Work for a Large Law Firm, and Have a Double Life Online

Today’s law.com has a interesting story about law firms conducting investigations to enforce clients’ IP rights on the Internet.  It describes how a Covington and Burling lawyer impersonated a “flirtatious 27 year old female programmer” in chat rooms to identify software pirates and have them arrested.  The rest of the story discusses online IP enforcement as a major growth area for law firms as clients spend significant resources to stop the sale of infringing goods.

Two things struck me about the story.  First, if lawyers begin using subterfuge to identify infringers, they run the risk of unethical or illegal behavior.  Even if impersonating a “flirtatious 27 year old programmer” is legal,  it is easy to imagine lawyers  engaging in more questionable practices to stop infringement.  For example, a lawyer might be tempted to impersonate a real person (say the friend of a pirate) to get information, or perhaps set up stings that operate like phishing attacks.  A law firm could even find itself involved in offensive technology maneuvers against pirates as well, maneuvers that might look a lot like hacking.

Second, the story raises the problem of who will pay for enforcement of IP rights.  IP owners already sue outfits like YouTube and eBay to make them bear the cost and effort of IP enforcement.  One issue in the policy debates around such suit is who can bear those costs most efficiently.  If IP owners are now spending considerable resources on sophisticated enforcement programs, perhaps they are proving to be the most efficient enforcers.  As an initial matter, IP owners have the best information to identify infringers.  Of course, Internet companies like YouTube and eBay might have resources (e.g. search technology) that would help find infringers inexpensively, but that IP owners could bribe those companies to deploy that technology if it was in fact the cheapest way to find infringers.  The fact that IP owners choose to develop their own programs of enforcement suggests that they feel they can do it better and more cheaply than the Internet actors they’ve sued.

4 thoughts on “Work for a Large Law Firm, and Have a Double Life Online

  1. In many jurisdictions this may also violate the Rules of Professional Conduct. In D.C., for example, Rule 4.1 prohibits a lawyer from making a false statement of material fact in the course of representing a client. An attorney who falsely presents him or herself as a programmer (a flirtatious one at that) in order to draw out or identify targets for a potential lawsuit would be violating the foregoing rule, and potentially others.

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