SAN FRANCISCO (CN) – A patent troll is using an Australian court order to muzzle the speech of an American entity who called the company’s patent on virtual cabinets “stupid,” the Electronic Frontier Foundation claims in a new lawsuit.
The nonprofit digital rights watchdog on Wednesday sued Global Equity Management (SA) Pty Ltd., or GEMSA, accusing the Australian firm of exploiting its home country’s weaker safeguards on speech to secure an injunction against the EFF.
The EFF calls GEMSA a “classic patent troll,” trying to use an Australian court order to muzzle speech in the United States.
“We are going to court to ensure that EFF is not silenced by foreign laws that forbid speech our Constitution protects,” EFF general counsel Kurt Opsahl said in a statement Thursday. “GEMSA may not like what we’ve said about its patent, but we will defend our right to express our constitutionally protected opinion.”
The dispute stems from an article EFF published in June 2016, featuring GEMSA in its “Stupid Patent of the Month” series. The GEMSA patent was for a “virtual cabinet” to store data. In the article, EFF staff attorney Daniel Nazer called GEMSA a “classic patent troll,” which was using its patent on graphic representations of data storage to sue “just about anyone who runs a website.” The article also says that GEMSA “appears to have no business other than patent litigation.”
GEMSA responded by sending EFF a letter demanding an apology and retraction, calling the article “defamatory, false and malicious slander.”
When EFF refused to take down the piece, GEMSA filed suit in the Supreme Court of South Australia.
GEMSA said the article made it harder to enforce its patents in the United States, citing its legal opponents’ “reduced interest in pursuing pre-trial settlement negotiations,” according to declarations GEMSA filed in the Australian court.
GEMSA also claimed the EFF article linked to complaints against Airbnb and Zillow “not available in the public domain,” though the complaints are publicly available on the U.S. federal court system’s case docket database, PACER, as EFF pointed out in its suit.
In October 2016, the Australian court issued an injunction ordering EFF to take down the article and cease publishing further content on GEMSA’s intellectual property.
EFF says that injunction would not pass muster in United States because it restricts the dissemination of opinions on matters of public concern and prohibits speech about GEMSA’s intellectual property in an overly broad manner.
EFF’s 20-page complaint invokes the SPEECH Act, enacted by Congress in 2010, which deems foreign judgments on U.S. citizens’ speech unenforceable if they fail to hold weight under U.S. legal and constitutional standards.
The EFF seeks a court order declaring the Australian injunction “repugnant” to the U.S. Constitution and unenforceable in the United States.
EFF is represented by Ashley Kissinger with Levine Sullivan Koch & Schulz in Denver.
GEMSA did not immediately respond to an email seeking comment Thursday morning.