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,