Intellectual Property and the Presumption of Innocence

Abstract Our current methods of imposing criminal convictions on defendants for copyright and trademark infringement are constitutionally defective. Previous works have argued that due process under the Sixth Amendment requires prosecutors to prove every element of a crime beyond a reasonable doubt, including the jurisdictional element. Applying this theory to criminal trademark counterfeiting results in the conclusion that prosecutors should have to demonstrate that an infringing mark needs to have traveled in or affected interstate commerce, which currently is not mandated. Parallel to this construction of the Commerce Clause, criminal prosecutors would also have to prove that Congress has the power to reach individual copyright infringers under the Intellectual Property Clause. This presents little difficulty under the traditional understanding of the clause as prosecutors would need to show only that convicting a defendant serves to secure the rights of authors. Some contemporary scholars have argued, however, that the text of the Intellectual Property Clause must be understood to mean that Congress can only enact copyright legislation if it serves to promote progress. If this notion is correct and is combined with this Article's theory of the Sixth Amendment's requirements, prosecutors would have to prove that individual convictions will serve to promote progress before courts can impose sentences in given cases. Although this requirement could raise costs and potentially reduce the number of cases brought, prosecutors may have little choice but to introduce expert testimony to demonstrate an effect on progress, similar to the use of expert evidence in antitrust litigation and related contexts. TABLE OF CONTENTS INTRODUCTION. I. FEDERAL CRIMINAL LAW FROM THE FOUNDING TO THE MODERN ERA A. The Framers' Views of Federal Criminal Law B. Federal Criminal Law Between the Founding and the New Deal C. Federal Criminal Law After the New Deal D. The Most Recent Pronouncements of the Supreme Court on the Constitutionality of Federal Criminal Sanctions II. THE CASE FOR A CONSTITUTIONAL CHALLENGE TO CRIMINAL SANCTIONS FOR IP INFRINGEMENT A. A Due Process Critique of Federal Criminal Law B. Due Process Implications for Criminal Enforcement Against Trademark Counterfeiting C. Extending the Due Process Critique to Criminal Enforcement Against Copyright Infringement D. The Due Process Inquiry Applied E. Questions About the Due Process Inquiry CONCLUSION INTRODUCTION There is a world of difference between committing a murder and manufacturing knockoff handbags. One would therefore not expect that the case of Montana woman Jordan Linn Graham--who allegedly intentionally pushed her husband off a cliff during an argument just days after their wedding--bears much relation to that of a counterfeiter of materials protected by intellectual property (IP) laws. (1) In spite of the moral and social differences between the two crimes, they are united by common features of constitutional criminal procedure. The ability of prosecutors to have either Graham or a counterfeiter convicted in federal court depends on the existence of a nexus to the constitutional text that establishes Congress's power to legislate. Even though manslaughter is usually a creature of state rather than federal law, prosecutors had no trouble with this aspect of the Graham case because the incident occurred in a national park. (2) Meanwhile, although copyright law and most of current trademark law are properly governed by federal statutes in the civil context, this Article shows that federal criminal prosecutions for IP offenses today are potentially more questionable from a constitutional perspective than the prosecution of Graham's lethal marital dispute. Thus far, most of the debate surrounding the use of criminal sanctions to combat intellectual property infringement has focused on the wisdom of introducing or strengthening them. …