Crimes Involving Intangible Property
11 University of New Hampshire Law Review 171 (2013)
25 Pages Posted: 12 Dec 2012 Last revised: 4 Aug 2013
Date Written: December 11, 2012
A well-known cliché came to life in 2012 when “[t]he pope’s butler was convicted… of stealing the pontiff’s private documents and leaking them to a journalist….” This paper was prompted by his lawyer’s unsuccessfully arguing that taking “only photocopies, not original documents” should not be criminal.
The paper therefore considers bases for prosecuting the theft of purely intangible interests under U.S. federal and state law.
Because the text in question had been fixed, states would have no authority to prosecute for unauthorized copying in the nature of copyright infringement. Moreover, the seminal Dowling case finds that penal jurisdiction under the Copyright Act displaces federal liability for theft of tangible property — at least in the absence of other subject-specific statutes. Yet, successful prosecution would require an examination of the retail value of works not produced for sale.
Because the text in question had not been published, unauthorized taking might also qualify as theft of trade secrets. The paper therefore considers the 1996 Economic Espionage as a basis for federal jurisdiction and turns to the recent Aleynikov opinion. Barring simultaneous theft of tangible property, the Second Circuit likewise finds only subject-specific prosecution possible for theft of compute code. Although the code qualified as a trade secret, and the federal EEA facially applied, a key requirement could not be satisfied.
Roughly half of the paper considers state penal statutes. Because of preemption, unauthorized duplication of published documents cannot be prosecuted, but theft of the contents of unpublished documents would be possible. Some state statutes name trade secrets as subject property; others name intangibles generally; and others name neither. Were a case such as the one involving the Vatican papers to be tried in a state court, a variety of problems would be encountered under each type of statute. The paper uses three cases to illustrate some of those problems.
Looking well beyond the papal papers, the paper ultimately suggests that something akin to a penal version of the Uniform Trade Secret Act might bring more resources to bear on increasingly disruptive criminal activities.
Keywords: penal, criminal, copyrights, preemption, trade secrets, intangible property, privacy
JEL Classification: K11, K14, K42, O34
Suggested Citation: Suggested Citation