The Complex Landscape of Criminal Sanctions for IP Infringement in the United States

Abstract The United States has developed an extensive intellectual property (IP) enforcement system that employs both civil and criminal sanctions to protect copyrights, trademarks, and trade secrets. This comprehensive overview examines the evolution of criminal sanctions in U.S. IP law, tracing their development from narrow nineteenth-century provisions to today’s stringent penalties that can exceed those for comparable property crimes. Criminal copyright enforcement began in 1897 with limited scope but expanded significantly through landmark legislation including the NET Act (1997), which addressed non-commercial digital piracy, and the Protecting Lawful Streaming Act (2020), which elevated streaming violations to felonies. Trademark counterfeiting gained federal criminal protection starting with the 1984 Trademark Counterfeiting Act, while trade secret theft was federally criminalized through the Economic Espionage Act (1996) and strengthened by the Defend Trade Secrets Act (2016). Notably, patent infringement generally lacks criminal penalties in the United States. This chapter reveals that IP criminal sanctions often exceed those for traditional property crimes, raising questions about proportionality. Historical evidence shows that the US initially embraced IP piracy when economically advantageous, only strengthening enforcement as it became a major IP producer. Recent high-profile cases demonstrate enforcement against sports-streaming networks, counterfeit goods threatening military safety, and trade secret theft involving foreign entities. Despite relatively few criminal prosecutions, these sanctions serve important deterrent functions, particularly against judgment-proof infringers. The chapter argues that while criminal IP enforcement addresses serious violations, concerns remain about legislative consistency, proportional punishment, and the balance between protection and over-enforcement in an increasingly digital economy.