To that end, a letter signed "Baker & McKenzie" was sent to thousands of Web sites and Internet service providers, warning them of the perils of unauthorized downloading. But the aggressive move backfired when Boing Boing, a high-tech blog with 1.75 million daily visitors, posted the letter and proceeded to trash the firm's good name.
The incident begs the question: Was it worth generating bad publicity for the firm and its client, to achieve the goal of protecting a copyright?
Baker & McKenzie partner Michael Hart stands by the strategy. "I think the letters had some benefit, definitely," says Hart. "We know of various instances of people who hadn't been aware [of Infront's rights] saying, 'Thank you for letting us know.'" Hart declined to name specific positive responses, citing client confidentiality, but he noted that the 4,500 letters sent to entities in 24 countries produced very few negative responses. Hart says the letters were simply a polite attempt to notify Web sites of the client's rights.
But Boing Boing felt the letter's tone was ridiculous. In addition to threatening that Infront and its agents would be "taking strong and active measures ... both civilly and criminally" to prevent unlawful downloading, the firm said it would be "actively monitoring" sites for such illegal activity. In response, the site said that it would monitor Baker & McKenzie's Web site for instances of "wasting clients' money by sending out unnecessary and obnoxious warning letters." Not surprisingly, readers and other blogs jumped into the fray. The commentary included everything from nasty epithets about the law firm to support for the aggressive strategy.
IP lawyers are also divided. Some question the efficiency of a preemptive approach, given the Internet's scale and the fact that Internet service providers enjoy broad protection under the law. "[A preemptive letter] doesn't put you on some sort of duty to police your site," says Wilson Sonsini Goodrich & Rosati partner Catherine Kirkman.
In the United States, Kirkman explains, the Digital Millennium Copyright Act generally protects online providers and many Web sites from copyright liability over material contributed by others: As long as providers respond immediately to any notice of specific infringement by taking down the material, these parties are considered neutral.
Hart concedes that Infront would still bear the responsibility of notifying service providers in the event of actual infringement. But he says the letters served an educational purpose. "We felt that by getting people aware of this issue in advance it would speed up the process [of taking down material]."
And maybe that's reason enough for rights holders to contemplate the preemptive approach, say some IP veterans. "The Internet happens so fast, and the distribution of copyrighted materials is so rapid and virile," says Russell Frackman, a partner at Mitchell Silberberg & Knupp and the lawyer who represented the Recording Industry Association of America in its suit against Napster, Inc. "Frequently [regular] notice and takedown letters are closing the barn door after the horse has already escaped."
Perhaps Baker & McKenzie succeeded in stopping a lot of shots on goal.