Intellectual Property Infringement as Vandalism

Defenders of strong intellectual property rights often maintain that intellectual property infringement is theft and that the sanctions associated with it ought to be high. Others are skeptical of the property comparison and think that much lower sanctions are appropriate. In this Article, we argue that a careful analysis demonstrates: 1) that intellectual property infringement can be analogized to a property crime, but 2) that the more analogous crime is vandalism or trespass rather than theft. This categorization takes the rhetorical punch out of the property comparison. In addition to analyzing the natures of the various offenses, this Article investigates the sanction regimes for different property violations and finds that not only are maximum statutory sanctions generally higher for intellectual property infringement than for vandalism and trespass, but they are also usually higher than for theft. Bringing intellectual property infringement in line with property offenses, therefore, would actually result in a decrease in sanctions