Electric Scooter Rental Service Bird Sent a 'Notice of Claimed Infringement' To a News Site For Reporting On Lawful Re-use of Scooters (eff.org)

Bird, an electric scooter rental company, sent a "Notice of Claimed Infringement" to news blog Boing Boing for reporting about people doing legal things that Bird does not like. EFF reports: Electric scooters have swamped a number of cities across the US, many of the scooters carelessly discarded in public spaces. Bird, though, has pioneered a new way to pollute the commons by sending a meritless takedown letter to a journalist covering the issue. The company cites the Digital Millennium Copyright Act and implies that even writing about the issue could be illegal. It's not.

Bird sent a "Notice of Claimed Infringement" over this article on Boing Boing, one of the Internet's leading sources of news and commentary. The article reports on the fact that large numbers of Bird scooters are winding up in impound lots, and that it's possible to lawfully purchase these scooters when cities auction them off, and then to lawfully modify those scooters so they work without the Bird app. The letter is necessarily vague about exactly how the post infringed any of Bird's rights, and with good reason: the post does no such thing, as we explain in a letter on behalf of Happy Mutants LLC, which owns and operates Boing Boing.

The post reports on lawful activity, nothing more. In fact, the First Amendment would have protected it even if reported on illegal conduct or advocated for people to break the law. (For instance, a person might lawfully advocate that an electric scooter startup should violate local parking ordinances. Hypothetically.) So, in a sense, it doesn't matter whether Bird is right or wrong when it claims that it's illegal to convert a Bird scooter to a personal scooter. Either way, Boing Boing was free to report on it.

Comments

Title

[MBGMorden]

Somehow I'm guessing they weren't familiar with the Streisand effect.

Re:Title

[Registered Coward v2]

Somehow I'm guessing they weren't familiar with the Streisand effect.

Exactly, and now people will see how they might get a cheap scooter. Bird (and others) now either have to keep better track of scooters and ensure they don't violate laws or risk them being impounded and sold at auction. The letter no doubt was done in hopes BB would be frightened and take it down, a standard trick with lawyer's letters where people don't know their rights or the law and a thus may comply even if they don't have to comply.

Re:Title

[Z00L00K]

And the letter was signed by Linda Kwak. Quack goes the duck.

Re:Title

[TXJD]

Precisely... I don't often read Boing Boing, but now I will search this article (and perhaps go to the impound yard). Idiots.

Re:Title

[Pinky's Brain]

They were already being impounded and sold at auction, but they were buying them back.

The article will cause people to bid up these things now to mod/scavenge them ... so it becomes far more costly for them.

Re:Title

[bluefoxlucid]

Actually, the DMCA contains a provision such that doing this may result in losing the right to ever make another copyright claim.

Re:Title

[farble1670]

The letter no doubt was done in hopes BB would be frightened and take it down

When you have lawyers on staff they have to do something with their time.

Re: Title

[Anonymous Coward]

Actually this was settled a long time ago when the American League tried to prevent reporters from reporting baseball scores without the leagues permission. It was stated that reporting facts is always legal or something to that effect

Re:Title

[Anonymous Coward]

Part of me wonders whether this was the business strategy all along. Why spend money tracking/policing scooter returns, when the government can scoop them all up for free and the company pays a small fee to get them back. Privatize the profits, socialize the costs.

Of course, the cost of reacquiring the scooters just went up with the conversion kits and auctions. I rather enjoy when unscrupulous business tactics backfire like this. Time to rethink the business strategy I think.

Re:Title

[Cajun Hell]

They're familiar with the fact that, after twenty years, there are still not any criminal penalties for bogus DMCA notices.

Re:Title

[Cajun Hell]

You talking about something in here? I'm not finding it.

Re:Title

[Cajun Hell]

Oh.. section f. Hmm. Why doesn't that ever get used?

Re:Title

[Gavagai80]

It doesn't get used because the "knowingly" part is virtually impossible to prove. All a company has to do is testify that they're idiots to avoid penalty.

Re:Title

[rnturn]

All a company has to do is testify that they're idiots to avoid penalty.

Yeah but that should only be usable once in any court:

Lawyer: Your Honor, we were unaware...

Judge: [interrupting lawyer] Hold it right there. That was last time. When you claimed you were an idiot in your previous trial, it was your responsibility to learn from that experience. Now take your case and get out of here!

Re:Title

[user no. 590291]

Had logged in to post that the EFF Streisand-ed that bitch.

Re:Title

[Darinbob]

They could get these scooters back far more cheaply if they just paid the impound fees early.

Re:Title

[thegarbz]

It doesn't get used because the "knowingly" part is virtually impossible to prove.

Surely you could claim that no paralegal would have been able to get their degree by applying this level of stupid and ignorance to their profession and therefore the only conclusion is that they did this "knowingly". :-)

Re:Title

[torkus]

In many cases, no. Impound fees are another revenue game (like speeding cameras and all) and quite a few of those fees are in the $100+ range initially plus $5-20 per day. That quickly reaches the retail cost of the scooter even excluding the refurb/refit/redeploy costs.

The Bird

[Anonymous Coward]

Just give them the bird.

Re:Quelle Surprise

[Anonymous Coward]

Why is this modded down? Hitler literally invented goose-stepping when he saw a young man kicking off while riding his scooter.

Re: Really?

[chispito]

Trolling attempt on copy editors: huge success.

EFF Letter

[TXJD]

Do go to EFF site and read the response letter... provides (as always) a well grounded response to the allegations.

Re:EFF Letter

[anegg]

Too bad your comment wasn't posted on the internet so you could provide a link to said response.

I too am lazy and would have preferred to have just clicked a link rather than do my own original search. Therefore I have sacrificed my own free time by finding a link (and actually reading it) wherein the link that you requested can be found...

ArsTechnica article with more information and LINKS to the original infringement claim letter as well as the EFF's (great) response can be found here https://arstechnica.com/tech-policy/2019/01/eff-flips-bird-the-bird-says-boing-boing-post-doesnt-violate-copyright-law/.

You're next South Park

[fahrbot-bot]

Can't wait for Bird to send letters to the South Park creators for all the E-Scooter episodes in Season 22, like The Scoots ...

Re:You're next South Park

[Scarletdown]

If that happened, Matt and Trey would do to Bird like they did to Isaac Hayes; without a disclaimer that they are friends and it was mostly in good fun.

Depends

[fermion]

If the scooters violated some city law and were legally impounded. The Bird has to fight to have law removed or adjusted.

Bird has the right to pay the impound fee, as many of us have done, or have the vehicle seized, which has happened to some of us.

At that it becomes government property and they have the right to do what they can to reclaim their costs. It is unfair for bird to expect the local taxpayer to secretly subsidize their business model.

Now the tricky thing here, to me, is that company have successfully argued that even if someone buys stuff, that certain parts of the machine is not under the control of the person who purchased the thing. For instance, john deere just won the right to keep their customers from repairing the tractors. If this were transferable to the scooters, then bird has a case.

And if this were the case, then the city has a case to sue Bird directly for damages it cannot recover from resale.

Re:Depends

[Anonymous Coward]

I spoke with a city councilwoman about this. The problem is legally grey and Bird is taking advantage. As a simple example, assume someone leaves a scooter in your front yard. Can you confiscate it? Can you charge Bird rent? Look it up, not as simple as you may think. The councilwoman in particular was pissed as part of her area is the school for the blind. So the school is teaching people how to navigate the world and these dicks at Bird just added one more thing to trip over. What she did say wink wink was "Some people are throwing them in dumpsters" Oh and yes they ARE violating existing city law (at least my city) as blocking the sidewalk is against the law. Try growing a bush that impinges in the sidewalk ROW. You get a ticket. Try leaving a car that sticks in your driveway that sticks into the sidewalk area, you get a ticket. Bird drops these things EVERYWHERE and no tickets.

Re:Depends

[Paxtez]

john deere just won the right to keep their customers from repairing the tractors. If this were transferable to the scooters, then bird has a case.

IIRC, it was mostly about the homebrew software that worked with the JD equipment. A strange copyright infringement because the software has to talk to the hardware a certain way. I don't think that would apply to ripping out all of the JD boards and replacing them with your own, which is what this 'hack' does.

Re:Depends

[Sir Holo]

In my City, these scooters littering public spaces are legally "abandoned property". That means anyone can take a scooter or two off of the sidewalk and scrap it out. Legally.

Check your local City Code.

Re:Depends

[dissy]

Now the tricky thing here, to me, is that company have successfully argued that even if someone buys stuff, that certain parts of the machine is not under the control of the person who purchased the thing

It isn't tricky at all. US copyright law simply doesn't work that way.

Title 17, chapter 1, section 109:
https://www.copyright.gov/title17/92chap1.html

"Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord"

And I quote:
the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

So long as an instance of a copy is obtained legally, aka via government auction of impounded property, then the buyer can resell or dispose of that one instance of the copy.
They are only prohibited from making further copies of it.

So you are legally entitled to resell your purchase bird scooter, copyrighted software and all.
You are legally entitled to rip the copyrighted software out of the device, as in to replace it with your own software such as described here.
You are always entitled to the right to modify your instance of a copy, so long as it isn't distributed, which is perfectly in line with what is happening here.

No authorization from the copyright holder is needed for any of those things outside of redistribution (and public performance, which doesn't apply here to software)

Re:Depends

[MooseTick]

If I park my car in a public space, would that be legally "abandoned property"?

Re:Depends

[Anonymous Coward]

Moose-

Your car should have a license plate and registration sticker proving:

1. You paid state road use taxes
2. You are the owner and are financially liable for the vehicle should it need to be removed

These scooters are abandoned on public and private property without any guarantee the owner has track of their locations. The scooter rental companies willfully thrust these products onto public thoroughfares without negotiating any rules or regulations. The community at large has not been asked permission by the scooter companies if they could share our public space with their products. In this dynamic, the scooter companies have volunteered their products to be placed at the mercy of the public.

Re:Depends

[Anonymous Coward]

If your car isn't registered, yes in most cities.

Re:Depends

[mattventura]

Does bird drop them there, or are riders leaving them there? If it’s the latter, wouldn’t whoever negligently left it somewhere be the one on the hook?

Re:Depends

[mattventura]

if you rent a car, and you get a ticket, it is most certainly your responsibility rather than the rental agencey’s. Bird could still be found to be negligent for it taking any precautions, but that doesn’t give riders carte blanch to leave them wherever they please. They can both be at fault.

Re:Depends

[SallyBowls]

IANAL, but I understood that first sale applies to books and records and physical things. However, in the US, embedded software is different. E.g.: the web document "Court rules that copyright “first sale” doctrine does not apply to pre-installed software that was licensed to OEMs" has "In a recent decision from the U.S. District Court for the Northern District of California, the court ruled that the first sale doctrine did not apply to copies of software that are pre-installed on a computer and sold by the original equipment manufacturer with the computer itself. In Adobe Systems v Hoops Enterprise LLC " IANAL, but IMO a number of things in the US are still different regarding licensed-not-sold software vs physical objects.

Re:Depends

[dissy]

IANAL, but I understood that first sale applies to books and records and physical things.

That would be why I quoted copyright law and not the first sale doctrine :}
Lacking any sort of licence agreement or contract, pure title 17 laws are all that apply.

Re:Depends

[Anonymous Coward]

Depends on the kind of ticket. A speeding ticket handed to you by an officer is an in personam action, in which the state is assigning liability to an individual for their acts.

However, parking tickets, as well as things like tickets generates by speed and red light cams, are in rem actions. That is to say, the property is the subject of the action, and it is enforced by putting a lien against it. The person who holds title to the property is liable to pay the fine, or the state can hold it in impound, refuse to renew licenses, etc. until payment is received, and it can lawfully take title to the item if the lien is never satisfied.

For rental cars, there is usually a clause in the rental agreement stating that you will indemnify the company for any liens out against the vehicle while it is in your possession. It's up to the company to enforce these terms in an action at contract, however, and they are ultimately liable for satisfaction if the lien if the rental contract terms are unenforceable for whatever reason.

Yes, IAL

Re:Depends

[anegg]

if you rent a car, and you get a ticket, it is most certainly your responsibility rather than the rental agenceyâ(TM)s.

The rental car I was driving was issued a speeding camera ticket. The rental car company was responsible for paying the ticket. They subsequently charged me for the amount they had to pay. Although it was my contention that the ticket was invalid (too complicated to go into why) there was, given these conditions, no way to argue my point. I paid the rental car company as requested. So although the rental car company could recover their cost from me, it was their responsibility to pay that particular ticket as it was their vehicle and registration under which the ticket was issued.

Re:Depends

[anegg]

Except Bird says that the code is overwritten!

If you read the letter from the EFF, you will see the rebuttal from the EFF that the Bird code is not overwritten, the kit has a replacement motherboard. The Bird code is removed when the motherboard containing the Bird code is removed. A new motherboard, owned by the new scooter owner (acquired legally from an impound yard auction) is installed in the scooter, making the scooter work properly for the new owner. No more infringing than putting new locks in a house acquired in a foreclosure auction even if the old locks were "smart locks" with code in them.

Re:Depends

[anegg]

If I park my car in a public space, would that be legally "abandoned property"?

When I was young and stupid, I had a car that broke down while I was on my way home from a bar. I was able to safely park it well onto the shoulder where it was not in anyone's way. I was going out of town the next day and did not have the time to repair it (nor the $$ to have it towed or repaired for me). Stupidly I took the license plate off of it so that no one could *steal the license plate* (there was no chance they would want to steal the car). When I got back in town three or four days later I was *shocked* to find that my car had been towed at the request of the police, to an impound yard. When I called the impound yard and found out how much they wanted me to pay to get my car back, I let them know they could keep it, and went and bought another (cheap) car. I assume that after some legal procedure the impound yard was able to acquire ownership of my property and have their way with it.

Re:Depends

[user no. 590291]

Wish I had points for you - great explanation.

Re:Depends

[fermion]

If Toy Park ir in a space that at a certain time becomes a Two away zona, or you Park it in a median or you Park it in onna public play ground Teen it William be Tower and you can hace a choice of paying the fees or abondoning the car. I think that anyone who owns a car know this.

Also most cities have laws that after a certain amount of time the vehicle is legally abondoned. So yes

Re:Depends

[Rick Zeman]

No more infringing than putting new locks in a house acquired in a foreclosure auction even if the old locks were "smart locks" with code in them.

Perfect analogy.

Re:Depends

[thegarbz]

If I park my car in a public space, would that be legally "abandoned property"?

Where I live, if it is parked without paying at the meter it is abandoned, or if it hasn't moved from a free parking spot in 3 months it is abandoned.

I know this because an arsehole in my street tried to convince the council that my car was abandoned because I parked it on the street every day. I solved this problem by parking in front of his house instead.

Re:Depends

[thegarbz]

Additional post: And this varies too. Where I used to live the car is considered abandoned if it is in a public place and the registration lapses.

So, to ask again

[Trailer Trash]

Aren't these notices sworn under penalty of perjury? I know it's more fun to prosecute black kids for loitering or whatever, but it'd be so nice, just once, to see a prosecutor give a damn about this sort of stuff. And it'd only take one to make it stop.

Re: So, to ask again

[gnasher719]

You swear under threat of perjury that you are the copyright holder or an agent of the copyright holder of the copyright that you claim is infringed. Itâ(TM)s no problem if you made a mistake and the thing that you believed is infringing isnâ(TM)t actually yours, or if it is yours but someone isnâ(TM)t actually infringing. So they are legally fine.

Re: So, to ask again

[bill_mcgonigle]

Ah, Perverse Incentives for Imaginary Property Ruin Everything episode #444252.

Re: So, to ask again

[Calydor]

But if you swear that you have deciding powers over the copyright of ITEM, but it turns out someone ELSE has those powers instead of you, why isn't that perjury?

Re: So, to ask again

[gnasher719]

The law says what the law says. You have to state under threat of perjury that you are the copyright holder or an agent of the copyright holder. Nothing else is under threat of perjury.

For example, if you are the copyright holder of GPL licensed software (and therefore not legally allowed to stop me using the software or creating derived works as long as I follow the license), and you issue a DMCA takedown notice against me, that's not perjury because you _are_ the copyright holder. Even if my use of the software was totally legitimate.

In a DMCA notice, you state "I am the copyright holder and I believe you are using my copyrighted item illegally". The "I am the copyright holder" part must be true under threat of perjury. The rest not.

Re: So, to ask again

[Trailer Trash]

In a DMCA notice, you state "I am the copyright holder and I believe you are using my copyrighted item illegally". The "I am the copyright holder" part must be true under threat of perjury. The rest not.

In the present case, they're not the copyright holder. There's nothing there that they could claim to hold a copyright on.

Re:Can't wait for the scooter fad to end

[Altus]

Ya know they had the lime scooters in Paris when I was there recently and I didn't see them piled up all over the place. What I did see was a lot of people using them for short distance trips, hell I rarely saw one that didn't have a person on it. It's a shame that we in the US seem to have this problem with them because they seemed to be pretty effective in Europe and as someone who commutes via public transit into a major metro, I would love to have these available for getting around the city more quickly.

Honestly I suspect part of the issue is that in America we are too busy sitting in our cars to keep these things in use as opposed to just sitting on a sidewalk somewhere.

That said this takedown letter from Bird is absolute crap

remember what free speech is for

[supernova87a]

“Journalism is printing what someone else does not want printed: everything else is public relations.”

George Orwell

Re:First Amendment?

[Anonymous Coward]

Suing someone for speech would very much be a 1st Amendment issue, as it would be the government who punished you.

Cheap scooter, or a new company inventory

[drnb]

A cheap scooter, or a new company inventory. Buy a bunch of old scooters, repaint them, update their software to work with your "freebird" or whatever app and you too can have a scooter rental company without the manufacturing of scooters.

Godwin

[Anonymous Coward]

Because OP Godwined the comments.

In other words, a nationalist-socialist ideology that sought to control the world while killing off a significant portion of it's population in the name of racial purity is not the same thing as a rental scooter company sending stupid letters to web sites.

Re:Godwin

[Anonymous Coward]

It is the first step and always leads to genocide.

News?

[kenh]

news blog Boing Boing

Seriously?

Re:News?

[14erCleaner]

one of the Internet's leading sources of news and commentary

SERIOUSLY?

Re:Can't wait for the scooter fad to end

[Anonymous Coward]

Commute distance is *MUCH* smaller in cities in Europe than it is in most cities in the US. They are MUCH more compact. *THAT* is why these are nothing more than a bullshit fad.

I love how you guys always compare the way things are done for things like this to the US, and yet CONVENIENTLY forget to mention that there are states in the US that have almost the same area as the ENTIRE EU.

Isn't this an abuse of the DMCA?

[rsilvergun]

There's nothing to copyright here. Yes, the program code on the scooter is protected, but it's not in and of itself a protection mechanism or DRM since it's not protecting anything. They have to know this isn't going to work. Was their lawyer just bored that day?

Re:Can't wait for the scooter fad to end

[MushMouth]

There are plenty of American cities that are dense enough to support electric scooters for last mile usage.

What is lawful about this "re-use"

[MushMouth]

They are reporting on a kit that allows you to replace Limes control unit to effectively have your own scooter. This is about as lawful as selling kits to take over your neighbor's car.

Re:What is lawful about this "re-use"

[b0s0z0ku]

If the neighbor's car got impounded and sold at city auction, it's perfectly legal to buy it and change the ignition keys.

Tell me they didn't rip off The Trashmen...

[rnturn]

... and misappropriate one of their songs for their ads.

If I buy it, it's mine. Period.

[JustAnotherOldGuy]

As above, if I buy it, it's mine and I can do whatever the hell I want with it, end of story, full stop.

If Bird doesn't like it, too bad.

I guessing that it woudn't be very hard to rip out or disable the GPS and the wheel locking system.

Re:Can't wait for the scooter fad to end

[ffkom]

Remember the different fates of "hitchBOT" in Canada, Europe and the US? Kind of tells you what to expect if something unarmed is set free in those regions.

Re:why wait for an auction?

[guruevi]

Depends on your jurisdiction. Just because a thing is sitting by itself, doesn't mean it's legally considered abandoned. You don't 'abandon' your car or motorcycle when you park it. If you take it before it's considered 'abandoned', it's called theft, the city impounds it because it's parked illegally but these things typically sit in storage for weeks if not months even after being impounded because they're not legally abandoned yet. This could be anywhere from 10-30 days in most places for vehicles but months or even years for bigger things like real estate.

So

[BitztreamNotARealNam]

How's life in the hypocrite lane?

Re:Can't wait for the scooter fad to end

[Darinbob]

People do use them. I can infer this because I see many of them just dumped at a random location. Not near a building entrance, not near a transit stop, but just dumped. The company will put out 5 or 6 in a row waiting for someone to use them, but that's not the same as one dumped into bushes or a gutter.

Re:Can't wait for the scooter fad to end

[Darinbob]

Well I think the sort of customer who might want this sort of thing is already wasting money on uber instead.

Re:Can't wait for the scooter fad to end

[DethLok]

"there are states in the US that have almost the same area as the ENTIRE EU."

Really?

According to a quick internet search...

https://www.google.com/search?...
EU area is 4,422,773 km2 (1,707,642 sq mi).

Largest state in USA is Alaska, including water it's 1,723,337 km2 (665,384.04 sq mi). Not even close to "almost the same area as the EU"!!

By way of boasting, the state I live in has an area (not including water as do those figures above) 2,529,875 square kilometres (976,790 sq mi). So, my state alone is more than half the size of the entire EU. . . and larger than Alaska and Texas together.

https://en.wikipedia.org/wiki/...

Welcome to Western Australia, try not to get lost...

Re:why wait for an auction?

[Rick Zeman]

Yeah, I'm kind of curious about the business model because mass abandonment of the physical asset that makes the money can't be cost-effective. Even if their up-front cost is $150, how many rides at $y does it take until they lose control of the asset? And there's all of the supporting infrastructure that has to be paid for, etc, etc.
Of course, the US tax code probably allows them to write off all of the losses even though it's their strategy.

Re:Can't wait for the scooter fad to end

[Altus]

I live in Boston.... Sure maybe LA is too big but Boston is certainly not larger than Paris.