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 focus is.
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.
It appears that these kinds of moves have inspired Mycroft's CEO, Joshua Montgomery, to take quite a stand now that a patent troll is trying to shake his company down:
Tod Tumey of Tumey LLP based out of Texas ( a venue famous for hosting patent trolls ) contacted us with a “Highly Confidential” letter offering to license his “client’s” “valuable” voice patents to Mycroft AI Inc. When we didn’t respond ( don’t feed the trolls! ) he filed suit in East Texas.
As a result, we’ve taken the time to develop an internal policy about how we’re going to deal with patent trolls. Here is how we’re going to handle them:
Our policy is also to attack bogus patents like U.S. Patent No. 9,794,348 and have them re-examined and invalidated where possible. We’ll be doing this in the context of a strong open source community that includes other troll hunters like the Electronic Frontier Foundation and the Open Innovation Network – both of whom have a strong interest in protecting open technology from rent-seeking trolls.
Patent trolls get paid because short-sighted companies make the decision to pay. Simply put, it is usually cheaper in the short run to pay a troll than it is to litigate. It is also cheaper to give a schoolyard bully your lunch money than it is to visit a doctor. The thing is, once you pay the bully, he’ll just come back again and again and again. Eventually, that lunch money adds up to a lot more than a doctor’s visit. In the long run the best way to deal with a bully is to punch him square in the face. You might take a beating, but if you do it every time? The bully will find easier prey.
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.
Don't hold back on letting us know how you really feel, Joshua.
Anyway, he also notes that the lawyer, Tumey, appears to have filed in the wrong venue (which one is not indicated), and so Mycroft is seeking to move the case, and then it's going to go after Tumey for legal fees. Good for them.
The Cotton Gin was patented by Eli Whitney on March 14, 1794. This easily infringed invention prolonged the economic viability of slavery in the United States and eventually drove Whitney into the arms trade. Patents haven’t improved much since.
The idea behind patents is that the inventor publicly discloses how to create an invention and in return the inventor gets a period of exclusive use. For some inventions this makes sense – the Spyder hole saw system is a great example that I’ve fallen in love with recently. It is simple, extremely useful and inventive. In the future all hole saws will use a system similar to Syder’s because it is so much better. In a decade or two other tool makers can reference the patent and duplicate the technology. In the meantime Spyder’s patent protects them from competitors and, importantly, Spyder has made the invention available in home improvement stores globally.
For other “inventions” patents are basically useless. Software, for example, is effectively math. Math isn’t patentable and software shouldn’t be either. The same is true of “do the obvious, but do it on a computer” type patents. The Supreme Court agrees.
The ability to issue useless patents has created an entire industry. There is now a whole class of “inventors” who file obvious patents with the sole purpose of suing real entrepreneurs once the technology is inevitably perfected. These “inventors” have no plans to create a product. They are simply trolls hiding under a bridge waiting for real entrepreneurs to cross. All they want is to collect a toll by gaming America’s flawed patent system.
These trolls are defined by two important traits. First off, they seldom reduce their patents to practice. That means that they don’t build a product and ship it. They also file patents that are so broad and unspecific that no one could take the patent and create the “invention”. They want the exclusivity period created by the patent without actually having to create anything that works. Their patents are a spaghetti mess of legal jargon and useless diagrams.
Voice technologies like the one that Mycroft is building can be traced back more than 50 years. In fact, Mycroft is named after a voice assistant that appeared in Robert Heinlein’s 1963 Hugo Award winning novel “The Moon is a Harsh Mistress”. All of the underlying technologies are described in the novel and they have been broken out time and again over the past half-century in popular science fiction. “Hal” from 2001 a Space Odyssey, Star Trek’s “Computer”, Knight Rider’s “Kitt” – all of these are examples of how voice technology might work in the real world. They’ve also been disclosed in real-world tech like Honda’s Asimo and more than 3 decades of automotive technologies from Nuance.
Which brings us back to our patent troll who is seeking a toll from Mycroft. Tod Tumey of Tumey LLP based out of Texas ( a venue famous for hosting patent trolls ) contacted us with a “Highly Confidential” letter offering to license his “client’s” “valuable” voice patents to Mycroft AI Inc. When we didn’t respond ( don’t feed the trolls! ) he filed suit in East Texas.
As a result, we’ve taken the time to develop an internal policy about how we’re going to deal with patent trolls. Here is how we’re going to handle them:
We are going to litigate every single patent suit to the fullest extent possible including appealing any adverse decisions all the way to the Supreme Court.
Our policy is also to attack bogus patents like U.S. Patent No. 9,794,348 and have them re-examined and invalidated where possible. We’ll be doing this in the context of a strong open source community that includes other troll hunters like the Electronic Frontier Foundation and the Open Innovation Network – both of whom have a strong interest in protecting open technology from rent-seeking trolls.
Patent trolls get paid because short-sighted companies make the decision to pay. Simply put, it is usually cheaper in the short run to pay a troll than it is to litigate. It is also cheaper to give a schoolyard bully your lunch money than it is to visit a doctor. The thing is, once you pay the bully, he’ll just come back again and again and again.
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.
The court case has continued, but the troll (or rather, the troll's lawyer) Tod Tumey, has apparently received some fairly angry phone calls and emails. Let's be clear here: do not do that. That's very much not cool and people certainly don't deserve threats of violence. No matter how terrible a person you are, and no matter what bad decisions you've made in life that lead you to become a lawyer issuing silly patent troll shakedown letters, that doesn't mean you deserve death threats. But there are lots of idiots on the internet, and sometimes when they get angry, they do stupid things.
Tumey, though, seems to blame Montgomery for all of that, and has run to court to submit a "Motion for Relief to Require Decorous and Civil Conduct by the Parties." In other words, "Judge, please stop the other side from saying mean things about me online." I've now asked four litigators if they've seen such filings in the past, and got varying degrees of bafflement in response. In the more thorough filing accompanying the motion, the "Suggestions in Support of Motion for Relief to Require Decorous and Civil Conduct by the Parties", Tumey vents his frustration at having people online mad at him.
Regrettably, however, Mycroft, through its CEO/First Officer, Joshua Montgomery, has responded to Voice Tech’s professional and respectful handling of this business dispute with an aggressive campaign of harassment, identity theft, cyber-attacks, and even death threats directed personally at Voice Tech’s counsel, Tod Tumey, and Mr. Tumey’s family. Under these extraordinary circumstances, Voice Tech brings this Motion to ask the Court’s intervention at the outset of this case to require Mycroft and Montgomery to remove the threatening content it has published online and cease its assaultive campaign against Mr. Tumey and his family; to admonish Mycroft and Montgomery that such bad faith conduct is unacceptable and will not be tolerated; to express the Court’s expectation and requirement that the parties will refrain from such abusive behavior going forward; and to place Mycroft and Montgomery on notice that they may be subjected to further sanctions and consequences for their misconduct should they fail to heed the Court’s direction.
The filing goes on to show a number of angry emails that were sent to Tumey's firm. These are typical angry people on the internet sounding off type emails, but Tumey seems sure that it's really Montgomery himself.
The timing and nature of this email strongly suggested that Montgomery (or, at the very least, someone acting for him/Mycroft) sent it. Indeed, it includes a link to Montgomery’s Reddit post, and brags about posting Mr. Tumey’s correspondence on the Mycroft website—something, presumably, only Montgomery or someone else at Mycroft could have done. See id. Moreover, the subsequent avalanche of orchestrated assaults on Mr. Tumey and his firm further evidence a purposeful campaign by Montgomery/Mycroft against counsel in apparent retribution for Voice Tech’s orderly, lawful pursuit of its rights through the justice system:
Or -- and hear me out on this -- the story had already started to go viral on Reddit (the email in question linked to the Reddit story, as noted in the filing) and some immature Redditors, who (for good reasons!) hate patent trolls, decided to act immaturely. That does not mean that it's Montgomery himself. The next day Tumey received another mean email and again assumes that it must be Montgomery, despite the much more obvious answer that it was people who read the story on Reddit.
First, the next morning after receiving the email shown above, Tumey L.L.P. received another email to its general email account seemingly from the same source (i.e., Montgomery/Mycroft), which, among other hostile content, recommended—in graphic and highly disturbing terms—death and acts of violence against counsel (as Montgomery’s online post had also done)
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 kinda what often happens when you do something stupid and the internet finds out about it. To blame Montgomery for it seems crazy -- and kind of clueless about the internet. But, no, Tumey assumes it's all because of Montgomery:
The timing and pattern of these activities, as well as the nature of the emails, and similarities and connections with Montgomery’s published posts led Voice Tech’s counsel to conclude that Montgomery, alone or in concert with others, was most likely the individual behind this onslaught of harassment.
Look: again, the actions here were dumb, childish pranks played by dumb, childish individuals. But to lump it all on Montgomery because he published a blog post is crazy. Indeed, later in the filing, Tumey drops even the idea that this juvenile behavior was done "in concert" with Montgomery, and just insists that it was the company Mycroft's actions directly:
In this case, Mycroft’s threatening suggestions of physical harm and death towards Voice Tech’s counsel, as well as its litany of other harassing and abusive behavior, are antithetical to an orderly and fair judicial process, and undermine the sanctity of this proceeding. As the above authorities demonstrate, it is well within this Court’s inherent authority to make it clear that such conduct will not be tolerated. Indeed, Voice Tech notes that, even in the absence of the extraordinary circumstances of this case, courts routinely issue orders and adopt standing procedures directing civil and professional behavior by those appearing before them.
Notably, nowhere in the filing does Tumey link to the Reddit post in question. So I went and looked, and it sure looks like it went viral in r/linux and did pretty well in a few related open source subreddits as well. In other words, a lot of people who are sick of patent trolls saw the story. The idea that all the messages are coming from Montgomery or Mycroft themselves is simply bonkers.
For its part, when asked, I was told by the company's lawyer, Lee Cheng (who masterminded NewEgg's anti-patent troll strategy): "Of course no one, even blatant patent abusers and legal advantage takers, should be harassed or threatened. No one who threatens or harasses people or their families is a friend of either Mycroft AI or Josh Montgomery." And it does seem like rather than insisting that Montgomery and Mycroft AI are sending the threatening emails and engaging in the other childish behavior, the real reason it happened is because a lot of people really hate patent shakedown efforts, and chose a poor way to express that. For VoiceTech and Tumey to try to work the refs early in the case by pinning bad behavior of third parties on Mycroft seems particularly distasteful. ⬆