Prior to 1985, some prosecutors charged defendants who violated the copyright statute with a violation of the interstate transportation of stolen property statute, 18 U.S.C. § 2314, on the theory that the intangible copyright interests which were being violated constituted "goods, wares [or] merchandise" which were "stolen, converted or taken by fraud." See 18 U.S.C. § 2314. The Supreme Court rejected this theory in Dowling v. United States, 473 U.S. 207 (1985) and reversed the defendant's conviction for the interstate transportation of copyrighted Elvis Presley records. The Court held that it was not Congress' intention that section 2314 function as a criminalization of copyright infringement. It concluded that an infringer of a copyright neither assumed physical control over the copyright, nor wholly deprived the owner of its use. It concluded that the statute "seems clearly to contemplate a physical identity between the items unlawfully obtained and those eventually transported, and hence [requires] some prior physical taking of the subject goods." Id. at 216.
Although the Court's ruling appears to foreclose the use of section 2314 as a prosecutive option in criminal copyright cases, the Court explicitly reserved the issue of whether section 2314 would apply to cases where the infringer "obtained the source material through illicit means." See id. at 218. Thus, in cases where the underlying copyrighted work is actually "stolen, converted or taken by fraud," § 2314 may still apply. Prosecutors should be alert to this possibility in reviewing criminal copyright cases.