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FISHING FOR EVIDENCE IS LAWFUL
Before embarking on infringement suits or set-tlement negotiations, intellectual property rights holders often send personnel to pose as buyers and purchase infringing products from alleged infringers, for use as evidence. This is referred to as "fishing" for evidence. Whether this method of collecting evidence is lawful, and whether, therefore, evidence so collected is admissible in court proceedings, has been highly disputed in practice. In a 2004 criminal judgment in a copyright infringement case, the Supreme Court elucidated the difference between "fishing" and "entrapment," and stated that evidence obtained by "fishing" was not in principle inadmissible.
The Court stated that "fishing," as a technique of criminal investigation, referred to the practice of presenting an enticement to a person who had already committed a criminal offense or intended to commit one, so that the person revealed evi-dence of his criminal actions, and could then be arrested or prosecuted. By contrast, "entrap-ment" referred to a situation in which the person concerned had no prior criminal intent, and was motivated to commit an offense purely by the encouragement of law enforcement officers. "Fishing" was entirely within the bounds of criminal investigation techniques. It did not violate the Constitution's protection of basic human rights, and was necessary in order to uphold the public interest. Therefore evidence obtained by "fishing" was not in principle inad-missible in court proceedings.
In contrast, "entrapment" was an improper means of enticement or incitement to commit an offense, by which a person who previously had had no criminal intent was motivated to commit an offense, for which he was then arrested and prosecuted. This was a clear violation of the Constitution's protection of basic human rights, exceeded the necessary scope of criminal inves-tigation, and made no significant contribution to upholding the public interest. Therefore the Court considered evidence obtained by such means to be inadmissible.