This post elaborates on the concept of criminal theft of IP, which I discussed at length in a with respect to software code, in the form of scientific research. In laboratory science, it is customary to keep a , which details all research conducted, including methodologies, applied results, and interpretations. The notebooks are the ultimate reference for raw, unaltered data, and are essential for troubleshooting and the transfer of knowledge within labs between experiments. Upon leaving a lab, graduate students and lab technicians typically leave their notebooks in the lab of the principal investigator (PI), who is the recipient of grant funding for the research project. However, the question of IP ownership becomes murkier when the PI is the individual looking to take possession of their notebooks and materials upon leaving an institution, .

With available in North America for public research, scientists are very secretive and protective of their results, as they are all striving to publish novel, groundbreaking work and posture themselves to procure funding. Thus, it stands to reason that Dr. Mikovits would want to take her work with her so that she could continue to continue her progress and publish her results elsewhere. However, in instances of potential IP theft, is the criminal court the proper venue for these matters?

The State of Nevada has suggested, despite Dr. Mikovits’ initial arrest, that no, these matters should be resolved by civil action. However, it has been suggested that the prosecutors withdrew the charges as a result of the of the CEO of WPI. Thus, the question of the criminality of such alleged IP theft may come up again in the future, particularly with the of the realm of science that is the result of scarce funding.

Even in Dr. Mikovits’ case, it is unclear that the criminal charges should have been withdrawn seven months after the charges were laid. Despite being a leading investigator, she was the employee of a research institution, relying heavily on their staff and equipment (not to mention the salary that she was paid). Although she should be afforded some sort of protection for her time and work, institutions should have guarantees as well. Most public research grants are administered to the individual under the condition that they are that moderates the funding process. Thus, the institution retains partial control of what is ultimately government-funded research. It is that researchers make publicly funded research available to the public-at-large, and the institution cannot ensure this if they do not remain in control of the data collected.

With respect to the factual nature of the criminal allegations, the charges in the present matter may have been dropped due to a technicality in what was already sure to be a complicated and landmark criminal matter. Dr. Mikovits did not personally remove the notebooks detailing her research, but had a . Should this factor into the concept of theft? Is “counseling to commit intellectual property theft” too far beyond the scope of what the criminal laws should regulate? These are questions that have not yet been answered in the courts, and are a minutia of the bigger issue of IP theft in science.

Whether criminal courts are the proper venue for IP theft is still open to interpretation, and unfortunately, without a trial and judicial reasons, this matter does little to contribute to the criminal jurisprudence of IP theft. However, the results of the will be particularly interesting to follow, as there are various interests at stake, namely: WPI (the institution), Dr. Mikovits (the researcher), and NIH (the government funding agency). The balancing of interests may set an important precedent and guidepost for how scientific research is both conducted and funded in the future, as this IP discourse between an institution and a former researcher is unprecedented.

Ryan Heighton is a JD candidate at Osgoode Hall Law School.

The post For Your Eyes Only: American Science Scandal Brings Possession of Scientific Data to Forefront appeared first on IPOsgoode.

This case is particularly unique due to the criminal context. Typically, matters involving software code theft result in . However, after Aleynikov resigned to join a similar start-up company and was found to have copied sections of “High-Frequency Throughput” software code (which facilitates automated, high-speed stock trading), Goldman used their stature to involve the FBI. Aleynikov was arrested for theft, resulting in a federal conviction and 97-month prison term. Despite this conviction and that his contract strictly prohibited the transfer of data, which became the IP of Goldman upon creation by Aleynikov, the appellate court deemed the code “purely intangible property…beyond the scope of the [criminal theft legislation].”

In Canada, Roman Cisar recently suffered as Aleynikov, when he was sentenced to 30 months in prison for a similar software code theft from a former employer. However, in Cisar’s case, he utilized the code stolen from his relatively small-time employer to directly undercut their business through the creation of his own, while Aleynikov was only found to have copied the Goldman code for “personal use.” It is clear through these trial judgments that the courts are trying to develop criminal IP jurisprudence to protect companies from employees committing opportunistic digital thievery. Contrary to this end, by overturning the Aleynikov conviction under the premise that the code was not physical property, the Court deemed code as beyond the scope of criminal theft, leaving it to the realm of IP legislation. Thus, in future cases (e.g., the inevitable Cisar appeal), the role of the courts will be to establish whether such IP should be protected with criminal consequences.

A problem lies in the nature of the property being “stolen” and the scope of criminal laws against theft. Due to the nature of virtual data and the wording of legislation, it seems that the US Appellate Court made the correct ruling in Aleynikov. Unauthorized copying does not equal theft, as the copying of the code did not exclude the original owner from usage. With respect to Cisar (reasons of the court yet to be published), adoption of an intangible perspective of source code, should rule out criminal charges under . Copying the code did not preclude usage of the original company, which is a defining feature of criminal theft. Although it could be argued that unauthorized copying causes economic detriment to the companies employing the code, it is still very difficult to argue that this type of IP can be subject to theft, as the Court made clear in Aleynikov.

There is limited criminal recourse if theft is unavailable to the Crown. Generally, industrial software code is not truly protected by copyright, as it would require disclosure of , rendering ineffective. Moreover, s. 42 of the Copyright Act typically applies criminal recourse to , which was not evident in either Aleynikov or Cisar. Limited criminal action may be permitted through s. 430 criminal mischief if the copying of the code is used such that it causes egregious detriment to the violated party. However, the Criminal Code does not serve to protect exclusively abstract economic interests and applying it as such is inconsistent with the application of the Code. Furthermore, due to the higher standard of proof in criminal cases and the lack of economic restitution to the wronged party, civil suits are a more favourable recourse.

Certainly unfaithful acts such as those committed by Aleynikov and Cisar should be subject to civil lawsuits and potential remedies for lost profits or similar losses as a result of the usage of the code (in addition to contract breach, if applicable), but the nature of the software code as intangible property should preclude criminal action. If the courts are going to trend towards imposing criminal penalties on these types of IP incidents, it is essential that the legislature update statutory definitions of property and its theft to reflect the changing nature of property in the digital age.

Ryan Heighton is a JD candidate at Osgoode Hall Law School.

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