policing might be required).115 Yet the interviewed lawyers
sometimes also used this justification when referring to copyright
enforcement examples, even though there is no comparable duty to
police in copyright law.116
2. IP as Property
The lawyers also relied on property metaphors when explaining
why they believed vigorous IP enforcement efforts were sometimes
justified. When referring to trademark examples, the most frequently
used phrases included the “need to build a fence around” their client’s
trademark, or to “wall off” and protect a mark in order to keep it
distinct in the marketplace. Several lawyers stated that they needed to
protect the IP from “dilution” even when they were not referring to a
formal trademark dilution claim. When referring to copyrights, a
number of the interviewed lawyers stressed their belief that
vigorously enforcing copyrights was justified by the very fact of
copying by another, often suggesting in conclusory fashion that any
unauthorized and substantial copying of protected work was
inherently “bad” or unlawful “free-riding.” Several lawyers
characterized unauthorized copying as “theft” of property. One lawyer
explained that copyrighted work was “their (the client’s) property,
their baby,” which this lawyer stated should justify the client’s
decision to enforce IP rights as aggressively as necessary in order to
protect its property interests.
3. Zealous Advocacy
Lastly, many of the lawyers also justified enforcing even weak
IP claims on the basis that it is a lawyer’s ethical duty to zealously
represent clients’ interests. As one lawyer explained: