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


Reader Comments

The First Word

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  • icon
    sorrykb (profile), 1 Jun 2017 @ 9:44am

    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:

    uh oh you printed the whole letter. Now Ken's going to sue you for copyright infringement.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Jun 2017 @ 10:05am

      Re:

      He can't because I hold the trademark on " copyright infringement".

      reply to this | link to this | view in chronology ]

    • identicon
      Sir Single, 2 Jun 2017 @ 5:56pm

      Re:

      It's OK. As long as no one pony's up the dough, we'll be safe. Ken's not keen on people horsing around, although he never actually gets sulky.

      reply to this | link to this | view in chronology ]

    • identicon
      Jal, 2 Jun 2017 @ 7:49pm

      Re:

      If you'd told 16-year-old-punk me I'd be reading legal blogs for fun when I got old, I'd probably be horrified. But love Ken.

      And this gave me a new life-goal: now I have to find a reason to use 'bumptious' in an official business communication.

      reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 1 Jun 2017 @ 9:54am

    It would be a pity if their attempt to remove coverage over their claims and behavior just gave them more coverage...
    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

    reply to this | link to this | view in chronology ]

  • icon
    Steve Swafford (profile), 1 Jun 2017 @ 9:58am

    Popehat is the shit lol

    reply to this | link to this | view in chronology ]

  • icon
    TimK (profile), 1 Jun 2017 @ 10:19am

    He said bumptious

    he he.

    reply to this | link to this | view in chronology ]

  • identicon
    Jason, 1 Jun 2017 @ 10:20am

    I am officially adding "bumptious" to my list of favorite words.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Jun 2017 @ 10:33am

    Masnick = super cool tough guy. So impressed.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Jun 2017 @ 10:33am

    <3 Ken

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Jun 2017 @ 11:21am

    Ken White for Supreme Court

    I would vote for him if their was a peoples choice vote in position on the court.

    reply to this | link to this | view in chronology ]

  • icon
    CharlesGrossman (profile), 1 Jun 2017 @ 11:39am

    Stupid spell-checking programs

    Don't you hate it when a spell-checking program allows the wrong (correctly spelled) word through? Attorney White's letter should say "but to identify Titan" and not "but to identity Titan"

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Jun 2017 @ 11:42am

    I just find it funny that Ken had to use a New Kids on the Block case. Talk about cruel and unusual.

    reply to this | link to this | view in chronology ]

  • icon
    Norahc (profile), 1 Jun 2017 @ 12:00pm

    @TimK
    "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.

    reply to this | link to this | view in chronology ]

  • icon
    AnonJr (profile), 1 Jun 2017 @ 12:28pm

    Surprised actually

    I'm actually surprised you managed to get Ken to write a letter like this that didn't have "snort my taint" in there somewhere. Bravo.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Jun 2017 @ 12:48pm

    "But....but....but....It's only Fair Use if we like it!"

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Jun 2017 @ 1:16pm

    I must say, as far as legal badassery goes, being able to say "popehat on retainer" is up there.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 1 Jun 2017 @ 2:16pm

    "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.

    reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 2 Jun 2017 @ 9:08am

      Re: "Now go away or I shall taunt you a second time."

      "we've retained lawyer Ken "Popehat" White to handle this matter"

      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.

      reply to this | link to this | view in chronology ]

  • identicon
    Mememe, 1 Jun 2017 @ 4:13pm

    Is that really the real Ken? He didn't even tell them to snort his taint.

    reply to this | link to this | view in chronology ]

  • icon
    Jeffrey Nonken (profile), 1 Jun 2017 @ 5:19pm

    "...bumptious legal threats..."

    *snerk*

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Jun 2017 @ 6:41pm

    Sadly in entering into a business relationship with popehat you have made it more difficult to accept references to his posts as neutral.

    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?

    reply to this | link to this | view in chronology ]

    • identicon
      Lawrence D’Oliveiro, 1 Jun 2017 @ 7:46pm

      Re: Sadly in entering into a business relationship with popehat you have made it more difficult to accept references to his posts as neutral.

      So you think they are not credible journalists any more?

      Do you recall them ever claiming to be journalists?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 2 Jun 2017 @ 12:11am

        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.

        The whole i support journalsts thing maybe?

        Isupportjournalism dot com does that ring a bell?

        reply to this | link to this | view in chronology ]

    • identicon
      Elizabeth, 2 Jun 2017 @ 2:46am

      Re:

      This letter perfectly captures everything wrong with Twitter. The ending is so unprofessional it's jaw dropping. Threatening a lawyer to go after them personally wherever they may hide is honestly disgraceful. I bet before Twitter, before becoming a Twitter celebrity with thousands of bot followers, even Ken White might have thought twice about crossing that professional line. I think his conduct in the last paragraph should be shown as an example of how not to correspond on a legal dispute, not the other way around. It may well come back to haunt him. I hope it does.

      reply to this | link to this | view in chronology ]

      • identicon
        TripMN, 2 Jun 2017 @ 6:44am

        Re: Re:

        Mr. Jansson is not a lawyer from what I can tell and what small amount of detail his LinkedIn profile provides. It appears that he is a Swedish national with a degree in something Computer Science related.

        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.

        reply to this | link to this | view in chronology ]

      • identicon
        Johnny, 2 Jun 2017 @ 7:46am

        Re: Re:

        What are you talking about? This has nothing to do with Twitter. Ken is warning them that their threats are bogus, he will seek legal fees if they follow through, and he won't let them weasel out of paying them should they be awarded.

        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.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 2 Jun 2017 @ 8:41am

        Re: Re:

        Never ever read a Marc Randazza letter

        reply to this | link to this | view in chronology ]

      • icon
        Ehud Gavron (profile), 3 Jun 2017 @ 1:45pm

        It is sad when "Techdirt" is confused with "Twitter"

        While both start with "T" and have an "i" and an "r", TechDirt is not Twitter, so "this letter captures perfectly everything wrong with Twitter" is not only wrong but captures perfectly you're not paying attention to what you're reading.

        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

        reply to this | link to this | view in chronology ]

      • identicon
        Dragonov, Anonymous Coward, 15 Jun 2017 @ 1:56am

        Re: Re:

        Elizabeth, your comment perfectly captures everything that is wrong with the internet--people leaping to conclusions and casting judgment on a subject without taking the time to do even basic research in order to familiarize themselves with that subject.

        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.

        reply to this | link to this | view in chronology ]

    • identicon
      Jyjon, 2 Jun 2017 @ 2:01pm

      Re:

      I am looking forward to the now required anti-pony posts that will be coming soon to techdirt

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Jun 2017 @ 7:10pm

    Re:

    No, it said "Snort My Taint."

    reply to this | link to this | view in chronology ]

  • icon
    techflaws (profile), 1 Jun 2017 @ 9:54pm

    > Now we no longer know where tge business stops and the
    > opinions start.

    Speak for yourself.

    reply to this | link to this | view in chronology ]

  • identicon
    My_Name_Here, 2 Jun 2017 @ 2:10am

    Thinking....

    I am starting to get the impression that Mike Masnick and Techdirt are actively baiting anyone and everyone with the hope of getting sued, so they can try their "novel" legal theories in a court of law.

    That and, of course, hit up the regular readers to buy more t-shirts (notice that sort of disappeared quick?).

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Jun 2017 @ 10:20am

      Re: Thinking....

      Fair use for news reporting is not a "novel legal theory". It has a good 250+ years of common law history and has been in the federal statute for 40.

      reply to this | link to this | view in chronology ]

    • icon
      techflaws (profile), 3 Jun 2017 @ 10:00pm

      Re: Thinking....

      Gosh, it's like you idiots are not even trying anymore.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Jun 2017 @ 12:45am

      Re: Thinking....

      So fair use is apparently, to you, a "novel" legal theory.

      The fact that exceptions to copyright exist really pisses you off, doesn't it?

      reply to this | link to this | view in chronology ]

    • icon
      Ehud Gavron (profile), 4 Jun 2017 @ 2:04pm

      That word... I don't think it means what you think it means...

      M-W:

      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".

      reply to this | link to this | view in chronology ]

    • identicon
      Dragonov, Anonymous Coward, 15 Jun 2017 @ 2:03am

      Re: Thinking....

      If you think that using a company's trademarked company name in order identify that company is "actively baiting anyone and everyone," then clearly you are woefully ignorant of even the most basic concepts of trademark law.

      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.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Jun 2017 @ 1:49pm

    I suspect some people, more accustomed to the gentle give-and-take of fraternity bull sessions and twitter flamefests, have trouble understanding the legal terminology.

    "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."

    reply to this | link to this | view in chronology ]

  • identicon
    Tekija, 5 Jun 2017 @ 2:06pm

    Hey! Swedish are definitely not Fenno-Ugrians. They are of the Germanic stock...

    reply to this | link to this | view in chronology ]


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