
EFF Responds to Bird's Legal Threats to Boing Boing - justanother
https://boingboing.net/2019/01/11/flipping-the-bird.html
======
dweekly
OPG v Diebold suggests a countersuit under 502(f) would prevail in this case.
(Disclaimer: I was a plaintiff in this case, we won, EFF were our lawyers.)

~~~
otterley
Only to the extent any damages are incurred as a result of removing or
disabling access to the content, which hasn't happened. See 17 U.S.C.
512(f)(2) (emphasis mine):

(2) that material or activity was removed or disabled by mistake or
misidentification, shall be liable for any damages, including costs and
attorneys’ fees, incurred by the alleged infringer, by any copyright owner or
copyright owner’s authorized licensee, or by a service provider, ___who is
injured by such misrepresentation, as the result of the service provider
relying upon such misrepresentation in removing or disabling access to the
material or activity claimed to be infringing, or in replacing the removed
material or ceasing to disable access to it._ __

~~~
dweekly
The countersuit wouldn't be to quantify damages from its removal (since not
removed) but rather a preliminary injunction seeking declarative relief that
the takedown was found invalid.

~~~
otterley
I guess you could file a claim for injunctive relief in anticipation of a
suit, but that sounds like a waste of time and attorney's fees IMO. Also, you
can't counterclaim unless you are a defendant, and you don't need to
counterclaim to have such a claim tossed anyway. All the defendant would have
to do is file a 12(b)(6) motion (failure to state a claim) in response to the
original pleading.

~~~
dweekly
Please read OPG v Diebold, because that's what we did and won in federal
court, establishing court precedent and resulting in hundreds of thousands of
dollars of fines levied against Diebold.

~~~
otterley
I did read the decision. My opinion is that the action was poorly executed,
unless the point was to prematurely expend time and effort in an attempt to
make case law in the absence of Diebold actually instigating a suit. IMO the
would-be defendants should have waited and filed a counterclaim and 12(b)(6)
motion. Case law probably would have resulted this way as well.

Also in footnote 11, the court notes that "Plaintiffs appear to have conceded
at oral argument that their claims for injunctive and declaratory relief are
moot and that a decision on their claims for damages will be a sufficient
adjudication of their rights."

According to the decision, plaintiffs asked for and received $5,185.50 in
restitution and unspecified attorney's fees, which I suppose could have been
in the hundreds of thousands range if you spent too much on attorneys. The
"hundred of thousands" of dollars were the result of a settlement and were not
ordered by the court.

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jzl
So, simple question, but: what _is_ the legal reason I, not a customer of Bird
and having never signed an EULA in their app, can't just take a Bird scooter
off the street and just keep it in my house, even as decoration without
modifying it? What law protects a business model that relies on leaving
property all around town, completely unencumbered? (I know about the police
auctions, but that's not the question here.)

~~~
dcosson
Wait til you learn about cars!

People literally leave them all around the city, for hours or even days at a
time. Completely unencumbered as well, and taking up prime public space that
could be used by the public in so many other ways. You just need a jack and a
tow truck, you can go around collecting as many as you want and keep them.
They've been abandoned after all, because someone has walked away from them.

(Obviously sarcasm, but as a non-car-owner I get a kick out of people freaking
out about these scooters taking up public space. Meanwhile every street in the
city is full of cars with one person in them and has two lanes of free or
heavily subsidized parking. It's clearly a massively less efficient use of
public space, and no one ever talks about that).

~~~
ranrotx
Car owners pay registration fees and and gas taxes for the privilege to use
the public roadways. Bird and the like just dumped their property (which makes
them money) on public right-of-ways without paying for the use like every
other industry does.

~~~
geomark
Yeah, parent comment neglected the fact that drivers are paying via taxes and
fees. Those may not be sufficient to pay for external costs, but that's how
the roads are typically paid for.

~~~
Latteland
You might be paying taxes and fees to license them but you could well have
paid nothing to that city. I can drive through your city (unless you have
tolls or entry passes, but the vast majority of cities don't have those). I
can just use your streets for free.

~~~
geomark
There are federal, state and local taxes on transportation fuels. So sure, if
you drive through the city without filling up your car there then you got a
free ride on that city's roads, but not the state and interstate highways
leading to it. But that's one of those things that averages out due to large
numbers, and where it doesn't there is usually some rebalancing of revenues by
government entities.

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tptacek
This looks like a form-letter DMCA takedown thing (good tip-off: referring to
Cory Doctorow as "one of your users") so while Boing Boing isn't wrong to
refuse to honor it, making a galactic big deal out of the shock-and-awe
caliber of their legal response has a weird feeling to it, sort of the same as
Eric Raymond's "I'm your worst nightmare" response to a Microsoft recruiter
form-email.

~~~
sjroot
I wasn't familiar with the story of Microsoft and Eric Raymond, but I just
went and read it. Man, that was very difficult to get through.

For others who haven't read it:
[http://esr.ibiblio.org/?p=208](http://esr.ibiblio.org/?p=208)

~~~
YeGoblynQueenne
Yes, that was difficult indeed. But not, I think, for the reasons you mean:

 _FURTHER UPDATE: I had my serious, constructive converstation with Microsoft
last year, when a midlevel exec named Steven Walli took me out to dinner at
OSCON 2004 and asked, in so many words, “How can we not be evil?” And I told
him — open up your file formats (including Word and multimedia), support open
technical standards instead of sabotaging them, license your patents under
royalty-free, paperwork-free terms._

 _I believe Steve Walli went back to his bosses and told them that truth. He
is no longer with Microsoft, and what little he’ll say about it hints that
they canned him for trying to change their culture._

~~~
ghaff
Stephen Walli actually is back with Microsoft these days :-)

It was a rather different time. Personally I wouldn't have been as rude or
have named names but it wasn't unreasonable to have a bit of fun at
Microsoft's expense. This was Microsoft's "Linux is a cancer" period when they
even had a senior exec whose charter was basically going after Linux (among
other things).

~~~
sjroot
For someone who wasn't around for all of that fun, thank you for helping add a
little context to his words.

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cwkoss
I bet Bird's inventory is vanishing now that word is out, and they are legally
flailing about to try it stop it in any way they can. Too bad I can't short
them, it was a naive business model from the beginning.

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jsjdnfmd
Phew, so many people would probably argue that a locked bike isn't my property
once I leave it on the street.

After staying in Norway, where people leave MacBooks unattended, and doors and
bikes unlocked, it riddles me how tolerant other societies are when it comes
to theft.

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chx
Anyone remembers Monster vs Blue Jeans Audio / Kurt Denke? When a bigger
company tries to legally bullshit the small guy and it falls very very flat.

> Not only am I unintimidated by litigation; I sometimes rather miss it.

[https://www.audioholics.com/news/blue-jeans-strikes-
back](https://www.audioholics.com/news/blue-jeans-strikes-back)

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ada1981
Anyone have leads on where to buy these at auction?

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bogomipz
Can anyone say what the common source of the impounding of these scooters is
landlords, parking enforcement, business owners?

Couldn't any "dockless" transportation device technically be considered
abandoned once a user get's off of it leaves it where it lies? In the absence
of having agreements with the local municipality could this be a fatal flaw in
the business model?

It seems like there could be an "incentivized" marketplace for the proactive
impounding and subsequent auctioning of these no?

~~~
VectorLock
Sounds like a lot of cities are handling them like abandoned cars.

Honestly I'd love to find an auction with these.

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ada1981
Boing Boing should crowdfund some money to convert a bunch of scooters and
give them away outside Bird HQ.

~~~
cwkoss
That would actually be illegal.

EDIT: Missed that you can buy them from impound lots - that would be legal.
Converting one you found on the street would not.

~~~
charonn0
Why? Assuming the scooters are being bought at auction from impound lots like
the article says.

~~~
cwkoss
Ah, I didn't realize that the scooters can be legally obtained from an impound
lot. Very clever!

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todipa
Is there no way to countersue Bird Scooter for economic harm?

~~~
iaw
What economic harm have they caused?

~~~
AnimalMuppet
They've caused Boing Boing to burn a bunch of lawyers' time for no good
reason.

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the_common_man
Can I take a (working) scooter on the street and use the 30 USD kit? After
all, it's an item on the street. What legal action can Bird take? Just
curious.. Can I take legal action if I throw my stuff around the street and
then start taking legal action if someone re-uses it?

~~~
k_sh
You're describing theft. Bird didn't abandon their scooter, they know where it
is and intended for it to be there.

As noted in another thread here, something being left on the street doesn't
mean it's legally abandoned, whether it's a car, a wallet, or an electric
scooter.

Most jurisdictions require the (former) owner to intentionally relinquish
ownership in order for something to be considered abandoned.

~~~
talltimtom
Quick question. If I start a business that used public streets as
storagespace. Am I in the clear as long as I put GPS trackers in the boxes?

~~~
krab
I think the law would be on your side regarding theft of the boxes. You still
might be punished for misuse of public space.

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darepublic
If wishing to hurt Bird someone could litter the town with look alike scooters
that Are seemingly unlocked by the app but are modified to be extremely slow.

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bitxbitxbitcoin
It’s like the Bird team has never heard of the Streisand Rffect before.

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jammygit
Just discovered that boingboing has one of the only readable, reasonable
privacy policies I've ever seen on a news site
[https://boingboing.net/privacy](https://boingboing.net/privacy)

Its not perfect and I wish there was an ad/sponsored post/tracking free paid
version, but it was refreshing.

Edit: has anyone ever seen one that just turns tracking off if you sign up?
All I've ever seen is the removal of paywalls, sometimes ads, but never
tracking

~~~
usefulcat
> has anyone ever seen one that just turns tracking off if you sign up?

Check out ars technica, I think they may offer that

~~~
jammygit
I couldn't find such an option, where is it? Their policy looks pretty
standard-creepy from all I could find

~~~
Marsymars
Yeah, and checked and couldn't find any mention of the feature outside of
comments, which is weird, but I can confirm that when logged in and opening
random articles, the only domains hit are arstechnica.com, arstechnica.net and
cdn.arstechnica.net.

------
supernova87a
“Journalism is printing what someone else does not want printed: everything
else is public relations.”

George Orwell

~~~
mesofile
Possibly spurious: see [http://blogs.umb.edu/quoteunquote/2012/09/25/even-if-
it-look...](http://blogs.umb.edu/quoteunquote/2012/09/25/even-if-it-looks-
sounds-walks-and-quacks-like-an-orwell-quote-it-still-might-not-be-an-orwell-
quote/)

~~~
SilasX
The attribution might be spurious; the insight isn't.

~~~
mesofile
I thought the quote was pithy, but it didn't quite sound like Orwell to me
(who I have read a lot of, though not recently). "What someone else doesn't
want printed" is a formulation that doesn't quite mean _truth_; Orwell felt
seriously about the journalist's responsibility to be truthful and it seemed
like he might have made a finer distinction. Quick search and lo.

Orwell is claimed by partisans of all kinds due to his great reputation as a
moral thinker and his willingness to criticize political actors & ideologies
across the spectrum. Consequently his writings are often misquoted,
misattributed or taken out of context. The "rough men stand ready to do
violence on our behalf" one is a classic example.

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nradov
I hate those scooters. Went running with some friends in San Jose a few days
ago and they were scattered all over the sidewalks. A real hazard for
pedestrians.

Hopefully cities will enforce strict rules against blocking sidewalks and
confiscate any scooters left in unsafe spots.

~~~
Johnny555
In my neighborhood, while I do see the occasional scooter or bike share bike
parked across the sidewalk, far more annoying are the cars parked in their
"driveway" that block part or all of the sidewalk

~~~
dragonwriter
That's illegal, though, for exactly that reason, so I'm not sure what your
point is, other than that you have a problem with scofflaws in your
neighborhood.

~~~
Johnny555
My point is that scooters are not new offenders (or even the worst offenders)
of blocking the sidewalk, but no one complains about the cars, that's just
accepted.

~~~
lr
The cars parked across the sidewalk are individuals parking their car at home.
Bird scooters littering the sidewalks is a business model. How do you not
understand the difference?

~~~
Johnny555
If the homeowner left the scooter there would you feel better about it? What
if it was his own personally owned scooter?

~~~
akiselev
I still wouldn't be happy but yes, I would be _happier._ A resident
homeowner/renter has far more right to utilize the public property in front of
their residence than some [multi-]national corporation, just like residents
have the right to vote for their representatives and the businesses don't.

I tolerate far worse externalities from my neighbors because they're my
_neighbors_ and I want to minimize pointless conflict for their emotional
benefit as well as mine. Business that create externalities in my neighborhood
for the sake of corporate profit, on the other hand, can either pay me and my
neighbors in cash to deal with the externalities (with a decent profit margin
for _our time and effort_ ) or they can go f __* themselves.

~~~
nradov
That is incorrect. Ownership of private property grants no special rights over
the use of adjacent _public_ property.

~~~
akiselev
Reread what I wrote. _A resident homeowner /renter_ \- that's literally the
definition of a town, county, or state constituency. Living there (which only
a _human_ can do) grants you special rights to decide how that public property
will be utilized, developed, and regulated by voting in representatives.

~~~
nradov
No that's not how it works. Blocking public sidewalks is illegal (although
inconsistently enforced) in almost every city, regardless of who lives there.

