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«JOURNAL OF LAW, ECONOMICS & POLICY VOLUME 10 SPRING 2014 NUMBER 2 EDITORIAL BOARD 2013-2014 Steve Dunn Editor-in-Chief Crystal Yi Meagan Dziura Sarah ...»

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organizations and services already available in the community. For example, most animal shelters and adoption programs require potential owners to spay or neuter their new dog, or the organization provides the surgery using the adoption fee.194 Other rescue organizations offer free behavior and training classes for families that adopt.195


In a way, dogs are one of humanity’s greatest experiments, effectively proving that nurture can overcome nature. Over thousands of years, we have worked as a species to take an element of wild nature and create our greatest companion. Dogs embody our rise as a species and our ability to shape and adopt our surroundings. It is the great tragedy of dogs, then, that we, their creators, are also their abusers. When individuals abuse and neglect their dogs, the betrayal is greater than just between the owner and the pet. The community is also affected in the form of aggressive, antisocial, and unmanageable dogs, which are at best a nuisance and at worst a danger to other members of the community.

There is no denying that the cost to society for dog bites is high. Total losses to society in dog bites and treatments of bites alone may be higher than $1 billion per year.196 However, the answer to this danger is not to pinpoint a breed and attribute all of society’s problems to that breed. Breed Specific Legislation fails to address the root of the problem with dog attacks. Not only are BSL too costly to society, but they are also ineffective.197 Instead, the answer to dog attacks is a broad and preemptive approach including greater enforcement of licensing laws, greater penalties for abusers and violators of criminal statutes, more education for owners and their children, and a swift and sure process of compensation for dog bite victims. With the Dangerous Dog Law approach to the dog-bite problem, society will see an eventual decrease in enforcement costs and a decrease in actual dog attacks on humans.

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http://awla.convio.net/site/PageServer?pagename=petowners_trainingtips (last visited Jan. 7, 2013).

196 John K. Bini et. al., Mortality, Mauling, and Maiming by Vicious Dogs, 253 ANNALS SURGERY 791, 796 (2011).

197 Medlin, supra note 10, at 1312.

96 2014] 489




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U.S. laws must continue to evolve and adapt to advancing crimes.

Nevertheless, in an increasingly interconnected and online society, innovations in criminal acts may be evolving too quickly for stagnant rules to keep pace. In the world of criminal copyright infringement, some foreign corporations may have found a technical loophole by way of the “service requirement” of Rule 4(c)(3)(C) of the Federal Rules of Criminal Procedure.

The rule requires that (1) a summons be delivered to an agent of the corporation who is legally authorized to receive service of process, and (2) a copy of the summons be mailed to the corporation’s last known address in the United States.1 First, effecting service in a foreign country for a criminal case may be difficult as the United States government must acquire the permission of the foreign nation to effect service, and this often means playing by the foreign nation’s rules of service. Second, although a corporation or its subsidiaries will generally have an address in the United States if it conducts business in the country, because of the increasing prevalence of online companies, foreign corporations can now conduct business with Americans without ever establishing a physical presence in the United States. Thus, if a foreign corporation has never had a physical address or principal place of business in the United States, Rule 4(c)(3)(C) seems to ensure the foreign corporation immunity from prosecution for criminal acts committed within the United States because of a mere technicality.2 These unintended consequences starkly contradict the long-held principle in criminal jurisprudence that “a man, who outside the country willfully puts in * George Mason University School of Law, Juris Doctor Candidate, May 2014. University of Virginia, Bachelor of the Arts with Distinction, History, Comparative Literature, 2010. I am forever grateful to my family and friends for their constant support in all my endeavors—and to David, who has my heart.

1 FED. R. CRIM. P. 4(c)(3)(C).

2 Opp’n of the U.S. to Mot. of Specially Appearing Def. Megaupload Ltd. to Dismiss Indictment for Lack of Personal Jurisdiction at 1, United States v. Dotcom, No. 1:12-cr-3, 2012 WL 4788433 (E.D.

Va. Oct. 5, 2012) (No. 117), 2012 WL 2885906 [hereinafter Opp’n of Mot. to Dismiss].


motion a force to take effect in it, is answerable at the place where the evil is done.”3 Although there are potential solutions to the problem of serving individuals and corporations outside of the United States in civil cases, such as piercing the corporate veil or international agreements,4 these options are not applicable to criminal cases because of the specific wording of Rule 4(c)(3)(C), which states that a copy of a summons must be mailed to an organization’s address in the United States.5 Rule 4(c)(3)(C) seems to tie the hands of the government, perhaps simply because the drafters of that rule did not anticipate the increasing importance of the Internet or the advancement of copyright infringement in cyberspace. As the stakes rise and increasing numbers of copyright holders are injured by online copyright infringement, the implications of allowing foreign online corporations to be immune from domestic criminal prosecution may be devastating, especially to music, movie, and other media industries. As Senator Leahy has expressed, Intellectual property is just as vulnerable as it is valuable. The Internet has brought great and positive change to all our lives, but it is also an unparalleled tool for piracy. The increasing inter-connectedness of the globe, and the efficiencies of sharing information quickly and accurately between continents, has made foreign piracy and counterfeiting operations profitable in numerous countries. Americans suffer when their intellectual property is stolen. 6 The Federal Rules of Criminal Procedure should not act as an obstacle to achieving justice against known criminals. Because online activities will likely only continue to advance in the future, it is time to adapt the technical rule to the Internet Age so that the rules are applicable to the crimes being committed in cyberspace.

Part I of this Comment will discuss criminal copyright infringement and Rule 4 of the Federal Rules of Criminal Procedure generally. It will also discuss relevant case law that has acknowledged, but has failed to provide an answer to, the mailing requirement problem. Part II will then examine potential solutions to the mailing requirement problem that are available to civil cases and discuss the difficulties of applying those same rules to criminal cases. Finally, in Part III, this Comment will argue that, to keep up with criminal ingenuity and allow the government the means to counteract the vast harms caused by criminal copyright infringement where the United States already has jurisdiction, Congress should amend the Federal 3 Ford v. United States, 273 U.S. 593, 623 (1927) (quoting 2 JOHN BASSETT MOORE, LL. D., A DIGEST OF INTERNATIONAL LAW 244 (1906)). The Supreme Court went on to say, “And the methods which modern invention has furnished for the performance of criminal acts in that manner has made this principle one of constantly growing importance and of increasingly frequency of application.” Id.

4 Discussed infra Part II.B.

5 FED. R. CRIM. P. 4(c)(3)(C).

6 154 CONG. REC. S9583-02 (Sept. 26, 2008).

2014] INNOVATIONS IN CRIMINAL COPYRIGHT INFRINGEMENT 491 Rules of Criminal Procedure to provide for alternate methods to fulfill the mailing requirement when there is no address within the United States.

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A. The Problem of Criminal Copyright Infringement Generally In the Copyright Clause, the Constitution of the United States provides that Congress has the power to “Promote the Progress of Science and Useful Arts.”7 Copyright law is designed to “foster the production of creative works and the free flow of ideas by providing legal protection for creative expression.”8 Yet, with constantly developing technologies, Congress has struggled with balancing the protection of copyrights and promoting creativity in science and the arts.9 One court observed, “The future of the nation depends in no small part on the efficiency of industry, and the efficiency of industry depends in no small part on the protection of intellectual property.”10 A study reported that copyrights added $932 billion to the U.S. economy in 2010 alone and that 5.1 million Americans are employed by copyright industries.11 However, the infringement of those copyrights taxes the U.S. economy, and the losses are substantial.12 Representative Berman has said that the results of the “[r]ampant counterfeiting and piracy of U.S. products” around the world has had a “devastating impact on our economy.”13 In 2008, Representative Blackburn stated that music and entertainment industries are “suffering from rampant theft of their intellectual property online, and in marketplaces around the world to the tune of $58 billion each year.”14 While criminal copyright infringement has emerged as a serious problem with real consequences, some violations are considered “in the public interest.”15 Moreover, 7 Note, The Criminalization of Copyright Infringement in the Digital Era, 112 HARV. L. REV.

1705, 1705 (1999) [hereinafter Criminalization] (citing U.S. CONST. art. I, § 8, cl. 8).


9 See Criminalization, supra note 7, at 1705.

10 Rockwell Graphic Sys., Inc. v. DEV Indus., Inc., 925 F.2d 174, 180 (7th Cir. 1991).

11 John M. Owen, Graduated Response Systems and the Market for Copyrighted Works, 27 BERKELEY TECH. L.J. 559, 562 (2012) (citing STEPHEN E. SIWEK, INT’L INTELL. PROP. ALLIANCE, COPYRIGHT INDUSTRIES IN THE U.S. ECONOMY: THE 2011 REPORT 4 (2011), available at http://www.iipa.com/pdf/2011CopyrightIndustriesReport.pdf).

12 Id.

13 154 CONG. REC. H3075 (May 6, 2008).

14 154 CONG. REC. E2141-01 (Sept. 28, 2008).

15 Criminalization, supra note 7, at 1705–06; see also ROBERT A. GORMAN & JANE C. GINSBURG, COPYRIGHT FOR THE NINETIES 548 (1993) (discussing the fair use doctrine as codified at 17 U.S.C.

§ 107 (1994)).

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it simply is not cost effective to sue each end user for copyright infringement.... [S]uing even a fraction of the end users could bankrupt the content industries. It is also generally considered bad for public relations to sue your customers, and most people engaged in illegal file sharing also buy music legally.16 Thus, rather than holding millions of individual end users accountable, the government sues the service provider or the file-sharing website, such as Megaupload.17 The Digital Millennium Copyright Act (DCMA), enacted in 1998, was an attempt to adapt copyright law to the Internet Age.18 It was largely a response to “user-driven media” and websites such as YouTube.19 The DCMA “created a safe harbor for websites from copyright infringement claims when they acted as a mere conduit distributing content posted by others.”20 So long as the service provider acts “expeditiously to remove, or disable access to” known copyrighted material once it has received written notice of the infringement by the copyright owner, the service provider avoids liability.21 Criminal penalties are reserved for those who willfully engage in copyright infringement for profit.22

B. Evolving Modes of Copyright Infringement

Because of new developments in technology, penalizing copyright infringement has become more difficult.23 File-sharing programs allow users to share music, movies, and other files over the Internet. Although filesharing programs are legitimate in and of themselves, they can facilitate the widespread, unauthorized distribution of copyrighted material.24 Two innovations in file-sharing technology that Internet users have adopted in copyIt may cost as much as $250,000 for a copyright owner to take even a low-stakes copyright case to trial and final judgment.” Mark A. Lemley & R. Anthony Reese, Reducing Digital Copyright Infringement Without Restricting Innovation, 56 STAN. L. REV. 1345, 1376 (2004).

17 Id. at 1377.

18 Copyrights in Cyberspace: A Roundup of Recent Cases, 12 J. HIGH TECH. L. 106, 113 (2011) [hereinafter Roundup].

19 Roundup, supra note 18, at 114–15. YouTube allows users to upload videos onto its servers, making the videos available to anyone who visits the website. Copyright Infringement Pushin’: Google, YouTube, and Viacom Fight for Supremacy in the Neighborhood that may be Controlled by the DCMA’s Safe Harbor Provision, 51 IDEA 607, 621 (2011) [hereinafter Pushin’]. By 2008, YouTube users uploaded more than 400,000 videos per day, and YouTube estimated that seventy percent of the most popular material uploaded on its site was copyrighted material. Id. at 622.

20 Roundup, supra note 18, at 115.

21 Id.

22 See Criminalization, supra note 7, at 1705.

23 See id.

24 Arista Records LLC v. Lime Grp. LLC, 784 F. Supp. 2d 398, 410 (S.D.N.Y. 2011).


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