Thursday, February 7, 2013

Who Owns Your Running Data?

This is my first post to the ultra-niche blog of antitrust professors/runners. Thanks for having me!

I started running in March last year when I borrowed someone else's ipod nano and went for a jog in Menlo Park, California. I went running because I was just visiting and had no gym work out in. I took the nano to listen to music. But the experience of having the nano tell me every kilometer that passed and give me my run stats at the end got me hooked.

Running with data is way more fun than just running! Using a website like Nikeplus to track your data over time is even more fun.

But my frustration with the nano - it kept ending my runs early when I drenched it with sweat - led to me to want to edit the data. Nike does not let you do this. They don't even let you merge two runs together. This led me to a very cool site that takes your nikeplus data and gives you some different data visualizations and lets you manually add and edit runs.

Smashrun have worked out how to get your data from the Nike website, but they are still working on Garmin. I now use a Garmin GPS watch to track my runs and calibrate my iPod nano at the end of each run. (I find that the nano is only accurate +/- 5%) I don't use the Garmin website much because the interface is not great and they don't analyze the data in ways I find interesting.

Some observations

Nike and Garmin obviously want obviously want to lock their users into their platforms as a means of giving you more reason to buy their gadgets and not to switch every time something better comes along.

Nikeplus is mostly a great website, but Smashrun is better in many ways. To compete with Nike as a data platform Smashrun needs access to the my data. But when I say 'my data' is that legally accurate? Do I really own my data to the extent that I have the right to port it somewhere else.

In the course of writing the post I have probably violated the "Platform Use Restrictions" of Nike's Terms of Service because my "User Generated Content" is inextricably linked with their IP. I am confident that Nike won't mind, but given that some U.S. prosecutors interoperate the Computer Fraud and Abuse Act as being violated by a TOS violation, maybe I should think twice.

Smashrun is probably not contractually bound by Nike's TOS (quite a debatable point), but some courts might think that it is. Smashrun might be deemed to be in violation of the Nike TOS which provide that "You agree not to use any data mining, robots, scraping or similar data gathering methods." (I might have also violated the TOS that reads "Keep your username/password secure and do not allow anyone else to use your username/password to access the Platform.")

In the wake of the prosecution and subsequent suicide of Aaron Swartz, Representative Zoe Lofgren has drafted a bill that would exclude terms of service violations from the 1984 Computer Fraud and Abuse Act and from the wire fraud statute. This reform is long overdue.

As a matter of consumer protection, if not competition law, data the right of users to have third parties liberate their data aught to be the norm. Then we could have device competition between Nike and Garmin and data platform between Nike, Garmin, Smashrun and host of new entrants.


  1. I think the two authorities that are leading in looking at this issue right now, are US FTC and UK OFT...the latter's report on personalised pricing comes out soon. People on this side of the pond are asking more and more about 'if data is the new oil, then when do we get consumers involved in the market for data and how do we do that?' I have heard everything from 'it is impossible, third party intermediaries (the cookiemonsters) won't relinquish control or pay for data' to 'this will happen, and faster than the carbon offset market developed even'.

  2. A new gold standard in combining professional insights with running. Bravo. And thanks for joining us.

    Can we differentiate valuable from "merely interesting" data? I _don't_ maintain running data (with the exception of the routes I plot on, just so I can report to coach how far I ran and so I can acquire some ex post understanding of my pace that day). I realize many -- increasingly many -- take Matt's approach to data analysis as part and parcel of, if not the impetus for, the running avocation. But I see running data like I see race photos. I still occasionally pay $15 for a 5 x 7 of myself and I don't begrudge the photographer the right to sell that same photo to anybody else. (OK, yes, I do grouse about it before pressing "order" on the website.)

    This is, of course, different from my health information, my credit card information, my personal historical information, my employment information, even my location information, the knowledge of which might be used to cause me fairly substantial inconvenience.

    Or am I missing the point?

  3. Can running data not give cookiemonsters a pretty good idea of health information, location, some buying prefs, some indication of interests, time of day of run might even allow inferences about other things, even employment ranges? Even if they don't use it to target YOU, it helps builds profiles and yet you have given it away for free, some would say, or at least in exchange for interesting stats on your own performance. I'm still not sure where I am on this or not, value or not, if value how do you price, would pricing/opting out be good or bad for you/innovation. Data, even mildly interesting data, is clearly valuable to someone, or they wouldn't be collecting it, analysing it and selling it on. But I am behind the curve on this. And ... I grow old, I grow old, I shall wear my trousers roll'd.

  4. To answer Phil's question, Garmin knows my heart rate, heart rate recovery rate, running pace, weight, cycling pace, and hill profile for all of the above. That's actually a lot of health data. My doctor does not have this. A lot of health risk factors can be derived from this information alone. They also know where I live (lots of runs start from there), my local routes, and my destination routes.

    Nike plus has my running routes, pace data, and, not surprisingly, which shoes I'm running in and for how many miles (Mizuno Wave Creation (13.3), Nike Free (38.9), Saucony Kinvara (142), and Brooks Pure Flow (205)). Take that Nike Free . . . Use that to design me a perfect shoe, okay. In the meantime, I'm going out to buy another pair of Brooks.

    In a past life, I wrote a few articles with Paul Schwartz that work from the basic proposition that trying to use the market to regulate rules for sharing of personal data is a fool's errand. Nothing that has happened in the last ten years has done anything to change that view. The terms of service that we all routinely sign off on, without reading, legitimate liberal data sharing and aggregation. (I should take a look at the Garmin and Nike Plus TOS before popping off here, and will revise if I find anything different). The only real limits are likely to come from regulation ex ante, and judicial nullification of terms of service (in extreme cases) ex post.

    So why do I share this data, because it is cool . . .

    So why do I willingly share all of this

  5. I'm interested in this issue. In the US automotive industry there are many software services that are used by manufacturers and dealerships that generate user supplied data. In particular, dealers all have systems that store sales related data. The issue of whether this data is owned by the dealer or by supplier of the system is often raised. Market forces seem to be siding with the dealer. The dealer owned its user supplied data.

    I'm a Nike Plus user. I like the watch and the shoes. The website is fine but I'd like to see my data on other sites. Other than Smashrun, which syncs the data from Nike Plus, the typical way to use other sites would be to upload data from a TCX or GPX file. Since Nike does not offer a feature to download my data in one of these, or any other, format I can't get at it unless I use a 3rd party application.

    Below are two sections from the terms of service. In the Intellectual Property section Nike does not claim to own the intellectual property that can be defined as User Generated Content. In the User Generated Content section Nike does reference "data" as an item that seems to be owned by the User. I'm not an attorney and I don't know if I'm missing something. With all that said, however, the fact remains that Nike does not enable it's user to download their data. So whether or not they technically claim to own the data they are holding it hostage.

    All intellectual property on the Platform (except for User Generated Content) is owned by NIKE or its licensors, which includes materials protected by copyright, trademark, or patent laws. All trademarks, service marks and trade names (e.g., the NIKE name and the Swoosh design) are owned, registered and/or licensed by NIKE. All content on the Platform (except for User Generated Content), including but not limited to text, software, scripts, code, designs, graphics, photos, sounds, music, videos, applications, interactive features and all other content ("Content") is a collective work under the United States and other copyright laws and is the proprietary property of NIKE; All rights reserved.

    "User Generated Content" is communications, materials, information, data, opinions, photos, profiles, messages, notes, website links, text information, music, videos, designs, graphics, sounds, and any other content that you and/or other Platform users post or otherwise make available on or through the Platform, except to the extent the Content is owned by NIKE.