[Excerpt] “A well-known cliché came to life when “[t]he pope’s butler was convicted . . . of stealing the pontiff’s private documents and leaking them to a journalist . . . .” His lawyer’s unsuccessful argument—that taking “only photocopies, not original documents” should not be criminal—prompted this paper.
When tangible property is taken, owners retain nothing. When documents or equivalents are duplicated, however, even if owners retain originals, they suffer loss of control and may lose substantial present and potential advantages, not necessarily economic. Civil redress for such losses has therefore long been available through copyright and trade secret laws. Indeed, it has often been available when injuries occasioned by unauthorized reproduction seem unrelated to goals traditionally advanced by either body of law. Thus, the way information is expressed may be protected by copyright and, until published, if it otherwise qualifies, information as such may also enjoy trade secret protection.
When civil remedies are inadequate to deter theft and vindicate interests of owners and the public, civil remedies can be augmented with criminal penalties. Differences between tangibles and intangibles, however, are often seen to warrant different prosecutorial requirements and penalties. The second part of this paper explains how federal courts, recognizing those differences, have come to find the National Stolen Property Act (“NSPA”) inapplicable to theft of at least some intangibles. Ones addressed there fall within the scope of the Federal Copyright Act (“FCA”) and the Economic Espionage Act of 1996 (“EEA”).
The paper concludes, first, by echoing a suggestion that lack of uniformity in state law justifies federal penalties and expanded jurisdiction. It also advocates more uniformity and better articulation of the subject matter contemplated by the term “intangibles” in, for example, the Model Penal Code. Finally, the paper argues that even when tangibles such as media are taken, courts should, for example, not base their value on the value of its intangible contents.”
Thomas G. Field, Crimes Involving Intangible Property, 11 U.N.H. L. REV. 171 (2013), available at http://scholars.unh.edu/unh_lr/vol11/iss2/4