Intellectual Property Infringement as Vandalism (Part 2)

(Irina Manta) I would like to continue the discussion I began in Part 1 about my co-authored paper Intellectual Property Infringement as Vandalism, which is forthcoming in the Stanford Technology Law Review.

We first explore in the paper why the theft label for IP infringement has become so sticky in many milieus. We believe that the main reason that content owners and their associates use the rhetoric of theft is that they want to emphasize the gravity of the conduct. The average downloader might tell herself that it makes little to no difference in the grand scheme of things if she illegally downloads music or movies, or if she shares such materials with friends and even a few strangers. Basically everybody, however, understands the concept of theft and has been raised to understand, often axiomatically, that stealing is wrong.

If one were to ask content owners and other proponents of the “IP infringement as theft” theory to explain their views in greater detail, they would cite to a number of factors that create parallels between the two types of violations. The IP owner, just like the property owner, generally mixes her labor with pre-existing materials to provide society with goods and help it to flourish. She will sometimes only do so, however, if provided with a critical mass of remuneration, or at least that remuneration will affect her level of productivity and of her efforts to distribute her work. To the intellectual property owner, large-scale illegitimate distribution of her works may economically create the same effect as a horde of potato thieves does for a farmer. In the farmer’s case, there will be nothing left to buy if all the potatoes are gone. In the infringer’s, even though the song will still “be” there at the end, few people may want to buy it if they can obtain it at zero cost elsewhere.

Looking at it from the other end, the potato thief ends up with a good for which he provided no labor or other valuable effort in exchange. Thieves, by definition, free-ride on others’ efforts (although not all free-riding constitutes theft). Similarly, the IP infringer is just a few clicks away from illicit goods that he can obtain without in turn contributing to society. Had the infringer not downloaded illegally, for example, one of two things would have happened. For one, he may have bought the good legally and the owner would have made more money. Or, he may not have bought the good at all and while the intellectual property owner would have felt no financial difference, the infringer would not have been free-riding and would not have had the opportunity to distribute that good to people that would have purchased the good legally but for this opportunity. There is a further possible loss that arises from the fact that intellectual property can—contrary to popular wisdom—be rivalrous at times. In the case of trademarks, the fact that lots of people use fake Louis Vuitton bags could disincentivize legitimate buyers from buying that brand if they value exclusivity or fear being viewed as potential infringers themselves, as I discussed in my article Hedonic Trademarks, 74 Ohio State Law Journal 241 (2013). In the copyright world, some legitimate buyers of concert tickets may no longer be willing to pay the same amounts of money for what should have been an exclusive show if they know that illegal tapings of that show will circulate later. The more rivalrous intellectual property turns out to be in a given case, the more it resembles property and the more its infringement parallels theft.

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The Grand Jury: Forcing People to Help Prosecutors and to Pay for It Too

(Daniel Solove) Should private citizens be forced, against their will, to subsidize and assist the state in its prosecutorial function?  This is basically what happens when people are summoned to testify before grand juries or are picked for grand jury duty.  I’ve previously written an extensive critique of the grand jury, with a focus on its subpoena powers.  An article today in the Washington Post describes the debilitating costs grand jury witnesses must often pay in attorneys’ fees:

Sympathy can be hard to come by for White House officials who are summoned to appear before a grand jury.

Those whose identities remain a secret suffer in silence, discouraged from reaching out to their closest friends for help. Those whose names leak into the public domain become lightning rods for rumor, suspicion and innuendo, as politicians, commentators and journalists try to divine a meaning behind each summons. . . .

But while the politics of every appearance is picked over in minute detail, there is also a human story to each summons that often goes unexplored.

Witnesses face stress, uncertainty and — worst of all — crippling lawyer’s fees that can take years to pay off. And as prosecutors cast their net ever wider, inexperienced staffers with few financial assets are increasingly facing the emotional and financial burden of grand jury testimony. . . .

When government aides are summoned to testify, the government often doesn’t pay the attorney bills (or only pays a fraction of them):

The two former Clinton aides said that the financial burden was crippling. Like many others, these White House officials had to pay their own legal bills, and these can run into the hundreds of thousands of dollars. Some may qualify for a partial reimbursement from the Justice Department, but this usually covers a fraction of the outlay and can take as long as seven years to be paid out. White House aides are even barred from receiving free legal assistance.

“We spent our time on Capitol Hill, and none of us had any assets. It’s a scary thing. Lots of people rented apartments, had no assets to their name,” said the former Clinton staffer. “If you have a career in public service, you’re being paid well under $100,000 a year, and you have student loans; you become paralyzed financially.”

If you have been accused of criminal intent and you are going into criminal litigation, your top and only priority will be to find an experienced, knowledgeable, and aggressive criminal lawyer to go to bat for you.

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Some thoughts about criminal prosecution versus military force in the war on terrorism, with shameless plugs

(Tung Yin) Most of my recent academic writing has been on constitutional law issues arising out of the war on terrorism. A short summary of my view is that the congressional Authorization to Use Military Force empowers the President to employ military force permissible under international law, against those entities designated by Congress as the targets of such force. As such, while criminal prosecution might be another appropriate means of pursuing the perpetrators of the 9/11 attacks, the President need not choose that path.

But there are some crucial consequences of the President’s choice of the war model rather than the prosecution model. Criminal law exists to allow us to punish those who are culpable — generally through imprisonment, but possible also through execution. (Whether the death penalty is constitutional, or even a good idea is a different matter that I’d like to put aside.) Because punishment is so grave, we provide the defendant with numerous procedural rights (counsel, no self-incrimination, presumption of innocence, the government’s burden of proof beyond a reasonable doubt).

Military detention does not impose such high hurdles on the government; during World War II, for example, no one would seriously contend that German POWs were entitled to counsel, or even status hearings. On the other hand, unless the soldier was convicted of committing a war crime, the captured soldier could be detained only for the purposes of preventative incapacitation, not punishment. Thus, the Geneva Convention now describes conditions of confinement for POWs that are much more generous than your typical prisoner gets.

The problem with this analysis as applied to the current war on terrorism, of course, is that the war model doesn’t fit perfectly, since we are not dealing with another nation-state or even guerrillas who are spontaneously defending their own homeland. Even more of a problem is that the combatant status of detainees becomes crucial in a way that is not the case with your traditional war.

That is, during WW II, if you capture a bunch of guys in German uniforms, there’s really no need to hold any kind of hearing on whether they’re German soldiers. You detain them and treat them as POWs, and that’s the end of the story. A hearing would most likely be pointless, since the persons the detainee would want to call as witnesses would be enemy aliens, and we’re not in a position to subpoena such persons.

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The Myth of the Trial Penalty?

(Dan Markel) Every now and then, I like to spotlight some articles that unsettle the conventional wisdom, particularly in criminal law. Add this oneto the file. Almost every teacher of criminal procedure is aware of the idea of the “trial penalty,” which conveys the sense that defendants who exercise their right to a trial will invariably get a worse result if convicted than if they plea bargain. The leverage prosecutors have in exploiting the trial penalty dynamic was described by my friend Rich Oppel in a front page NYT story he wrote a few years back.

Comes now (or relatively recently at least) David Abrams from Penn with an article that slays the sacred cow of the trial penalty by providing, you know, data. And the data is the best kind of data because inasmuch as it’s true, it is SURPRISING data. Specifically, Abrams argues that based on the study he performed (which originally appeared in JELS and now appears in a more accessible form in Duquesne Law Review), the data supports the view that in fact there’s a trial discount not a trial penalty. Fascinating stuff. Abrams offers some suggestions for what might explain this surprise: possibly a salience/availability bias on the part of the lawyers who remember the long penalties imposed after dramatic trials. Regardless of what explains the conventional wisdom, the competing claims should be ventilated in virtually every crim pro adjudication course.

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Criminal Defense Attorney Shot and Killed; Suspect Lived Nearby and Had Made Threats

Mark Stanziano, a Kentucky criminal-defense lawyer, was shot and killed outside his office Friday.

The suspect, Clinton D. Inabnitt, lived across the street from Stanziano’s office, according to theCommonwealth Journal. Inabnitt reportedly had previously threatened Stanziano, 57.

Inabnitt reportedly approached Stanziano Thursday evening, for help with “problems he was having.” Somerset Police Department Capt. Shannon Smith told Commonwealth Journal that Inabnitt threatened Stanziano during the exchange.

According to, several people, including a Pulaski County detective, saw Inabnitt shoot Stanziano as he walked down the sidewalk to his office Friday morning. Police said Inabnitt’s actions appeared to be thought out, according. Inabnitt was arrested at the scene.

Stanziano’s clients included a defendant charged with shooting and killing the Pulaski County sheriff in 2002.

“Mark did a lot of very high-profile, high-publicity criminal defense cases,” Jeff Hoover, a Jamestown, Kentucky, defense attorney and state house minority floor leader, told the Associated Press. “Anytime you do criminal defense cases, sometimes you are concerned about things like that.”

H/T ABA Journal