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Of all the stupid things a lawyer can do, it’s difficult to think of many more stupid than to send a totally and completely bogus copyright infringement claim, arguing (incorrectly) a violation of DMCA section 1201 (the anti-circumvention part of the DMCA) to Cory Doctorow. Among many other things, Cory is one of the leading voices about the problems of 1201 and has fought for years to dismantle it. And thus a case that actually challenged 1201 might be interesting, but in this case, there’s no valid 1201 case at all.
As explained in an EFF blog post, Bird, one of the bigger app-based scooter rental services out there, sent a completely bullshit "Notice of Claimed Infringement" to Doctorow and the parent company of Boing Boing, Happy Mutants. Over what? Over a BoingBoing post from last month that reports on how people are offering $30 conversion kits to turn a former Bird scooter into one that you yourself can use. Specifically, the article talked about how many Bird scooters were being impounded, and could potentially be sold off at some point to people who might want to convert one on the cheap into a personal electric scooter.
The letter–sent by Bird’s "Sr. Corporate Counsel", Linda Kwak (whose experience appears to be focused on employment law, not copyright law)–makes a number of ludicrous claims. Thankfully, Doctorow and BoingBoing have EFF to back them up and respond forcefully to this kind of threat, with a response written by EFF senior staff attorney Kit Walsh. Here’s a snippet:
First of all, Mr. Doctorow is well within his First-Amendment-protected rights to report
on the existence of these conversion kits and their use. Mr. Doctorow’s article does not
encourage any form of illegal conduct, but even if it did, the First Amendment does not
permit liability based solely on encouraging others to break the law. Even in cases where
a person advocates violent crimes, the First Amendment only permits that advocacy to be
punished when it is intended to and likely to imminently cause the lawless act. E.g.,
Brandenburg v. Ohio, 89 S.Ct. 1827 (1969). The Boing Boing article falls far short of
meeting any legal test that would allow a court to impose liability on its author, nor have
you identified any basis for doing so. Mr. Doctorow would have had every right to
advocate for Bird scooters to be destroyed or stolen; instead he simply reported that they
could lawfully be acquired at auction and lawfully modified to function as personal
Second, you cite the anti-trafficking provisions of 17 USC 1201, alleging that the scooter
conversion kits are circumvention devices that violate Section 1201, but that does not
appear to be true. Again, Happy Mutants would have every right to report on unlawful
conduct or even to encourage it, but here the conduct being described seems entirely
within the law.
“Conversion kits” are apparently just replacement motherboards, such as the stock
motherboard for the Xiaomi Mijia m365 scooter. Installing the “kit” involves opening the
scooter, removing the motherboard containing Bird software, and replacing it with a part
that does not contain Bird software. As you note in your letter, the kit “allows the
user to replace the Bird code so that users may ride the Bird scooters without using its
It is not an act of circumvention to unplug and discard a motherboard containing
unwanted code. Likewise, a part that is used to replace the unwanted board is not a
circumvention device — it substitutes for the part containing proprietary code rather than
circumventing technological protection measures that restrict access to the code or
prevent infringement. Use of a conversion kit does not appear to involve any access,
reproduction, or modification of any Bird code. We are likewise puzzled by your
assertion that your copyright in the Bird app provides a basis for a Section 1201 claim
against the conversion kits, since they do not appear to interact with the app at all.
You have not claimed that the Boing Boing article itself constitutes trafficking, nor could
you. It does not offer to sell or traffic in anything but rather reports true, newsworthy
facts. Attempting to expand Section 1201 to bar such reporting would fatally exacerbate
the First Amendment flaws already inherent in the statute. (Happy Mutants would also be
fully within its rights to link to a site such as eBay where the kits can be purchased, but,
contrary to your assertion, the article does not contain such a link.)
An assertion of Section 1201 is on especially shaky ground when it seeks to suppress
activity that does not infringe copyright, such as fair uses. The Librarian of Congress,
overseeing the Copyright Office, has repeatedly exempted from Section 1201’s
circumvention ban the noninfringing repair and modification of motorized land vehicles
(such as electric scooters), because barring those repairs and modifications would be
unjustified and harmful to the public. Those repairs and modifications actually do involve
circumventing access controls in order to inspect and modify copyrighted code, unlike
the conversion kits at issue here, and they nonetheless are noninfringing, fair uses.
As Walsh further explains in the EFF blog post, this really is incredibly crazy, given all of Doctorow’s work on 1201:
Bird probably did not know that the journalist who wrote the post, Cory Doctorow, has been reporting on and challenging this overly broad law and its harmful consequences, both at Boing Boing and as a Special Adviser on EFF’s Apollo 1201 project, for years. They likely also didn’t know EFF has launched litigation to invalidate the law in its entirety and, in the meantime, has successfully pushed for numerous exemptions to the law — including one that specifically permits repair and modification of motorized land vehicles (for instance, say, an electric scooter).
As fun as it might have been (again… fun for us) to have a legal fight about the nuances of Section 1201, it’s pretty clear here that there’s no claim to be made. The fundamental reason Bird doesn’t have a claim is that Section 1201’s ban on trafficking concerns products that circumvent either access controls or use controls on a copyrighted work. To simplify a bit, it concerns a device that cracks a technological measure in order to access or make an infringing use of a copyrighted work.
To turn a Bird scooter into a regular personal scooter, you just open it up and replace the motherboard that contains Bird code with a different motherboard (you could even use the official stock motherboard for this model of scooter, the Xiaomi Mijia m365). You literally throw away the copy of the Bird code residing on the unwanted motherboard, rather than accessing or copying or modifying it. We have long had serious concerns that Section 1201 can be abused to block repair and tinkering. But while the law is overbroad, it is not so broad that it prohibits you from simply replacing a motherboard.
And, of course, all this really does is call that much more attention to Doctorow’s original article, and the possibilities for effectively getting your very own electric scooter on the cheap. It is utterly bizarre that anyone at Bird thought this was a good idea. Who knows if this was just the Bird lawyer going through the motions or someone else at the company directing her to do this, but at some point, companies really need to think more carefully about sending out the usual bullshit nastygrams, as they can really come back to bite a company.
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