Explaining Criminal Sanctions in Intellectual Property Law

This symposium piece first seeks to unpack the relationship between intellectual property infringement and property offenses, and then to understand how the connection between the two has informed when the former is criminalized. The piece examines the porous nature of the boundary line between intangible and tangible resources, showing the at-times uncomfortable fit of the non-rivalrous label to intellectual property. An analysis of the respective harms of the two types of violations follows. This symposium contribution shows how lawmakers have treated patents differently from other forms of intellectual property by choosing not to criminalize their infringement, due both to utilitarian reasons and public choice rationales. While historically the entities who pushed for harsher sanctions for copyright violations in particular have often not encountered resistance, a combination of large tech companies’ and grassroots organizations’ activism has thwarted attempts at strengthened enforcement in recent times. The political landscape of copyright lawmaking, however, may be on its way to the greater degree of equipoise between support and opposition to greater sanctions that one observes in the patent legislative context.