from the not-gonna-happen dept
In February, we wrote about how a patent troll, Voice Tech, had sued a small open source voice assistant company, Mycroft AI, claiming infringement. Mycroft AI and its founder/CEO Joshua Montgomery had put up a blog post about the situation, which attracted our attention, in part due to his willingness to call out trolling for trolling, and promising not to back down. It included some strong language, including:
I don?t like letting these matters go quietly. In my experience, it?s better to be aggressive and “stab, shoot and hang? them, then dissolve them in acid. Or simply nuke them from orbit, it is the only way to be sure.
There was certainly precedent for Montgomery to take this kind of stance. In the past, we’ve highlighted how Newegg’s “we never settle with patent trolls” approach had been quite successful. And, more recently Cloudflare’s similar approach had been successful as well. Standing up to patent bullies is important in not letting them get away with such shenanigans.
In April, we wrote about the case again, after seeing one of the troll’s lawyers, Tod Tumey (who had also sent the original threat letters to Mycroft AI), submitted one of the oddest filings we’ve seen in court. It was “Suggestions in Support of Motion for Relief to Require Decorous and Civil Conduct by the Parties.” In it, Tumey made the wholly unsubstantiated case that Mycroft and Montgomery had engaged in threatening behavior towards Tumey, had tried to hack his website, and more. As we noted at the time, there was no evidence whatsoever to support this. The story had gone viral on Reddit, and the likely result of that being that some immature Reddit users did some immature things, sending Tumey some angry emails and signing him up for some mailing lists. There was no reason to believe they were coming from Montgomery himself.
In fact, Montgomery directly denied having anything to do with any of that. He later filed a declaration with the court to that effect as well. However, after oral arguments a week after my blog post, the judge in the case made a somewhat surprising order from the bench (after mentioning my blog post!?!?), telling Mycroft that it needed to edit its original blog post to take out some of the more incendiary language.
THE COURT: All right. Here is where the Court is
landing. In your Exhibit 5 to your opposition in your document
20, in that exhibit, it is a posting by Techdirt. And one of
the sentences in that writing — the paragraph begins with, As
Tumey recounts, the various angry, immature, internet trolls
then did a bunch of other mean stuff to Tumey, such as signing
him up for mailing lists. This is, again, childish behavior,
but it’s kind of what often happens when you do something
stupid and the internet finds out about it.
And I find that there is sufficient evidence that
the harassment that plaintiff’s counsel has received is induced
or inspired by the postings of Mr. Montgomery. In particular,
the initial blog posting on February 5th where his — the
posting is, basically, I want you to do something for me. And
he says, I’d like — I don’t often ask this, but I’d like for
everyone in our community to share the post in any which way
they can. And so that is what — he is calling folks into
action to get the word out.
And then as he describes and educates the readers as
to what a troll is, then he explains what their internal
policy — how they’re going to combat this. And he describes
it in equating plaintiff as a bully and the language of
punching a bully in the face; stab, shoot, hang them; and
dissolve them in acid; and nuke them from orbit; and that he is
turning into a hunter, a troll hunter. I think that even
though he may not be directly the source of the harassment, his
actions are foreseeable and that that is what would happen
based on his conduct.
So I am going to order, at least for the pendency of
this case, or until ordered otherwise, for defense to
assertively take down the sentence that begins with “I don’t
often ask this,” to delete that portion until the section where
“a brief history of patents in the United States.” I’d also
order defense to assertively search and take down in those
similar — whether it’s Facebook or blogs or whatever, the
remainder of the writing beginning with “the thing is, once you
pay the bully, he just comes back again and again and again.”
And so from that sentence — that can stay in, but where it
begins with “Eventually, the lunch money adds up to a lot more
than a doctor’s visit.” From “eventually” until the end of
that posting, for that to be deleted. And I do — I’m not
asking that all that blog be taken down, just those sections
Mycroft’s lawyer asks for some clarification and the judge again explains what needs to be taken down:
THE COURT: Yes. So they need to take down “I don’t
often ask this, but I’d like for everyone in our community who
believes that patent trolls are bad for open source to repost,
link, tweet, and share this post. Please help us to get the
word out by sharing this post on Facebook, LinkedIn, Twitter,
or email.” All of that is to be deleted.
In addition, towards the end, beginning with,
“Eventually, that lunch money adds up to a lot more than a
doctor’s visit.” And that continues on. And to take down the
remainder, which includes Tod Tumey’s confidential
correspondence information and the email 1, 2, 3, email 4,
final notice letter link. And then there shouldn’t be any need
for the image attribution. Does that clarify your concern?
So, first off, I don’t see how this is possibly allowed under the 1st Amendment. Directly ordering a company to edit a blog post to remove a request to share the blog post on social media seems like a fairly blatant infringement of the 1st Amendment. A company should certainly have the right to notify its community that it is in the middle of a costly legal battle (one that it believes is frivolous), and part of getting people to understand how serious it is is asking for that information to be shared.
Mycroft’s lawyer then points out that since the company is part of the open source community, he’s worried that this order might prevent them from collaborating on certain projects, or even asking for assistance, and the judge gives an unfortunate answer to that scenario:
MR. DeBACKER: So often — they are part of an open
source network that collaborates with other open source
innovators. And I just want to be clear that they’re going to
be able to continue to ask for support outside of this matter
with sharing links and such with their open source network, if
they post on other forums, if they’re going to be allowed to
request aid and other things like that, as long as they’re not
directing it towards codes like this.
THE COURT: Well, I’ll just have to see it as it
comes. I don’t want to have to rule on that now. I know just
in my own little messing around on my phone, I see that they
may be seeking financial assistance with attorneys’ fees. You
know, that I’m not — that doesn’t have anything to do with
this issue. So I don’t know what else you’re referring to, but
just — I mean, I think it’s common sense what the Court’s
That “know it when I see it” kind of thing is dangerous to free speech as well. It does not provide any clear guidelines, and likely creates a chilling effect in which the company has to be careful not to run afoul of these amorphous speech suppressing rules. Again, I can’t see how that doesn’t fly in the face of the 1st Amendment. Yes, there’s the infamous Potter Stewart “I know it when I see it” test for obscenity, but obscenity is a clearly defined exception to the 1st Amendment. And, yes, incitement to imminent violence is also an established exception, it’s a very narrow one. And the Mycroft blog post comes nowhere near that standard. The violent imagery was clearly figurative, not literal. It even linked to an article where the “stabbed, shot, and hanged” message came from — and it was about killing off an attempt to ban municipal broadband. In other words, it was clearly figurative and not an actual threat or incitement to violence.
Either way, the case is getting even more bizarre, and still dealing with my blog post. One of Voice Tech’s lawyers sent a letter to Mycroft’s lawyers saying that a later blog post by Mycroft which merely links to my blog post is in contempt of the order, because my blog post contains the original language the court ordered deleted.
It has come to Voice Tech?s attention that on July 1, 2020, Joshua Montgomery published an article on Mycroft AI?s website entitled ?Mark II Update ? June 2020.? Under the ?Updates? section, in the second paragraph, there is a link entitled ?patent trolls? as shown here:
That link, when clicked, takes the reader to a TECHDIRT article from February 13, 2020, which focuses on the language Mycroft was ordered to take down. To the extent Mycroft is able to have the threatening language removed from the TECHDIRT article, it is obligated to do so. At the very least, Mycroft must remove the link to this TECHDIRT article, which Joshua Montgomery recently included in his Mark II Update article on Mycroft?s website.
Further, the original threatening article is currently posted on the Mycroft Community Forum at this URL: https://community.mycroft.ai/t/troll-hunter-mycrofts-position-on-patent-trolls/8047. This publicly available posting of the original article needs to be redacted to comply with the Court?s Order. Additionally, the links to emails 1, 2, 3, and 4, as well as the final notice letter, are still active and need to be deleted.
Voice Tech demands that Mycroft remove the link to the TECHDIRT article and redact the original article on the Mycroft Community Forum by no later than the close of business on Wednesday, July 22, 2020. If Mycroft fails to comply, Voice Tech will have no option but to file a motion for contempt with the Court.
Seeing as the letter said that “to the extent Mycroft was able to have the threatening language removed from the TECHDIRT article, it is obligated to do so,” the company forwarded the letter on to us. Obviously, Mycroft has no ability to remove language from Techdirt, and we have no intention of removing such language, as we feel that our posting that original language is clearly protected under the 1st Amendment. I do see that Mycroft has removed the link from its blog to us however, meaning that some of the fallout from this unconstitutional order is that it sends us less traffic. That seems unfortunate and again raises 1st Amendment concerns about a judge’s order, and the plaintiff’s demands, directly targeting a news site for our reporting.
Obviously, it’s not good that some immature kids got angry at the lawyers behind Voice Tech, but people are sick of patent trolls and takedowns and sketchy attempts to abuse legal process. It certainly seems like this gag order and further demands to censor speech are just another part of that trend.
I found the whole situation with the court order perplexing, so I asked 1st Amendment lawyer Ken White if that order, or the request from Voice Tech’s lawyers was out of the ordinary, and he told the following:
?There?s no lawful basis to demand that Techdirt take down any part of its story ? all the more so now that the story involves this First Amendment controversy, which is the heart of what Techdirt covers. As always, I?m ready to lend a legal hand if needed.?
Hopefully that’s the end of this issue, though I am still troubled by Voice Tech’s desire to censor speech (and, of course, its trolling efforts).
On a separate note, it appears that Unified Patents, the organization that tries to get bad patents invalidated, has now become aware of the Mycroft AI situation and has filed for an inter partes review at the US Patent Office. One hopes that these patents are thrown out and that Mycroft AI is able to get back to focusing on building open source voice assistants, rather than having to fight back against a bunch of lawyers building nothing but trouble.
Filed Under: 1st amendment, free speech, joshua montgomery, patent trolls, prior restraint, tod tumey
Companies: mycroft, mycroft ai, voice tech