October 23, 2018

Intellectual Property & Computer Crimes, Release 17

The 17th update to my book, Intellectual Property & Computer Crimes, was just released.  It features an analysis of a recent Ninth Circuit case brought under section 1030(e)(6) of the Computer Fraud & Abuse Act.  In United States v. Nosal, the Ninth Circuit considered whether an employer’s use restrictions should define when an employee “exceeds authorized access,” under the CFAA or whether a prior Ninth Circuit decision,  LVRC Holdings LLC v. Brekka, required dismissal on the ground that an employee does not exceed authorized access to a computer by accessing information unless the employee has no authority to access the information.  The Ninth Circuit also addressed defendant’s assertion that the government argument would lead to an “Orwellian situation” that will “make criminal out of millions of employees who might use their computers for personal use.”  The Ninth Circuit’s ultimate holding serves as a reminder to employers to draft policies outlining those activities which constitute authorized access to the company’s computers and those which are prohibited.

Other topics addressed in the Release include:

Application of the defense of copyright misuse in the civil arena.

Whether using a password or security code to access a copyrighted work, even without authorization, constitutes “circumvention” under Section 1201(a) of the DMCA.

Where the anti-circumvention provisions of the DMCA require a connection between the technological measure circumvented and a protected copyright interest, whether that nexus is limited only to proof of actual infringement.

Appellate court’s adoption of a broader definition of copyright management information under section 1202 of the DMCA.

Report to Congress from the office of the National Counterintelligence Executive highlighting the risks posed to U.S. companies and the U.S. economy from economic espionage in cyberspace committed by foreign governments and agents.

Different standards for finding a violation under the Economic Espionage Act Act and Uniform Trade Secrets Act.

Advantages for government and private litigants from parallel civil and criminal trade secret proceedings.


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