From Volume 80, Number 5 (July 2007)
In the last several decades, the legal academy has devoted a great deal of attention to developing a cogent definition of “property.” During this period, scholars have grappled with the related question of how intellectual property rights – namely, patents, copyrights, trademarks, and trade secrets – fit within emergent property theories. By and large, the academy has concluded that intellectual property qualifies as “property” under all of the relevant analytical rubrics.
As expected, both policy makers and the judiciary have drawn upon the theoretical categorization of intellectual property as “property” when fashioning the normative rules that govern the recognition, allocation, and protection of intellectual property rights. In many instances, traditional property law concepts have been imported into intellectual property law with little or no consideration given to the theoretical and utilitarian distinctiveness of intellectual property. Nowhere is this wholesale importation – and its shortcomings – more apparent than in the law governing sentencing for federal crimes involving the violation of intellectual property rights.