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Irina Manta: Are Federal Criminal Sanctions for IP Infringement Unconstitutional?
Michael Ramsey

At Concurring Opinions, Irina Manta (Hofstra Law School) asks (in three parts): Are Federal Criminal Sanctions for IP Infringement Unconstitutional? (Part 1, Part 2 and Part 3)

An excerpt from part 3:

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.

To show that I don't always take a restrictive view of national power: it seems to me that as to copyright, the federal criminal power is necessary and proper to the copyright clause, so I don't think the commerce clause analysis is on point.  (The same would be true of patents).  As to trademark, though, the questions raised seem significant.