Intellectual Theft: Everything You Need to Know
Intellectual theft is stealing or using without permission someone else's intellectual property.12 min read
Intellectual Theft: What Is It?
Intellectual theft is stealing or using without permission someone else's intellectual property.
Intellectual property is any creative or commercial innovation, any new method that has economic value, or any distinctive mark which might include a name, symbol, or logo that's used in commercial practices.
Intellectual property is protected by patent for inventions, trademarks for commercial marks or branded products, and copyrights on creative pursuits such as music, photo, poems. Intellectual property is protected under state and federal laws.
Intellectual property is commonly abbreviated as IP.
What to Do If You're the Victim of Intellectual Theft
If your intellectual property is used without your permission or is stolen, there are a few paths that you can go down.
Often, the first step to take is to ask the person who is using your intellectual property without permission to stop using your intellectual property. It's possible that the person committed intellectual theft without intending to do so. If this is the case, the person will likely stop using your intellectual property or agree to pay you for your intellectual property.
If asking the person who committed intellectual theft to stop doesn't work, you may have to resort to legal action. Even if you don't actually intend to sue the person who stole your intellectual property, the threat of a lawsuit can often be motivation enough for them to return or stop using the intellectual property.
If you have any concerns about intellectual theft, don't hesitate to reach out to an intellectual property lawyer through UpCounsel's marketplace.
The Purpose of Intellectual Theft
Intellectual theft is quick, easy, and cheap to commit. All that has to happen for a thief to steal intellectual property is to copy someone else's work, idea, or product. Often, the victim might not even know that something has happened.
Because someone else has done all the work, the thief benefits from that work without actually doing anything. It's possible for intellectual property thieves to financially benefit from their theft. This loss of profit can affect the owner of the intellectual property deeper than just a simple theft. It's possible the theft of their intellectual property will cause damage to their reputation or job, or even bodily harm.
Types of Intellectual Property
Because there are many different types of intellectual property, there are many different types of intellectual property theft.
The type of intellectual property that has been stolen will also determine what rights you have in prosecuting the intellectual theft.
Copyrighted material is material that is fixed in a tangible medium and is an expression of creativity. This would include poems, photographs, paintings, software, and books.
What can be trademarked is very limited. The only material that can be trademarked are words, symbols, phrases, or designs that identify a brand.
A patent is given to any new invention. There are three types of patents: utility, design, and plant.
A trade secret is any piece of information that is valuable to a business but is not generally known. This material is kept confidential to preserve economic value.
Protection of Different Types of Intellectual Property
The protection of intellectual property from theft depends upon which type of intellectual property you're trying to protect. Each type has a differing level of protection under the law. Some infringement of intellectual property law is even considered criminal.
A good intellectual property attorney (who you can find on UpCounsel) can help you to figure out the proper recourse for your type of intellectual property and the type of theft.
For any type of stolen intellectual property, the first step is generally to send a cease and desist letter. This letter is the first contact with the intellectual property thief and just lets them know they need to stop using and stealing your intellectual property. An IP attorney can send this letter for you.
The cease and desist letter should specify:
What intellectual property has been infringed upon
The type of infringement
The action necessary to fix the infringement
A time limit for their response and amendment of the situation
Protection of Copyrights
For copyright owners on digital material, you're protected under the Digital Millennium Copyright Act or DMCA.
This law allows the owner of the stolen copyrighted material to send a "takedown" notice to the person who is using the copyrighted material without permission. A takedown notice is similar to a cease and desist letter. The takedown notice can be sent to the owner who is using the material, search engines, and ad networks.
Identifying the owner of a website or the owner who is using the copyrighted material without permission can be very difficult. This may take a lot of research. You may want the help of an intellectual property attorney with experience in this area of copyright infringement.
A WHOIS search may help you to identify the website owner, but can still be complicated. Under the DMCA, an owner fighting copyright infringement may be able to compel a service provider to reveal the identify of the infringer.
Protection of Patents
A patent owner has the sole right to sell and use their patented invention. If someone uses or sells their invention without their permission, that's patent infringement. If you own a patent and believe that someone has been granted a patent that infringes upon yours, you can contact the United States Patent and Trademark Office or USPTO for a Request for Reexamination.
The majority of patent infringement cases will be heard in federal court.
Other Intellectual Property Protection
Some trademarks are registered through the state system while others are registered with the federal government. If a trademark is registered with only one state, the case will be heard in a state court. If it is registered through the USPTO, the case will be heard in federal court.
If a cease and desist letter is ineffective, intellectual property cases can be handled in civil court. An intellectual property attorney can help the intellectual property owner decide if their case should be tried in criminal or civil court.
In civil court, an intellectual property owner fighting infringement can obtain:
An injunction commanding the person to stop using the intellectual property
Compensation for losses from the intellectual property infringement
Intellectual Property Theft Through Piracy
Copyrighted material and trade secrets are the types of intellectual property that are most likely to be involved with cyber crime.
Piracy is a term used to describe digital intellectual property theft. Piracy might involve the theft of software, music, or digital images. Billions of dollars are lost every year to digital pirates and the theft of intellectual property online. This has a major effect on the U.S. economy every year.
When pirates steal intellectual property from companies and then give away or sell that intellectual property, the original creator or owner is losing out on the money from those sales.
Piracy of intellectual property has changed dramatically with the prevalence of technology and digital media. It is now easier than ever to steal or pirate digital intellectual property. Before computers, pirates had to spend time and money copying and distributing materials. With computers, this can now be done in minutes if not seconds.
Anything that can be digitized is now up for grabs for online pirates looking for intellectual property. This is especially a concern for companies who store their trade secrets online. Companies now need to consider how they protect their trade secrets that are online from pirates. The other major difference with sharing online is that anyone can share. Once a trade secret is shared, each person who it was shared with now has the ability to share it with others.
Prosecuting this type of crime is difficult for U.S. law enforcement not only because the perpetrators are hard to identify, but also because the laws are so new. The laws that protect businesses from intellectual property theft are new and difficult to enforce.
Also, it's not uncommon for online pirates to cross international lines. A company may have their trade secrets stolen by pirates in Southeast Asia or Russia. Crossing international lines with intellectual property theft can make prosecution of perpetrators more difficult.
Another concern in the realm of intellectual property theft online is cyberstalking. Stalking is nothing new, but it used to involve following a person around and stalking them to their home and business in the physical world.
Cyberstalking is the stalking of someone online. It's not uncommon for a cyberstalker to find, take, and then release the personal information of the person that they are stalking online.
What Are the Legal Consequences of Intellectual Property Theft?
If you can identify the person who stole your intellectual property and bring them to court, there are some harsh penalties for the crime. The majority of intellectual property cases are tried as federal cases, making them federal crimes.
The possible consequences of intellectual property theft are:
Imprisonment (the length of time depends on the nature of the charges)
Seizure of the stolen intellectual property
Are There Any Defenses to Intellectual Property Theft?
If you are charged with intellectual property theft, there are a few defenses that may help you to not be charged with a crime.
Those defenses include:
Lack of intent: If the person accused of intellectual property theft did not intend or knowingly attempt to steal the intellectual property or use it for personal gain.
Lack of ownership rights: If the person who is accusing another of intellectual property theft didn't have ownership rights over the intellectual property, then they cannot sue for infringement. This would also apply if the material could not be protected under intellectual property laws.
"Unclean hands": This is considered wrongdoing on the part of the person bringing the lawsuit. If that person waited a long time after finding out about the intellectual property infringement before suing, it would be considered "unclean hands."
Fair use: In this defense, the accused intellectual property infringer could claim that the intellectual property was used under the fair use clause. The fair use clause allows for the use intellectual property for education purposes. A fair use defense can be very complicated and would benefit from the help of an intellectual property attorney.
There are other more technical defenses to intellectual property lawsuits, but for those, you'll likely need the help of a trained, experienced intellectual property attorney.
Intellectual Property Rights
Depending upon the type of intellectual property, you'll have different rights. If the rights listed down below are infringed upon, then you may have the right to bring a lawsuit.
With a copyright, you have several rights. These include:
Right to reproduce the work
Right to display the work publicly
Prepare derivative work
Distribute copies of the work
Sell copies of the work
The owner of a trademark has the right to stop others from using a similar or exact mark.
The owner of trade secrets has the right to:
Prevent others from using, copying, or benefiting from the secret.
Stop them from disclosing the secret if the other party has signed a nondisclosure agreement.
Others cannot steal the trade secret or use it if they know the information is protected.
Steps to Identify and Prosecute Intellectual Property Theft
We've discussed through this article what intellectual theft is and what to do, but here we'll identify the step-by-step process for identifying and prosecuting intellectual property theft.
Step 1: In order to prove that your intellectual property has been stolen, you need to establish that the person who stole the intellectual property had access to the material. If the intellectual property is online, it's easy to prove that virtually anyone had access to the intellectual property.
Step 2: Document. The next step if you believe your intellectual property has been stolen is to document the theft. Each time your intellectual property is used without your permission, document it. If the illegal use is online, take screen shots. Capture a screen shot for every day that the intellectual property is used illegally online.
If the intellectual property is being used offline, try to get a copy of the physical material that is being sold or distributed.
Make sure to take note of the date on which you see unauthorized use of your intellectual property.
Step 3: Check the WHOIS website. If someone is using your intellectual property online without your permission, this website can help you to identify who owns the website where your intellectual property is being illegally posted.
The WHOIS directory will hopefully be able to tell you who owns the website domain and provide you with their address, phone number, email address, and IP address.
Step 4: Consider if your intellectual property is being used under the "fair use" clause. The fair use clause allows for the use of intellectual property for educational purposes without the permission of the owner of the intellectual property.
This exception to the rules of intellectual property laws allows for the use of copyrighted works that are "limited and reasonable." To assess if the intellectual property use is protected under the fair use clause, consider these four factors:
The purpose and character of the use — If it was for a non-profit, educational use, it's likely protected. For commercial use or financial gain, it's unlikely to be protected. This also considers if it was used for parody or satire, which might be protected.
The nature of the copyrighted work — There is more leeway to copy from factual works than from creative works.
The amount and substantiality of the portion used — The use of one sentence out of 5,000 words may not be considered infringement, but using an entire photograph likely would be.
The effect of the use on the market where that work is used — If the intellectual property holder loses the ability to sell their work because of the theft and use, it's more likely to be infringement. If the copyright holder's sales aren't affected, it might not be infringement.
Step 5: Determine how much the theft of your intellectual property will cost you. The depth of the financial harm from the intellectual property theft will help to determine how vigorously you pursue the case.
You can sue for lost sales even if your business doesn't show an actual decrease in sales.
Step 6: Send the intellectual property thief a cease and desist letter. If multiple people have stolen your intellectual property, send as many of them as you can identify a cease and desist letter commanding them to stop using your intellectual property.
If the thief doesn't stop using your intellectual property after you've sent the cease and desist letter, it's likely that the use of your intellectual property is intentional.
You can hire an intellectual property attorney to help you craft a cease and desist letter, or you can likely find a sample cease and desist letter online to help you create your own.
Step 7: Contact the police or other authorities. Report the theft of your intellectual property to the police. What qualifies as criminal theft will depend upon the type of intellectual property that has been stolen.
Some intellectual property theft situations are criminal while others are civil. Your case might be heard in state court or federal court, depending on where the intellectual property is registered.
Step 8: Hire an intellectual property attorney. If you're considering filing a lawsuit against the person who stole your intellectual property, you'll likely need the assistance of an experienced intellectual property attorney.
Step 9: Know what you have to prove. Once you've hired an intellectual property attorney, ask them what it is that you will need to prove. To win your lawsuit, you will likely have to provide proof that you own the intellectual property and that it has been stolen or illegally used. What you must prove in an intellectual property case will depend upon the type of intellectual property that has been stolen.
Step 10: If you have not already done so, register your intellectual property. If your intellectual property wasn't yet trademarked or copyrighted with the USPTO, you should do so immediately. The creator of material that is eligible for a trademark or copyright automatically holds the rights to that material even without registration. Registration makes ownership easier to prove even if it happens after the intellectual property theft or infringement.
List of Resources for Intellectual Property Theft
If you find yourself the victim of intellectual property theft, there are many resources out there that can help you to figure out what your next steps are. Those resources include:
For theft or piracy of patented and copyrighted material such as videos, software, and sound recordings:
For counterfeiting of trademark:
For counterfeiting of drugs:
For theft of trade secrets:
Other places to report intellectual property theft:
Frequently Asked Questions
Should I hire a lawyer to help with my intellectual property infringement?
The laws of intellectual property are complex, and there are strict penalties for violation of the laws. An intellectual property attorney can make identifying and prosecuting intellectual property theft much easier on you. An intellectual property attorney can also help you to decide whether it's worth taking your case to court.
Is theft of intellectual property a crime?
Yes. Under most circumstances, the theft of intellectual property is a crime. Theft might also be a civil crime or a criminal crime.
What are patent trolls?
Patent trolls are companies that don't produce anything but buy and sell patents for profit. For inventors, this might be a benefit as they get to make a profit by selling their patents. The problem with patent trolls is that some of them "troll" or sue small companies for patent infringement when the company has done nothing wrong and doesn't have the funds to defend themselves.
If you need help with theft of your intellectual property, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio.