Every now and then we have to remind someone that it’s not illegal for people to report facts that they dislike. This time, the offender is electric scooter rental company Bird Rides, Inc.
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 on social, educational, political, artistic and scientific development in popular culture. 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.
But here’s the fun part (we may have a strange idea of fun): Bird cites Section 1201 of the Digital Millennium Copyright Act. That’s the section that prohibits you from getting around technologies that lock you out of accessing copyrighted works, like software, even when you own the device that software is on. It also prohibits various forms of ‘trafficking’ in products for circumventing those kinds of technological restrictions.
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.
In sum, Bird sent a “Notice of Claimed Infringement” to a news site for reporting about people doing legal things that Bird does not like. If Bird plans to send letters like this to every outlet that does the same, its legal team faces a monumental task—almost as vast as collecting the scooters littering parks and sidewalks.This post was originally published here