Washington Law Review


This Article challenges the constitutionality of a copyright infringement remedy provided in federal copyright law: courts can order the destruction or other permanent deprivation of personal property based on its mere capacity to serve as a vehicle for infringement. This deprivation remedy requires no showing of actual nexus to the litigated infringement, no finding of willfulness, and no showing that the property’s infringing uses comprise the significant or predominant uses. These striking deficits stem from a historical fiction that viewed a tool of infringement, such as a printing plate, as the functional equivalent of an infringing copy itself. Today, though, the remedy more likely reaches modern “dual-use” property that might be used partly, predominantly, or even exclusively for lawful uses, from computers to manufacturing equipment. The risk of constitutional violation is particularly acute in the Second and Ninth Circuits, where copyright suits predominate and where cases in recent years give cause for greater concern. In high-profile parallel actions in New York and California, for example, the Second Circuit rejected a sound engineer’s plea for return of equipment, computers, and hard drives that he argued were never used for infringement and contained unrelated, highly personal content, including irreplaceable family photos. The federal district court in a similar action in California held that the Ninth Circuit required the same.

After scouring the history of this remedies provision, whose origins predate the Bill of Rights, this Article argues that this much-mutated remedy can run afoul of the Fifth Amendment because it is based on a historical fiction that has lost its force. Most notably, it can lead to an unconstitutionally arbitrary or excessive award that violates due process, and it might also rise to an unconstitutional taking of personal property. This Article maintains that courts can sidestep these constitutional landmines by making predicate findings of actual nexus, willfulness, and significant or substantial use to commit the infringement at issue. Moreover, reviewing courts should consistently review such orders de novo as a further safeguard against the risk of unconstitutional property deprivations.

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