Abstract
In recent years, as Congress has created new intellectual
property (IP) rights and courts have often interpreted those rights
broadly, legal scholars have frequently decried the expanded scope of
protection afforded IP owners in most substantive areas of IP law.
According to this critique, the over-expansion of IP rights throughout
the past two decades harms competition, chills free speech, and
diminishes the public domain as increasingly broad areas of social
life are brought within the scope of strong IP protection. While this
over-expansion theory reflects an important—indeed, foundational—
policy debate concerning the proper balance between IP owners’
rights and the public’s rights of access to the information, ideas, and
expressions that IP protects, it is incomplete because it focuses
largely on what Congress or the courts do. In reality, most
enforcement of IP rights takes place not in court, but in the everyday
practices of IP owners and their lawyers. “Cease and desist” letters,
phone calls, and negotiations with alleged infringers constitute the
bulk of IP enforcement efforts in trademark and copyright practice.
To be sure, these efforts take place in the “shadow” of IP law and are
therefore influenced by it. But it is in these everyday practices—and
not in trial or appellate courts—that most IP rights are asserted,
resisted, and negotiated. Thus, if we want to know whether IP rights
are over-enforced or over-extended, we need to know how, why, and