EFF Goes To Court To Stop Australian Patent Troll From Stifling Free Speech

from the censorious-patenting dept

As you probably know, each month, the Electronic Frontier Foundation (EFF) posts its "Stupid Patent of the Month" post, highlighting particularly egregious patents that never should have been approved and/or particularly egregious patent litigation around those patents. You might know about this even if you don't follow the EFF's own website, because we almost always repost those posts here on Techdirt, under EFF's Creative Commons' license. In fact, last summer, we reposted EFF's article about US Patent 6,690,400, held by Global Equity Management (SA) Pty. Ltd. ("GEMSA"), an Australian company that has all the hallmarks of a classic patent troll. You can read that post for the details of the patent in question, but suffice it to say, EFF described it as "storage cabinets on a computer" and GEMSA has sued dozens of companies, rarely explaining how they possibly infringe. For example, in suing Airbnb, all GEMSA notes is that the site's user interface "infringes one or more of the claims of the '400 patent."

Not surprisingly, GEMSA was not particularly thrilled about being named the holder of a "stupid patent of the month" or to have EFF make fun of its lawsuits. Unlike, say, IBM, who upon being named a stupid patentholder of the month appeared to see the error of its ways, GEMSA decided to really double down. It went to court. In Australia. And got an order telling EFF to take down the article and barring EFF from publishing anything about any of GEMSA's patents.

Now, we've written multiple times in the past about Australia's questionable views on internet free speech and prior restraint. However, we've also noted -- quite directly, that the SPEECH Act quite clearly bars such Australian court orders from being valid in the US.

It appears that the good folks at the EFF will now be putting that to the test. They've filed for declaratory judgment in federal court in the Northern District of California to have the court say that the court order from Down Under is unenforceable here. You can check out the full filing here or embedded below.

The filing goes into fairly great detail about just how really upset GEMSA is. It literally claims that calling its patent "stupid" is "misleading" because the patent "is not in fact 'stupid.'" Very convincing. There are also some bizarre conspiracy theory claims, including saying that the filings in some of GEMSA's lawsuits against Airbnb and Zillow "are not available in the public domain" despite them being available on PACER (and "GEMSA's own press release announcing its first wave of lawsuits attaches a copy of one of the complaints and explicitly notes that they are public records available on PACER.")

Whether or not Australians' somewhat twisted views on free speech say that you cannot give your opinion that a patent is stupid, in the US that's very clearly protected speech. Furthermore, here in the US, you cannot bar someone from ever talking about your patents. That's known as prior restraint and, as good old Walter Sobchak from the Big Lebowski eloquently stated: "The Supreme Court has roundly rejected prior restraint."

That said, as EFF notes, without a declaratory judgment, GEMSA can continue to threaten EFF with enforcement (it is already demanding that EFF remove the article, pay it money, and get others to remove links). Or, worse, GEMSA might use the Australian court order to get the article delisted from search engines. There is a real possibility of chilling effects:

... the Australian Injunction has cast a shadow over the legality of EFF’s speech about GEMSA’s ’400 patent and litigation, and is chilling EFF’s further speech. Given the present uncertainty concerning the injunction’s enforceability in the United States, EFF feels constrained from speaking further about these topics – indeed, about any of GEMSA’s patents, since the order sweeps that broadly – aside from simply reporting about this declaratory judgment action to its readers.

Also of significant concern to EFF is that, absent an order from a United States court declaring the Australian Injunction repugnant to U.S. law and unenforceable here, GEMSA will follow through on its counsel’s threat and successfully use the injunction to persuade American search engines to “deindex” the Article, which would effectively preclude EFF from speaking publicly on this important U.S. legal and political issue altogether.

This should be a layup for EFF, but as we know, these kinds of disputes can be both time consuming and costly. But, really, of all the organizations to go after with an attempt to censor their opinions, you've got to be pretty short-sighted to think that EFF is a proper target.


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  • icon
    Brig C. McCoy (profile), 14 Apr 2017 @ 12:14pm

    How long before the EFF...

    can just say, "We refer you to the reply given in the case of Arkell v. Pressdram." about things like this?

    ...brig

    reply to this | link to this | view in chronology ]

  • icon
    Damian Ivereigh (profile), 14 Apr 2017 @ 6:22pm

    We need to tackle this bullshit in Australia

    I realise that you guys don't have a high opinion of our laws around free speech, which I agree we deserve. For example we don't have a decent anti-SLAPP law (Gunns 20), along with all the crap around Janice Duffy & Milorad Trkulja and that due to a drafting error Google is liable for linking to pirated content. The current govt looked into fixing that last one, only to find the copyright maximalists lobbying that the rest of the world had got the laws wrong, not Australia.

    However I find it disappointing that the EFF are tackling this in the USA and leaving us down here out to dry (with our crappy free speech laws). I think we need to start thinking as global citizens and tackling this bullshit wherever it occurs, not just insulating yourselves from it. Otherwise you may find that those "external" laws come back to bite you in the form of trade agreements. As we know trade agreements now seem to find the most corporate friendly laws of the participants and spread them across all of them.

    Our politicians currently have a lot of interest in free speech and how it intersects with racial discrimination so it wouldn't be hard to bring the conversation around to other forms of free speech.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Apr 2017 @ 6:50pm

      Re: We need to tackle this bullshit in Australia

      Okay, but the fact is EFF is based in the US. I suppose it may be worth while to fight in Australian courts, but you can't blame EFF for covering themselves in their home country first, can you?

      reply to this | link to this | view in chronology ]

      • icon
        Damian Ivereigh (profile), 14 Apr 2017 @ 7:09pm

        Re: Re: We need to tackle this bullshit in Australia

        No I don't blame them at all, but I would hate to let this stand in Australia, so let's hope this is indeed the first stage in a multi-stage rebuttal.

        There is an Australian equivalent to the EFF, the EFA, but they are not the same organisation (and are not a party to the original court order). Unfortunately it can't fight a court battle on behalf of someone else just to get the precedent set (which is what needs to be done).

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Apr 2017 @ 9:35am

    The US seems to think its laws are worldwide - why shouldn't Australia?

    /s

    reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 16 Apr 2017 @ 3:21pm

      Re:

      There is a well understood technical diplomatic term for a country insisting that its laws apply globally, and enforcing such laws upon a foreign nation.

      That term is Act of War. Usually answered with a LOT of Acts of War right back.

      reply to this | link to this | view in chronology ]

  • identicon
    aussie oi, 15 Apr 2017 @ 12:46pm

    Well, given we're all for free speech here....

    Here are the people behind the company: https://imgur.com/a/SVVYK

    Before anyone starts pitching a fit about doxxing please consider that:

    • they're publicly suing a public interest organization in open court
    • company records are a matter of public record (although the government will extract a $40 fee from you)
    • all their linked-in stuff is similarly public
    • just because someone has the knowledge and means to register a company, doesn't mean the people behind it shouldn't be held personally accountable for their own very public actions (consider how this might have been reported if the defamation action had been brought against the EFF by an individual)

    And a simple domain name search shows the registrant of gemsa.com.au to be Cyrus Rafizadeh, so unless it's an incredible co-incidence, these are definitely the right people. Hilariously, he registered it under another one of his companies, ELITE MARKETING PTY LTD. Yep, looks like some pretty elite marketing to me.

    But given I'm just an Australian (or am I?) with 'not as gud' free speech as our superior American overlords, how'd I do?

    reply to this | link to this | view in chronology ]

    • icon
      G Thompson (profile), 16 Apr 2017 @ 4:35pm

      Re: Well, given we're all for free speech here....

      Bachelor of Real Estate? from a US college?

      umm Nope.. no such bloody animal and absolutely NOT a Bachelors (undergraduate) Degree that has any qualifications within Australia

      reply to this | link to this | view in chronology ]

  • icon
    G Thompson (profile), 16 Apr 2017 @ 4:32pm

    I'm just going to put this here so that any one in the legal fraternity that wants to send the info to the EFF might do so.

    It's basically a link to section 9 of the Defamation Act 2005 (SA) - [which is the same for all jurisdictions within Australia] - that shows who can and CANNOT initiate the tort of defamation within SA (And Australia)..

    Might be handy for people to read and understand exactly what sort of bullshit GEMSA, and there ...WTF was that letter from the solicitors - legal advisers are shovelling here.

    http://www.austlii.edu.au/au/legis/sa/consol_act/da200599/s9.html


    PS: GEMSA.. if you or your so called Solicitors (what are they? Less than 1 year PAE?) want to come and play.. have at it ;)

    reply to this | link to this | view in chronology ]


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