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Patent Owner Can’t Use Foreign Court Order To Block EFF From Speaking Out

April 13, 2017

Patent Owner Can’t Use Foreign Court Order To Block EFF From Speaking Out

EFF Sues Company To Assert Constitutional Right to Criticize a Patent and Litigation Over It

San Francisco—The Electronic Frontier Foundation (EFF) filed a lawsuit yesterday against a company that’s using foreign laws to stymie EFF’s free speech rights to publish information about and criticize its litigation over a patent featured in EFF’s “Stupid Patent of the Month” blog series.

The company, Global Equity Management (SA) Pty Ltd (GEMSA), owns a patent claiming the idea of using “virtual cabinets” to graphically represent different operating systems and storage partitions. GEMSA has filed dozens of patent infringement cases in the U.S.

Since 2014, EFF’s stupid patent blog series has called attention to questionable patents that stifle innovation, harm the public, or can be employed to shake down users of commonplace processes or technologies. After EFF wrote about the patent, GEMSA accused EFF of slander. The company went to court in Australia to obtain an order to take down the article and prohibit EFF from publishing anything about any of GEMSA’s patents.

This order, which purports to silence expression of an opinion, would never survive scrutiny under the First Amendment in the United States. In a complaint filed in San Francisco yesterday, EFF asked a federal district court to rule that the order is unenforceable. Under the 2010 Securing the Protection of Our Enduring and Established Constitutional Heritage Act (SPEECH Act), foreign orders aren’t enforceable in the United States unless they are consistent with the free speech protections provided by the U.S. and state constitutions, as well as state law.    

The injunction issued by the South Australian court purports to order EFF to remove the blog post and forbid EFF from speaking in the future about any of GEMSA’s intellectual property. It states that failure to comply could result in the seizure of EFF’s assets and prison time for its officers.

“We are going to court to ensure that EFF is not silenced by foreign laws that forbid speech our Constitution protects,” said EFF Deputy Executive Director and General Counsel Kurt Opsahl. “GEMSA may not like what we’ve said about its patent, but we will defend our right to express our constitutionally protected opinion."

EFF is represented by law firms Levine Sullivan Koch & Schulz, LLP and Jassy Vick Carolan.

For the brief:
https://www.eff.org/document/eff-v-gemsa-complaint

For EFF’s Stupid Patent of the Month series:
https://www.eff.org/issues/stupid-patent-month

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