Home > Journals > WMLR > Vol. 56 (2014-2015) > Iss. 5 (2015)
William & Mary Law Review
Our current methods of imposing criminal convictions on defendants for copyright and trademark infringement are constitutionally defective. Previous works have 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 currently is 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 need to show only 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 Sixth Amendment’s requirements, prosecutors would have to prove that individual convictions will serve to promote progress before courts can impose sentences in given cases. Although this requirement could raise costs and potentially 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.