Intellectual Property Infringement as Vandalism
Irina D. Manta
Hofstra University - Maurice A. Deane School of Law
Robert E. Wagner
City University of New York (CUNY) Baruch College Zicklin School of Business Department of Law
August 22, 2014
Stanford Technology Law Review, Forthcoming
Hofstra Univ. Legal Studies Research Paper No. 2014-21
Defenders of strong intellectual property rights often maintain that intellectual property infringement is theft, and that the sanctions associated with it ought to be high. Others are skeptical of the property comparison and think that much lower sanctions are appropriate. We argue that a careful analysis demonstrates: 1) that intellectual property infringement can be analogized to a property crime, but 2) that the more analogous crime is vandalism or trespass rather than theft. This categorization takes the rhetorical punch out of the property comparison.
In addition to analyzing the natures of the various offenses, this Essay investigates the sanction regimes for different property violations and finds that not only are maximum statutory sanctions generally higher for intellectual property infringement than for vandalism and trespass, they are usually also higher than for theft. Bringing intellectual property infringement in line with property offenses, therefore, would actually surprisingly result in a lowering of sanctions.
Number of Pages in PDF File: 38
Keywords: intellectual property, infringement, property, theft, vandalism, trespass, copyright, criminal law, illegal downloading, file sharing, propertization of IP, criminal sanctions in IP
JEL Classification: K11, K14, O34
Date posted: August 24, 2014 ; Last revised: December 17, 2014
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