Our Response To Titan Note Sending A Frivolous Takedown Notice Over Our Critical Coverage
from the censorious-thuggery dept
We've written two separate stories about the Titan Note -- a small recording/transcription device that was originally sold via a crowdfunding project at IndieGogo. It was an interesting device, that immediately generated a fair bit of press -- though that included some reasonable skepticism about whether or not the product could really do what it claimed it could do (especially since many other larger companies couldn't seem to produce similar voice recognition capabilities, despite putting tremendous resources towards it). I still backed the project hoping that maybe it was legit. The good press still beat out the few skeptical posts and the campaign initially raised over $1 million dollars. However, soon after the project closed, IndieGogo canceled the campaign (perhaps due to a group of online skeptics contacting them) and refunded everyone's money, saying that that Titan Note had violated its terms. We reported on this not because of the project being canceled, but because in discussing the cancellation, the Verge also noted that Titan Note had sent a bogus DMCA notice over its skeptical story -- and writing about censorious DMCA takedowns is pretty common around here.
Last week we wrote about Titan Note again, following what the company did after IndieGogo shut it down. Our post highlighted a number of other sketchy moves by the company, including blaming IndieGogo (and promising to sue the company for unspecified reasons). Then there was the second crowdfunding platform that also canceled a Titan Note campaign. And the fact that Titan Note kept deleting the fairly innocuous questions I asked on its Facebook page, which were just about trying to understand the real reasons for getting kicked off IndieGogo (and for sending the bogus DMCA notice). As part of this I also sent Erik Jansson, the guy behind Titan Note, an emailed list of questions.
Rather than respond... he sent a DMCA takedown notice to us in response.
In that last post, we included screenshots of Titan Notes' comments on Facebook. We showed the screenshots specifically because Titan Note had a history of deleting others' Facebook comments, and I feared that the company might delete its own embarrassing statements. Similarly, we posted a closely cropped image of Titan Note's own website to show the questionable claim it makes about how the product raised over $1.1 million with 12,000 backers via crowdfunding. That claim is highly misleading, given that the project was canceled and Titan Note never received that money. Its website certainly appears to imply otherwise.
The DMCA notice claims that all of these screenshots are infringing:
The website https://www.techdirt.com/blog/?company=titan+note is using our images without our permission. All of the images in the article are stolen from our Facebook page and our website. They are also using our trademarked name "Titan Note" without our permission. The have also stolen many quotes and paragraphs from our Facebook page and included that in the article. This is a clear violation of the law and we urge you to remove the link immediately.
Obviously, our use of these images and the Titan Note name is fair use. It's not even remotely in question. The images were not "stolen" -- we took screenshots to include with significant commentary for the purpose of news reporting. This is exactly what fair use is designed to cover. The only reason to send this kind of takedown notice is to try to intimidate or silence critical reporting of Titan Note. Indeed, with a third critical article written by someone else also receiving a DMCA takedown over screenshots, it seems that Titan Note is repeatedly trying to abuse the DMCA to censor criticism.
If you are still backing Titan Note (now doing pre-sales on its own site), I would suggest considering whether or not you trust a company that feels the need to send bogus takedown notices to anyone even moderately critical of its products or actions.
In the meantime, we've retained lawyer Ken "Popehat" White to handle this matter, and he has responded to Jansson's takedown notice as follows:
Dear Mr. Jansson,
This firm is litigation counsel to Floor64, Inc., which owns and operates the site Techdirt.com (“Techdirt”). I write in response to your email of May 26, 2017 to Mike Masnick of Floor64.
I will ignore the procedural deficiencies in your purported DMCA notice and address the lack of substance. Your assertion that Techdirt has violated Titan Technologies, LLC’s (“Titan”) intellectual property rights is astoundingly frivolous and represents a transparent attempt to suppress negative news coverage through vexatious legal threats. It will fail. Techdirt’s coverage of Titan’s conduct is clearly protected by applicable law.
Even assuming for the sake of argument that Titan has a protected intellectual property interest in its public Facebook comments, Techdirt’s coverage is classic fair use protected by Title 17, United States Code, section 107. Techdirt has reported and displayed those comments for the purposes of criticism, comment, and news reporting. Your claimed trademark violation is equally meritless. Techdirt has used Titan’s name not to compete with Titan, but to identity Titan in order to report on its conduct. That’s self-evidently nominative fair use. New Kids on the Block v. News Am. Pub., Inc., 971 F.2d 302, 307 (9th Cir. 1992).
Your bogus claims, threatened to deter news coverage, are exactly the sort that lead to courts awarding attorney fees to defendants. Should you file an action, you should expect me to seek attorney fees, win them, and pursue you personally for them wherever you may retreat. Floor64 also reserves its right to seek damages for abuse of the DMCA under, for instance, Title 17, United States Code, section 512(f).
Please direct any further communications, including further bumptious legal threats, to me.
Very truly yours,
Ken White
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: abuse, censorship, copyfraud, copyright, dmca, erik jansson, ken white, notice and takedown, titan note, trademark
Companies: indiegogo, titan note
Reader Comments
The First Word
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uh oh you printed the whole letter. Now Ken's going to sue you for copyright infringement.
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If only there was a name for that... effect...
Something something either didn't research or really is this stupid.
And once again... this goes here...
https://www.youtube.com/watch?v=wWhtcU4-xAM
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he he.
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I am officially adding "bumptious" to my list of favorite words.
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...Pay up.
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Ken White for Supreme Court
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Re: Ken White for Supreme Court
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Stupid spell-checking programs
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"He said bumptious
he he."
I'm willing to bet the first draft said "censorous asshatery" but his assistant wouldn't let that one fly.
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Surprised actually
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Re: Surprised actually
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"But....but....but....It's only Fair Use if we like it!"
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"Now go away or I shall taunt you a second time."
'I will ignore the procedural deficiencies in your purported DMCA notice and address the lack of substance.'
When a response starts with that, you know it's going to be good, and he did not fail to deliver. Short but fully encapsulated the 'If you take this further it will go badly for you' message, while positively dripping with all the respect they deserve.
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*snerk*
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Now we no longer know where tge business stops and the opinions start. Does his fee include guest posts here or supportive posts on his blog? Will they be marked as advertusing?
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Re: Sadly in entering into a business relationship with popehat you have made it more difficult to accept references to his posts as neutral.
Do you recall them ever claiming to be journalists?
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> opinions start.
Speak for yourself.
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Re: Re: Sadly in entering into a business relationship with popehat you have made it more difficult to accept references to his posts as neutral.
Isupportjournalism dot com does that ring a bell?
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Thinking....
That and, of course, hit up the regular readers to buy more t-shirts (notice that sort of disappeared quick?).
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Though professional decorum and tone is due for all interactions with the court and other lawyers. IANAL, but I do not believe there is any standard for telling off citizens of another country that are abusing the US justice system.
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By "personally" he doesn't mean "I will sic Twitter on you" or "I will come to your house to shake you down", he means that he'll be seeking fees from the -people- abusing the legal process, regardless of what they do with the business once it implodes.
Full disclosure: I am a fan of Ken's blog, I also do not have a Twitter and don't know why you brought twitter up.
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Re: "Now go away or I shall taunt you a second time."
Well, when I read that, knowing how good Popehat is I already expected a show and he succeeded in delivering. But yeah, that first punch was already critical, the rest was only mild kicks to the fallen, inert body for pure amusement.
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Re: Thinking....
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A letter written by both Ken and Randazza would be the new standard for epic legal letters.
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"Personal" in a legal document doesn't mean "trying to offend people by saying stupidly rude things about their ethnicity". It means "as opposed to dealing with some corporate entity". And that's important because the "corporate entities" that make these extortionate bogus legal threats are usually designed to have no assets to pay for legal fees when they lose cases. ("Prenda Law" is the best-known example.)
The letter is saying, "Mr. Janssen, you have signed your name to a blatantly criminal act, and if you persist, your own 'personal' assets (for instance, YOUR Mercedes, YOUR yacht, YOUR summer home, YOUR collection of exquisitely-mounted fine-art figures of children engaging in adult activities, YOUR bank account, WHATEVER) will be seized to pay for your actions."
In other words, you can't foist Mr. Popehat off with spreadsheets showing your private corporation "I, myself, and me, LLC" has no money. It's "you and your assets" that the Finno-Ugric equivalent of U.S. marshals are going to be after. "You can spend the rest of your life trying to hide your ill-gotten gains (and snorting taint), or you can abandon this particularly futile criminal endeavour."
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And this gave me a new life-goal: now I have to find a reason to use 'bumptious' in an official business communication.
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It is sad when "Techdirt" is confused with "Twitter"
The ending is not "so unprofessional it's jaw dropping" unless, of course, you're a professional lawyer, in which case you DO get to judge Ken White. Since you're not, let's just assume you mean YOUR jaw dropped. Get that looked at. It could turn to TMJ.
I'm sure Ken meant to let these fly-by-night operators know that even if they disband their non-funded ripoff venture, he'll still get his legal fees. I've read lots of his work and he doesn't threaten to "go after" people... absent a clear expected run&hide on the part of the abusers.
You make a classic example of Good Samaritan Blaming. That's second in the reasons you should go to Hell only beyond Victim Blaming, but I'm sure you wouldn't do that.
Would you?
Ehud
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Re: Thinking....
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Re: Thinking....
The fact that exceptions to copyright exist really pisses you off, doesn't it?
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That word... I don't think it means what you think it means...
Definition of novel
1
: new and not resembling something formerly known or used New technologies are posing novel problems.
As others have pointed out, this is CODIFIED LAW, which is respectfully 180° opposite from your "professional opinion" that it's either NEW or not resembling SOMETHING FORMERLY KNOWN.
Now go look up "troll." See if you find anything that literally* mirrors your thinking.
E
* I'm using "literally" in the new way which means "non-literally".
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In civil (and a limited set of criminal) law, there's this thing called "personal liability." Every lawyer, every competent law student, and a sizable number of lay people is familiar with this concept, but apparently you're not one of them, so I'll try to explain briefly and simply.
Certain legal entities, such as corporations and trusts, can own assets like people. They can also act through people who are their agents. Sometimes, people (or legal entities) who do bad things are punished by taking away their money. If you're a person, acting for yourself, and you do a bad thing, the courts can go after your assets. However, if you're a person acting as an agent for a corporation, and you do a bad thing, the judgment will be against the corporation and its assets. If the judgment exceeds the assets, the corporation will fold, but the court can't touch your personal assets, because you were only acting as an agent.
However (again), there are circumstances in which a person can't hide behind a legal entity as a liability shield. This is called personal liability. When Ken threatened to go after the litigious asshat personally, he didn't mean that (and no reasonable intelligent attorney or businessman would read it as) he would hunt said asshat down like Liam Neeson. Ken was pointing out that he would use every legal means at his disposal to ensure that the person who sent the abusive takedown notices wouldn't be able to escape personal liability by folding his company or severing himself from it. This is not unprofessional. On the contrary, I was always taught that professionalism specifically requires you to mention that you would seek attorneys' fees and whether you'd seek them personally from the other attorney or an individual. The reason is that fee-shifting often exists to punish really bad or really sloppy behavior. Giving the other side a warning to check themselves in order to prevent the sort of bad litigation that will lead to fees is professional. Not mentioning fees so that the other side keeps behaving badly so that you can collect a bigger payday later is unprofessional.
Here's another piece of free, unsolicited advice the next time you're tempted to share your expertise on attorney professionalism: If a prosecutor threatens to "seek the death penalty," he is not, in fact, using a clever way to threaten to personally murder the defendant.
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Re: Thinking....
If you think that it's a "novel legal theory" that fair use permits you to post screenshots from a company's facebook page in order to prove that they said what you claim they said in case they delete their comments later, I refer you to my prior statement.
Also, I rated your comment funny, even though I don't believe that was your intent.
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Titan Note's website is GONE. The CEO Erik Jansson's LinkedIn page is GONE!
Is there ANY way to get my money back? I spoke to my credit card company and the refund request has to be filed within 90 days of the transaction (in my case 1st June), so it's sadly MUCH too late. :-(
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