In the U.S., we don’t expect or allow government officials – including judges–to be speech police. Courts are allowed to restrain speech only in the rarest circumstances, subject to strict limitations. So we were troubled to learn that a judge in Missouri has issued an order stifling the speech of a small company that’s chosen to speak out about a patent troll lawsuit that was filed against it.
Mycroft AI, a company with nine employees that makes open-source voice technology, published a blog post on February 5 describing how it had been threatened by a patent troll called Voice Tech Corporation. Like all patent trolls, Voice Tech doesn’t offer any services or products. It simply owns patents, which it acquired through more than a decade of one-party argumentation with the U.S. Patent Office.
Voice Tech’s two patents describe nothing more than using voice commands, together with a mobile device, to perform computer commands. It’s the basic statement of an idea, without any executable instructions, that’s been an idea in science fiction for more than 50 years. (In fact, Mycroft is named after a supercomputer in the Robert Heinlein novel The Moon Is a Harsh Mistress.) When Voice Tech used these patents to threaten and then sue [PDF] Mycroft AI, the company’s leadership decided not to pay the $30,000 that was demanded for these ridiculous patents. Instead, they fought back—and they asked their community for help.
“Math isn’t patentable and software shouldn’t be either,” wrote Mycroft First Officer Joshua Montgomery in the blog. “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 re-post, link, tweet and share this post. Please help us get the word out by sharing this post on Facebook, LinkedIn, Twitter, or email.”
Montgomery also said that he’d “always wanted to be a troll hunter,” and that in his opinion, when confronted with matters like this, “it’s better to be aggressive and ‘stab, shoot and hang’ them, then dissolve them in acid.” He included a link to a piece of state legislation he opposed last year, where he’d used the same quote.
That tough language got attention, and the story went viral on forums like reddit and Hacker News. The lawsuit, and the post, were also covered by tech publications like The Register and Techdirt. According to Mycroft, it led to an outpouring of much-needed support.
The Court Steps In
According to Voice Tech, however, it led to harassment. The company responded by asking the judge overseeing the case, U.S. District Judge Roseann Ketchmark of the Western District of Missouri, to intervene. Voice Tech suggested the post had led to both harassment of its counsel and a hacking attempt. Mycroft strenuously denied any harassment or hacking, and said it would “admonish and deny” any personal attacks.
Unfortunately, Judge Ketchmark not only accepted Voice Tech’s argument about harassment, but ordered Mycroft to delete portions of the blog post. What is worse, she ordered Mycroft to stop reaching out to its own open source community for support. Mycroft was specifically told to delete the request that “everyone in our community who believes that patent trolls are bad for open source” re-post and spread the news.
To be clear, if the allegations are true, Voice Tech’s counsel has a right to respond to those who are actually harassing him. This ruling, however, is deeply troubling. It does not appear as though there was sufficient evidence for the court to find that Mycroft’s colorful post led directly to the harassment—an essential (though not sufficient) requirement before prohibiting a party from sharing their opinions about a case.
But the public has a right to know what is happening in this case, and Mycroft has a right to share that information – even couched in colorful language. The fact that some members of the public may have responded negatively to the post, or even attempt to hack Voice Tech, doesn’t justify overriding that right without strong evidence showing a direct connection between Mycroft’s post and the harassment of Voice Tech’s counsel.
Patent Trolls and Speech Police
It gets worse. Apparently emboldened by its initial success, Voice Tech continues to press for more censorship.
In June, Mycroft published an update on its Mark II product. While the company anticipates delivery in 2021, Montgomery wrote that “progress is dependent on staffing and distractions like patent trolls,” and linked to a recent Techdirt article. Voice Tech quickly kicked into overdrive and wrote a note to Mycroft demanding the removal of a link, and a redaction:
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.
Mycroft has removed the link. Voice Tech has also sought to censor third-party journalism about the case, like that published in Techdirt.
It’s bad enough when small companies like Mycroft AI are subject to threats and litigation over patents that seem to be little more than science-fiction documents issued by a broken bureaucracy. But it’s even more outrageous when they can’t talk about it freely. No company should have to suffer in silence about the damage that patent trolls do to their businesses, to their communities, and to the public at large. We hope Judge Ketchmark clearly and quickly reconsiders and rescinds her troubling gag order. And we’re glad to see that Mycroft AI has been willing to put up legal fight against these clearly invalid patents.