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Friday, September 05, 2014

Intellectual Property Infringement as Vandalism (Part 1)

In addition to empirical work in intellectual property, another area that has been keeping me occupied is the intersection between IP and criminal law. A few years ago, I wrote an article entitled The Puzzle of Criminal Sanctions for Intellectual Property Infringement, 24 Harvard Journal of Law and Technology 469 (2011), in which I explored why we have criminal sanctions for copyright and trademark infringement but not for patent violations. Earlier this year, I published a paper called The High Cost of Low Sanctions, 66 Florida Law Review 157 (2014), that examined how low sanctions can lead undesirable laws to be passed and can eventually morph into high sanctions, an analysis whose focus was partly on copyright law. I then moved on to study, in an article called Intellectual Property and the Presumption of Innocence that is forthcoming in the William & Mary Law Review next year, the constitutional dimension of intellectual property criminal cases. I argued that prosecutors should have to prove that every element of such crimes, including the jurisdictional element, has been met beyond a reasonable doubt before convictions can occur. Most recently, I turned my attention to the relationship between the criminal (and civil) sanctions in intellectual property and those that we observe in property. This project, co-authored with Robert E. Wagner, is entitled Intellectual Property Infringement as Vandalism, and I would like to take the opportunity to describe it further here.

One of the recurring questions in scholarship is whether intellectual property qualifies as property and, as a correlative matter, whether IP infringement is theft. Content owners significantly push this analogy, including in heavy-handed ads that seek to remind people not to “steal” songs or movies. Meanwhile, critics have chipped away at the theft label. They have argued that when an object is stolen, the owner is entirely deprived of it, whereas IP owners maintain integral copies of their works when infringement takes place. Unlike in the case of theft, the intellectual property owner can also continue to sell copies of said work to willing buyers, if the market will bear it. Furthermore, to the extent the owner suffers a loss at the hands of the IP infringer, that loss is difficult to calculate. Not every infringer would have bought the work had he lacked the opportunity to infringe. At the same time, nobody can say with certainty about herself—even assuming perfect honesty—which works she would have bought in a zero-infringement world because the impulse to rationalize one’s actions in this setting is strong.

The sphere that discusses intellectual property infringement is thus mostly split between two camps. One of them believes that infringement is theft and concludes that if it is theft, the criminal sanctions and harsh civil sanctions that we have on the books are warranted. The other side denies that infringement is theft, sometimes downplays the gravity of infringement behavior, and regularly believes that the level of sanctions that American law provides is unjustified. We argue in our paper that the dichotomy that these two camps endorse is faulty, and that the question of whether intellectual property infringement parallels violations of property law requires much more nuanced analysis before it can influence the calibration of sanctions for intellectual property infringement. We seek to show that there is little meaningful difference between intellectual property infringement and property violations, but that the question of whether infringement is theft has led to the creation of an unnecessarily confusing and polarized discussion framework. While many scholars are correct to state that intellectual property infringement is not and cannot be literally the same as theft for the reasons briefly delineated above, such infringement bears significant similarities to and few distinctions from lesser property-related offenses such as vandalism or in some cases trespass. 

If one accepts the idea that IP infringement does at times parallel property violations, albeit not necessarily theft per se, the startling realization emerges that IP laws actually may punish wrongdoers more harshly than property law punishes defendants for equivalent offenses. After creating an analytical model to determine the content of “equivalence” in this context, we demonstrate that adopting a truly property-oriented IP legal regime may actually mandate a view of lowered criminal and civil sanctions. I will explore the ideas from this paper in more detail in future posts.

Posted by Irina Manta on September 5, 2014 at 10:05 AM in Criminal Law, Intellectual Property, Property | Permalink


Interesting, thanks. The hedonic benefits had occurred to me but the economic benefits hadn't really (except in the case of looting, which is like vandalism-plus).

Posted by: alex roberts | Sep 6, 2014 10:34:28 PM

Thanks for the comment! In regard to your first point, I will talk about the vandalism analogy in more detail, but we acknowledge that in some cases, trespass is the better parallel (when no value was taken even if a benefit was derived) and that in IP, the owner maintains an integral copy. That being said, the potential reduction in value of a good seems more essential than the integrity of the remaining copy, which often still makes for a good fit with vandalism.

As to your second point, it depends on the vandal and on the benefit. For one, some vandals derive hedonic benefits from vandalism, which strikes me as relevant. Also, vandals like Banksy--albeit rarer--can derive economic benefits. Another example of someone who derives economic benefits might be someone who vandalizes his competitor's storefront.

Posted by: Irina Manta | Sep 6, 2014 5:32:16 PM

I'm enjoying the summary/teaser and looking forward to part 2. Curious how the vandalism analogy assimilates the theory that IP products are, in some cases, nonrival-- IP "thieves" take something/receive some benefit, but the something arguably doesn't cost anything or reduce the IP product's value. I associate vandalism with the opposite type of effect: vandals don't take the property, but they do change it. With the former, defendant benefits without effect on the property; with the latter, defendant affects the property without deriving benefit.

Posted by: alex roberts | Sep 6, 2014 4:53:20 PM

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