In early December, Boing Boing published a piece about an e-scooter “conversion kit”, a $42 hotwiring option for users who were, in theory, able purchase any number of Bird electric scooters collecting dust at city impound lots. This apparently didn’t sit well with Bird, which promptly issued a “notice of claimed infringement” requesting the article be removed from Boing Boing’s site.
Bird’s notice, sent to the company Dec. 20, claims that publication of the piece by co-owner and contributor Cory Doctorow not only infringed on Bird’s intellectual property but also Boing Boing’s own terms of service by “promoting the sale/use of an illegal product that is solely designed to circumvent the copyright protections of Bird’s proprietary technology [...] as well as promoting illegal activity in general by encouraging the vandalism and misappropriation of Bird property.”
The Electronic Frontier Foundation (EFF) — which is acting as legal counsel for Boing Boing owner Happy Mutants — is calling bullshit. In a blog published Friday, EFF senior staff attorney Kit Walsh wrote that the post not only fails to infringe on the e-scooter company’s rights but also that “the First Amendment would have protected it even if reported on illegal conduct or advocated for people to break the law.”
A post about the hack, which surfaced in October on the blog Scooter Talk, suggested that any impounded scooters theoretically auctioned off by police could be converted with the plug-and-play kit. A source with knowledge of the company’s thinking claims the letter was not intended to insinuate that Doctorow was reporting on illegal behaviour — even if Bird did just that.
Speaking with Gizmodo on Friday, Doctorow criticised the move as nothing more than a knee-jerk response to an article Bird did not find particularly flattering.
“I don’t have to tell someone from Gizmodo how viscerally frightening it is for an independent media organisation to receive a threat from a deep-pocketed adversary who is smarting from being criticised,” Doctorow told Gizmodo, which has been hit with similar requests and a number of lawsuits for its reporting over the years. “Even with all our knowledge and expertise on the DMCA and its anti-circumvention rules, it’s unnerving and chilling to get this kind of threat.”
Doctorow added: “Whether they sincerely believe that they have a legal right to silence their critics or were just fishing for an easily intimidated sucker, this conduct speaks volumes about a company whose approach to the public has been ‘trust us, we will do the right thing’ when it comes to the use of public spaces.”
In a letter responding to Bird’s notice, Walsh wrote that Boing Boing has no obligation and therefore no intention to remove the article from its site. Walsh added that the electric scooter company “may not be pleased that the technology exists to modify the e-scooters that it deploys, but it should not make baseless legal threats to silence reporting on that technology.”