Deadspin Crowdsourcing Its FOIA Efforts To Route Around Silly State-Residents-Only Rules

from the freedom-for-all dept

Frankly, it was only a matter a time before this came to be. Two years or so ago, Mike wrote a piece about a Supreme Court ruling that gave the go-ahead to the state of Virginia to discriminate in its response to FOIA requests based on state residency. The state law that allowed Virginia to flatly refuse to comply with transparency requests from non-state residents was curious as a matter of good governance and was heralded by some, including Mike, as being a potential roadblock to national media, especially new media, to reporting on the goings on in the many states of our blessed union. The internet and new media, as perhaps should have been obvious, have their ways of routing around all this silliness.

Here to show how it's done is Deadspin, who filed an FOIA request in Tennessee, which has similar discriminatory FOIA policies, for emails between the University of Tennessee and Nike. This all stemmed from a rather banal situation going on at the school in which most of the women's teams are being rebranded from "Lady Vols" to simply "Volunteers" like the men's teams. This change in branding curiously came at the same time the school dropped its partnership with Adidas and switched to Nike, so Deadspin wanted to find out if there was some kind of influence being wielded by Nike over female athletic programs at a public university. So they filed for the FOIA request.

It was soon followed by a rejection letter ... because I'm not a Tennessee resident. As it stands, Tennessee's state laws only give the right to review records to "any citizen of this state." I am not a citizen of the state, and therefore they can tell me (and whoever else doesn't live in Tennessee, which includes everyone who works at Deadspin) to bugger off. Is this legal? Apparently so.

There's only one word for describing this way of thinking: garbage. Why don't they just put a sign at the Tennessee border saying, "Nothing to see here, please turn around"? Or just change the name of the Tennessee Open Records Act to the Tennessee Kinda-Sorta-Maybe-If-We-Like-You Records Act? Of just amend the text of the law to read, "Nah, fuck you"? Functionally, this just seems like a fantastic tool for ensuring national media can only give you glowing coverage—any documented verification is impossible, unless they want to give it to you.

That sentiment of frustration has been shared by numerous national blogs and media, including this one, if mildly so, several years back. It's a sense of the game being over if you don't happen to be a resident of the state in question. This, as it should be obvious, violates the spirit of the FOIA as a general tool for transparency, but what can you do? The Supreme Court ruled form on high, right?

Of course not. If new media should be linked to citizen journalism and blogs in particular embrace their readerships and communities as information sources, this is a non-problem. Deadspin sees it similarly in a post entitled "Tennessee Won't Give Us Nike's Emails; Maybe They'll Give Them To You."

But, hey, we've got readers everywhere, right? So I'm asking all of you, residents of Tennessee, to submit a public records request for me, if you don't mind. I'm putting a copy of my entire public records request below. Or, hey, come up with your own version if you've got a better idea for one. If you hear back from Tennessee, please let me know: diana@deadspin.com.

It's a wondeful tactic, and one completely in line with the idea of new media and citizen journalism, not to mention community participation amongst the readership. Too bad the University of Tennessee is apparently looking to play extremely dumb with the crowdsourced requests.

Everybody got the exact same answer: a copy of the Nike branding audit and nothing else. Not a single email. Not one text message. Not even a lonely memo, draft, or letter... a return that ignores what we asked for and goes against what logic suggests is the mountain of paperwork generated when a billion-dollar university system interacts with a billion-dollar company. There are only two ways this is possible:

1. Nike intentionally conducted all business with Tennessee only over the phone or in person, specifically to keep everything out of the public record.

2. The University of Tennessee is telling us to go fuck ourselves.

The wonderful part about the school attempting to route around these valid requests this way is that even by winning, the university still loses. Now there's zero doubt something shady is going on here. Either the school is refusing to comply with an FOIA request, or it is hiding its dealings in places it thinks the light of day will never shine. Either way, interest is only piqued further, rather than being sated.

Filed Under: foia, freedom of information, tennessee
Companies: nike

Nike, Huge IP Proponent, Blatantly Infringes Shawne Merriman's Trademark

from the live-by-IP-law,-die-by-IP-law dept

Let's lay out a couple of things we know. First, trademark is one of the better IP laws out there, ostensibly designed to limit customer confusion between brands (though it's still open to significant abuse). We also know that Nike, maker of all things apparel, firmly believes in the strongest of protections against anyone infringing on any of their intellectual property. We also know that Nike firmly believes that limits on copying sure as hell don't apply to Nike.

But I'm not sure we knew just how brazen they could be. Such appears to be the case when Nike decides to just blatantly use someone else's trademark of which they were absolutely aware.

Former San Diego Chargers linebacker Shawne Merriman is suing athletic equipment giant Nike in San Diego federal court, alleging unfair competition and trademark infringement of his "Lights Out" brand. The suit, filed by Merriman's company, Lights Out Holdings, LLC, demands immediate injunctive relief to stop Nike's alleged actions, plus millions of dollars in damages. Merriman said he holds the federal trademark for the "Lights Out" brand on a Nike clothing line, which includes a broad range of apparel for men, women and children.

We deal a lot with frivolous trademark threats and suits that never appear to amount to much of the customer confusion the law is supposed to address, but this doesn't appear to be one of those cases. We're dealing with Nike using the mark, which Merriman holds, on similar sports apparel and clothes. Merriman is a sports figure whose company produces a clothing line. What makes this most egregious is that Nike was quite aware of the mark.

In late 2006 or 2007, according to the lawsuit, Nike entered into negotiations with Merriman for a "Lights Out" line of apparel. Negotiations between Merriman and Nike were unsuccessful but "after these discussions Nike decided to use the `Lights Out' clothing brand anyway," the suit alleges.

How nice of them. I'm sure they would look quite kindly on anyone who decided to just appropriate their infamous swoosh. Hypocrisy, thy name is Nike.

Filed Under: hypocrisy, lights out, shawne merriman, trademark
Companies: nike

European Commission Admits It Plans To Put 'Corporate Christmas List' Of IP Demands Into TAFTA/TTIP

from the acta's-back dept

A few months ago, we quoted the EU trade commissioner Karel De Gucht, who is responsible for handling the TAFTA/TTIP negotiations on the European side, as saying:

"ACTA, one of the nails in my coffin. I'm not going to reopen that discussion. Really, I mean, I am not a masochist. I'm not planning to do that.

If the Commission advances new basic legislation, which I think she should, we will revisit the question, but I'm not going to do this by the back door".

Well, either that was just more misdirection, or he's not in control of his staff. Because we learn from a stunning report of a little-publicized meeting between corporate lobbyists and the EU's negotiator on intellectual monopolies, Pedro Velasco Martins, that putting many of the worst features of ACTA into TAFTA/TTIP is precisely what the European Commission has planned. Here's the background:

Taking place at the American Chamber of Commerce offices in Brussels, the purpose of the two hour exchange was to strategize between businesses and the Commission in order to make sure that the maximum level of new IP restrictions will be written into the treaty. Present at the meeting were representatives from a range of the very largest multinational corporations. Among these were TimeWarner, Microsoft, Ford, Eli Lilly, AbbVie (pharmaceutical, formerly Abbott) and the luxury conglomerate LMVH. The participant list also included representatives from Nike, Dow, Pfizer, GE, BSA and Disney - among others. Also present was Patrice Pellegrino from OHIM [Office for Harmonization in the Internal Market], the EU/Commission agency responsible for trade marks in the EU.

As you will notice, most of those companies are from the US. Nothing wrong that, of course, except when you consider the following:

Controversially, the supposedly neutral Commission negotiator and the OHIM representative not only defined themselves as allies with the businesses lobbyists. They went far beyond this and started to instruct the representatives in detail on how they should campaign to "educate" the public in order to maximise their outcome in terms of industry monopoly rights. In particular, concerns from elected representatives, such as the European Parliament -- as well as civil society criticisms about ever increasing intellectual property rights -- were to be kept out of the public debate.

Here's what the European Commission really wants to see in TAFTA/TTIP:

Commission negotiator Velasco Martins revealed the existence of a secret list of corporate demands for new intellectual property rights in the transatlantic treaty. Previously -- towards the public and the Parliament -- the Commission has created the impression that intellectual property rights will be downplayed. The only IP right mentioned has been geographical indications, a minor issue which few are concerned about. In reality, the Commission now revealed that they have received "quite a Christmas list of items" on IP from corporate lobbyists and that they are working to implement this list. The list has already been discussed with the US in several meetings, in person as well as online.

The Christmas list covers almost every major intellectual property right. On patents, industry had shown "quite an interest" especially on the procedures around the granting of new patents. On copyrights the industry wants to have the "same level of protection" in the US and EU; in reality this always means harmonization up which results in more restrictions for the general public. On plant variety rights the pharma sector has lobbied for "higher levels" of protection. On trademarks the corporate lobbyists had made classification-related requests to the Commission. Additionally there had been a lot of interest in trade secrets.

There's also stuff from our old friend ACTA -- stricter enforcement:

According to the negotiator, the most repeated request on the Christmas list was in "enforcement". Concerning this, companies had made requests to "improve and formalize" as well as for the authorities to "make statements". The Commission negotiator said that although joint 'enforcement statements' do not constitute "classical trade agreement language" -- a euphemism for things that do not belong in trade agreements -- the Commission still looks forward to "working in this area".

That seems to go against explicit promises made earlier by the European Commission:

Since the beginning of the TTIP negotiating process, it is very clear that the eventual agreement on intellectual property rights will not include elements that were controversial in the context of ACTA. For example, the ACTA provisions on IPR enforcement in the digital environment (ACTA articles 27.2 to 27.4) will not be part of the negotiations. Neither will ACTA's provisions on criminal sanctions.

The report of the meeting contains many other fascinating insights into the real thinking of the European Commission. For example, apparently there is some relief that people are focusing on the horrors of corporate sovereignty, since that has allowed work on the "corporate Christmas list" to proceed unnoticed. There was also a warning that it is probably only a matter of time before details get out:

"Lots of people are waiting for the first slip, the first leak"

In the wake of the good things that have already flowed from Edward Snowden's leaks, and the enhanced status of whistleblowers today, that seems increasingly likely to happen. Finally, there was a useful hint of how the European Commission is going to attempt to justify bringing back ACTA in TAFTA/TTIP:

A recurring theme was that the public needs to be re-educated to understand the value of industry monopoly rights.

According to Pellegrino, the key to doing this is a number of pro-IP reports that will or have been released by OHIM.

One recent report was highlighted. It claims that every fourth job in the EU only exists because of intellectual property regulations.

That would presumably be this report, which claims ridiculously that:

IPR-intensive industries contribute

26% of employment and
39% of GDP in the EU

Techdirt wrote about this back in October, where we pointed out that it obtains these unrealistically high figures by including a whole range of industries that use things like copyright and patents only in the most limited and tangential way. Expect to see more of these exaggerated claims, based on similarly shoddy methodologies, appearing in the next few months.

That OHIM is putting out such propaganda isn't perhaps too surprising -- it's just a form marketing for its activities. But what is shocking is that an OHIM representative, along with the most senior EU negotiator for intellectual monopolies, should be offering detailed advice to US companies on how to subvert the TAFTA/TTIP negotiations by trying to keep the dissenting views of Members of the European Parliament and EU civic groups out of the debate. That's a direct assault on fair and open discourse, and ultimately undermines European democracy at a time when many are calling into question the entire idea of the European Union.

At the very least, the European Commission should set up a formal inquiry into what happened at this meeting, to make sure such blatant favoritism is avoided in future. If it doesn't, we'll know definitively that not only is it happy to see corporates on both sides of the Atlantic given preferential treatment during TAFTA/TTIP, but that it really doesn't care who knows. Meanwhile, those who took to the streets of Europe to fight off ACTA last year may want to start getting their boots ready.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: acta, copyright, karel de gucht, patents, pedro velasco martins, tafta, trade agreements, treaty, ttip
Companies: abbvie, bsa, disney, dow, eli lilly, ford, ge, lvmh, microsoft, nike, pfizer, time warner, us chamber of commerce

DailyDirt: Studying Advertising As A Science...?

from the urls-we-dig-up dept

There's a quote attributed to John Wanamaker that goes: "Half the money I spend on advertising is wasted; the trouble is I don't know which half." Marketing analytics is getting better all the time, but it's still pretty hard to pin down what really works. (At least the traveling salesman problem has a brute force approach!) Here are just a few interesting links about advertising.

• Sex sells. Here's a project that aims to prove it by advertising to monkeys. Photoshopping the ideal female monkey form must be a pretty weird job... [url]
• There's some research that suggests that the special status of fine art could be lost if used in advertising carelessly. Yah, like when I first heard The Beatles' Revolution in a Nike commercial. [url]
• Authenticity is important -- even to a Nazi. Psychologist Paul Bloom talks about how we're all essentialists at TED and mentions how kids could think veggies are tastier if they're included in a Happy Meal. [url]
• To discover more interesting advertising-related content, check out what's floating around on StumbleUpon. [url]  

By the way, StumbleUpon can recommend some good Techdirt articles, too.

Filed Under: ads, art, authenticity, john wanamaker, marketing, monkeys
Companies: mcdonald's, nike

Becoming A Platform: How RunKeeper Continues To Keep Competitors At Bay

from the business-model-jujitsu dept

Last year, we wrote about the very interesting case of RunKeeper, a small startup, which initially focused on software for iPhones for people to track their running information, and how it successfully outran Nike and other big sporting goods companies. This was in response to the claim we hear all the time that a small company "can't compete" with some big company that can just "copy the idea and throw lots of money at it." The reality is a lot more complex. Can big companies sometimes do that? Absolutely. Does it happen that often? No. The reasons aren't too difficult to understand. If the innovation is truly disruptive, the big companies are often at a steep disadvantage: (1) They don't fully understand the innovation or really why consumers/users want it. Instead, they understand the superficial reasons and that's all they copy. (2) They are held back by legacy issues, and their legacy business model, which might be undercut by the true innovation. That was definitely the case with RunKeeper, which could be brand-agnostic in its solution, whereas players like Nike and Adidas were somewhat held back.

Since then, I've been following the situation with RunKeeper pretty closely (and got to meet CEO Jason Jacobs a few months ago, where we got to totally geek out on innovation and business models). Anyway, the company has now taken things to the next level, distancing itself even further from the competition. Over the past few years, the company has added ways for other data and systems to hook into RunKeeper, which has become a wider "fitness" app rather than just a running app. One of the things that the company developed during this time was a "Health Graph" that pulled a lot of this info together in a very useful manner:

Imagine a system that can identify correlations between a user’s eating habits, workout schedule, social interactions and more, to deliver an ecosystem of health and fitness apps, websites, and sensor devices that really work, based on a user’s own historical health and fitness data. The Health Graph has the potential to completely alter the health and fitness landscape.

But where things get really interesting is that RunKeeper has now opened up the Health Graph API so that others can not just tap into Health Graph but build on it as well, basically letting all sorts of other services and devices build on this pretty cool and complete platform -- something which the other players in the space simply don't have:

What does this mean for device manufacturers and developers? They now have the opportunity to build an endless array of apps, that draw on the powerful data within the Health Graph. Health Graph developers also benefit from the social features on RunKeeper.com to gain exposure and drive sales. Social features, like our FitnessFeed and Facebook & Twitter sharing integrations, are a fundamental part of the RunKeeper.com experience; we’re opening up these forums to apps and devices that build on the Health Graph, to provide our 6MM+ community members with easy access to all the tools that integrate with RunKeeper.

I find this especially interesting considering our recent discussion on platform reliance, and how the big opportunities are in becoming your own platform. Think about this for a second: many people dismissed RunKeeper, early on, as a small app for tracking running info, and lots of people assumed naturally that once the "big players" got into the ring, RunKeeper would inevitably be crushed. But RunKeeper has continued to innovate and continued to focus on that core goal of making the overall "fitness" community better informed and better able to do things with their data, so that they're able to stay ahead of the big guys, even though we're talking about some of the biggest companies around, with tons of cash and the most recognized brands in the world.

Filed Under: business models, competition, platforms, small companies
Companies: adidas, nike, runkeeper

Senator Wyden Calls Out Content Companies For Wanting To Censor The Internet

from the kudos dept

We've already covered the list of companies who support censoring the internet, but there were a couple of other interesting ones on the list that deserved a separate discussion. Greg Sandoval over at News.com did a nice job of reading between the lines to notice that Nike & Adidas were prominently featured in the letter and suggesting that this was targeted at Senator Ron Wyden, who was the only Senator who stood up and said that COICA was a bad idea, and blocked it from being rushed through last year. Wyden, of course, is from Oregon, and Nike is based in Portland and has tremendous influence in Oregon. Adidas also has a large operation in Oregon.

Sandoval also got a comment from Wyden's office, suggesting the Senator is still standing up for what's right, rather than bowing to political pressure:

"Senator Wyden has long worked with U.S. industry on combating the trafficking of counterfeit goods like fake shoes and apparel. But going after trade in real merchandise can be done in a variety of effective ways, like inspecting shipping containers at American ports of entry to identify and seize fake merchandise.

"Unfortunately, the content industry has piggybacked on the legitimate efforts of apparel designers to combat counterfeit goods and now threaten the integrity of the Internet as a means to combat intellectual property infringement. The Internet is too important to our economy and to advancing American values to be inappropriately regulated and censored under the guise of protecting IP, which is why Congress and the Administration should be as cautious as it is surgical when it aims its sights on the Internet."

Nicely said. Hopefully he sticks to it and doesn't cave in to the pressure.

Filed Under: censorship, coica, ron wyden
Companies: adidas, nike

The Companies Who Support Censoring The Internet

from the censorship-is-good-for-business dept

A group of companies sent a letter to to Attorney General Eric Holder and ICE boss John Morton today (with cc's to VP Joe Biden, Homeland Security boss Janet Napolitano, IP Czar Victoria Espinel, Rep. Lamar Smith, Rep. John Conyers, Senator Patrick Leahy and Senator Charles Grassley), supporting the continued seizure of domain names they don't like, as well as the new COICA censorship bill, despite the serious Constitutional questions raised about how such seizures violate due process and free speech principles. While many reporting on this letter refused to actually post a copy of the full letter, kudos to Greg Sandoval over at News.com for doing so (full text also included after the jump on this post).

The companies try to present a united front that censoring the internet is a good thing. It includes the usual suspects of Viacom and NBC Universal on the content side and Louis Vuitton and Tiffany on the counterfeiting side, but there are a few other interesting names: such as Monster Cable (never met an IP law it didn't want to abuse, apparently), the NBA, MLB and NFL (sports leagues unite in censorship!) as well as Voltage Pictures, famous for suing thousands of fans for downloading Hurt Locker. Activison, which has become increasingly aggressive on IP issues lately is on the list as well, of course. Anyway, here's the full list of companies that support censoring the internet, because they're too lazy to compete in the marketplace or innovate when that market changes:

• Nike - Beaverton, OR
• Achushnet - Fairhaven, MA
• Curb Music Publishing - Nashville, TN
• NBC Universal - New York, NY
• Viacom - New York, NY
• Callaway - Carlsbad, CA
• Cleveland Golf - Huntington Beach, CA
• Rosetta Stone - Arlington, VA
• Activision - Santa Monica, CA
• Adidas Group - Portland, OR
• Xerox - Norwalk, CT
• Hastings Entertainment, Inc. - Amarillo, TX
• Fortune Brands - Deerfield, IL
• Coty Inc. - New York, NY
• EDGE Entertainment Distribution - Streetsboro, OH
• Oakley, Inc. - Foothill Ranch, CA
• PING - Phoenix, AZ
• Louis Vuitton - New York, NY
• D'Addario and Company - Farmingdale, NY
• Monster Cable Products, Inc. - Brisbane, CA
• Tiffany and Co. - New York, NY
• Farouk Systems, Inc. - Houston, TX
• Beam Global - Deerfield, IL
• Chanel USA - New York, NY
• True Religion Apparel, Inc. - Vernon, CA
• Concord Music Group - Beverly Hills, CA
• Village Roadshow Pictures - Beverly Hills, CA
• National Basketball Association - New York, NY
• National Football League - New York, NY
• The Collegiate Licensing Company/IMG College - Atlanta, GA
• Anderson Merchandisers - Amarillo, TX
• Trans World Entertainment Corporation - Albany, NY
• Timberland - Stratham, NH
• Major League Baseball - New York, NY
• Lightening Entertainment/Mainline Releasing - Santa Monica, CA
• Sierra Pictures - Beverly Hills, CA
• Voltage Pictures LLC - Los Angeles, CA
• Worldwide Film Entertainment LLC - Westchester, CA
• Nu Image, Inc. - Los Angeles, CA
• Burberry Limited - New York, NY
• Big Machine Records - Nashville, TN
• The Little Film Company - Studio City, CA
• Columbia Sportswear Company - Portland, OR

These companies are clearly trying to protect their own business interests, but it seems reasonable to let them know that you don't appreciate them seeking to censor the internet. If you haven't been following this story, and want to understand the details, we've discussed why COICA is all about censoring websites without due process and in violation of the First Amendment. We've also discussed how the ongoing (pre-COICA) domain name seizures were riddled with serious errors that appear to violate the law as well, including seizing the domains of blogs regularly used and recognized within the music industry based on evidence involving songs sent by the record labels themselves.

And, of course, none of this is to say that violating copyright or trademark laws should be allowed. But we have a system to deal with such things: you file a lawsuit, you have an adversarial hearing in a courtroom (i.e., due process) and you let both sides present their case. COICA and these domain seizures look to avoid all of that. And that's a big, big problem. That these companies would support such censorship and leapfrogging over due process suggests that they're companies not worth doing business with.

Filed Under: censorship, due process
Companies: activision, louis vuitton, monster cable, nbc universal, nike, tiffany, viacom

Nike Sues Guy Who Ordered Single Pair Of Counterfeit Sneakers Over The Internet

from the nike-picks-up-the-RIAA-strategy dept

Warning: you might not want to ever buy Nike shoes again. If you accidentally buy a counterfeit pair of shoes, Nike might sue you. Via Glyn Moody, we learn that Nike chose to sue a guy who ordered a single pair of trainers online, believing they were legitimate Nike shoes. The shoes were seized at the UK border as counterfeits. Nike could have gone after the actual counterfeiters. Or it could have (perhaps more questionably) gone after some other third parties, such as the retailers who sold the shoes. Instead, it chose option 3 and sued the buyers directly. Most of the suits were settled (or, apparently, ignored).

However, one customer, a Mr. E. Bateman, thought this was ridiculous, and fought it. He pointed out that he simply thought he was buying legitimate Nikes, and it seems rather ridiculous to then be sued for it. The judge noted that, under UK trademark law, the buyer's intent is absolutely meaningless:

"Whether or not the defendant believed the goods were authentic is irrelevant to the question of trade mark infringement. Whether the goods are infringing goods or counterfeit goods is an objective question. The Defendant's state of mind does not matter. Equally the Defendant's state of mind is irrelavant to the question of importation."

In other words, don't ever buy Nike shoes, or you might get sued.

Of course, all this makes you wonder: what the hell was Nike thinking? We've seen how suing customers backfired badly for the RIAA and others, but this goes even beyond that. Here's a case where a guy appeared to believe he had just bought legitimate shoes, and Nike's response is to sue him, take him to court, and then win its lawsuit against him. The judge did point out that he "questioned whether the sledge hammer of these proceedings is necessary in order to crack this nut of this magnitude," and even then Nike pushed forward, claiming that the companies has "no realistic alternative to enforcing their rights this way."

Um. Sure they do: the alternative is not suing their customer. That said, at least the judge did not make Mr. Bateman pay any fine or award to Nike (even though Nike did ask for money), but rather, he has to promise not to infringe in the future, allow the shoes (still held by UK customs) to be destroyed and provide the details of where he bought the shoes. Of course, the only way he can make sure not to infringe in such a manner again is to never buy Nike shoes again, since he has no way of knowing beforehand if they're infringing or not. Nice work Nike.

Filed Under: sneakers, suing customers, trademark, trainers, uk
Companies: nike

Runkeeper's Ability To Outrun Nike & Adidas Shows How Big Companies Don't Always Copy & Win

from the run,-baby,-run dept

Over and over again we hear this refrain from people that, without extra protection from things like patents, startups would get crushed when big companies decide to just copy them. And yet, over and over again, when we look at the situations in real life, you see that it's a lot more difficult than people think. We discussed it recently when looking at how Netflix survived competition from Blockbuster, Amazon and Wal-Mart, but some people felt even that wasn't a good example, because by the time those three players got into the market, Netflix really did have a huge head start (which is something of an exaggeration anyway).

However, here's yet another fascinating example, sent over by my friend Tom, concerning the iPhone/Android app RunKeeper, and how it's successfully fended off competition from a bunch of different giant sporting gear companies, including Nike. Now, it's worth pointing out that RunKeeper (the little startup) initially got its idea for an iPhone app that tracks your exercise routine via a sensor, and then integrates that data into a web service, from Nike's famous Nike+ attachment for the iPod. Rather than using a shoe sensor, the guy who started RunKeeper decided to build it ontop of the iPhone's GPS, and make it so that it wasn't shoe specific, as Nike's was (though, to be fair, I know plenty of people who used Nike+ devices on non-Nike shoes).

RunKeeper definitely picked up a following among iPhone users. However, a year after it came out, Nike not only came out with their own version of Nike+ for the iPhone and iPod Touch... but it had done a deal with Apple to come pre-installed on every one of those Apple devices. A bunch of people predicted that Nike was going to "kill" RunKeeper this way, and all the folks who always insist that big companies will just come in and kill any innovative startup by copying them, would be proven wrong:

But quite the contrary, Nike's arrival did nothing but help RunKeeper. Nike poured their huge marketing budget into educating people on why to run with their phone, and as a result, RunKeeper's numbers more than doubled. My blog post from this time period is here.

And flourish RunKeeper did. We gained more than 2 million iPhone users, we were named by TIME Magazine as a top 10 iPhone app of 2009, and this big, passionate, global community of runners rallied around the RunKeeper system on the social web, and at www.runkeeper.com. We also ported our solution to Android (where we are currently a featured app), enabled manual map creation on the web, and integrated with a wi-fi scale, so users could send their weight data to www.runkeeper.com as well.

Along the way, other footwear companies like New Balance tried to get in the game with the 'NB TotalFit' app, but didn't make a dent (white labeled from our 'big scary' competitor).  Then, Nike's arm got twisted even further when Adidas came out with their MiCoach system in August 2010, which is a GPS-based system.  Here was another running shoe company jumping into the mix with a reasonable attempt, this one without tethering users to a specific pair of shoes.  And Adidas came in with full guns blazing, running TV ads, sponsoring major races/events that featured MiCoach prominently, and investing heavily in trying to unseat RunKeeper as the go-to smartphone fitness tracking platform.  So, one month in, what are the results so far?  As of today, Adidas is ranked #18 in iPhone health/fitness and RunKeeper is ranked #14.  Not bad for this little startup from Boston with zero marketing budget .  In fact, MiCoach was #61 until last week, when Walt Mossberg's column gave them a big (and arguably misinformed) plug in the WSJ.

The point of the blog post was to discuss the fact that Nike was again copying RunKeeper, and going from a shoe-based sensor to a GPS application, but RunKeeper notes that it's not that worried. Why? Because it recognizes some key and important differences:

All of you big guys jumping in with major marketing budgets, you are doing this as a brand play. We are not. You are doing this to try to ultimately sell more people your footwear/apparel. We are not. You are big and slow moving. We are not.

Fascinating stuff. In Oded Shenkar's recent book, Copycats, there are many examples of this kind of thing. It talks about the importance of copying, but also how many companies really aren't able to copy effectively. In many cases, it's because of very different cost structures and incentives. In this case, Nike is focused on selling more apparel and the Nike offering has to work towards that end, while RunKeeper can focus on other features. Could Nike successfully overtake RunKeeper? Absolutely. But a lot of it depends on execution, and there's certainly no guarantee. As for the others who entered the market, in at least some cases, it looks like they engaged in cargo cult copying, where they copied the superficial aspects of what they saw, but didn't truly understand the market.

And, really, this is what competition is good for. Having more players in the market try different things is good for everyone. Not only does it force everyone to keep adjusting, it also pushes them all to keep experimenting with ways to better serve customers and to leapfrog over one another. Each one of these solutions may appear similar on the surface, but there are differences, as each company tries to tweak an idea to see what works. RunKeeper's initial tweak on the Nike+ appears to have worked, but so far none of the "tweaks" on RunKeeper's success have worked all that well. But, as those other (much larger) firms continue to tweak and tweak again, it's also pushing RunKeeper to keep improving its app. That's good for everyone.

What we're seeing is, once again, plain old imitation by itself doesn't appear to work very well, but imitation, plus some element of innovation to make it better does wonders. And yet, so many people don't seem to recognize this and simply assume that the "big guys" will automatically copy and kill any new startup.

Filed Under: big, competition, copying, small
Companies: adidas, nike, runkeeper

Apple Trying To Patent Not Letting You Use Your Nike+iPod With Non-Nike Shoes

from the this-raises-some-questions dept

I know plenty of folks (including my wife) who have purchased the Nike+iPod device to use with non-Nike sneakers. The device puts a sensor in your shoe, which communicates with a separate dongle connected to your iPod (or built in to the new iPod Touch), and tracks your running stats, which you can then upload. Many Nike sneakers have a little cutout underneath the insoles where you can stick the sensor, but you can buy (or make) a little pouch and connect it to shoelaces on non-Nike shoes. However, not only is Apple thinking about ways to stop this -- it's trying to patent those ways. It's got a patent application in for smart garments which would create basically a DRM for devices -- forceably pairing a device like the Nike+iPod sensor to a specific shoe.

This seems odd for a whole variety of reasons. First, it seems positively silly for Apple to do this, as it severely limits the market for the devices, and lessens the value of the iPod. You can see why Nike might ask for it, but it's hard to see why Apple would implement it. Second, however, is that this seems highly questionable as a patent. I mean why would you patent something that makes your product less desirable? Would Apple actually sue someone else (say, Microsoft) for doing the same thing? That would (oh no!) force Microsoft to make its product more useful and more valuable. Finally, as a patent, how is this not "obvious"? It seems like a bad idea to implement, but that doesn't make it non-obvious. If any engineer wanted to create such a system, it wouldn't take much thought at all. The whole thing seems rather pointless.

Filed Under: drm, ipod, nike+ipod, patents, running, sneakers
Companies: apple, nike