On-demand electric scooter startup Bird has backed down from its legal threats against Boing Boing editor Cory Doctorow for publishing a piece detailing how a $42 kit from China could be used to rewire the hoards of abandoned Bird scooters sitting around city impound lots, the BBC reported on Monday.
Doctorow’s December 2018 piece detailed how to swap out hardware components (namely, a motherboard) on electric scooters that are legitimately purchased from city authorities who have impounded them, thereby disabling recovery and payment components. Bird sent a letter to Boing Boing demanding the post be taken down, as well as accusing the site of violating Digital Millennium Copyright Act (DMCA) anti-circumvention protections.
In their letter, Bird wrote that Doctorow was “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.”
This did not go over well, with Doctorow refusing to take down the post. The nonprofit Electronic Frontier Foundation (EFF), which acted as counsel for Boing Boing owner Happy Mutants in the matter, strongly resisted the move.
In a post on their blog, EFF senior staff attorney Kit Walsh noted that First Amendment protections would have applied to the post “even if [it] reported on illegal conduct or advocated for people to break the law.” She added that Bird appeared to be attempting to contort Section 1201 of the DMCA, which prohibits breaking technologies designed to keep users “out of accessing copyrighted works, like software, even when [they] own the device that software is on,” to apply to hardware changes.
“You literally throw away the copy of the Bird code residing on the unwanted motherboard, rather than accessing or copying or modifying it,” Walsh added.
Doctorow also characterised the letter in an email to Gizmodo as “a threat from a deep-pocketed adversary who is smarting from being criticised.”
Per the BBC, Bird has now backed down and, through a spokesperson, issued a half-assed apology repeatedly dropping the word “freedom”:
A spokesperson told the BBC Bird’s legal team had “overstretched” in issuing a takedown request… “Bird celebrates freedom in many ways – freedom from traffic, congestion as well as freedom of speech,” said a spokesperson.
“In the quest for curbing illegal activities related to our vehicles, our legal team overstretched and sent a takedown request related to the issue to a member of the media. This was our mistake and we apologise to Cory Doctorow.”
On Twitter, Doctorow called the company’s statements a “nonpology” and noted that Bird appears to be arguing it “accidentally formulated a bizarre legal theory, wrote it out and sent it to me” as well as that selling the conversion kits is illegal.
Moreover, the nonpology still:
1. Maintains that somehow they accidentally formulated a bizarre legal theory, wrote it out and sent it to me (quite an accident)
2. Implies that selling conversion kits is illegal (it's not)
— Cory Doctorow (@doctorow) January 14, 2019
Bird and its competitors in the e-scooter space, such as the Uber-backed Lime, have increasingly drawn heat for their business tactics as of late. Last year, San Francisco transit regulators denied both companies permits to continue operating in the city for “distributing scooters without permission from regulators and earning some pushback from residents,” the New York Times reported. Legal battles have not resulted in the city allowing either company to return, while battles with regulators in other metro areas have continued, per TechCrunch. (San Francisco did allow competitors Skip and Scoot to operate, though not without extensive criticism from some residents.)
Reports in 2018 also indicated that accidents or malfunctions with on-demand scooters have resulted in a wave of injuries. Late last week, Lime pulled its entire fleet from the cities of Basel and Zurich in Switzerland after Swiss media site Watson published a report detailing three injuries caused by anti-theft locking during rides.
That incident followed other reports of some of Lime’s scooters batteries that caught fire.