Missouri's Intellectual Property Crimes
by R. Scott Ingram1
The problem of unauthorized reproduction of intellectual property in Missouri can be reduced through the enforcement of current Missouri criminal statutes that relate to intellectual property. This article describes the problem and how Missouri criminal statutes address the problem.A new store opens along a commercial stretch of town. It advertises discount, brand-name merchandise. Inside, the store displays various items of clothing, accessories such as sunglasses and watches, and various CDs and DVDs. A consumer, attracted by the idea of discount merchandise, wanders into the store. The consumer begins browsing through the watches, noticing at first that the Nike and Casio watches are nearly identical. Not thinking much of this, the consumer moves to the music section, where there is a wealth of "mixes" that the consumer has not seen in any other store. Despite the consumer's best efforts, the prospective customer cannot find who manufactured the CD. In addition, the artwork looks amateurish. Finally the consumer moves to the DVD section, where there is a collection of movies not yet released on video. Due to these strange occurrences, the customer decides not to buy; instead, the consumer calls the local police department because something about the store did not seem right. The police, also believing something is wrong, but not sure what it is, call the local prosecutor. The prosecutor agrees something is wrong but is unfamiliar with any criminal statute covering the activity. As a result, the store goes about its business, defrauding the holders of the copyrights and trademarks.
This scene grows more common all the time. While counterfeit clothing has been available for many years, the recording and movie industries have become victims more recently. The recording industry has been most harmed by theft. Billions of songs are traded monthly on-line.2 While many involve only a song or two, a significant number of people steal these songs to make big profits.3 The movie industry has felt the same effect, though to a more limited extent, due to the time it takes to steal a movie.4 Still, through June 2002, the Motion Picture Association of America was on a pace to send out 80,000 to 100,000 cease and desist letters to Internet sites infringing on copyrighted materials.5 Due to these large numbers, both industries - as well as clothing manufacturers - have sought to use criminal laws to reduce the problem. While criminal laws cannot eliminate the introductory scenario from occurring, knowing how criminal law applies to intellectual property thefts will reduce the frequency of the scenario's occurrence. Each item mentioned in the scenario constitutes a crime under Missouri law.
The purpose of this article is to introduce those who practice in the intellectual property and criminal law fields to Missouri's intellectual property crimes. Those who represent merchants will also find this article informative. Section I describes the ways in which people "steal" intellectual property. Section II details the application of Missouri law to these thefts. Section III explains how more commonly-used statutes provide an alternative method for charging intellectual property crimes.
I. The Theft of Intellectual Property
Intellectual property is the term used to describe ideas and thoughts that have value in our commercial society.6 It covers a range of media and applications. For example, the word processing program used to write this article is a form of intellectual property. A person, or group of people, came up with the idea for a computer program that allowed people to type as if they were using a typewriter. To that idea, others added features such as spell-check and the ability to include graphics with the text. The graphics themselves are intellectual property. Someone created the graphic from an idea the person had. In order to encourage these ideas, the law protects them through copyrights and trademarks. Copyright is the permission to reproduce literary, musical, or artistic works.7 Trademarks identify a particular person's merchandise.8 Title 17 of the United State Code protects copyrights9 and Title 18 criminalizes trademark infringement.10 Many states, including Missouri, have supplemented the federal statutes with their own laws.
Despite the protections offered by federal and state law, unscrupulous people steal intellectual property in order to profit from other people's ideas. For some, it is a profitable way to work from home. For others, it is an industry where they put almost as much effort into duplicating the product as the person who originally created the product. Finally, for most violators, it is an easy way to make money. Profits are made easily because society and, as a result, the law enforcement community, does not see theft of intellectual property as sufficiently important to spend resources to investigate.11 Courts also diminish the seriousness of the offense by claiming there is no victim to the theft. Jurors fail to identify popular clothing designers or recording artists as victims when their work is stolen. As a result, deterrence by punishment is minimal compared to the profits that can be made by those who steal another person's work.
When society, through the courts and juries, looks at these cases, it sees the financial rewards reaped by popular designers, recording artists and movie stars. This limited view overlooks the less well-known and substantially less well-paid people who put their efforts and labors into creating intellectual property.12 These people make a living off of the popularity of the designer or artist. Money earned from clothing or record sales pays the salaries of the workers who piece together the clothing or produce the recording. The money pays for the logo designer and the sound editor. Additionally, profits made from popular recording artists subsidize the costs to produce less popular music.13 For example, by depriving a recording company of profits from a Nelly recording, a new jazz musician may not get the chance at a recording contract.
Beyond the financial harm to both well-known and less well-known people, intellectual property thieves profit from the talent and hard work of others. Clothing designers have spent years studying and honing their craft in order to make a product people wish to purchase. They must invest money in order to start their business. They must pay for advertising to attract customers. They must develop a reputation in society for producing quality work. All of this takes time, talent and money. When an intellectual property thief places a trademarked logo on an inferior product, the thief benefits from the designer's time, talent and money and then keeps all of the profit from the sale. As a result, the designer receives nothing for the efforts expended to make a quality product. While one or two shirts might not make a difference, when seen in the aggregate an intellectual property thief can make thousands of dollars off of another person's million dollar investment.
Intellectual property thieves steal intellectual property in three main ways: counterfeiting, pirating and boot-legging.14 Counterfeits are copies of the original that have the trademark included in the reproduction.15 Clothing, watches and sunglasses all fall into the counterfeit area, as does artwork from music and movie discs. Piracy is taking the protected sound or video and compiling it onto another medium.16 For example, in the recording industry, a music pirate takes a popular artist's most popular recordings and places them all onto one compact disc and sells it. Bootlegging also is unique to the motion picture and music recording industries.17 Bootleggers take live performances or television performances and record them without authorization, then sell the recordings to customers. For example, soon after Spider-Man and Attack of the Clones debuted in theaters, recorded copies appeared on tape and video disc.18 The offenders took their handheld video camera into the theater, recorded the movie, copied it, and sold it on the street. Each method of theft is prohibited by Missouri law.
II. Missouri Intellectual Property Crimes
The Missouri legislature has addressed the problems associated with intellectual property theft by criminalizing counterfeiting trademarks19 and passing a collection of laws that criminalize unauthorized recordings.20 Many attorneys do not know these laws exist and most courts have not addressed the issues these statutes raise. This section introduces these crimes by describing their elements and explaining how the statutes apply to the problem of identity theft.
A. Counterfeiting
In 1998, the Missouri legislature passed an anti-counterfeiting measure prohibiting the willful manufacture, use, display, advertising, distribution, selling, offering for sale, or possessing with the intent to sell or distribute any item or service that has a counterfeit mark.21 It addressed the growing problem of trademark infringement. The statute defined what items are intellectual property and set out different classes of offenses.
The law defines counterfeit mark as "any unauthorized reproduction or copy of intellectual property or intellectual property affixed to any item knowingly sold, offered for sale, manufactured, or distributed, or identifying services offered or rendered, without the authority of the owner of the intellectual property."22 By including the phrase "identifying services offered or rendered," the law covers cases wherein people use a counterfeit mark to promote services.23 The definition also draws a distinction between reproduction and copy. A reproduction "implies an exact or close imitation of an existing thing," while a copy usually refers to a mechanical reproduction.24 As a result, the statute covers things that have been generated through mechanical means or electronic means and those that are near imitations of the actual mark. As a result, a person who uses a scanner and printer to copy record labels is just as guilty as the person who hand draws the Nautica sail boat emblem on an advertisement for shirts.
The most important term in the definition of counterfeit mark is "intellectual property." For the purposes of the statute, intellectual property means "any trademark, service mark, trade name, label, term, device, design or word adopted or used by a person to identify such person's goods or services."25 This broad definition covers an array of possibilities. It covers major corporations that make billions through the recognition of their trademarked names to the small-time photographer who places initials on the back of each photograph to identify it as belonging to that photographer. Of particular note, there is no requirement that the intellectual property be registered with state or federal governments.26 As long as the intellectual property is used to identify a person's goods or services, unauthorized reproductions or copies can be prosecuted.
While the definition of intellectual property covers a wide array of possibilities, it excludes others. For one, suppose a photographer does not identify a photograph with a label indicating that it is the photographer's work. In that case, the actual photograph, although the result of an idea in the photographer's mind, is not considered intellectual property of the photographer and therefore falls outside the scope of the criminal statute. Similarly, words to a song or a poem are also not protected under this definition. While the definition refers to "words," it does so only in the context of a person adopting those words or using them to identify their work.27 As a result, the law does not cover the unauthorized reproduction of song lyrics or literary works. Prosecutors charging counterfeiting must ensure there is a trademark on the item; otherwise, it cannot be termed a counterfeit.
To prosecute a counterfeiting case, the offender must do more than simply possess items bearing a counterfeit mark. For example, when police found hundreds of counterfeit watches in display cases hidden inside a duffel bag in the suspect's booth, the defendant successfully argued that someone else brought the items and that the defendant had no knowledge of the bag's contents.28 However, had the items been on the counter, or even open, it is questionable whether the defense would have been successful, because the law criminalizes the display of items bearing a counterfeit mark. Likewise, possessing 30 sunglasses with a counterfeit Ray-Ban mark is not criminal if those sunglasses are in a bag sitting in the corner of a store and not offered for sale. However, buying a pair of those same sunglasses and wearing them after leaving the store violates the law because that buyer is "using" an item bearing a counterfeit mark. The seller, by virtue of the sale, has also committed a crime. Therefore, while the law leaves out ordinary possession, it is not difficult to fit any action within the law's definition.
Under the terms of the counterfeiting statute, the law presumes that a person possessing "more than twenty-five items [with] a counterfeit mark" does so with the intent to distribute or sell them.29 The wording of the presumption indicates, through the use of the words "shall be presumed," that the presumption is mandatory, rather than permissive.30 This means that it shifts the burden of proof from the prosecution to the defendant. The defense has this burden because the statute creates a presumption, once the state displays 25 counterfeit items, that the defendant possessed them with the intent to sell or distribute. Once the state has done that, the defendant must present evidence to rebut the presumption. This forces the defendant to prove the items were not meant for distribution or re-sale. As a result, if ever litigated, a court should find this presumption unconstitutional.31
To violate the counterfeiting statute, a person must "willfully" commit one of the proscribed acts.32 However, Missouri's criminal code does not define "willfully." While it appears as the required mental state in other criminal statutes, it does not arise anywhere else in the criminal code.33 A dictionary defines "willful" as something done intentionally.34 Unfortunately, the criminal code also fails to define "intentional" among the culpable mental states. Nonetheless, willful has been defined through judicial opinion.35 By looking at how the term has been used in other legislative enactments at both the federal and state levels, courts have concluded that "willful" simply means intentional.36 Courts have decided that intentional means the same as "purposely," which is defined in the criminal code.37 In terms of counterfeiting, the person must intentionally sell or offer to sell or advertise with the counterfeit mark in order to be found guilty. This should not be a problem, because most cases involve the unlawful use of a well-known trademark.
Most cases will be argued around the defendant's knowledge. There are two areas where a defendant's lack of knowledge can be used as a defense. First, the defendant can claim a lack of knowledge surrounding authorization to use the mark. By claiming that the person did not know the use of the mark was not authorized, a person can escape criminal liability. This occurs most frequently in the case of vendors. A vendor frequently will claim ignorance that the product sold was not legitimately made. To counter this, the state needs evidence regarding the supplier. Obviously, if the vendor purchased the item from someone on the street and not a legitimate supplier, the defense becomes much less viable. A second "knowledge" defense involves ignorance that the mark used was, in fact, something used by someone else to identify that person's goods or services. For example, a photographer sells photos and identifies them with a certain mark, and even goes through the procedures necessary to register it. Then, someone else, unaware that the mark on the photograph is used by the photographer, copies the photograph and the mark when reselling the photograph. The seller, in that case, would have a defense based on a lack of knowledge that the mark was actual intellectual property. However, this defense is not spelled out in the statute. One could argue the knowledge element only applies to the sale or distribution of the item, regardless of whether or not the person knew the mark was counterfeit. In light of this, the federal statute specifically states that knowledge of a mark's registration is not required for a conviction under federal law.38 Missouri leaves the issue for the courts.
Punishment for violating the Missouri counterfeiting statute varies depending on the nature of the activity and the number of counterfeit items.39 First time offenders who have fewer than 100 items receive class A misdemeanors.40 A second offense raises the offense to a class D felony and a third case makes it a class C felony.41 Anyone, regardless of the number of priors, who has between 100 and 999 items faces a class D felony.42 Those caught with more than 1,000 items fall under class C felonies.43 Additionally, if the state proves the person was part of the manufacturing or production of the counterfeit items, the charge automatically becomes a class C felony, regardless of the number of items involved.44 A person also faces felony charges based on the value of the merchandise recovered. If the retail value of the goods or services bearing the counterfeit mark falls between $1,000 and $10,000, the case becomes a class D felony.45 If the amount is more than $10,000, it becomes a class C felony.46 In practice, it is much easier to prove the number of counterfeit items than it is to prove the retail value of the items. In addition to the penalties associated with their respective felony class, a person found guilty of counterfeiting "shall be fined an amount 'not to exceed' three times the retail value of the products counterfeited unless extenuating circumstances are shown."47 Once convicted and sentenced, Missouri law also allows law enforcement to destroy the counterfeit merchandise or turn it over to the trademark holder.48
These sanctions provide teeth to the counterfeiting statute. If left unused, however, the deterrent effect is lost. The Missouri legislature passed a statute that covers most every type of intellectual property and prohibits any action associated with the use of counterfeit property. As a result, law enforcement and trademark holders have a remedy through Missouri criminal law.
B. Unauthorized Recordings
Prior to its protection of trademarks, the Missouri legislature in 1977 created a series of statutes aimed at prohibiting the unauthorized reproduction of audio and video recordings.49 The legislature modified the legislation in 1993.50 These actions provided statutes covering two main areas. First, the law prohibits the unauthorized recording of sounds through any "medium now known or later developed on which sounds are recorded."51 Second, it criminalizes the failure to properly label the recordings with the name and address of the manufacturer. The law exempts certain people from its requirements. It also proscribes penalties for violators.
Sections 570.225 and 570.226, RSMo, create the crime of unauthorized recording. Section 570.225 states, "No person shall, without the consent of the owner, transfer or cause to be transferred any sounds recorded on . . . [any] medium now known or later developed on which sounds are recorded, with the intent to sell or cause to be sold for profit or used to promote the sale of any article on which sounds are so transferred, except that this section shall only apply to sound recordings initially fixed prior to February 15, 1972."52 The primary purpose of this statute is to protect those who recorded sounds prior to the date when the United States Copyright Law went into effect. The next section, § 570.226, RSMo, covers sounds and images, regardless of the date initially recorded or stored. This section complements the federal law by criminalizing unauthorized recording of live performances either aired on television or radio or performed on stage. However, unlike § 570.225, § 570.226 also covers stored images, thus creating a broad definition of "recording."53 For example, a photograph is an image that can be stored on a computer. Section 570.226 protects the photograph by including any media "on which . . . images are recorded or otherwise stored."54 These sections leave one area of crime uncovered. Anything recorded after February 15, 1972, the date the federal copyright law went into effect for sound recordings, is left unprotected by state law. As a result, a small-time dealer in unauthorized recordings can escape unpunished if the dealer does not meet federal prosecution standards.55
To make a case under either statute, the prosecutor first must prove the owner's lack of consent to the transfer of the recording. Artists are the original holders of the right to reproduce their creations. Recording companies, movie studios and anyone else who buys the rights to a particular recording then become the owners of the recording. They alone may authorize reproduction. As a result, their cooperation is essential in any case involving these statutes. An owner's representative must appear in court to testify should a case go to trial. From the prosecution standpoint, this may be the largest obstacle to overcome. If only a small quantity of items are involved, the cost to the owner for travel and lost time may be greater than the loss due to the theft, thus leaving a prosecutor without a prosecuting witness.
Next, the state must prove sounds or images were transferred. All recordings originate with the master disc, so unless the suspect is found with it, any recording found in the suspect's possession has been transferred. As a result, the issue becomes whether the defendant transferred the sounds or images. In most cases, the prosecution will use circumstantial evidence to prove the defendant transferred the particular sounds or images. Such evidence could be discovery of the sounds in question stored on a computer found in the defendant's house or store. Other items might include multiple blank, writeable, compact discs or advertisements offering the recordings for sale. Lack of direct proof can also be overcome by charging the defendant as acting with an unknown co-conspirator. A suspect's incriminating statement is also beneficial for establishing this element. Another option for avoiding this issue is to use § 570.230. It prohibits selling, advertising or offering for sale anything produced in violation of the two unauthorized recording statutes as long as the person has reasonable grounds to know that the sounds have been transferred without the consent of the owner.56 Poor or no packaging, low price, no label, location of sale and quality of recording demonstrate this.
The final element, the intent to sell for profit, can be shown through direct or circumstantial evidence. Often times an undercover investigator will purchase a pirated or counterfeit recording, thus demonstrating the defendant's intent to sell. Circumstantial evidence includes the number of items in the defendant's possession or advertisements posted around town or at a store where the items are sold.
In addition to criminalizing unauthorized recordings, Missouri law requires that those who manufacture recordings of sounds or images place their name and address on the storage medium.58 According to the statute, "[t]he label, cover, box or jacket on all . . . medi[a] now known or later developed on which sounds or images are recorded shall contain thereon in clearly readable print the name and address of the manufacturer."59 The following section prohibits the sale of any item produced in violation of the labeling statute.60 According to the statutory definition, the manufacturer is "the person who transfers" the sounds from one medium to another.61 This means the person who copies a purchased version of a CD onto a blank CD is the manufacturer of the resulting copy.
To convict a manufacturer under these statutes, the state must prove: (1) the item was produced in violation of the labeling statute, (2) that it was offered for "rental, sale, resale" or actually sold or resold or possessed for any of those purposes, and (3) that the person knew or had reason to know the article had been produced in violation of the labeling law. Simply stated, if a person sells anything on which sounds or images are recorded, the name and address of the person who made that particular recording must be on the item. Of course, the person making the recording, if not authorized by the owner of the master recording, is committing a crime. Should that person comply with the labeling requirement, that person admits making it. Therefore, this section places an unauthorized manufacturer in a no-win situation because compliance with one statute admits the violation of another.
Not all manufacturers are subject to the requirements of the laws relating to unauthorized recordings. Section 570.245 grants three exemptions from the requirements. First, radio and television broadcasters are exempt so long as the sounds are transferred "in connection with a radio or television broadcast transmission or for archival presentation."62 Second, a cable company may transfer sounds as part of its normal service.63 Finally, and most importantly for the ordinary consumer, a person who purchases the sounds may transfer them for personal use so long as no compensation is derived from the transfer by the person or anyone else.64 In other words, the person who buys the CD can copy it for the buyer's personal use but cannot go and sell the copy to someone else.
Once a person has been found guilty of any of these crimes, the court must wade through a relatively complex sentencing scheme.65 First, every first-time offender, if the requirements for a felony are not met, is guilty of a misdemeanor.66 The punishment section does not give a class of misdemeanor but states the person "shall be punished by a fine" up to $5,000 or by imprisonment in the county jail for up to six months or both.67 While that seems self-explanatory, the trick becomes determining whether or not a felony has been committed. According to the punishment section, whether or not a felony has occurred depends upon the number of articles violating the statute, the medium of storing the sounds or images, and the section violated.68 Any violation of the labeling requirements involving 100 or more motion pictures or audio-visual works is a felony.69 If only sound recordings are charged, then there must be 1,000 items involved before it is a felony.70 The 1,000 threshold also applies to any violation of the unauthorized transfer of recordings sections, regardless of audio or video.71 For these felonies, the statue proscribes punishment at a fine of up to $50,000 and/or imprisonment for up to five years.72 A second offense of any statute makes the violation a felony.73 The subsequent offender receives a mandatory two years in the Missouri Department of Corrections and/or a fine up to $100,000.74 The final provision relating to the offender's punishment states that "the penalties provided . . . are not exclusive and are in addition to any other penalties provided by law."75 This leaves a question about whether probation is an option because the word "shall" indicates that, under the terms of the statute, the only options are imprisonment or fine.
Missouri has provided strong penalties for unauthorized recordings. Much like the counterfeiting statute, however, the unauthorized recording statutes are not taken seriously by society, law enforcement or the courts. As a result, the unauthorized recording statutes are rarely used. When they are used and the appropriate sentences are imposed, the statutes provide a strong deterrent for offenders.
III. New Uses For Old Statute
Together, the counterfeiting and unauthorized recording statutes cover nearly every type of intellectual property crime. While these statutes provide a means to catch smaller offenders who are below the radar screen for federal prosecution and fill in gaps left by federal legislation, more traditional statutes also apply to intellectual property crimes. Most notably, forgery and the possession of forging instrumentalities fit nicely into the intellectual property crime arena. Use of these laws in the intellectual property crime area provides greater deterrence because they are more familiar to society and the courts, and the penalties tend to be more substantial.
A. Forgery
Forgery is the act of making something appear genuine when, in reality, it is not. Under Missouri law, one can forge either a "writing" or "anything other than a writing."76 A person commits forgery if the person, with the intent to defraud, does any one of several things. First, a person forges a writing if the person "[m]akes, completes, alters or authenticates any writing so that it [appears] to have been made" authentically.77 Second, a person can forge a writing by erasing or destroying the original.78 Third, a person can forge something, other than a writing, by making or altering the item so that it appears genuine, was owned by another or was made by another.79 Finally, a person forges something by using it as genuine or intending to use it as genuine and knowing that it is not really genuine.80 Most intellectual property crimes involve producing items that appear genuine but, in reality, are not.
Section 570.090.1(3), RSMo, covers the forgery of items other than writings. The statute places no restriction on what type of item may be forged. By its terms, the statute requires the item either be made or altered so that it claims to "have a genuineness, antiquity, rarity, ownership or authorship which it does not possess."81 This language fits well with intellectual property crimes. For example, a person selling t-shirts with an unauthorized FUBU logo on them would be selling a forgery. The person has made this t-shirt. The person knows it is not a genuine FUBU t-shirt. The person advertises it to the consumer as a FUBU-made t-shirt, in other words, holding it out as genuine. The person selling the t-shirt also has the intent to defraud.82 Selling the shirt to an unsuspecting customer defrauds the consumer. It also defrauds the owners of the FUBU trademark because it costs them a sale, it costs them their reputation, it costs them the money used for advertising, and it costs them the work they put into making a product that people want to buy. As a result, simply having one unauthorized t-shirt and advertising that t-shirt for sale can become a class C felony, which is more severe than having 999 t-shirts under the counterfeiting statute.83
B. Possessing Forging Instrumentality
Possessing tools used to make a forgery also violates Missouri law. Section 570.100, RSMo, prohibits the possession of "any plate, mold, instrument or device for making or altering any writing or anything other than a writing."84 Although plate and mold are more restrictive, most anything used to make a forgery qualifies as an instrument or device. As a result, this statute applies when police execute a search warrant and discover the items used to make counterfeits.
An example best illustrates how the statute works. After a brief investigation, police discover a person making counterfeit compact discs in the basement of a house. Upon their arrival at the house, the police find a computer attached to a scanner and printer. On the printer's tray is a freshly produced copy of a music label. The police also find blank CDs, a sales list, hundreds of printed labels and hundreds of unauthorized recordings. They seize the computer and, after obtaining a search warrant, search the computer and discover images of CD jacket artwork stored on the computer's hard drive. Once the results are reported to the prosecutors, the prosecutors charge the person with possessing a forging instrumentality. The suspect used the computer to generate counterfeit artwork in order to sell the CDs made in the basement. According to the advertising, the suspect claimed the CDs and artwork were authentic. In effect, he was forging the artwork. Therefore, the computer, as the device used to make the forgeries, was a forging instrumentality - as was the scanner, printer and paper.
Charging a person with possessing a forging instrumentality presents the person with a class C felony, just like forgery.85 As a result, the punishment for that may be more substantial than charging the person with counterfeiting or unauthorized recording. In addition, each instrument or device can become a separate charge, thus adding to the potential punishment.
Using both charges greatly enhances the possibility for punishment when an offender is apprehended. Forgery and possessing forging instrumentality charges also provide greater flexibility when making charging decisions, because they cover a wide array of circumstances and are always felonies. It is important to note, however, that not all unauthorized recordings fit under the forgery statute. For example, a pirated music compilation that was never legitimately released to the public does not fall under the forgery statute because the item does not purport to be genuine.
Using the forgery and forging instrumentality statutes also assists in trial preparation and presentation, and reduces the risk of a conviction being overturned. In terms of presentation, it is easier to explain a forgery to the jury than to define trademark and counterfeit and describe how trademarks are reproduced. Also, the Supreme Court of Missouri does not have approved instructions for either unauthorized recordings or counter-feiting. Therefore, the prosecutor must create the verdict directors -not to mention the charging document - for any of those crimes. If done improperly, it is likely an appellate court would overturn the conviction. Forgery already has its verdict director and counterfeits easily conform to the existing instructions.86 Using these older criminal statutes allows more certainty in the preparation and trial of intellectual property cases.
IV. Conclusion
The problem of intellectual property law violations continues to grow, costing consumers millions of dollars. One means to reduce the problem is through the use of criminal law. Current Missouri statutes cover nearly every conceivable type of intellectual property law violation committed by those seeking to profit from another person's talent and creativity. Unfortunately, law enforcement, prosecutors, and intellectual property practitioners are not as familiar with these statutes as they should be. By increasing awareness of these statutes and the possibilities for prosecuting intellectual property law violations, the problem can be reduced.
Endnotes
1 Scott Ingram, Assistant Circuit Attorney, City of St. Louis. J.D. Washington University, 1998. The opinions expressed in this article are the author's and do not necessarily reflect those of the Circuit Attorney or the Circuit Attorney's Office.
2 David Segal, A New Tactic in the Download War: Online 'Spoofing' Turns the Tables on Music Pirates, Washington Post, August 21, 2002, at A1 (citing Recording Industry Association of America statistic).
3 Id. (citing an interview with Hilary Rosen, chairwoman of the RIAA).
4 Josh Grossberg, Studios Waging Web War, July 27, 2002, www.eonline.com/News/Items/0,1,10309,00.html. According to industry estimates, "400,000 to 600,000 films are illegally downloaded every day." Id. (citing interview with Jack Valenti, MPAA chairman).
5 Frank Ahrens, 'Ranger' Vs. the Movie Pirates: Software Is Studios' Latest Weapon in A Growing Battle, Washington Post, June 19, 2002, at H1.
6 "Intellectual property," Black's Law Dictionary 813 (7th ed. 1999). A definition reads: "[a] commercially valuable product of the human intellect, in a concrete or abstract form, such as a copyrightable work, a protectable trademark, a patentable invention, or a trade secret." Id.
7 "Copyright," Black's Law Dictionary 337 (7th ed. 1999).
8 "Trademark," Black's Law Dictionary 1500 (7th ed. 1999).
9 17 U.S.C. § 506 (2000).
10 18 U.S.C. § 2320 (2000).
11 For an example of the arguments for permitting downloads, see Mark Jenkins, Hit Charade: The Music Industry's Self-inflicted Wounds, http://slate.msn.com/id/2069732, visited October 28, 2003.
12 Segal at A1.
13 Recording Industry Association of America, "Who Gets Hurt by Piracy" (2002).
14 Recording Industry Association of America, "What is piracy," www.riaa.com, visited January 21, 2003.
15 Id.
16 Id.
17 Id.
18 Ahrens at H1.
19 Section 570.103, RSMo 2000.
20 Sections 570.225-570.255, RSMo 2000.
21 Section 570.103.2, RSMo 2000.
22 Section 570.103.1(1), RSMo 2000.
23 Id.
24 "Reproduction," third definition, www.m-w.com, visited on 10/24/03.
25 Section 570.103.1(2), RSMo 2000.
26 Section 570.103, RSMo 2000.
27 Section 570.103.1(2), RSMo 2000.
28 State v. Diallo, No. 991-2872 (22nd Judicial Circuit of Missouri, June 13, 2001).
29 Section 570.103.2, RSMo 2000.
30 See Carella v. California, 491 U.S. 263 (1989); Francis v. Franklin, 471 U.S. 307 (1985). For additional commentary see Shari L. Jacobson, "Special Topics in the Law of Evidence: Mandatory and Permissive Presumptions in Criminal Cases: The Morass Created by Allen," 42 Univ. Miami L. Rev. 1009 (1988).
31 See Carella at 268.
32 Section 570.103.2, RSMo 2000.
33 See, e.g., § 143.911, RSMo 2000 (creates the crime to willfully attempt to evade the payment of any tax imposed by law).
34 "willful," www.m-w.com, visited 10/24/03.
35 State v. Goebel, 83 S.W.3d 639 (Mo. App. E.D. 2002); State v. Dumke, 901 S.W.2d 100 (Mo. App. W.D. 1995); State v. Sinner, 779 S.W. 2d 690 (Mo. App. E.D. 1989).
36 Dumke at 103 (relying on out-of-state and federal cases to define "willfully") and Sinner at 693 (use of federal income tax evasion to define "willful"). The court, in Sinner, also comments about the problem created by not defining "willful" in the criminal code. Id.
37 Goebel at 644.
38 18 U.S.C. § 2320(e)(1)(A)(ii) (2000).
39 Section 570.103.3-5, RSMo 2000. The subsections define what constitutes each class of crime.
40 Section 570.103.3, RSMo 2000.
41 Section 570.103.4-5, RSMo 2000.
42 Section 570.103.4(2), RSMo 2000.
43 Section 570.103.5(3), RSMo 2000.
44 Section 570.103.5(2), RSMo 2000.
45 Section 570.103.4(2), RSMo 2000.
46 Section 570.103.5(3), RSMo 2000.
47 Section 570.103.7, RSMo 2000.
48 Section 570.105.2, RSMo 2000.
49 Sections 570.225, 570.230, 570.235, 570.240, 570.245 and 570.255, RSMo 2000, were created in 1977.
50 Sections 570.226 and 570.241, RSMo 2000, were created in 1993 and the others were modified at the same time.
51 Section 570.225, RSMo 2000.
52 Id.
53 Section 570.226, RSMo 2000.
54 Id.
55 The reason states cannot legislate in this area is that the United States Supreme Court has held that, as a result of the constitutional delegation of power to the federal government regarding patents and copyrights, once the federal government legislates in the area, any state legislation is pre-empted. See U.S. Const. Art. I, §8 cl.8 and Goldstein v. California, 412 U.S. 546 (1973).
56 Section 570.230, RSMo 2000.
58 Section 570.240, RSMo 2000.
59 Id.
60 Section 570.241, RSMo 2000.
61 Section 570.235, RSMo 2000.
62 Section 570.245(1), RSMo 2000.
63 Section 570.245(3), RSMo 2000.
64 Section 570.245(2), RSMo 2000.
65 Section 570.255, RSMo 2000.
66 Section 570.255.1(1), RSMo 2000.
67 Section 570.255.1, RSMo 2000.
68 Id.
69 Section 570.255.1(2), RSMo 2000.
70 Id.
71 Id.
72 Id.
73 Id
74 Id
75 Section 570.255.1(3), RSMo 2000.
76 Section 570.090, RSMo 2000.
77 Section 570.090.1(1), RSMo 2000.
78 Section 570.090.1(2), RSMo 2000.
79 Section 570.090.1(3), RSMo 2000.
80 Section 570.090.1(4), RSMo 2000.
81 Section 570.090.1(3), RSMo 2000.
82 Missouri courts have interpreted the requisite intent to defraud as a general, rather than specific, intent. This means the state must prove only that the defendant intended to defraud someone, not a specific someone. State v. Pride, 1 S.W.3d 494 (Mo. App. W.D. 1999).
83 Section 570.090.2, RSMo 2000. See note 40.
84 Section 570.100.1, RSMo 2000.
85 Section 570.100.2, RSMo 2000.
86 MAI-CR 3d, 324.20.3 (2000).
JOURNAL OF THE MISSOURI BAR
Volume 59 - No. 6 - November-December 2003