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IP and in re Winship

A bedrock principle of American constitutional criminal law is that the prosecution must prove every element of an offense beyond a reasonable doubt.  And while not every piece of evidence introduced by the state must meet this heavy burden, an interesting question is whether a jurisdictional element not explicitly provided in a copyright statute must also satisfy this burden. 

Will Baude over at the Volokh Conspiracy points to an interesting new paper by law professor Irina Manta that makes an innovative constitutional argument about copyright prosecutions and the jurisdictional element.  The abstract provides the details:

Our current methods of imposing criminal convictions on defendants for copyright and trademark infringement are constitutionally defective. Previous work has 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 is currently 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 only need to show 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 requirements of the Sixth Amendment, prosecutors would have to prove that individual convictions will serve to promote progress before courts can impose sentences in given cases. While this could raise costs and has the potential to 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.

Well worth a read even for those of us unfamiliar with IP law. 

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