The Puzzle of Criminal Sanctions for Intellectual Property Infringement
Harvard Journal of Law and Technology, Vol. 24, No. 2, Spring 2011
51 Pages Posted: 11 Sep 2010 Last revised: 15 May 2011
Date Written: May 1, 2011
Civil remedies are available for infringements against all types of intellectual property (IP) goods, including those covered by copyright, trademark, and patent protections. Nonetheless, the criminal law only provides sanctions for violating some forms of IP, such as copyright and trademarks, but fails to do so for infringing patents. In an attempt to solve that puzzle, this Article argues that the disparity arose for sensible moral and utilitarian reasons, yet also from political splits in the patent industry. The analysis first delineates how governments and courts have justified as legitimate the criminalization of IP infringement in the first place, which has often involved drawing parallels to property law violations. The Article further traces the rationales behind existing criminal sanctions in IP and explains how international developments may affect criminal IP laws in the United States. It then tests several theories for the disparity in the availability of criminal sanctions, including explanations from the realms of morality, utilitarianism, and public choice. This Article identifies as important factors the differences between the types of infringing acts in copyright and trademarks versus patents, the effect of modern technologies on infringement in each IP regime, and greater concerns about overdeterrence in the patent context. It also, however, points to the key role that lobbying by major actors has played and continues to play in maintaining the status quo, and it shows how shifts in the relative lobbying expenditures of different industries could affect the status of patent criminal sanctions. Finally, the Article draws on this framework to question the existence of criminal sanctions for non-commercial copyright infringement.
Keywords: intellectual property, patents, criminal sanctions, infringement, ACTA
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