Intellectual property and the presumption of innocence.

AuthorManta, Irina D.

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. (3) This Article asks a more foundational question: Are federal criminal sanctions for IP offenses constitutional on their face and as applied? As a related matter, does the answer to that question differ in the case of criminal sanctions for copyright infringement, for which Congress draws its authority from the IP Clause of the Constitution, (4) as opposed to those for trademark infringement, which Congress regulates under the auspices of the Commerce Clause? The analysis of these questions demonstrates that criminal prosecutions for intellectual property violations do not honor the constitutional obligation to maintain the presumption of innocence for defendants, and shows what courts need to do to fix this error. (5)

The Constitution explicitly discusses the authority of Congress to use criminal punishments in only four places. First, it empowers Congress "[t]o provide for the Punishment of counterfeiting the Securities and current Coin of the United States." (6) Second, Congress shall be able "[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the law of nations." (7) Third, Congress may "exercise exclusive legislation" over federal property, which arguably includes the area of criminal law. (8) Fourth, the Constitution specifies that "Congress shall have Power to declare the Punishment of Treason." (9) Federal criminal law, however, covers a multitude of offenses not even remotely connected to these four areas. (10) Similarly, the criminal punishment of intellectual property infringement has not been and cannot be justified as part of these four delegations of power.

Rather, the many criminal laws enacted despite their lack of a relationship to these four areas have generally been justified as constitutional due to their role in enforcing other enumerated powers, or as necessary and proper in the pursuit of congressional regulation under the Commerce Clause. (11) The traditional story would place copyright-related criminal sanctions into the former category and trademark-related criminal sanctions into the latter and would justify their existence accordingly. This Article argues, however, that matters are not so simple and that several uncomfortable questions arise as one digs more deeply into the constitutionality of these sanctions.

Complications stem mainly from the prosecutor's burden to prove the facts of each offense beyond a reasonable doubt. The case of Jordan Linn Graham illustrates that one such set of facts is the relationship between each particular defendant and the constitutional mandate that allows federal courts to punish that defendant. In the Graham case, a federal prosecutor not only had to show that the defendant killed her husband, but also that she did so in a national park. The federal power to prosecute her hinged on that fact--if she killed him elsewhere, no federal court could convict her. Criminal prosecutions for trademark and copyright offenses are no different: there needs to be a "jurisdictional hook" for a federal court to convict each defendant. (12) This Article shows that for trademark counterfeiting, prosecutors should have to prove beyond a reasonable doubt that a defendant sold or transported a counterfeit good in interstate commerce or that the good affected interstate commerce. This Article also demonstrates that in the context of criminal copyright infringement cases, prosecutors should have to show that convicting a defendant will serve to secure the exclusive rights of a copyright owner. Doing so is straightforward under the traditional view of the IP Clause. Yet, this is not necessarily the case if one accepts a more limiting reading, which would only allow Congress to enact IP laws that promote progress, as a number of scholars have advocated in recent years. If one adopts the narrower view, then under my theory of criminal due process, prosecutors would also have to demonstrate that the securing of rights is taking place in each case in a way that advances the progress of science and the useful arts beyond a reasonable doubt. These changes would reshape the landscape of criminal trademark and copyright prosecutions to varying degrees if courts adopted them.

In Part I, the Article examines how the Framers viewed the Constitution's relationship to criminal sanctions and how early court cases decided those issues. The Article then discusses the history of federal criminal sanctions since the Founding and how the Supreme Court has handled some key constitutional challenges to such sanctions. Part II evaluates the merits of possible constitutional challenges to federal criminal sanctions for intellectual property violations.

  1. FEDERAL CRIMINAL LAW FROM THE FOUNDING TO THE MODERN ERA

    This Part shows the Framers' views of criminal law and highlights some key congressional and judicial developments regarding federal criminal law between the Founding and today. Rather than trying to cover all the related statutes and cases in that period, this Part focuses on those events and arguments that provide the most important pieces of information necessary to evaluate the constitutionality of federal criminal sanctions for intellectual property. (13)

    1. The Framers' Views of Federal Criminal Law

      Although punishing crimes is an important function of government, and thirty-four of the fifty-five delegates at the Constitutional Convention were either lawyers or had studied law, criminal law was not a major topic of discussion. (14) When the Constitution was enacted, it was understood that the federal government was not to have a general police power like that of the state governments. (15) We have some information about the Framers' general views on appropriate levels of punishment, but we know much less about their opinions on the proper division between federal and state authority over crimes. (16) The Federalist Papers reveal only scant consideration of issues involving federal criminal law on the part of the Framers. (17) A search of the...

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