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Author: Irina Manta


Are Federal Criminal Sanctions for IP Infringement Unconstitutional? (Part 3)

This post will conclude my time as a guest blogger here. Thank you so much to Frank Pasquale and all the others for allowing me to write in such fine company!

In Part 1 and Part 2, I discussed the early constitutional history and the Supreme Court’s jurisprudence on the topic of federal criminal law. In this post, I would like to explore the issue from the angle of IP and introduce the possibility that there may be constitutional concerns including due process problems with our current criminal sanctions for IP infringement.

In 2006, Prof. Margaret Lemos published a provocative paper in the Texas Law Review entitled “The Commerce Power and Criminal Punishment: Presumption of Constitutionality or Presumption of Innocence?”. In it she argued that Congress is able to circumvent the due process obligation that every fact that exposes an individual to criminal punishment be proved to a jury beyond a reasonable doubt. She wrote that recent Commerce Clause jurisprudence (which by 2006 meant everything including the Raich case, though the trend continued in Comstock and Kebodeaux) allows Congress to find the facts itself as a general matter rather than requiring each to be proven to a jury case-by-case. The Supreme Court has largely assumed that the connection between an individual’s conduct and interstate commerce can be decided the same way in civil as in criminal cases, and so the criminal Commerce Clause cases use the civil Commerce Clause cases as precedent with little distinction.

Margaret cited Raich as one of the paradigmatic examples of this because there was no evidence that the defendants in the case were using marijuana that entered interstate commerce, and much less was this established beyond a reasonable doubt. She also pointed out that when Congress incorporates an explicit statutory presumption of a certain fact, the courts will test whether this conforms to the presumption of innocence, but categorical prohibitions based on legislative findings are treated to the presumption of constitutionality, which is rather puzzling. Read More


Are Federal Criminal Sanctions for IP Infringement Unconstitutional? (Part 2)

This post continues the discussion I began in Part 1 of the cases that have involved or related to the Supreme Court’s criminal law jurisprudence.

By the time the 1930s rolled around, Congress confidently criminalized a wide variety of activities, and expansion of the federal criminal law was thus well on its way before the beginning of the New Deal. The Supreme Court did begin taking a more lenient approach toward federal economic regulation beginning in the 1930s than it had previously. In Wickard v. Filburn, the Court famously upheld a regulation that limited a farmer’s ability to grow wheat for home consumption because the aggregate impact of farmers doing so would have a sufficient effect on the interstate market that the Court deemed the law to be constitutional. At that time, however, Congress preferred to enact federal crimes for which “under the facts of the particular case, a nexus was shown between the act and interstate commerce”, hence involving a so-called jurisdictional hook, rather than provisions based on the interstate effect of pooled local activities.

The Court, however, gave a fairly high degree of latitude to Congress when interpreting the connection to commerce, ruling for example in Perez v. United States that Congress could criminalize improper intrastate credit transactions without showing an effect on interstate commerce in every case. The Supreme Court thus did not put up too many obstacles in Congress’s path until the United States v. Lopez case.

In Lopez, the Supreme Court held that the criminalization of possession of a firearm near a school did not substantially affect commerce.  While the government tried to show a relationship between violent crime and interstate commerce, the Court remained unconvinced, noting in part the lack of congressional findings on the matter. It appeared in some ways that Lopez represented a break with the Court’s reluctance to interfere with congressional decisions concerning criminal law, but recent cases have shown that the Court continues to grant a high degree of congressional latitude in this area. Read More


Are Federal Criminal Sanctions for IP Infringement Unconstitutional? (Part 1)

One of the main themes in my scholarship has been the use of criminal sanctions for IP infringement. I first examined in an article entitled “The Puzzle of Criminal Sanctions for Intellectual Property Infringement” why we have criminal sanctions in copyright and trademarks but not patents and discussed the utilitarian (meaning mainly economic) as well as public choice factors that have led to the current state of affairs in the U.S. and elsewhere. More recently, I wrote a paper entitled “The High Cost of Low Sanctions” in which I analyzed why low sanctions for otherwise bad laws and proposed bills can actually be worse than high sanctions. An area of focus of that discussion was criminal sanctions in IP as well.

I recently began questioning, however, whether there is a more general problem with such sanctions, which is their constitutionality. I would like to spend my remaining time on Concurring Opinions introducing some of the potential issues to consider in this context. In the first part of his post, I would want to introduce some of the background to the Constitution’s and Supreme Court’s treatments of federal criminal sanctions. Read More


13 Ways to Steal a Bicycle, But How Many to Steal a Song?

I was recently asked to review Stuart Green’s new book “13 Ways to Steal a Bicycle: Theft Law in the Information Age” for The IP Law Book Review, and I just posted the near-final draft of my review. Stuart’s goal is to provide a comprehensive overview of theft law over the centuries and to expose its key tensions and inconsistencies. His main thesis is that the consolidation of theft law has led to the discarding of important moral distinctions, and that theft law has therefore taken problematic steps toward throwing the baby out with the bath water. I highly recommend that anyone interested in the subject read Stuart’s book.

One of the most complex issues that Stuart tackles is whether and when IP infringement constitutes theft. I would like to discuss here one of his examples that I also cover in my review. Read More


Musings on Rhetoric and Labeling in the Post-Snowden Era (Part 2)

In the days since my last post, we have seen more news pieces likening the U.S. to George Orwell’s novel 1984 and also ones suggesting that large-scale surveillance is potentially used in the name of not only terrorism prevention but also the war on drugs.

To follow up on the first part of my post, here are some things we should consider to determine whether labels like “surveillance state” are useful:

-          Some “privacy moderates” think that civil libertarians are paranoid about the risks of government surveillance and that they display hysteria in their speech as a result. Some civil libertarians think that privacy moderates are paranoid about the risks of terrorism and that they display hysteria in their speech as a result. Rhetoric that veers into hyperbole can exacerbate the chasm between the two groups.

-          At the same time, strong labels make people pay attention who otherwise would not. One of the big concerns of civil libertarians is that, even once disclosed, government interventions are extremely difficult to roll back, such as seen recently in the refusal of the House of Representatives to constrain the power of the NSA. This is one of the reasons that civil libertarians would argue for restraint in the first place. Hence, having the public pay attention and intervene early is critical. Meanwhile, surveillance advocates would state that because death is irreversible, missing out on useful information that surveillance would yield is not a chance that we can take (cf. Governor Chris Christie’s recent attack on civil libertarians and his invitation to have them come visit the widows and orphans of 9/11). Read More


Hello and Musings on Rhetoric and Labeling in the Post-Snowden Era (Part 1)

Thank you to Frank and the rest of the crew for having me this month! I look forward to using this space to share some of my recent scholarship with you as well as my thoughts on other topics that have been on my mind.

In the latter category is a series of discussions I have observed lately on the topic of political rhetoric on civil liberties. In the months following the incidents culminating in the revelations of Edward Snowden about the level and methods of NSA surveillance, two camps have notably emerged. The first warns that even those who oppose the NSA’s activities should avoid using overly strong language to condemn the actions of the United States. For instance, some commentators deride the application of the “Orwellian” label to America today, which follows in the footsteps of a long-standing tradition of debate about the term. Along those lines, others have warned against designating the United States as a “police state” because this implies moral equivalence to countries like North Korea or Cuba. Meanwhile, the second camp in the conversation blasts “privacy moderates” who refuse to embrace strong rhetoric and “contrive frames that enable them to criticize both the surveillance state and its antagonists”.

To some extent, rhetoric and substance become difficult to disaggregate on this topic as on many others. The binary nature of labels like “police state” or “surveillance state” is, unsurprisingly, fairly illusory in that the extent of government actions that give rise to these labels lie on a spectrum. Two of the questions that strike me as relevant and interesting in examining the application of these terms to America today is 1) whether they are true and 2) whether they useful.

On the first point, and focusing on the “surveillance state” aspect rather than other attributes that may or may not justify the label of “police state”, I offer here some assorted thoughts:

-          The overall level and scale of surveillance today is unprecedented in U.S. history.

-          Many activities that took place in countries that we typically consider the quintessential surveillance states (for instance, the former Soviet Bloc) do not occur in the U.S. today. This includes the large-scale use of individual informants charged with spying on their friends and neighbors, the routine personal trailing of everyday citizens, the normalized bugging of both public locations and private abodes, and the resulting volumes of individually transcribed documentation of the lives of a significant percentage of the population.

-          Many activities that take place in America today did not occur in those same countries. This was solely due to a difference in technological development at the time as there were no emails on which to spy or browsing history to peruse. If those countries could have used better electronic means of surveillance, they would have.

-           We have no way of knowing what type and level of surveillance the American government would employ today, after 9/11, if it did not have access to electronic data. Hence, the problem with saying that America is not as individually intrusive in its measures as some other countries have been historically runs into the objection that America simply does not need to be given today’s technology, which does not help America’s moral claims. This is definitely not to say that America and those countries are morally equivalent per se. They are not, in part because America allows for a lot of criticism of its practices (major caveat: if you can detect them!), criminalizes a lot fewer activities than those countries did/do, and does not send people to Gulag camps even when it does punish them. At the same time, similarly to how someone does not cease to be a “jerk” just because there are worse jerks out there, this does not give America a free pass on these matters.

-          The distinctions between electronic and personal spying form a double-edged sword. Being subject to electronic surveillance is less obvious in its intrusiveness and less directly frightening than having a person follow you. It is also, however, potentially more difficult to detect and thus to resist.

-          America uses internal minimization procedures that limit when it can actually look at the content of data, and the FISA Court provides review as well. Of course, because of the secrecy surrounding all of these forms of procedures, we cannot rest assured of their effectiveness, but this is a clear difference between the U.S. and the traditional surveillance states. Some lawmakers are now pushing for reforms to some of these processes, which only became possible after Snowden’s revelations.

-          For the first time since Pew asked the question in 2004, more Americans are worried about privacy than about insufficient protection against terrorism. It is difficult to believe that this fact, based on Snowden’s and other recent revelations, has failed to have an impact on the behavior of regular law-abiding citizens in the way that they conduct their online and phone activities. Parallels between such changes in behavior in the U.S. and those in worse countries are disconcerting.

While I respect the worry about equating the United States with much worse countries, I do not believe that the accusation that we have become or at least are turning into a “surveillance state” can be dismissed out of hand on the truth axis. The average American probably spends dozens of hours a week on a combination of activities that are potentially or actually subject to large-scale government surveillance (meaning time spent on the Internet, on the phone, in the presence of surveillance cameras, in TSA scanners, etc.). As a result, if Snowden’s allegations are correct, odds are that a significant percentage of law-abiding Americans’ lives are on file with the government and often easily searchable, including as laws and morals change and the government considers different activities of interest than it perhaps used to. This should give us pause.

I will discuss the usefulness of the labels and my overall conclusions in Part 2 of this post.