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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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154 Rebuttal in Supp., supra note 145, at 3.

155 United States v. Pangang Grp. Co., 879 F. Supp. 2d 1052, 1066 (N.D. Cal. 2012).

156 Mutual Legal Assistance Treaty, U.S.–H.K., art. 15(3), 1997, U.S.T. LEXIS 115.

157 See, e.g., Harry Leroy Jones, International Judicial Assistance: Procedural Chaos and a Program for Reform, 62 YALE L.J. 515, 537 (1953) (explaining that foreign process servers may be reluctant to swear an oath in regards to the service of process procedure, and because American procedural rules require the verification of proof of service, such unverified foreign service may be deemed insufficient by some American courts).

158 [Proposed] Supp. Mem. of Law in Further Support of Mot. of Specially Appearing Def.

Megaupload Ltd. to Dismiss Indictment for Lack of Personal Jurisdiction, United States v. Dotcom, No.

1:12-cr-3, 2012 WL 478843 (E.D. Va. Oct. 5, 2012) (No. 120-1), 2012 WL 4788433 [hereinafter Supp.

Mem. for Mot.].

2014] INNOVATIONS IN CRIMINAL COPYRIGHT INFRINGEMENT 509 authorizes extraterritorial service.159 Thus, if U.S. law does not permit extraterritorial service, as is true of Rule 4(c)(3)(C) of the Federal Rules of Criminal Procedure, the MLAT does not apply.160 Finally, regardless of how beneficial MOUs may be for international diplomacy, they are essentially aspirational agreements. Thus, it is difficult to predict whether a nation will practically fulfill its obligations after agreeing to an MOU.161 This problem can be especially evident when the institutional structures and political attitudes of foreign nations with regard to intellectual property crime are not necessarily consistent with those of the United States, which has stricter rules than most foreign nations.162 For example, provided with “a chance for improved trade relations between China and the U.S,”163 China agreed to a 1995 MOU with the United States by which the parties agreed to take action to crack down on Chinese violations of intellectual property rights.164 However, because of fundamental cultural differences, attitudes towards copyright infringement in China are more relaxed than in the United States.165 Furthermore, because of nondeterrent sanctions, inefficient enforcement of copyright rules, and an ineffective judiciary, the task of cracking down on copyright infringement is still difficult in China.166 Even assuming that letters rogatory, MLATs, and MOUs are viable options for service in the foreign country in criminal cases,167 the mailing requirement problem persists because letters rogatory and MOUs do not supersede domestic laws. As described above, letters rogatory and MOUs must operate through the already-existing procedural rules of each country.

In the United States, then, fulfilling the mailing requirement through interId.

160 Id. at 3.

161 William Thomas Worster, Between a Treaty and Not: A Case Study of the Legal Value of Diplomatic Assurances in Expulsion Cases, 21 MINN. J. INT’L L. 253, 289 (2012).

162 See Geoffrey T. Willard, The Protection of Computer Software in the People’s Republic of China: Current Law & Case Developments in the “One-Copy” Country, 14 J. MARSHALL J. COMPUTER & INFO. L. 695, 712–16 (1996).

163 The 1995 Agreement Regarding Intellectual Property Rights Between China and the United States: Promises for International Law or Continuing Problems with Chinese Piracy?, 4 TULSA J.

COMP. & INT’L L. 169, 177 (1996) [hereinafter Agreement].

164 Id. at 173. As part of this agreement, China enacted new regulations which would allow Chinese trademark officials not only to protect trademarks by Chinese people, but those of foreigners, as well. Id. at 174.

165 Glenn R. Butterton, Pirates, Dragons and U.S. Intellectual Property Rights in China: Problems and Prospects of Chinese Enforcement, 38 ARIZ. L. REV. 1081, 1107–08 (1996).

166 Agreement, supra note 164, at 173.

167 The MLATs between the United States and foreign countries obligate the requested state to serve a subpoena, but some MLATs do not require the requested state to serve a subpoena. Bruce

Zagaris & Jessica Resnick, The Mexico–U.S. Mutual Legal Assistance in Criminal Matters Treaty:

Another Step Toward the Harmonization of International Law Enforcement, 14 ARIZ. J. INT’L & COMP.

L. 1, 51–52 (1997).

107510 JOURNAL OF LAW, ECONOMICS & POLICY [VOL. 10:2

national agreements is not even available for criminal cases because Rule 4(c)(3)(C) requires that a copy of the summons must be mailed to a corporation’s last known address in the United States. Moreover, Rule 4 of the Federal Rules of Criminal Procedure, a federal law, can override an MLAT if Rule 4 is later in time.168 If a treaty and a rule cannot be reconciled, courts observe the long-standing principle that whichever was enacted later in time is deemed controlling.169 Because Rule 4 of the Federal Rules of Criminal Procedure was last amended in 2011, and the last amendment to the specific provision of Rule 4(c)(3)(C) occurred in 2002, Rule 4 of the Federal Rules of Criminal Procedure would likely supersede most MLATs, including the one in United States v. Dotcom.

B. Implications

Obviously, U.S. courts cannot simply ignore the customs of international diplomacy regarding service of process in foreign nations at the risk of blatantly impinging on the territorial autonomy of foreign nations. Neither can courts completely disregard the mailing requirement provided in Rule 4(c)(3)(C), thereby potentially suggesting that courts may simply set aside inconvenient procedures and regulations enacted by Congress.170 Yet, to interpret Rule 4(c)(3)(C) as making service of process impossible by requiring that a copy of the summons be mailed to the defendant at a U.S.





address, without alternatives, would produce unintended consequences. A strict interpretation of the rule would allow online companies such as Megaupload to elude prosecution for online piracy in the United States by merely avoiding the establishment of a U.S. address at which it can be served with a copy of the summons. Although a corporation once required a physical presence in a country to conduct business with the people of that country, with the advent of the Internet, a corporation can now “transact business world-wide in a matter of minutes”171 without ever stepping into the territorial boundaries of that country. The resulting policy would frustrate the enforcement of criminal copyright laws, tying the hands of the government as foreign corporations freely facilitate the infringement of 168 Supp. Mem. for Mot., supra note 159, at 1–2. See 28 U.S.C. § 2072 (“All laws in conflict with [U.S. procedural] rules shall be of no further force or effect after such rules have taken effect.”); Whitney v. Robertson, 124 U.S. 190, 194 (1888) (“By the constitution, a treaty is placed on the same footing, and made of like obligation, with an act of legislation.”).

169 See Cook v. United States, 288 U.S. 102, 119 (1933); Whitney, 124 U.S. at 194; Vorhees v.

Fischer & Krecke, 697 F.2d 574, 575–76 (4th Cir. 1983); see also 28 U.S.C. § 2072(b) (2006) (explaining laws in conflict with changed law are of no further force).

170 See Rebuttal in Supp., supra note 145, at 2.

171 Laura H. Bak–Boychuk. Internet Gambling: Is Avoiding Prosecution in the United States as Easy as Moving the Business Operations Offshore?, 6 SW. J.L. & TRADE AM. 363, 364 (1999).

2014] INNOVATIONS IN CRIMINAL COPYRIGHT INFRINGEMENT 511 movie, music, and other industries’ copyrighted works.172 The United States alone is already losing billions of dollars to copyright infringement, and the losses are growing exponentially.173 Allowing foreign corporations to implement copyright infringement from outside the United States without the prospect of effective criminal sanctions would only aggravate the growing problem.

The United States needs more than mere defensive mechanisms of controlling copyright infringement through online activity. The United States government could potentially control copyright infringement by blocking certain websites and, thus, affecting the flow of visitors to websites that are likely conducting illegal activities.174 Alternatively, the government could require foreign corporations to waive service requirements in criminal prosecution or agree to alternative means of service in order to operate within the United States and service American users.

However, not only is the notion of government censoring of websites reminiscent of a tragic infringement of the American spirit of citizens’ rights and liberty, but the costs of monitoring all websites created that could potentially be participating in copyright infringement are simply too high.175 Moreover, a corporation could easily launch a new website, as they often do, if a prior one is shut down or blocked by the government. For example, Dotcom could easily create, and in fact, already has created, a new filesharing website and continue his infringing practices in the United States if he is not prosecuted due to the government’s inability to satisfy the delivery and mailing requirements.176 In addition, as described above, many of these file-sharing websites have legitimate uses as well as potentially infringing ones. It would be immensely difficult to filter out only the illegal uses, thereby balancing the benefits of continued creativity and international exchange, and the risk of copyright infringement practices. Thus, the United States requires a proactive method of prosecuting foreign criminals who affect American users in order to safeguard the economy and those incentives for creativity that copyright infringement destroys.

172 Opp’n of Mot. to Dismiss, supra note 2, at 7.

173 154 CONG. REC. E2141-01 (Sept. 28, 2008).

174 Laura H. Bak-Boychuk, supra note 172, at 371.

175 Id. at 371–72.

176 See, Lanier Saperstein, Comment, Copyrights, Criminal Sanctions and Economic Rents: Applying the Rent Seeking Model to the Criminal Law Formulation Process, 87 J. CRIM. L. & CRIMINOLOGY 1470, 1587 (1997). On January 19, 2013, Dotcom launched Mega, his new cloud storage website. In the early stages following the launch, the website was reported to have crashed because of the sheer volume of uploads on the website. Kim Dotcom’s Mega fileshare site struggles under massive demand, CBS NEWS (Jan. 22, 2013, 10:45 AM), http://www.cbsnews.com/8301-205_162-57565135/kimdotcoms-mega-fileshare-site-struggles-under-massive-demand/. In fact, Dotcom garners the support of many users of file-sharing sites such as Megaupload.com and has become somewhat of a cult hero. See Jonathan Hutchison, Mogul Goes from Shady to Admired, N.Y. TIMES, July 4, 2012, at B1.

108512 JOURNAL OF LAW, ECONOMICS & POLICY [VOL. 10:2

Perhaps, then, it is time for Congress to provide criminal procedure with a means to catch up with criminal innovations. These innovations in cyberspace are pushing criminal activities beyond the traditional boundaries of criminal activity. The drafters of Rule 4 likely did not anticipate such advancement of online criminal activities. Nevertheless, Rule 2 of the Federal Rules of Criminal Procedure provides that the “rules are to be interpreted to provide for the just determination of every criminal proceeding, to secure simplicity in procedure and fairness in administration, and to eliminate unjustifiable expense and delay.”177 Thus, [the Rules] are merely the means and the instruments by which the purpose of the administration of justice is achieved. The safeguards that surround a defendant are not intended to constitute obstacles and hurdles against conviction of the guilty, but are designed to prevent the possible conviction of an innocent person, or a person whose guilt has not been satisfactorily established beyond a reasonable doubt.178 Surely, legislators did not intend the procedural rules to be an obstacle to prosecuting foreign corporations that commit criminal acts within the United States over the Internet without a physical U.S. address.

Regardless of the current effectiveness of such mechanisms as letters rogatory, MLATs, and MOUs (and perhaps they will become more effective with use), as it stands, Rule 4(c)(3)(C) closes off even the possibility of using those avenues to effectuate service in the future. Criminalizing copyright infringement requires the ability to enforce criminal sanctions through the courts. Criminal sanctions work to deter criminal copyright infringement that civil remedies alone are insufficient to prevent.179 In fact, corporations might regard civil damages as merely another calculable cost of business.180 The ability to prosecute criminal copyright infringers provides the additional protection of incarceration of guilty individuals, preventing them from quickly reentering the market to continue infringing activities as offenders like Dotcom intend to do. Without the ability to enforce criminal sanctions, the effect of the criminalization of offenses would be severely debilitated. Government protestations against copyright infringement by foreign corporations like Megaupload would be all bark and no bite. So long as the government remains unable to reach serious criminal copyright infringers and enforce criminal sanctions for their offenses because of a technical deficiency, the United States will be signaling to foreign copyFED. R. CRIM. P. 2.

178 United States v. Mihalopoulos, 228 F. Supp. 994, 1012 (D.D.C. 1964); see also United States v.

Young, 14 F.R.D. 406, 407 (D.D.C. 1953) (“One of the purposes of the new rules was to abrogate the technicalities which all too often had led to dismissal of indictments and to reversals of convictions on grounds that had no connection with the guilt or innocence of the defendant.”).

179 Saperstein, supra note 176, at 1507.

180 Id.

2014] INNOVATIONS IN CRIMINAL COPYRIGHT INFRINGEMENT 513 right infringers that they may continue their infringing activities from outside the United States without repercussions from its courts.



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