wearable technology: the present and future of...
TRANSCRIPT
© 2014 LOEB & LOEB LLP
Wearable Technology: The Present and Future of Sports and Entertainment
Brian Socolow Partner, Loeb & Loeb LLP
9.16.2014
2 © 2014 LOEB & LOEB LLP
: Today’s Topic: Wearable Technology
• What is wearable technology?
• How it is used by:
• Consumers
• Elite athletes, teams and leagues
• Entertainers
• Some emerging legal issues are in sports/entertainment
3 © 2014 LOEB & LOEB LLP
What is Wearable Technology?
Clothing and accessories incorporating computer and advanced electronic technologies, worn on (and perhaps eventually in) a person’s body that: • Collect data about the wearer: motion, speed,
temperature, effort, sleep, food consumption, etc. • Store, analyze and/or transmit data • Charge or store electronic devices
• Function as computers, cameras, music players and phones, among other things
4 © 2014 LOEB & LOEB LLP
What is Wearable Technology?
• Wearable computers (Google Glass) • “Smart” watches (Apple Watch) • Activity tracking devices – watches, bands, on-
bike computers and other devices • Sensors imbedded in clothing/shoes/equipment • Amplified and enhanced reality for skill
development and gaming • Technology-enabled clothing • E-Textiles/smart textiles/smart fabrics
7 © 2014 LOEB & LOEB LLP
The Wearable Technology Industry
• Industry size is hard to pin down because of breadth of what wearable technology means
• One projection: $30 - $50 billion industry in the next three to five years
• Led by consumer spending on wearable technology including smart watches, smart glasses, and wearable sensors
• Sport and fitness-related technology not expected to continue to lead consumer market
© 2014 LOEB & LOEB LLP 8
Amplified and Enhanced Reality
• Gamegolf - http://www.gamegolf.com/products/en-us/gamegolf by S.F.-based Active Mind Technology
• Sensors are worn by golfer and placed in tags on grip of club
• Data is captured and transferred to a digital destination
• Uses personal GPS, 3-D motion sensor technology and Geospacial technology
• Collects data regarding distance ball traveled
• Online social component – personal data is uploaded and shared to other users
9 © 2014 LOEB & LOEB LLP
Applications for Athletes, Teams and Leagues
Training
• Collecting and analyzing data on output (e.g., speed or accuracy)
• Collecting and analyzing biometric data (e.g., respiration, heart rate, body temperature, etc.) and psychometric data (e.g., stress level and energy output)
• Collecting and analyzing data to improve skills, technique, form
• Tracking stats for improvement
10 © 2014 LOEB & LOEB LLP
Applications for Athletes, Teams and Leagues
• In-game performance and coaching
• Collecting and using data to make real-time adjustments in athlete play and in team strategy
• Safety • MC 10 Hydration monitor • Reebok CHECKLIGHT™ measures force of impact,
flashes red if player is hit too hard
11 © 2014 LOEB & LOEB LLP
Other Possible Applications for Sports
Fan Engagement
• Live, broadcast and second screen implications
• Enhanced fan experience
• Gaming and social elements
• Video and gaming play (e.g., GolfGame by Active Mind Technology )
• Fantasy leagues and daily play fantasy sites
12 © 2014 LOEB & LOEB LLP
Other Possible Applications for Sports
• College and professional team recruiting
• Contract and salary negotiations
13 © 2014 LOEB & LOEB LLP
Applications for Entertainment
• Gesture-sensing wearable instruments to create music (e.g., Imogen Heap Gloves Project)
• Wearables to enhance performance (e.g., iRing, eMersion to control music)
• Performer biometric and psychometric monitoring
• Fan engagement – interaction with fans
• Live, broadcast, second-screen
• Video and gaming play
14 © 2014 LOEB & LOEB LLP
Legal Implications
• Patent/Intellectual property issues
• Product liability
• Data Ownership/Access/Privacy
• Employment and labor law issues
• Regulatory concerns
© 2014 LOEB & LOEB LLP 15
Intellectual Property Issues
• Is the technology patentable?
• Who owns the patents?
• Permissible (and non-permissible) uses and extensions of technology
• Licensing
© 2014 LOEB & LOEB LLP 16
Intellectual Property Issues: Adidas v. Under Armour
• Adidas sues Under Armour for infringing its patents with its fitness tracker app, MapMyFitness®
• Claims infringement of 10 patents for, among others,
• “real-time interactive communication and automated route generation”
• “personal data collection systems and methods”
• “performance monitoring apparatuses” • Adidas seeks injunctive relief, royalties and providing triple damages
for willful infringement
© 2014 LOEB & LOEB LLP 17
Product Liability Issues
• Voluntary recall of Fitbit Force wristband activity tracker - Complaints of skin irritation - Fitbit declined to say how many were affected - Under 2 percent of users complained
• Could see increase in claims against designers, manufacturers, and distributors of wearable technology marketed to amateur and professional athletes
• Federal Trade Commission - will focus on these products and how they are marketed and advertised
© 2014 LOEB & LOEB LLP 19
Privacy Issues
• Most wearable devices used in sports (and to a lesser degree, entertainment) collect, store and transmit data
• What data is being collected? • Is it personally identifiable information (PII)? • Is it sensitive medical data?
• How is it being used? • How is it transmitted, stored and protected?
© 2014 LOEB & LOEB LLP 20
Privacy Issues
• Who owns the data? • Athlete? • Team? • League? • Organizer of event?
• May depend on how/when data is collected (individual training, team practice, in-game collection, tournament or event?)
© 2014 LOEB & LOEB LLP 21
Who Owns The Data?
• Contracts may specify who owns what data
• Employment contracts
• Collective bargaining agreements
2011 NFL collective-bargaining agreement, Article 51, Section 13(c):
"The NFL may require all NFL players to wear during games and practices equipment that contains sensors or other non-obtrusive tracking devices for purposes of collecting information regarding the performance of NFL games, including players' performances and movements, as well as medical and other player safety-related data.“
• Contracts with the device manufacturers
• Contracts with related apps
© 2014 LOEB & LOEB LLP 22
Privacy Issues
• Who has access to the data? • Athletes • Other teams?
• May depend on how/when data is collected (individual training, team practice, in-game collection, tournament or event?)
• May depend on third-party agreements for use of data • Broadcast partners • Fantasy sports
© 2014 LOEB & LOEB LLP 23
Privacy Issues
• Who owns data and who has access to data impacts how data may be used
• Notice and consent on collection and use of data? • Professional athletes • College athletes
• May be governed by different agreements • Collective bargaining agreements • Agreements with event sponsor/organizer • Agreements with third parties (e.g., trainers,
endorsers, etc.)
© 2014 LOEB & LOEB LLP 24
Data Security Issues
• How data is safeguarded during collection, storage, transmission
• Where is data stored? • Cloud storage security issues • Third-party storage providers
© 2014 LOEB & LOEB LLP 25
Other Privacy and Data Security Issues
• Privacy of consumers • Spectators • Consumers participating in gaming/enhanced reality
play and social media
© 2014 LOEB & LOEB LLP 26
Employment and Labor Law Issues
Uses for Biometric and Other Data • Professional athlete’s employment prospects (e.g.,
influencing perceptions of an athlete’s athletic promise and achievement)
• Salary • Setting performance benchmarks • Monitoring • Enforcement of conditions of employment • Improve player performance • Engage fan base
© 2014 LOEB & LOEB LLP 27
Employment and Labor Law Issues
• Can a player’s (or performer’s) lapse be grounds for
termination? • Should fans have access to this information? • Do related apps have access to otherwise private data
concerning an athlete’s medical/biometric stats?
© 2014 LOEB & LOEB LLP 28
Employment and Labor Law Issues
Potential For Negative Use • Checklight and other safety equipment - puts pressure on
organizations and leagues to monitor safety considerations • What if a team decides to keep a player on the field despite
sensors showing a traumatic hit? • What if a player loses playing time—and, potentially, immediate
and long-term earnings—because of safety considerations? • Use of these devices needs to be worked out in advance • Despite interest in avoiding liability for injury to players, it’s not
clear that a wearable should be the ultimate arbiter of acceptable risk
© 2014 LOEB & LOEB LLP 29
Regulatory Concerns
• Privacy laws - still evolving • Patchwork of state and federal laws concerning data collection and
dissemination
• Issues with direct regulation and oversight of devices • “Checklight”—which monitors impact through chips on a skullcap—is
not currently under FDA “medical device” overview
• As devices become more invasive, government intervention will become more likely
© 2014 LOEB & LOEB LLP 30
What to Expect In The Future
• Devices/chips physically implanted in the user • Monitoring and tracking of more sophisticated (and
intimate) physiological data • Challenges
• potential side effects • privacy concerns • legal challenges
• Increased attention of regulators such as FTC
© 2014 LOEB & LOEB LLP
Wearable Technology: The Present and Future of Sport and Entertainment
Brian Socolow 212.407.4872 [email protected]