Engelberg Center on Innovation Law and Policy

Colloquium on Innovation Policy


Professors Rochelle Dreyfuss and Harry First

Spring 2013

Topic: To examine the use of criminal law to sanction unauthorized use of knowledge products. Starting with questions about what property interests should be protected by the criminal law, we will go on to study longstanding information crimes, such as insider trading and wire fraud, and then study newer crimes, including trademark counterfeiting, copyright piracy (including downloading), economic espionage of trade secrets, and computer hacking. We will consider the impact of criminalization on innovation, employee mobility, access to medicines, and developing economies.

Thursday, January 24

Adrian Johns, Allan Grant Maclear, The University of Chicago Department of History  
Historicizing the Intellectual Property Police
Papers: The Property Police & Piracy and the Problems of Information Policing

Thursday, January 31

Stuart Green, Distinguished Professor of Law; Nathan L. Jacobs Scholar, Rutgers University School of Law-Newark

Is Illegal Downloading Really Stealing? The Problem of Intangible Property in the Law of Theft
Papers: Introduction & Chapter 4 in Thirteen Ways to Steal a Bicycle

Thursday, February 7

Christopher Buccafusco, Assistant Professor of Law, Chicago-Kent College of Law 
Economic Analysis of Criminal Intellectual Property Law
Abstract: The scope and enforcement of intellectual property (IP) laws are becoming salient, for the first time, to a wide cohort of U.S. and international communities.  National and international legislation, including the Stop Online Piracy Act (SOPA), the Protect IP Act (PIPA), and the Anti-Counterfeiting Trade Agreement (ACTA), have generated protests online and in the streets by people who are concerned about the expansion of IP rights.  Common to each of these proposals was an expansion in the use of criminal sanctions to deter IP violations.  Many copyright owners and the associations that represent them support criminal enforcement of IP, including the use of imprisonment, to combat the threat of increased IP piracy on the internet and throughout a globalized economy.  Others, including a heterogeneous coalition of scholars, activists, and internet based companies like Google and Wikipedia, fear that using criminal sanctions to protect IP will expand already overgrown rights and chill valuable expressive and inventive behavior. This Article addresses the debate over the value of criminal sanctions for copyright and patent violations from the perspective of economic analysis of law.  It considers the relative costs and benefits of employing imprisonment and alternative sanctions to deter socially harmful IP violations.  Our analysis supports the limited use of criminal penalties for certain kinds of copyright infringement—large scale, exact reproduction by hard to detect infringers.  In these cases, criminal penalties could create deterrence where civil sanctions alone may not and at a lower social cost than overbroad digital rights management (DRM).  Patent infringement, by contrast, can be sufficiently deterred with civil sanctions, making criminal penalties unnecessary.

Thursday, February 28

Tom Tyler, Macklin Fleming Professor of Law; Professor of Psychology, Yale Law School
Psychological Perspectives on Criminalizing Intellectual Property Use
Paper: Compliance with Intellectual Property Laws: A Psychological Perspective

Thursday, March 7

Frederick Abbott, Edward Ball Eminent Scholar, Florida State University College of Law
Global Medicines Supply Chains, Counterfeiting and Criminality: When Public Health and Greed Collide
Paper: Access to Medicines and Intellectual Property Rights

Thursday, March 28

Christophe Geiger, Associate Professor; Director General; Director of the Research Department, CEIPI, University of Strasbourg [CANCELLED]
Criminalising IP Law? The Rise of Criminal Enforcement at Regional and Global Level
Abstract: The enforcement of intellectual property rights is without any doubt currently among the top priorities of international and regional lawmakers. In this context, initiating additional criminal penalties is an option frequently proposed by policy makers and industries, criminal enforcement being presented as one of the most effective means to address the issue of piracy and counterfeiting within the global economy. Nevertheless, while adequate enforcement of intellectual property rights is certainly a legitimate objective, the focus on ‘criminalising’ the infringements of intellectual property rights raises important questions mainly with regard to harmonisation in this field of law, since criminal provisions are closely linked to moral and cultural conceptions within a society, and to the extent to which enforcement of intellectual property rights should be subject to criminal law or rather to other legal mechanisms.
Furthermore, existing regulations proposed or implemented at domestic and regional level sometimes challenge the appropriateness and effectiveness of criminal sanctions in the field of intellectual property rights. It can also be observed that there are significant differences between the sectors affected by infringements of intellectual property rights and that nowadays, there are various situations that might require different treatment. For example, the use of legal solutions based on the criminalisation of end users have had in certain situations strong psychological impact on the public opinion, in some cases leading to the rejection of intellectual property rules. Drawing on findings of a recent publication (Ch. Geiger (ed.), Criminal Enforcement of Intellectual Property: A Handbook of Contemporary Research, Edward Elgar, 2012), the paper proposes a differentiated approach to criminal enforcement in order to secure a better acceptance of intellectual property protection within society.

Thursday, April 4

Mark McKenna, Professor of Law, University of Notre Dame The Law School
Criminal Trademark Enforcement and the Problem of Inevitable Creep



The Colloquium meets at NYU School of Law, Vanderbilt Hall, 40 Washington Square South, room 208 from 4:00-6:00pm.

2 New York CLE Credits are available in the area of Professional Practice for each colloquia you attend.