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.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: australia, free speech, patent trolls, patents, prior restraint, speech act
Companies: eff, gemsa

Reader Comments

Subscribe: RSS

View by: Time | Thread

  1. 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

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here

Subscribe to the Techdirt Daily newsletter

Comment Options:

  • Use markdown. Use plain text.
  • Make this the First Word or Last Word. No thanks. (get credits or sign in to see balance)    
  • Remember name/email/url (set a cookie)

Follow Techdirt
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Discord

Introducing the new Techdirt Insider Chat, now hosted on Discord. If you are an Insider with a membership that includes the chat feature and have not yet been invited to join us on Discord, please reach out here.

Recent Stories

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it

Email This

This feature is only available to registered users. Register or sign in to use it.