaging |
| EMOTIONAL HARM | |
| VIII.C.2.f. | Upward Departure Considerations—U.S.S.G. § 2B1.1 cmt. n.19(A) |
| EMULATORS | |
| V.C.5. | Reverse Engineering and Interoperability of Computer Programs |
| ENCRYPTION | |
| IV.A. | Introduction |
| IV.B.3.a.vii. | Reasonable Measures to Maintain Secrecy |
| V.A.2.a. | Access Controls vs. Copy/Use Controls |
| V.B.1.a. | Circumvented |
| V.B.1.b. | Technological Measures That Effectively Control Access (an "Access Control") |
| V.B.1.d. | How Congress Intended the Anti-Circumvention Prohibition to Apply |
| V.B.2.c.1. | Primarily Designed or Produced |
| V.B.3.a. | Circumventing |
| V.C.6. | Encryption Research |
| V.C.10.b.ii. | "As Applied" First Amendment Challenges to the DMCA |
| VIII.C.1.a. | Applicable Guideline is § 2B5.3 |
| see also DECRYPTION | |
| EPHEMERAL REPRODUCTIONS | |
| V.A.4. | Other DMCA Sections That Do Not Concern Prosecutors |
| ETHICAL CONCERNS | |
| X. | Victims of Intellectual Property Crimes—Ethics and Obligations |
| X.B.2. | Ethical Concerns When the Criminal Prosecution Results in an Advantage in a Civil Matter |
| X.B.2.a. | Victims Who Seek Advantage By Threats of Criminal Prosecution |
| X.B.2.b. | Global Settlement Negotiations |
| X.C.1.a. | Applicable Law |
| X.C.1.b.iii. | Cash |
| X.C.1.b.iv. | Storage Costs in Counterfeit or Infringing Products Cases |
| X.C.1.c.i. | Consultative Process for Acceptance of Assistance and Gifts |
| X.C.1.c.iii. | Acceptance of Gifts |
| X.C.3. | Strategic and Case-Related Issues |
| X.C.4. | Help and Advice |
| EXPERT WITNESSES | |
| IV.B.3.a.iii. | Specification of Trade Secrets |
| IV.D.2. | Confidentiality and the Use of Protective Orders |
| X.C. | Offers of Assistance From Victims and Related Parties |
| X.C.1.b.vi. | Assistance from Private Third Parties |
| EXTRADITION | |
| IX.B.5. | The Individual's Willingness to Cooperate in the Investigation or Prosecution of Others |
| EXTRATERRITORIALITY | |
| II.C.2. | Jurisdiction |
| IV.B.1. | Overview |
| IV.D.3. | Extraterritoriality |
| FAIR MARKET VALUE | |
| VIII.C.2.c.iii. | Methods of Calculating Loss |
| FAIR USE | |
| II.A.2. | Legal Basis for Copyright and Related Laws |
| II.A.6. | The Rights Protected by Copyright |
| II.B.2.a. | Legal Standard |
| II.B.3. | Infringement of the Copyright |
| II.B.3.a.i. | Reproduction |
| II.B.4.a. | History |
| II.C.5. | Fair Use |
| II.C.5.a. | Unpublished Works |
| II.C.5.b. | Fair Use in Criminal Cases |
| II.E.2. | Sentencing Guidelines |
| V.A.3. | Differences Between the DMCA and Traditional Copyright Law |
| V.B.1. | Circumventing Access Controls, 17 U.S.C. §§ 1201(a)(1) and 1204 |
| V.B.1.d. | How Congress Intended the Anti-Circumvention Prohibition to Apply |
| V.B.3.b. | Technological Measure That Effectively Protects a Right of a Copyright Owner Under This Title ("Copy Control") |
| V.C.5. | Reverse Engineering and Interoperability of Computer Programs |
| V.C.10.c. | Vagueness |
| V.C.10.d. | Fair Use |
| FALSE MARKING | |
| VII.A. | Overview of Patent |
| VII.C. | False Marking of Patent—35 U.S.C. § 292 |
| FAMILY ENTERTAINMENT AND COPYRIGHT ACT OF 2005 | |
| II.B. | Elements |
| II.B.1.c. | New Procedure for "Preregistration" |
| II.B.1.d. | Whether Registration or Preregistration is Required to Prosecute |
| II.B.1.d.ii. | Unpublished or Pre-Release Works |
| II.B.3.b.ii. | Definition of "Retail Value" in this Context |
| II.B.3.c. | Distribution of a Work Being Prepared for Commercial Distribution, by Making It Available on a Publicly-Accessible Computer Network, If the Defendant Knew or Should Have Known the Work Was Intended for Commercial Distribution |
| II.B.3.c.iii. | Work Being Prepared for Commercial Distribution |
| II.E.2. | Sentencing Guidelines |
|
FEDERAL PREEMPTION see PREEMPTION |
|
FEDERAL REGISTRATION see REGISTRATION |
| FINANCIAL GAIN | |
| II.A.7. | When Infringement is Criminal |
| II.B. | Elements |
| II.B.3. | Infringement of the Copyright |
| II.B.3.a. | Infringement by Reproduction or Distribution |
| II.B.4. | Additional Element for Enhanced Sentence: Purpose of Commercial Advantage or Private Financial Gain |
| II.B.4.a. | History |
| II.B.4.b. | Legal Standard |
| II.B.5. | Misdemeanor Copyright Infringement |
| II.C.5.b. | Fair Use in Criminal Cases |
| II.E.1. | Statutory Penalties |
| II.E.2. | Sentencing Guidelines |
| III.B.3.b.i. | General Definition |
| III.B.3.b.iii. | Making and Obtaining Counterfeits vs. Possession with Intent to Traffic |
| IV.F. | Other Possible Charges |
| V.A.2. | Key Concepts: Access Controls vs. Copy Controls, Circumvention vs. Trafficking |
| V.B.1. | Circumventing Access Controls, 17 U.S.C. §§ 1201(a)(1) and 1204 |
| V.B.2. | Trafficking in Access Control Circumvention Tools and Services—17 U.S.C. §§ 1201(a)(2) and 1204 |
| V.B.3. | Trafficking in Tools, Devies, and Services to Circumvent Copy Controls -- 17 U.S.C. §§ 1201(b)(1) and 1204 |
| V.C.10.b.i. | Facial Challenges |
| VIII.C.1.a. | Applicable Guideline is § 2B5.3 |
| VIII.C.1.f. | Offenses Not Committed for Commercial Advantage or Private Financial Gain Reduces the Offense Level by 2—U.S.S.G. § 2B5.3(b)(4) [before October 24, 2005: § 2B5.3(b)(3)] |
| FIRST AMENDMENT | |
| II.C.5. | Fair Use |
| IV.C.6. | The First Amendment |
| V.B.2.c.3. | Knowingly Marketed for Circumvention |
| V.C.10.b. | The First Amendment |
| V.C.10.b.i. | Facial Challenges |
| V.C.10.b.ii. | "As Applied" First Amendment Challenges to the DMCA |
| V.C.10.d. | Fair Use |
| FIRST SALE DOCTRINE | |
| II.A.2. | Legal Basis for Copyright and Related Laws |
| II.B. | Elements |
| II.B.3. | Infringement of the Copyright |
| II.B.3.a.ii. | Distribution |
| II.C.4. | The First Sale Doctrine—17 U.S.C. § 109 |
| II.C.4.a. | Operation of the Doctrine |
| II.C.4.b. | Affirmative Defense or Part of the Government's Case-in-Chief? |
| II.C.4.c. | Disproving First Sale at Trial |
| II.C.4.d. | Special Rules for Rental, Lease, and Lending |
| II.C.6. | "Archival Exception" for Computer Software—17 U.S.C. § 117 |
|
FIXED IN ANY TANGIBLE MEDIUM OF EXPRESSION see TANGIBLE MEDIUM |
| FONT EMBEDDING BITS | |
| V.B.1.b. | Technological Measures That Effectively Control Access (an "Access Control") |
| V.B.3.b. | Technological Measure That Effectively Protects a Right of a Copyright Owner Under This Title ("Copy Control") |
| FOREIGN AGENTS | |
| IV.B.1. | Overview |
| IV.B.4. | Additional 18 U.S.C. § 1831 Element: Intent to Benefit a Foreign Government, Foreign Instrumentality, or Foreign Agent |
| VIII.C.2.d. | Intent to Benefit a Foreign Government, Instrumentality, or Agent -- U.S.S.G. § 2B1.1(b)(5) |
|
FOREIGN COMMERCE see INTERSTATE AND FOREIGN COMMERCE |
|
FOREIGN ECONOMIC ESPIONAGE see ECONOMIC ESPIONAGE |
| FOREIGN GOVERNMENTS | |
| I.B. | What Is Intellectual Property? |
| IV.B.1. | Overview |
| IV.B.4. | Additional 18 U.S.C. § 1831 Element: Intent to Benefit a Foreign Government, Foreign Instrumentality, or Foreign Agent |
| IV.E.1.a. | Imprisonment and Fines |
| VIII.C.2.d. | Intent to Benefit a Foreign Government, Instrumentality, or Agent -- U.S.S.G. § 2B1.1(b)(5) |
| VIII.D.1. | Restitution is Available—and Often Required—in Intellectual Property Prosecutions |
| FOREIGN INSTRUMENTALITY | |
| IV.B.1. | Overview |
| IV.B.4. | Additional 18 U.S.C. § 1831 Element: Intent to Benefit a Foreign Government, Foreign Instrumentality, or Foreign Agent |
| VIII.C.2.d. | Intent to Benefit a Foreign Government, Instrumentality, or Agent -- U.S.S.G. § 2B1.1(b)(5) |
| FOREIGN LAW ENFORCEMENT AGENCIES | |
| IX.B.5. | The Individual's Willingness to Cooperate in the Investigation or Prosecution of Others |
| FOREIGN VICTIMS | |
| III.F. | Other Charges to Consider |
| FOREIGN WORKS | |
| II.B.1.d. | Whether Registration or Preregistration is Required to Prosecute |
| FORFEITURE | |
| II.E.2. | Sentencing Guidelines |
| III.D.6. | Storage Costs and Destruction |
| III.E.4. | Forfeiture |
| IV.E.1.b. | Criminal Forfeiture |
| VI.E. | Penalties |
| VI.E.4. | Forfeiture |
| VIII. | Penalties, Restitution, and Forfeiture |
| VIII.A. | Introduction |
| VIII.E. | Forfeiture |
| VIII.E.1. | Property Subject to Forfeiture |
| VIII.E.2. | Overview of Forfeiture Procedures |
| VIII.E.2.a. | Administrative Forfeiture Proceedings |
| VIII.E.2.b. | Civil and Criminal Proceedings |
| VIII.E.2.c. | Table of Forfeiture Provisions Arranged by Criminal IP Statute |
| VIII.E.3. | Choosing a Forfeiture Procedure |
| VIII.E.4. | Civil Forfeiture in IP Matters |
| VIII.E.4.a. | Proceeds |
| VIII.E.4.b. | Infringing Items, Other Contraband, and Facilitating Property |
| VIII.E.4.c.i. | Generally |
| VIII.E.4.c.ii. | Victims' Ability to Forfeit Property |
| VIII.E.5. | Criminal Forfeiture in IP Matters |
| VIII.E.5.a. | Proceeds |
| VIII.E.5.b. | Infringing Items, Other Contraband, and Facilitating Property |
| IX.D. | The Adequacy of Alternative Non-Criminal Remedies |
| X.B.3.c. | Stays and Protective Orders to Delay Civil Proceedings During Criminal Prosecution |
| see also ADMINISTRATIVE FORFEITURE | |
| FORFEITURE AND DESTRUCTION | |
| II.E.2. | Sentencing Guidelines |
| VI.E.4. | Forfeiture |
| VIII.E.5.b. | Infringing Items, Other Contraband, and Facilitating Property |
| GENERIC LABELS | |
| VI.B.4. | The Labels, Documentation, or Packaging Materials are Counterfeit or Illicit |
| GIFTS | |
| II.B.3.a.ii. | Distribution |
| III.C.3. | Repackaging Genuine Goods |
| X.C. | Offers of Assistance From Victims and Related Parties |
| X.C.1. | Gift Issues |
| X.C.1.a. | Applicable Law |
| X.C.1.b. | Distinction Between "Assistance" and "Gifts" |
| X.C.1.b.i. | Assistance from Victims and Related Parties |
| X.C.1.b.ii. | Private Investigators |
| X.C.1.b.iii. | Cash |
| X.C.1.b.iv. | Storage Costs in Counterfeit or Infringing Products Cases |
| X.C.1.b.v. | Resources Donated for Ongoing Use by Law Enforcement |
| X.C.1.b.vi. | Assistance from Private Third Parties |
| X.C.1.c. | Departmental Procedures for the Solicitation and Acceptance of Gifts and Assistance |
| X.C.1.c.i. | Consultative Process for Acceptance of Assistance and Gifts |
| X.C.1.c.ii. | Solicitation of Gifts |
| X.C.1.c.iii. | Acceptance of Gifts |
| X.C.2. | Professional Responsibility Issues |
| X.C.3. | Strategic and Case-Related Issues |
| X.C.4. | Help and Advice |
|
GLOBAL SETTLEMENTS see PARALLEL PROCEEDINGS |
| GOOD AND BAD FAITH | |
| II.B.2.a. | Legal Standard |
| II.B.2.b. | Proof at Trial |
| II.C.5.b. | Fair Use in Criminal Cases |
| II.C.6. | "Archival Exception" for Computer Software—17 U.S.C. § 117 |
| III.B.5. | The Defendant Used the Counterfeit Mark "Knowingly" |
| III.C.4. | Lanham Act Defenses |
| IV.C.4. | Advice of Counsel |
| IV.C.5. | Claim of Right—Public Domain and Proprietary Rights |
| V.C.6. | Encryption Research |
| V.C.9. | Security Testing |
| VII.C. | False Marking of Patent—35 U.S.C. § 292 |
| GOODS AND SERVICES | |
| II.E.2. | Sentencing Guidelines |
| III.A.1. | Overview of the Chapter |
| III.A.2. | Why Criminal Law Protects Trademarks, Service Marks, and Certification Marks |
| III.B.1. | The Trademark Counterfeiting Crime in General |
| III.B.3.b.i. | General Definition |
| III.B.3.c. | Goods and Services [after March 16, 2006: and Labels, Patches, Stickers, Wrappers, Badges, Emblems, Medallions, Charms, Boxes, Containers, Cans, Cases, Hangtags, Documentation, or Packaging of Any Type or Nature] |
| III.B.4.e. | Use of the Counterfeit Mark "On or In Connection With" Goods or Services |
| III.B.4.f. | The Counterfeit Mark Must Have Been Used for the Same Type of Goods or Services for Which the Genuine Mark Was Registered |
| III.C.1. | Authorized-Use Defense: Overrun Goods |
| III.D.5. | Mark-Holder's Failure to Use—Symbol |
| III.D.7. | Units of Prosecution |
| VI.B.2. | The Defendant Trafficked |
| VIII.C.1.a. | Applicable Guideline is § 2B5.3 |
| IX.B.2. | The Nature and Seriousness of the Offense |
| GOVERNMENT TRADE SECRETS | |
| IV.F. | Other Possible Charges |
| GRAY MARKET GOODS | |
| III.C.2. | Authorized-Use Defense—Gray Market Goods |
| HOME PAGES | |
| V.B.2.a. | Trafficking |
| IGNORANCE OF THE LAW | |
| II.B.2.a. | Legal Standard |
| IV.B.3.c. | Knowledge |
|
ILLICIT LABELS see generally Chapter VI see also | |
| II.B.3.b.ii. | Definition of "Retail Value" in this Context |
| II.C.4.a. | Operation of the Doctrine |
| II.E.2. | Sentencing Guidelines |
| III.F. | Other Charges to Consider |
| VIII.C.1.a. | Applicable Guideline is § 2B5.3 |
| VIII.C.1.c.ii. | Number of Infringing Items |
| VIII.D.1. | Restitution is Available—and Often Required—in Intellectual Property Prosecutions |
| VIII.E.2.c. | Table of Forfeiture Provisions Arranged by Criminal IP Statute |
| VIII.E.4. | Civil Forfeiture in IP Matters |
| VIII.E.4.c.ii. | Victims' Ability to Forfeit Property |
| VIII.E.5. | Criminal Forfeiture in IP Matters |
| VIII.E.5.b. | Infringing Items, Other Contraband, and Facilitating Property |
| X.B.3.a. | Private Civil Remedies |
| IN PERSONAM | |
| VIII.E.2.b. | Civil and Criminal Proceedings |
| VIII.E.5. | Criminal Forfeiture in IP Matters |
| IN REM | |
| VIII.E.2.b. | Civil and Criminal Proceedings |
| VIII.E.4.b. | Infringing Items, Other Contraband, and Facilitating Property |
| VIII.E.5. | Criminal Forfeiture in IP Matters |
| IN USE | |
| III.B.1. | The Trademark Counterfeiting Crime in General |
| III.B.4.a. | Definition of Counterfeit Mark Generally: Not Genuine or Authentic |
| III.B.4.d. | The Genuine Mark Must Have Been in Use by the Mark-Holder or Its Licensee |
| INAUTHENTIC LABELS AND MARKS | |
| III.B.3.c. | Goods and Services [after March 16, 2006: and Labels, Patches, Stickers, Wrappers, Badges, Emblems, Medallions, Charms, Boxes, Containers, Cans, Cases, Hangtags, Documentation, or Packaging of Any Type or Nature] |
| INDEPENDENT ECONOMIC VALUE | |
| I.B. | What Is Intellectual Property? |
| IV.B.3.a.i. | Generally |
| IV.B.3.a.viii. | Independent Economic Value |
| INFORMATION SECURITY | |
| V.C.4. | Information Security Exemption |
| INJUNCTIONS | |
| III.C.4. | Lanham Act Defenses |
| IV.B.1. | Overview |
| IV.C.6. | The First Amendment |
| IV.D.1. | Civil Injunctive Relief for the United States |
| IX.B.2. | The Nature and Seriousness of the Offense |
| IX.D. | The Adequacy of Alternative Non-Criminal Remedies |
| X.B.3.a. | Private Civil Remedies |
| INNOCENT OWNER DEFENSE | |
| VIII.E.4.c. | Innocent Owner Defense |
| VIII.E.4.c.i. | Generally |
| INTELLECTUAL CAPITAL | |
| I.A. | Why Is Intellectual Property Enforcement Important? |
| INTELLECTUAL PROPERTY CLAUSE | |
| V.C.10. | Constitutionality of the DMCA |
| V.C.10.a. | Congress's Constitutional Authority to Enact § 1201 of the DMCA |
| VIII.D.1. | Restitution is Available—and Often Required—in Intellectual Property Prosecutions |
| INTELLECTUAL PROPERTY PROTECTION AND COURTS AMENDMENT ACT OF 2004 | |
| VI.B.3. | Trafficking in Labels Affixed to, Enclosing, or Accompanying (or Designed to be Affixed to, Enclose, or Accompany) a Phonorecord, Computer Program, Motion Picture or other Audiovisual Work, Literary, Pictorial, Graphic, or Sculptural Work, |
| INTENT TO DECEIVE | |
| III.B.4.g. | Likelihood of Confusion, Mistake, or Deception |
| III.C.3. | Repackaging Genuine Goods |
| VII.C. | False Marking of Patent—35 U.S.C. § 292 |
| VIII.D.2. | Victims Include Owners of Intellectual Property and Consumers Who Were Defrauded |
| INTERLOCUTORY APPEAL | |
| IV.D.2. | Confidentiality and the Use of Protective Orders |
| INTERNAL INVESTIGATIONS | |
| VIII.D.3. | Determining a Restitution Figure |
| X.C.1.b.i. | Assistance from Victims and Related Parties |
| INTERNATIONAL TRANSPORTATION OF STOLEN PROPERTY ACT (ITSP) | |
| II.E.2. | Sentencing Guidelines |
| IV.F. | Other Possible Charges |
| INTERNET PIRACY | |
| I.A. | Why Is Intellectual Property Enforcement Important? |
| II.B.3.c. | Distribution of a Work Being Prepared for Commercial Distribution, by Making It Available on a Publicly-Accessible Computer Network, If the Defendant Knew or Should Have Known the Work Was Intended for Commercial Distribution |
| II.B.4.a. | History |
| II.D. | Special Issues |
| INTEROPERABILITY | |
| V.C.5. | Reverse Engineering and Interoperability of Computer Programs |
| INTERSTATE AND FOREIGN COMMERCE | |
| II.A.2. | Legal Basis for Copyright and Related Laws |
| II.E.2. | Sentencing Guidelines |
| III.B.4.b. | The Counterfeit Mark Must Be Identical to or Indistinguishable from a Genuine Mark Owned by Another |
| III.B.4.d. | The Genuine Mark Must Have Been in Use by the Mark-Holder or Its Licensee |
| III.B.4.g. | Likelihood of Confusion, Mistake, or Deception |
| IV.B.1. | Overview |
| IV.B.5.c. | Product Produced for or Placed in Interstate or Foreign Commerce |
| IV.C.6. | The First Amendment |
| IV.F. | Other Possible Charges |
| V.C.10. | Constitutionality of the DMCA |
| V.C.10.a. | Congress's Constitutional Authority to Enact § 1201 of the DMCA |
| VI.B. | Elements |
| VI.B.5. | Federal Jurisdiction |
| VI.B.6. | Venue |
| VI.F. | Other Criminal Charges to Consider |
| VIII.C.1.e. | Manufacturing, Importing, or Uploading Infringing Items Increases the Offense Level by 2—U.S.S.G. § 2B5.3(b)(3) [Before October 24, 2005: § 2B5.3(b)(2)] |
| VIII.D.1. | Restitution is Available—and Often Required—in Intellectual Property Prosecutions |
| VIII.E. | Forfeiture |
| X.C.1.b.iv. | Storage Costs in Counterfeit or Infringing Products Cases |
| INTERSTATE TRANSPORTATION AND RECEIPT OF STOLEN PROPERTY OR GOODS | |
| II.E.2. | Sentencing Guidelines |
| IV.A. | Introduction |
| IV.F. | Other Possible Charges |
| VII.D. | No Prosecution for Interstate Transportation or Receipt of Stolen Property—18 U.S.C. §§ 2314, 2315 |
| VIII.C.2.c.iii. | Methods of Calculating Loss |
|
ITSP see INTERNATIONAL TRANSPORTATION OF STOLEN PROPERTY ACT |
| JUDICIAL NOTICE | |
| II.B.1.e. | Proof of Copyright at Trial |
| III.B.4.c. | The Genuine Mark Must Be Federally Registered on the U.S. Patent and Trademark Office's Principal Register |
| JUSTICE FOR ALL ACT OF 2004 | |
| X.A. | Victims' Rights |
| KNOWINGLY | |
| II.B.2.a. | Legal Standard |
| II.E.2. | Sentencing Guidelines |
| III.B.1. | The Trademark Counterfeiting Crime in General |
| III.B.3.c. | Goods and Services [after March 16, 2006: and Labels, Patches, Stickers, Wrappers, Badges, Emblems, Medallions, Charms, Boxes, Containers, Cans, Cases, Hangtags, Documentation, or Packaging of Any Type or Nature] |
| III.B.4. | The Defendant Used a "Counterfeit Mark" On or In Connection With Those Goods or Services [after March 16, 2006: or a Counterfeit Mark Was Applied to Labels, Documentation, or Packaging for Those Goods or Services] |
| III.B.5. | The Defendant Used the Counterfeit Mark "Knowingly" |
| III.D.7. | Units of Prosecution |
| IV.B.1. | Overview |
| IV.B.3.c. | Knowledge |
| IV.B.5.c. | Product Produced for or Placed in Interstate or Foreign Commerce |
| IV.C.6. | The First Amendment |
| IV.F. | Other Possible Charges |
| V.B.2.c. | Purpose or Marketing of Circumvention Technology |
| V.B.2.c.3. | Knowingly Marketed for Circumvention |
| V.B.5. | Falsifying, Altering, or Removing Copyright Management Information -- 17 U.S.C. § 1202 |
| VI.A. | Distinguished From Trademark and Copyright Statutes |
| VI.B. | Elements |
| VI.B.1. | The Defendant Acted "Knowingly" |
| VI.B.2. | The Defendant Trafficked |
| VI.B.4. | The Labels, Documentation, or Packaging Materials are Counterfeit or Illicit |
| VI.B.5. | Federal Jurisdiction |
| VII.B. | Forgery of Letters Patent—18 U.S.C. § 497 |
| LANHAM ACT | |
| I.B. | What Is Intellectual Property? |
| III.B.2. | Relevance of Civil Trademark Law in Criminal Cases |
| III.B.3.c. | Goods and Services [after March 16, 2006: and Labels, Patches, Stickers, Wrappers, Badges, Emblems, Medallions, Charms, Boxes, Containers, Cans, Cases, Hangtags, Documentation, or Packaging of Any Type or Nature] |
| III.B.4.b. | The Counterfeit Mark Must Be Identical to or Indistinguishable from a Genuine Mark Owned by Another |
| III.B.4.d. | The Genuine Mark Must Have Been in Use by the Mark-Holder or Its Licensee |
| III.B.4.f. | The Counterfeit Mark Must Have Been Used for the Same Type of Goods or Services for Which the Genuine Mark Was Registered |
| III.B.4.g. | Likelihood of Confusion, Mistake, or Deception |
| III.C.3. | Repackaging Genuine Goods |
| III.C.4. | Lanham Act Defenses |
| III.C.5. | Statute of Limitations |
| III.D.4. | Selling Another's Trademarked Goods As One's Own (Reverse Passing-Off) |