Broad aff card I think—more than just the law on the books

This worldwide phenomenon has been driven significantly by developments in the United States, 65 so we can begin our discussion here. In recent years, the scope of patentability expanded significantly, 66 standards for nonobviousness diminished, 67 the experimental-use exemption was weakened, 68 and patents became significantly more likely to be upheld in the [*822] face of challenges in the courts. 69 The protectable subject matter of copyright law likewise expanded, most prominently to include software. 70 The term of copyright protection was extended repeatedly, 71 and enforcement actions against private, noncommercial copiers became more common. 72 Penalties for violating copyright became harsher, and the rights accorded to owners, for example to prevent derivative uses, became more robust. 73 Finally, entirely new forms of protection emerged, such as a sui generis system to protect plant varieties and exclusive rights in data used to register pharmaceutical products. 74 Interesting questions can be raised about whether all of these changes in law should be categorized together and about the appropriate baseline against which to measure the "strengthening" of IP law. 75 [[Footnote 75 begins]] IP scholars discussing the expansion of IP law typically invoke a formal definition of law, or "law on the books." This has the virtue of being both readily understood and conventional. (We generally speak of criminal law becoming stronger, for example, when the penalties associated with a crime are increased, rather than when the rate of a particular crime goes down.) One might reasonably object that the creation of IP rights in subject matter that previously did not exist (such as software) cannot be an "expansion" of IP unless one presumes a baseline of free information rather than property. Boyle himself notes this, suggesting that what he calls the "commons" of the mind might sometimes be more akin to frontier land or even drained swampland. See Boyle, supra note 64, at 41 n.34. But there are of course many indicators of the expansion of IP law that do not relate to newly existing subject matter (for example, lengthening copyright terms, the greater likelihood of success in patent infringement suits, and the introduction of robust exclusive rights in territories that previously lacked them). One might also ask whether the practical strength of IP law is greater today than it was thirty years ago, here invoking "law in action" rather than "law on the books." The digital era, of course, brings new and formidable enforcement challenges for rights holders in the area of copyright. It is not clear, however, that the same is true in patent. Even in copyright, the issue is not easily parsed; while the digital era clearly undermines some enforcement efforts, it also increases the ability of IP owners to extract revenue, price discriminate, employ technical protection measures, and detect illegal uses. See, e.g., Julie E. Cohen, Pervasively Distributed Copyright Enforcement, 95 Geo. L.J. 1 (2006). Moreover, the digital age creates new strategies for appropriation even as it undermines old strategies, see Yochai Benkler, The Wealth of Networks 29-90 (2006), suggesting that IP law could be stronger when measured against how much exclusivity is needed to generate the same amount of innovation. Yet another baseline we might use is the frequency with which individuals encounter IP law in their everyday activities. On that measure, copyright law has become significantly stronger since the advent of the digital age. See Jessica Litman, Digital Copyright 27-28 (2001). [[Footnote 75 ends]] There is [*823] clearly room for further specification of the claim, but on balance, it is fair to say, as many scholars have, that IP law has become stronger, both at a formal level and practically in many respects.