Are Federal Criminal Sanctions for IP Infringement Unconstitutional? (Part 3)

This post will conclude my time as a guest blogger here. Thank you so much to Frank Pasquale and all the others for allowing me to write in such fine company!

In Part 1 and Part 2, I discussed the early constitutional history and the Supreme Court’s jurisprudence on the topic of federal criminal law. In this post, I would like to explore the issue from the angle of IP and introduce the possibility that there may be constitutional concerns including due process problems with our current criminal sanctions for IP infringement.

In 2006, Prof. Margaret Lemos published a provocative paper in the Texas Law Review entitled “The Commerce Power and Criminal Punishment: Presumption of Constitutionality or Presumption of Innocence?”. In it she argued that Congress is able to circumvent the due process obligation that every fact that exposes an individual to criminal punishment be proved to a jury beyond a reasonable doubt. She wrote that recent Commerce Clause jurisprudence (which by 2006 meant everything including the Raich case, though the trend continued in Comstock and Kebodeaux) allows Congress to find the facts itself as a general matter rather than requiring each to be proven to a jury case-by-case. The Supreme Court has largely assumed that the connection between an individual’s conduct and interstate commerce can be decided the same way in civil as in criminal cases, and so the criminal Commerce Clause cases use the civil Commerce Clause cases as precedent with little distinction.

Margaret cited Raich as one of the paradigmatic examples of this because there was no evidence that the defendants in the case were using marijuana that entered interstate commerce, and much less was this established beyond a reasonable doubt. She also pointed out that when Congress incorporates an explicit statutory presumption of a certain fact, the courts will test whether this conforms to the presumption of innocence, but categorical prohibitions based on legislative findings are treated to the presumption of constitutionality, which is rather puzzling.

My intuition is that Margaret Lemos is right. That is, I do not see a meaningful reason to exclude some facts from the due process requirement. Given that trademarks are regulated under the Commerce Clause, this argument would directly apply here. That is, a federal court could only constitutionally convict a counterfeiter if the prosecutor can show that one of two things happened: 1) The counterfeit goods made use of the channels or instrumentalities of interstate commerce. 2) The counterfeit goods affected interstate commerce. It is quite possible that most cases that have resulted in convictions would have met this test, but this would have to be made explicit in the future to conform with due process.

Taking this a step further, however, we also have to look at how Margaret’s argument in the Commerce Clause context may be relevant to the IP Clause and criminal sanctions for copyright infringement. There has been some very interesting work on the constitutional dimensions of IP in recent years. In particular, scholars like Jeanne Fromer and Larry Solum have argued that the IP Clause needs to be read not just as enabling but in fact also as limiting.  So for instance, Jeanne has explained that Congress can only promote science and the useful arts by securing rights for limited times, not also by passing other laws that promote the ends of the IP Clause but subvert its means.

With that in mind, I have been thinking about what happens if we combine Margaret’s theory with that understanding of the IP Clause. What that would probably look like is to ask the question in every criminal copyright case whether the prosecutor can show beyond a reasonable doubt that convicting a particular defendant serves to further the purposes of the IP Clause, which could become a rather complex analysis depending on the case.

While not necessarily invalidating current criminal statutes for IP infringement, setting these additional requirements could significantly increase both the burden and workload of prosecutors involved in such cases. Given that the number of federal cases brought in these areas is already limited, such obligations could bring criminal prosecutions in IP to a near-standstill. This effect may be further increased if other constitutional problems than due process come to the surface as exploration of these issues proceeds.

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