Possibly. Federal law and many state laws make it a crime to copy intellectual property without permission. Luckily, while you may be liable for civil damages even if you had no idea you were infringing someone else’s intellectual property, the prosecutor typically has to prove some type of intent before you can be sent to prison.
Iowa law is very vague as to what constitutes criminal intellectual property infringement:
714.26 INTELLECTUAL PROPERTY COUNTERFEITING.
1. Definitions. As used in this section unless the context
otherwise requires:
a. “Counterfeit mark” means any unauthorized reproduction or copy
of intellectual property, or intellectual property affixed to any
item knowingly sold, offered for sale, manufactured, or distributed,
or identifying services offered or rendered, without authority of the
owner of the intellectual property.
b. “Intellectual property” means any trademark, service mark,
trade name, label, term, device, design, or word adopted or used by a
person to identify the items or services of the person.
c. “Retail value” means the highest value of an item determined
by any reasonable standard at the time the item bearing or identified
by a counterfeit mark is seized. If a seized item bearing or
identified by a counterfeit mark is a component of a finished
product, “retail value” also means the highest value, determined by
any reasonable standard, of the finished product on which the
component would have been utilized. The retail value shall be the
retail value of the aggregate quantity of all items seized which bear
or are identified by a counterfeit mark. For purposes of this
paragraph, reasonable standard includes but is not limited to the
market value within the community, actual value, replacement value,
or the counterfeiter’s regular selling price for the item bearing or
identified by a counterfeit mark, or the intellectual property
owner’s regular selling price for an item similar to the item bearing
or identified by a counterfeit mark.
2. Criminal offense. A person who knowingly manufactures,
produces, displays, advertises, distributes, offers for sale, sells,
possesses with intent to sell or distributes any item or knowingly
provides service bearing or identified by a counterfeit mark commits
intellectual property counterfeiting.
a. A person commits intellectual property counterfeiting in the
first degree if any of the following apply:
(1) The person is manufacturing or producing an item bearing or
identified by a counterfeit mark.
(2) The offense involves more than one thousand items bearing or
identified by a counterfeit mark or the total retail value of such
items is equal to or greater than ten thousand dollars.
(3) The offense is a third or subsequent violation of this
section.
Intellectual property counterfeiting in the first degree is a
class “C” felony.
b. A person commits intellectual property counterfeiting in the
second degree if any of the following apply:
(1) The offense involves more than one hundred items but does not
involve more than one thousand items bearing or identified by a
counterfeit mark or the total retail value of such items is equal to
or greater than one thousand dollars but less than ten thousand
dollars.
(2) The offense is a second violation of this section.
Intellectual property counterfeiting in the second degree is a
class “D” felony.
c. All intellectual property counterfeiting which is not
intellectual property counterfeiting in the first degree or second
degree is intellectual property counterfeiting in the third degree.
Intellectual property counterfeiting in the third degree is an
aggravated misdemeanor.
3. Evidence. Any state or federal certificate of registration of
any intellectual property shall be prima facie evidence of ownership
of the intellectual property in dispute.
4. Seizure and disposition. Any items bearing or identified by a
counterfeit mark, and all personal property, including but not
limited to any items, objects, tools, machines, equipment,
instrumentalities, or vehicles used in connection with a violation of
this section, shall be seized by any law enforcement agency.
a. All seized personal property shall be disposed of in
accordance with section 809.5 or as provided in paragraph “b”.
b. Upon request of the intellectual property owner, all seized
items bearing or identified by a counterfeit mark shall be released
by the seizing agency to the intellectual property owner for
destruction or disposition. If the intellectual property owner does
not request release of the seized items, the items shall be destroyed
unless the intellectual property owner consents to another
disposition.
Even if you are breaking a law against copying intellectual property infringement, you still have to run into a prosecutor with the knowledge, skill and motivation to pursue the case. Typically, prosecutors steer clear of intellectual property cases. Some find them too difficult, some find them dull, but most just find their days so packed with run-of-the-mill criminal cases, they find no need to go looking for unusual cases.
Be aware though, when prosecutors do take on these cases, they pursue them aggressively. In Iowa, the penalty for being found guilty of counterfeiting intellectual property can be up to ten years in prison. While the courts typically reserve long prison sentences for those who infringe multiple times, infringing activities online can easily constitute the requisite damage amount and quantity of infringements zealous prosecutors seek to pursue. If you have any questions regarding intellectual property infringement online, contact a knowledgeable intellectual property attorney BEFORE taking any action that could land you in prison for a very long time.
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