EFF Responds to Bird's Legal Threats to Boing Boing
boingboing.net
boingboing.net
(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.
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.
[Downvoters: I'm not saying that I think I should be able to grab a Bird off the street, I just want to hear the legal explanation of how this works.]
https://www.legalmatch.com/law-library/article/abandoned-per...
Property owners don't have any legal responsibility not to leave an item in public unlocked. That might be careless, but it's not illegal.
If Bird leaves a scooter in the road, for someone else to use, they have relinquished the right to control the device, and it is thus abandoned; the alternative is that they are deliberately littering or committing various other property infractions or misdemeanors.
No, if they are charging use fees, offering money for people to choose charge them, etc., they have not relinquished all rights to control.
> the alternative is that they are deliberately littering or committing various other property infractions or misdemeanors.
That's a big false dichotomy.
Regarding statutory violations, first of all Bird is probably not littering because the scooters are (arguably) not trash. Second, where the scooters are impounded by cities and other municipalities, it is for parking violations or other statutes against them. As a private citizen, you would have no more right to take their scooter than you would to take my car that was illegally parked.
My neighbor has a sign on the dash of his van explaining that it is in working condition, is able to be moved, and is definitely not abandoned. Obviously he got complaints from other neighbors in the past about it.
Property owners do not have any obligation to lock up their items.
There are sometimes very specific laws regarding found property when the owner cannot be located, generally these involve turning the property over to the state first.
Usually that process involves turning the property in to the government, and waiting some period of time for the original owner to claim it. If it is not claimed, it would become yours.
I don't know of any law that requires property on public space to be locked. There may be laws saying you can't leave property in public for more than a certain amount of time, but I am pretty sure none of those would allow anyone to just take the property.
In California, if you find it and choose to take charge of it, you become a depositary for the legal owner. Additionally, if it is worth $100+, and you can't locate and return it to the owner within a reasonable period, you are required to turn it into the police or sheriff depending on the jurisdiction in which it was found. It may become yours if the owner doesn't claim it from the police/sheriff within 90 days, with some additional requirements if it is worth more than $250.
If it was intentionally abandoned by the owner this doesn't apply.
EDIT: Source, Civil Code § 2080 et seq..
They clearly haven't abandoned them as that applies generally to property; if you are in fact charging rental fees, you haven't intentionally relinquished the right to control something, as you are exercising that right by charging others for the right to temporarily exercise some portion of it.
There may be rules regarding public rights of way which impact this, though the US Ninth Circuit Court of Appeals has already rejected the claim that property left unattended on a public sidewalk is therefore abandoned and subject to deprivation when the City of Los Angeles used that as an excuse to take the goods belonging to the homeless without due process, so I think what is really going on in those DAs offices is people have made the decision “we don't like what Bird is doing so we aren't going to enforce the law when people commit crimes against them.”
In contrast, the homeless person has not left there property around for the express purpose of letting others use it.
Intending to rent it to others for use, yes.
> If they are not locally permitted to do so, then this act constitutes abandonment
No, it doesn't. It may constitute violation of whatever ordinance does not permit it, but the Lavan v. LA case is directly on point, that whatever regulatory powers local jurisdiction has, a property owner not intending to entirely relinquish control has not abandoned (and the state cannot without violating the due process clause of the 14th amendment treat them as having abandoned) property merely because it is unattended on a public way in violation of some local control. (They may have the right to take the property with due process from the person who remains, until that process has been given, the owner, but that's a remedy against the owner, not abandonment by the owner.)
While I concede that your position is correct academically, I've successfully argued my position in court several times (pro bono, since I only take on criminal def when I believe in the case), so I'm confident that my position is correct where it matters.
And if you're ever actually practiced in the California court system, you would know that you only need to convince a single appellate judge statewide to make valuable precedent. (Because in California, a lower court can follow the precedent of any higher California appellate ruling.)
On the other hand you have the ground occupied by or encumbered by said property, which is also property, owned by somebody, often the public, and likely intended for some other purpose besides storing your property. "Don't make your stuff our problem!"
Different places balance the two interests in different ways. Most provide some legal framework or mechanism by which your private property rights can become subordinate to public property rights, i.e. your property is declared abandoned, or simply seized based on a nuisance or safety argument.
Every state has regulations on the exact process by which private individuals can be deprived of their property rights due to "abandonment." Not a single one of those regulations is as straight-forward as "finders keepers."
Which is the same problem that Bird is facing--in cities where they aren't actually permitted by the appropriate authority (city, county, etc.), Birds are abandoned property. In cities where they have been granted a permit to conduct business activities, the question is more nebulous, but thus far DAs are decisively on the side of not treating it as a crime.
Is there a citation for this in CA? can you just take abandoned property and claim it as yours without a single paperwork step?
I'm not so sure scooters with GPS tracking and contractors looking for them would be considered abandoned in the eyes of the law, even if they have been left in an unpermitted location.
But (in SF at least) walking by Civic Center BART on Market Street, in broad daylight, you can gawk at least 10 homeless people per hour shooting up black tar heroin directly across from about five or more uniformed SFPD officers and then witness no arrests for such flagrant behavior [0]. Hell, if you've not seen a homeless person shit in the middle of the street on a Tuesday, you need to get out more.
Like, Bird/Lime/whatever may be sending out these notices to Cory Doctorow's blogosphere Zeppelins [1], but ain't no cop in SF (and likely in nearly every other city in the US) is EVER going to prosecute you for making a cheapo scooter into a vase for growing your weeds in. Like every single other person that isn't on the books at these scoot companies (and ~90% of the people in them anyway), all members of the legal system have better things to worry about.
[0] https://www.sfchronicle.com/bayarea/article/A-Bay-Area-New-Y...
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).
Not sure where to start about taxes, but for one thing we came pretty close to repealing the gas tax in CA a few months ago so that doesn't seem to be a necessary condition. And some people just happen to pay almost no property tax at all because they got here first (prop 13) but they still get access to all the same schools and fire and police services. Taxes are paid by the public at large, to benefit the public at large, you're not paying for the specific services you're using when you pay taxes. In fact it's exactly the opposite, these things are public goods.
In addition as other comments mentioned, the scooter companies are paying registration fees and taxes. At least in some cities, and I'm sure if they stick around it'll soon be in all cities.
That was a recent increase to the gas tax that was up for repeal, not the whole gas tax.
so while they are licensed, they are certainly not paying market rates for the use of these right of ways.
I don't follow...these things aren't comparable. Cities have developed a common infrastructure over decades to facilitate car ownership and usage in everyday life. While they may do the same with rental bikes and scooters in the future, they have not yet done so.
We also have a rich body of legal literature pertaining to car ownership, storage, usage and property laws. Likewise, we don't yet have those precedents for rental scooters stored on sidewalks. What we do have is a rough patchwork of sidewalk and property laws we can try to extrapolate from. How's that for efficiency?
That you get a kick out of peoples' dissatisfaction about this, for the reason you stated, suggests to me that you don't actually understand why they're upset. I don't think most people are strictly concerned about how literally space-efficient the scooters are; rather that they have a tendency to be parked on a sidewalk. People would get pretty upset if cars were suddenly parked on sidewalks without oversight too.
Sometimes scooters are parked on the side of the road. Sometimes scooters are parked in a ditch beside the road. Bikes rarely are.
Scooters can be parked at bike racks. Are there enough bike racks to park the scooters at the bike racks? would the situation be similar if all of those scooters were bicycles or if bicycles were as cheap as scooters?
Speaking from my experience in Shanghai, where bicycles are common, there's no such thing as a bike rack. (Well, I have seen racks for rental bikes. But none for individually-owned bicycles.)
Rather, supermarkets, university buildings, apartment complexes, and other places which are likely to receive a lot of incoming traffic have bicycle parking lots, and if you're somewhere else, you park on the sidewalk.
For example, in many cities once every week every bike parked in a public area is labelled with a little color ribbon. The colors rotate according to a fixed schedule, so that it can be verified if a bike has been parked for more than two, three, four weeks. If a bike has been left unattended for more than N weeks (where N can vary) it gets towed away. They all get stored someplace out of town, and once a month the bikes that haven't been reclaimed for M months get sold for cheap.
In other words, there are systems for how long you can leave your property unattended in public before it ceases to be your property.
The primary reason there's no system for handling abandoned bikes in the US is not that nobody uses bikes. Bikes aren't especially common, but the issue of an abandoned bike isn't going to come up -- ever -- because of the extreme frequency of bike theft. An abandoned bike will quickly be stolen, just like a non-abandoned bike. Bird's scooters don't have this problem because they're tracked. But the background reality of bicycles may contribute to jzl's (false) impression that you should be legally able to just take scooters that aren't locked down.
How much of an issue is bicycle theft in the Netherlands? How long would you expect to be able to own one before having it stolen?
This does not represent my experience at all, I've had bikes stolen once every three years on average. It won't surprise you that students learn to buy very cheap second-hand bikes with very big bulky locks really quickly here.
On the plus side, I've never been worried about junkies mugging me. They steal/sell bikes for drug money instead, and I honestly wonder if that is a uniquely Dutch thing.
Also, there's supposed to be organized rings where bikes stolen in Portland are trucked to Seattle (so they're much harder to identify as stolen) and vice-versa.
As anyone who has had their car towed when it was legally parked (buddy of mine once got towed from his own assigned spot) this is pretty much spot on. The difference is so far Bird isn't ransoming their property back.
Try a bike. Try a skateboard.
The roads are not there for cars, they existed prior, and the car owners are not what is paying for our roads.
This is actually false if add all taxes related to cars (which would include sales taxes on cars, repairs, and parts)
When most people say that they only account for gasoline taxes, often even excluding the Fuel taxes collected by the Commercial Fuel tax programs as they are accounted for differently.
Yes Gasoline Taxation on gas does not equal road maintenance, but all taxation on cars does meet and and often exceed the road costs
As I point out in another comment, this is not because being located in a random spot is sufficient to establish that an item is abandoned property. (If it were, the tow truck company would be legally entitled to keep your car!)
Rather, there is legislation which specifically allows towing of cars in certain areas, subject to certain rules. There is no such legislation for scooters.
Your sarcastic analogy would make sense if people just parked cars anywhere they wanted without repercussions.
I would have no problem if the city took away parking spots for cars and said park them there.
I wish I could give you more than 1 downvote.
Is that true in the US?
In Ireland, by default you're allowed park on the side of the road. There are exceptions, ie you can't cause an obstruction to traffic, block an entrance, park where road markings prohibit it, or within certain distances of a junction. However, if none of the above apply, you don't need to find a marked parking space - you can just park.
Most cities in the US make big money off parking violations.
Whereas with cars, there is a special legal difference which allows tow trucks to confiscate random people's cars even though the cars are neither the property of the tow truck owner nor abandoned. Cars do not enjoy any special privileges. They are the subject of a special legal burden.
To take possession of a Bird scooter, you'd first need to establish that it was abandoned property, which seems like it would be difficult to do. But maybe it's easy! Consult your local law of abandoned property.
There are laws for cars including but not limited to federal highways laws, state/city/county/municipal traffic laws and parking laws. Those laws authorize what you refer to as “leaving them around the city”, you can only leave your car around the city if it’s in compliance and authorized by the law, the Law often specifically penalizing leaving your car in certain situations (ex. in front of fire hydrants; in handicap spaces without permits; in traffic lanes). Their are no laws blankety authorizing scooter companies to adbadon and/or sell their products/goods/services on public sidewalks or roadway. Generally speaking most states/counties/cities/municipalities will have laws specifically prohibiting the same subject to various penalties without prior authorization, permits, etc... consider the number of stories in recent years about kids lemonade stands being shutdown and fined for operating without licenses.
Depending how old you are you might remember pay phones, phone booths, or coin operated newspaper stands...definitely you are probably familiar with atms and vending machines. What if a “tech startup” just started cluttering streets and sidewalks with those. That too would be illegal and not at all similar legally to cars being “left around the city”. Maybe another example is farmers markets, think if a “tech company” just started setting up farmers markets wherever they wanted without prior authorization.
My property doesn't cease to be my property just because it isn't on my land. Registration or licencing doesn't come into it. "Finders keepers" is not a law.
What is the anticipated solution when you leave your bike on my private land? I've seen loads of bird scooters left on private property, and I don't see what the property owners are supposed to do. Call the police every time?
Is there some sort of mental block happening here where people are forgetting how the world works because they hate scooters so much, or do you guys really not understand the fundamentals of property law and common sense?
And where should I put it? I don't want it on the sidewalk, and I don't want it in mystreet. I can't put it in the trash because it's someone else's property. That's essentially what I meant by "anticipated solution."
Note I never suggested it would become mine, so a good portion of your comment is responding to someone else. And I'm not sure who you are referring to by "you guys," but I can honestly say I have never before been in a situation prior to these scooters that someone just left their valuable stuff on my private property and I had to deal with it. Are there equivalents to towing companies I can call for random valuable crap that belongs to someone else?
“In law, abandonment is the relinquishment, giving up or renunciation of an interest, claim, civil proceedings, appeal, privilege, possession, or right, especially with the intent of never again resuming or reasserting it. Such intentional action may take the form of a discontinuance or a waiver.“
-It would make cool artwork! -I dislike seeing scooters strewn about all over the city.
What ESR did was play with a clueless HR person.
For others who haven't read it: http://esr.ibiblio.org/?p=208
I am very very thankful that our industry has evolved beyond this type of character.
...
UPDATE: For those of you who missed the subtlety (which was a surprising lot of you) I was quite polite to this guy on the phone. """
It seems to me that in the phone conversation, ESR made it pretty clear that he was not seriously considering it, and that he was going to reply in a strange manner.
I think he has a weird sense of humor, for sure, but I don't think he was particularly bullying that particular recruiter -- he was putting on a show of bullying Microsoft, because that was both his thing (as an early Open Source proponent) and fashionable at the time.
Currently, his hobby appears to be posting wingnut craziness on his website.
The Art of Unix Programming is a great read.
Just make sure you don't read his blog.
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.
As for whether or not that redeems him for acting like a badass to a run-of-the-mill recruiter, the jury is still out on that one.
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).
Boing Boing + EFF are 100% right to make this interaction very visible, so others can learn 1) how slimy Bird is, and 2) how to respond to it if they find themselves in a similar position but do not have the means to get a proper lawyer/organization like the EFF on their side in a timely manner.
The ESR thing is an internet tough guy interacting with a tech recruiter trying to fill his quota, a much different situation.
For however "high-profile" they are and however competent their lawyers are, this is a form letter, sent by someone who doesn't even know what Boing Boing is.
While perhaps some rando HN commenter can profess to not know what an "ESR" is (above, and sure ok fine, insert xkcd here), it doesn't seem likely that Bird doesn't know what a Boing Boing / Doctorow is. But even if they stamped out a boilerplate takedown with Linda Kwak's attestation that she has ".. a good faith belief, and do[es] solemnly and sincerely declare .." then it's on her, that's the rules of the DMCA takedown game, don't hate the players.
It seems far more likely that Bird knows full well what they were getting into here.
If you are reading this I urge you to go to eff.org and smash that donate button.
This sort of thing is toxic and destructive to a free society.
No, it doesn't. I mean, yes, it clearly is crammed to fit into a DMCA takedown template, but it's making a novel argument about the underlying infringement justifying the takedown being not direct or vicarious infringement of copyright under any usual theory by infringement by multiple-step-indirect sharing information about alleged circumvention technology (under a novel theory of what qualified as anti-circumvention technology) and providing vague inspiration for theft (which wouldn't be relevant to a DMCA takedown even if it was true and illegal to do; as the EFF notes, the basis of the charge here cited by Bird is false and, even if it wasn't, inspiring or even outright encouraging illegal conduct is Constitutionally protected outside of narrow circumstances that don't even arguably apply here.)
> 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
It's a technique to get attention for (1) the novel and legally indefensible way Bird is trying to suppress information they don't like, and (2) the fact that others who are targetted should be aware that it is indefensible so that similar intimidation directed at others will not succeed.
It needs to hurt when someone tries to pull something like this. With no public feedback loop in place, these types of people end up running things.
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.
> Not only am I unintimidated by litigation; I sometimes rather miss it.
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?
Honestly I'd love to find an auction with these.
EDIT: Missed that you can buy them from impound lots - that would be legal. Converting one you found on the street would not.
It would be illegal to steal scooters for that (or any other, because theft) purpose, but a central part of the discussion and the original story is that they are available at police auction because they keep getting seized.
No, just like you can't take someone's bicycle or a stroller if the owner isn't nearby.
But Birds, Jumps, et al, have deliberately left their scooters in public spaces for others to use. And that makes all the difference, legally.
Source: there are a dozen in front of my office and I just used one to go a block without using the app. Works fine if you're willing to use human power.
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.
So long as you don't attempt to claim the scooter as your own (i.e., sell it), you're probably fine.
At any rate, no DA is willing to prosecute someone over this. They have more important things to do with their time and resources.
Could be a new revenue model for them when all the towns kick them out.
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
Check out ars technica, I think they may offer that
George Orwell
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.
Printing what someone doesn't want printed is just as likely public relations.
I get that what it's (probably) going for is bringing truth to light but truth is exactly what seems to be so slippery these days.
Quote Investigator is as authoritative as the internet gets on these things.
Hopefully cities will enforce strict rules against blocking sidewalks and confiscate any scooters left in unsafe spots.
No one in your neighborhood perhaps. This varies considerably.
The car might be a rental too, doesn't really make a difference.
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.
The experience of first finding the bikes was surreal. They were littered everywhich way across public spaces. One in the middle of a busy sidewalk that people had to walk around, one dumped off beside an obscure tree outside a convention hall, one hiding behind a vendor booth (for which I assume the vendor was stashing for the commute back or just that was the easiest place to leave it), etc.
Then, I felt like a public nuisance while trying to log in and get the bike unlocked while people where having to walk around me.
I have also wondered about the practice of leaving the scooter simply just anywhere after a ride is done. They are left on sidewalks, and gutters, in driveways, and are often plainly in others’ way. How does this not constitute littering or obstruction of a public walkway?
Yes and the company is also using the public right of way to store their inventory.
People seem to hate on scooters because it's "private" and people might be profiting somehow. It's trendy for the get-off-my-lawn crowd to hate on the Ubers, Birds, AirBnB and other similar businesses. "Hacker" used to mean people that didn't care much about the status quo, but here on "Hacker" news, it sounds like a bad threat on NextDoor or some kind of homeowners association meeting complaining about the mauve garage door on Mrs. Davis's house. Many of the people hating the scooters because they're "storing their inventory on public property," don't seem to have any problem Torrenting movies they didn't pay for or stealing other content they don't own. It seems the trend is "it's ok to steal from private companies because I shouldn't have to pay for stuff, but it's not ok for private companies to profit off of public infrastructure."
Yep, near downtown Denver there are signs about how after a certain date, any private property shall be removed from public walkways. This was targeting homeless camps. It should extend to scooters left littering the sidewalk too.
>Food trucks use public roads and sidewalks as their dining rooms.
Food trucks park in legal parking spaces or designated food truck areas - this is strictly controlled in most areas. Individuals use sidewalks as a dining room, since it’s legal to stand on a sidewalk and eat.
>How about in places like New York were the damned bike share racks take up half the sidewalk
How about it. Exact same problem? Can we do something about this too?
> How about graffiti "street artists" that paint their nonsense on privately owned buildings? They're displaying their "inventory" on property they don't own.
That’s not blocking a sidewalk or otherwise impairing use of a public asset. People can paint their private building however they please.
> Many of the people hating the scooters because they're "storing their inventory on public property," don't seem to have any problem Torrenting movies they didn't pay for or stealing other content they don't own.
That’s a stretch. I don’t see how use of a network or minor copyright infringement is related to leaving scooters on the sidewalk. Again, it doesn’t deprive others of the use of any public resource.
>People seem to hate on scooters because it's "private" and people might be profiting somehow.
No. Actually, people are complaining that these scooters are left everywhere, in the way littering the streets and sidewalks.
I'm sure you can walk around them. Calling them "real hazards" is stretching things to a ridiculous level. Yes they're messy, but they're not hazards.
I personally love those scooters. They open up mobility in a way that public transport can't. I'm more concerned about dangerous, mentally ill, drug addicted homeless people robbing or harassing me. A scooter never shit on the sidewalk.
Second, the issue of whether the impoundment is justified is really quite irrelevant to the issue of whether the conversion of a bike legally purchased from the impound lot is legal - which is the subject of the EFF note. That bike is the purchaser's property, to do with as they choose, and people who generally treat ownership as a sacrament would be hypocrites if they started making exceptions whenever it suited them.
Lastly, even aside from both of those issues, the attempted invocation of DMCA is clearly bogus. It's a horrible law generally, but still explicitly precludes the kind of abuse they were attempting. For them to go after the very person who had anticipated their behavior and worked to have those provisions added is ... well, not bright. It's a very stupid hill to die on, but if they and their fans want to then I'm glad to see them held up to ridicule.