A year in jail for buying a fake purse?

[magickyleo101]

The New York Times is reporting on a proposed NYC law which would make purchasing counterfeit bags illegal and impose up to a year in jail (or $1,000 fine, or both) on those caught.

But Councilwoman Margaret S. Chin, whose district includes Chinatown, plans to introduce legislation on Thursday that would make it the city’s business as well. Ms. Chin’s proposed bill would make it a misdemeanor to buy fake designer merchandise. If the bill passes, violators like Ms. Whitam could face a $1,000 fine, a year in jail, or both.

Now, normally I'm a pretty strong supporter of intellectual property, and I've supported in these forums proposals to impose criminal penalties on software piracy, etc. However, I think it's important to keep in mind the purposes behind recognizing intellectual property when you're talking about stuff like fashion.

Generally, intellectual property is justified on the grounds that it encourages people to develop new ideas: The idea is that if we give someone the exclusive use of their idea for a limited time, people will be encouraged to research new ideas and bring existing ideas to fruition. Everyone benefits because there are more ideas in society at large, and those benefits justify the costs society incurs in the course of enforcement.

But the critical assumption here is that the ideas we're giving people an incentive to develop are the kinds of ideas that society benefits from having more of. That assumption holds when you're talking about things like computer software car designs - technology progresses and encouraging new designs moves the field as a whole forward (e.g. compare Total-War to Packman, or the Model-T to a modern car).

But when you talk about new purse designs it's not nearly so clear that there's any kind of meaningful "progress" to be encouraged. Sure, people come out with new purse designs, and that's cool, but it's not in any way obvious that new purse designs create enough positive external effects to justify the cost society bears in recognizing and enforcing that sort of intellectual property rights. Certainly, it's not clear that society benefits enough from new purses to justify the cost of incarcerating people for a year.

In other words, my point here isn't that there shouldn't be any protections for purse designs, but that not all property is created equal and not all property deserves the same level of aggressive protection.

In any case, thoughts?

[skh1]

How would this be enforced?
"Honestly, your Honor, I thought it was the genuine article. The guy who sold it to me said it was."

Like the courts need this.

[magickyleo101]

How would this be enforced?
"Honestly, your Honor, I thought it was the genuine article. The guy who sold it to me said it was."

The jury can look at circumstantial evidence to infer knowledge. If the purse is going for $10 and the normal market price is $1,000, the jury will assume (as will the prospective buyer) that it's fake and that both parties to the transaction know it's fake.

Besides, to mount the "I didn't know" defense you have to take the stand and waive your 5th amendment rights. The prosecutor will get to cross examine you and the jury is going be pissed off by the fact that you would take the stand and lie so shamelessly.

[skh1]

Go after the wholesalers and the retailers and leave the rubes alone.

[skh1]

The jury can look at circumstantial evidence to infer knowledge. If the purse is going for $10 and the normal market price is $1,000, the jury will assume (as will the prospective buyer) that it's fake and that both parties to the transaction know it's fake.

Besides, to mount the "I didn't know" defense you have to take the stand and waive your 5th amendment rights. The prosecutor will get to cross examine you and the jury is going be pissed off by the fact that you would take the stand and lie so shamelessly.

A jury trial? For a misdemeanor like this? Let's see, I'm the court. Will I:
1. Blow a whole day on a jury trial deliberating over a $10 Louis "Buitton" hand bag for what is likely to be a first offense anyway
or
2. Offer a plea bargain down to a citation and move on to more important stuff

By all means, confiscate the crap at the ports of entry, bust the wholesalers and the retailers and enforce intellectual property rights with the full rigor of the law. But do it intelligently, effectively and as cheaply as possible.

Another useless law from a local pol.

[nameless]

The jury can look at circumstantial evidence to infer knowledge. If the purse is going for $10 and the normal market price is $1,000, the jury will assume (as will the prospective buyer) that it's fake and that both parties to the transaction know it's fake.

Besides, to mount the "I didn't know" defense you have to take the stand and waive your 5th amendment rights. The prosecutor will get to cross examine you and the jury is going be pissed off by the fact that you would take the stand and lie so shamelessly.

What about if the guy got ripped and he ended up paying the actual market price for it but actually bought the fake one?

[magickyleo101]

I think at the end of the day what we are seeing here is capitalist interest at its finest..it seems to me that in a judicial system that already takes years to bring serous offenders to trial there is a real need to reassess priorities...and as someone pointed out...there are few people out there that consciously buy knock offs..

Agreed. My guess is that this has far less to do with sound economic policy, and far more to do with someone from the purse companies knowing city officials.

A jury trial? For a misdemeanor like this? Let's see, I'm the court. Will I:
1. Blow a whole day on a jury trial deliberating over a $10 Louis "Buitton" hand bag for what is likely to be a first offense anyway
or
2. Offer a plea bargain down to a citation and move on to more important stuff

By all means, confiscate the crap at the ports of entry, bust the wholesalers and the retailers and enforce intellectual property rights with the full rigor of the law. But do it intelligently, effectively and as cheaply as possible.

Another useless law from a local pol.

You'd be surprised the stupid stuff they try. Here in Texas you can get a jury trial on your speeding ticket (in fact, my friend is going to let me try his as soon as my bar exam is knocked out). Besides, a year in jail is a pretty serious misdemeanor [in fact, as serious as it can get], which means that someone's taking this purse business (too) seriously.

What's the legal term for guilty mind? Doesn't a prosecutor have the burden to prove guilty mind? I know that there are exceptions, like having sex with a minor..but buying a purse?

Mens rea. The prosecutor has to prove it, but it can be inferred from the circumstances (like the fact that you were in an alleyway, talking softly, and buying the purse for $10).

What about if the guy got ripped and he ended up paying the actual market price for it but actually bought the fake one?

Then there's no crime (unless they write the law to be strict liability). A defendant would probably have to know that it's a fake (again, haven't read the proposed law, but that's generally how these things work).

[MathiasOfAthens]

The jury can look at circumstantial evidence to infer knowledge. If the purse is going for $10 and the normal market price is $1,000, the jury will assume (as will the prospective buyer) that it's fake and that both parties to the transaction know it's fake.

Besides, to mount the "I didn't know" defense you have to take the stand and waive your 5th amendment rights. The prosecutor will get to cross examine you and the jury is going be pissed off by the fact that you would take the stand and lie so shamelessly.

As if the woman will keep a receipt. Yeah I paid 10 bucks for this knock off... heres my receipt.

No way to prove how much she bought the purse for unless cops are planning stings on craigslist. Wow I can imagine it now. A Counterfeit unit within NYPD whose job is to post ads on craigslist advertising a cheap purse... they then meet the person in some alleyway and say clearly its a counterfeit before arresting the woman. Yay thats brilliant. Arresting people for buying purses.

Odds are people will get fines instead of jail.

[magickyleo101]

Unless you are stupid it is almost impossible to prove that you were buying a fake article while knowing that it was a fake. The dark alley scenario rarely applys and usually fake articles will be found during customs control.
Depending on the situation you can claim for example that you just wanted to buy a cheap article but that you didn't pay any attention to the brand and thus didn't know that it was in fact a fake. If the brand is too famous so that you can't reasonably claim that you don't know it you'd just claim that you got ripped off.

Italy has a similar law and ironically it seems that ironically buying fakes isn't illegal unless you think that it is a REAL product.

In the end it's a lot of targeting the wrong people.

As if the woman will keep a receipt. Yeah I paid 10 bucks for this knock off... heres my receipt.

No way to prove how much she bought the purse for unless cops are planning stings on craigslist. Wow I can imagine it now. A Counterfeit unit within NYPD whose job is to post ads on craigslist advertising a cheap purse... they then meet the person in some alleyway and say clearly its a counterfeit before arresting the woman. Yay thats brilliant. Arresting people for buying purses.

Odds are people will get fines instead of jail.

It's important to note here that evidence isn't some magical body of law where the normal powers of reasoning are suspended. A judge or jury is going to reason exactly like you would on the street. How do I know a woman's purse is fake? She said she bought it for $10. How do I know she knows it's fake? She said she bought it for $10.

Granted, the woman can get on the stand and insist she thought it was real, but she (a) probably isn't a very convincing liar (most of us aren't), and (b) the prosecutor will get to cross examine her.

Intellectual Property is virtually non-existant in Fashion industry. Designers copy each other all the time and cheap brands copy last year's "in" styles all the time.

But, I don't this NYC law is based off intellectual property but rather Fraud. Aren't these fake purses knock-offs that have a brand label and the trademark but are not from the actual maker?

To me that seems more like fraud issue than an intellectual property issue.

Either way I don't support making it a crime to *buy* the fraudulent product.

It should only be a crime to sell it.

Interesting theory. I doubt you'd actually have fraud in most cases, because it requires that the victim actually buy your story (and in most cases that's not the case). And I do find it interesting that most intellectual property in fashion centers around logos and trademarks (which are among the hardest pieces of intellectual property to justify).

[ShADoW]

Don't buy designer items/brands from Chinatown

[Banana Jelly]

Bullcrap.

I don't even support criminal penalties for internet piracy at all.

And this is just pushing it.

If it's fake, then he BOUGHT what he got (a cheap peice of crap that will probably be ruined in a month). People will know it's not genuine, and all the like.

[Chukada1]

Bullcrap.

I don't even support criminal penalties for internet piracy at all.

And this is just pushing it.

If it's fake, then he BOUGHT what he got (a cheap peice of crap that will probably be ruined in a month). People will know it's not genuine, and all the like.

They actually aren't really that fake.

Its the same damn purse.

[Chevalier IX]

I think at the end of the day what we are seeing here is capitalist interest at its finest..it seems to me that in a judicial system that already takes years to bring serous offenders to trial there is a real need to reassess priorities...and as someone pointed out...there are few people out there that consciously buy knock offs..

[Banana Jelly]

Jury trials:

Each member of the jury gets around 50 dollars for there work.

50x12 juries.

$600. Plus prosecution fees paid by government (meaning their salary type), plus the money it took to get evidence. All the good stuff. Court fees.

JAIL TIME: 1 year. How much does it cost the government? Around $20,000.

Problem in case? A 10 dollar handbag.


Think about that for a minute.

[xcorps]

What's the legal term for guilty mind? Doesn't a prosecutor have the burden to prove guilty mind? I know that there are exceptions, like having sex with a minor..but buying a purse?

[Exarch]

this is my official response: off

[Menelik_I]

this is my official response: off

^This

Does the ing brands have a monopoly on people buying their items or something ?

If someone is retarded enough to buy an ostensibly fake purse so be it, if some is willing to spend 10$ for it he wasn't willing to buy the 100000$ one at all for the real deal.
@Finnduil:

Capitalism is the new Yeti, always talk about and never seen.

[jo the greek]

I am all jail in that way

[Visna]

I think it would make a lot more sense to spend valuable ressources going after the manufacturers, importers, sellers etc, and leave the ones who buy a "Chanel" purse, "Nike" running shoes or a "Rolex" watch for their own personal use alone.

[Finnduil]

Is this a surprise? Having retardedly harsh sentences for minor crimes greatly profits the prison industry and also provides free labor for the prison corporations. This seems to be especially prevalent in the US. That's capitalism for you, baby.