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

[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

[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.

EFF Letter

[TXJD]

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

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

[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

[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

News?

[kenh]

news blog Boing Boing

Seriously?

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.