November 3, 2008
Is It Civil Or Is It Limited to Criminal - Beyond RICO and FCPA
A interesting issue is presented in the Chronicle of Higher Education, Harvard Law Professor Takes New Tack Against RIAA (citing Jaikumar Vijayan, Computer World, Harvard professor offers new challenge to RIAA antipiracy campaign -Nesson claims Digital Theft Act, on which RIAA lawsuits are based, is unconstitutional) on whether the Digital Theft Act as used in a civil lawsuit is improper because the statute is limited to criminal matters.
Years back the issue would not have arisen as the overlap between criminal and third-party civil statutes did not exist. With the Racketeer Influenced & Corrupt Organization Act (RICO) in 1970 we have seen statutes that allow for both criminal and civil enforcement, with the civil enforcement being extended beyond a government agency. The rationale for these civil actions being allowed is that DOJ can't do it alone and allowing third -party civil actions can assist with enforcement. This was appealing with RICO because its initial focus was organized crime. But RICO was interpreted broadly and went well beyond its roots and with it went the third-party civil actions. DOJ had and continues to have guidelines that restrict application of the statutes by providing oversight on prosecutorial discretion. There are, however, no guidelines on the civil side. This caused Congress to place additional limits on the civil side of RICO as seen in 18 U.S.C. 1964(c).
Other criminal statutes have seen attempts to be used in civil matters, such as the Foreign Corrupt Practices Act. In Lamb v. Phillip Morris, Inc., 915 F.2d 1024 (6th Cir. 1024), the court did not allow the civil action. (See also Lewis v. Spock, 612 F. Supp. 1316 (N.D. Cal. 1985)). Interestingly, one finds civil RICO actions that use the FCPA.
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