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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)

Posted by msmash on from the stranger-things dept.

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.

29 of 114 comments (clear)

  1. Title by MBGMorden · · Score: 5, Insightful

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

    --
    "People who think they know everything are very annoying to those of us who do."-Mark Twain
    1. Re:Title by Registered+Coward+v2 · · Score: 4, Insightful

      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.

      --
      I'm a consultant - I convert gibberish into cash-flow.
    2. Re:Title by Pinky's+Brain · · Score: 3, Interesting

      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.

    3. Re:Title by bluefoxlucid · · Score: 5, Informative

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

      --
      Support my political activism on Patreon.
    4. Re:Title by Anonymous Coward · · Score: 4, Interesting

      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.

    5. Re:Title by Cajun+Hell · · Score: 5, Insightful

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

      --
      "Believe me!" -- Donald Trump
    6. Re:Title by Cajun+Hell · · Score: 2

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

      --
      "Believe me!" -- Donald Trump
    7. Re:Title by rnturn · · Score: 2

      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!

      --
      CUR ALLOC 20195.....5804M
  2. The Bird by Anonymous Coward · · Score: 3, Funny

    Just give them the bird.

  3. Re:Quelle Surprise by Anonymous Coward · · Score: 2, Funny

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

  4. EFF Letter by TXJD · · Score: 5, Informative

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

    1. Re:EFF Letter by anegg · · Score: 3, Informative

      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/.

  5. You're next South Park by fahrbot-bot · · Score: 2

    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 ...

    --
    It must have been something you assimilated. . . .
  6. Depends by fermion · · Score: 5, Interesting
    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.

    --
    "She's a scientist and a lesbian. She's not going to let it slide." Orphan Black
    1. Re:Depends by Paxtez · · Score: 2

      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.

    2. Re:Depends by Sir+Holo · · Score: 3, Interesting

      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.

    3. Re:Depends by dissy · · Score: 4, Informative

      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)

    4. Re:Depends by MooseTick · · Score: 2

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

      --
      Ninjas don't carry tic tacs
    5. Re:Depends by Anonymous Coward · · Score: 5, Informative

      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

    6. Re:Depends by anegg · · Score: 2

      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.

  7. So, to ask again by Trailer+Trash · · Score: 3, Insightful

    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.

    --
    Do you have ESP?
  8. Re:Can't wait for the scooter fad to end by Altus · · Score: 2, Interesting

    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

    --

    "In America, first you get the sugar, then you get the power, then you get the women..." -H. Simpson

  9. remember what free speech is for by supernova87a · · Score: 2

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

    George Orwell

  10. News? by kenh · · Score: 4, Funny

    news blog Boing Boing

    Seriously?

    --
    Ken
  11. Re:Can't wait for the scooter fad to end by Anonymous Coward · · Score: 2, Insightful

    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.

  12. Re:Can't wait for the scooter fad to end by MushMouth · · Score: 2

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

  13. Re:What is lawful about this "re-use" by b0s0z0ku · · Score: 4, Insightful

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

  14. Re:Can't wait for the scooter fad to end by ffkom · · Score: 2

    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.

  15. Re:Can't wait for the scooter fad to end by DethLok · · Score: 2

    "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...