Jun 29, 2012

Strava Legal

This is a slightly out of character post for this blog and perhaps one of the more boring ones for most of you, but I felt the need to say the following. Given that Strava is such a huge part of our cycling community, especially here in the Bay Area, this is still somewhat cycling related, tho tenuously, I admit.

Yesterday, this blog post was brought to my attention by a teammate. And in case it gets taken down, it was also picked up here for whatever reason. 

The author of the blog is Dean Frieders, an attorney in  Illinois. Personally, I wasn't too fond of the absurdities he decided to present as some legal analysis worth merit, so I felt the need to reply. The problem with Dean's blog is that he likes to really be in control and moderate each and every comment. So much so, that he edited my first comment without even asking me. My last comment, which was made last night hasn't yet made it to his blog, while another comment posted later is already there. Perhaps Dean is simply taking his time trying to think of a witty response, or he just had enough of me and decided to silence me through moderation. Or maybe I've jumped the gun and he's going to release my comment at any moment. In any event, I figured I'd recreate our little exchange here. The first comment made by me is in the original form, not the edited one released to Dean's blog. I haven't edited any of the comments, other than a few annotations in brackets.

Vitaly:
You're not a lawyer, are you? [Before I found out he actually was] If you are, by some miracle, please turn in your law license and never set foot in a courtroom again.

I'll do you the favor of taking this apart piece by piece:

" Strava is a big company, with significant revenue." I'd like to see where you pulled this from? It's a startup funded mostly by investor $. Do some research before going out and making asinine statements.

Users getting sued by users:
Please, explain to your reader what would the alleged "cause of action" be against a fellow Strava user. Is it negligence? In which case the plaintiff would have to establish duty, breach of duty, proximate cause and damages. What duty of care do I owe another member/user of Strava? I certainly can't think of an intentional tort that fits into your made-up liability scheme. So, no, users cannot get successfully sued by other users.
           
"What is to stop someone who is injured while trying to beat your Strava time from suing you?  Nothing." - This statement is deceptive. Yes, anyone can file crap in court, that doesn't mean that it states a valid claim and there are thankfully statutory provisions which allow for sanctions in such actions.

"In Strava’s case, they will undoubtedly assert that the decedent released any claims against Strava by agreeing to their terms and conditions, which include a waiver/release of claims." - I had no idea you were a member of the Strava defense team. I certainly don't have great insight into the defense either, but there is a difference between having a claim dismissed on a demurrer, for failure to state a cause of action (which is what Strava is likely to do) and assert the waiver as an affirmative defense, thereby admitting that the plaintiff has stated a valid claim, but that the claim is defeated by a contractual provision. The latter being called a motion to dismiss.

"Of note, Strava could have chosen to include language here to waive claims against other riders, but did not do so." - I'm not so sure that it could have done that. It would seem that for me as a Strava user to waive my claim against another Strava user, the users would have to be in some sort of horizontal privity of contract.

Indemnity:
Here, it's absolutely clear you have no clue what the hell you're talking about. For the indemnity to kick in, there has to be a valid claim. If you do something on Strava which results in a valid claim, then you should pay the resulting damages. California Civil Code §2772 provides: "Indemnity is a contract by which one engages to save another from a legal consequence of the conduct of one of the parties, or of some other person." If there is no legal consequence, there is no way that one party can invoke the indemnity provision. 

As an analogy, I give you Craigslist. If you post a discriminating advertisement and Craigslist gets sued, under an indemnity provision, you would have to pay the judgment and the attorneys fees if a judgment is rendered against CL as a result of your post. However, if there is no cause of action, i.e., no claim, there is no "harm"/consequence from which you have to indemnify Strava or CL. 

You were apparently too busy reading what the indemnity provision says to realize what it doesn't say. The provision doesn't say you agree to DEFEND Strava from any claims. If that was the case, I would agree with you that it's a horrible provision because users would be on the hook from the outset. As worded, the indemnity provision is fine and not overbearing. 

Strava should NOT take out the indemnity provision simply because you are too short-sighted to see its broader implications. If someone slanders someone in a comment on Strava, or harasses someone on Strava in a way that could be actionable in court, and indemnity provision is a must!

Dean:
Vitaly,
It is cute that you tried to submit the same comment under a number of different usernames. One of the wonderful things about the bully pulpit of a blog is that I can see things like usernames, IP addresses and the like, and can see when someone is acting in such a fashion. I hope you don’t mind that I edited your post–I’m not certain why your comment was dripping with quite so much venom, but I decided to spare you from looking more inconsiderate than you otherwise would look, by deleting the ad hominum [sic] comments.

As for your question about what cause of action one Strava user may have against another, I would assume that it would not be an intentional tort. It is unlikely that there would be assault or battery arising out of a Strava post. Given your mastery of the English language and our system of laws (shown in large measure by the colorful comments that I edited out of your post), I’m sure you understand the difference between intentional torts and negligence. I don’t think it is too terribly hard to envision a circumstance where one could violate even the most basic duties of care between two unrelated parties by creating a Strava route that exposes another rider to an unreasonable risk of harm. Perhaps more importantly, you missed the whole point of the post. I’m not suggesting that the lawsuits against Strava are meritorious. Writing a blog post with detailed legal analysis as to Strava’s risk might be interesting to me, but would be decidedly less interesting for my readers. The post is about identifying a risk that very few Strava users out there recognize…the risk of litigation arising out of their use of the app. Is litigation likely to be initiated, or likely to be successful on a user-to-user basis? Hopefully not. But it does not take any stretch of the imagination to see how such litigation could result, nor does it take a great legal mind to devise a theory upon which such a claim could be based. 

Can we protect against every petty, small-minded or frivolous lawsuit out there? No–sadly, we cannot. But Strava users are doing themselves a disservice if they don’t at least consider the ramifications of their actions. Strava has certainly considered it…hence their terms and conditions. When someone gets sued, they may be comforted to know that the claim is subject to dismissal…but I’d prefer to not be surprised by a lawsuit in the first place. It is only by identifying risks that we can minimize or mitigate them. The idea of the blog post is to get people to think…not to give legal advice.

Am I a member of the Strava legal team? No–afraid not. If I were among Strava’s legal counsel, their terms and conditions would be far more precisely drawn. But does it take some insider knowledge to forecast that they will assert the waiver as a defense? Not really. Will that defense be asserted as a motion to dismiss, an affirmative defense or something else? It will likely be asserted in just about every way they can assert it. Here in Illinois, an attorney would likely start with a motion to dismiss claiming that the lawsuit is affirmatively barred by other legal matter. Oh, and “admitting that the plaintiff has stated a valid claim” isn’t an entirely accurate description, Vitaly…you’re simply admitting that for purposes of the motion. It is not an admission that can be later used against you.

If you genuinely believe that indemnity does not apply until a judgment is entered, or that Strava could not invoke the indemnity, as it is worded, to force a user to pay their legal fees incurred in defending a suit based on user conduct (whether it be from comments posted on the website or from routes posted on the website), then…well…there’s no polite way to say this. You’re wrong. I agree that the indemnity is poorly worded, but it appears to be Strava’s intention to put users on the hook for any claims or damages arising out of user conduct, as they say “including reasonable attorneys fees.” The reference to reasonable attorneys fees, while inartful, undoubtedly refers to Strava’s own legal fees. (As an aside, I have no idea why people do not understand that slander refers to oral statements, and libel refers to written statements. But unless you’re uploading insulting audio clips to Strava, it will be pretty difficult to slander someone on their website.)

Anyhow, thanks for writing in. It is clear that the post did what it was intended to do, by making you think. Even though I don’t agree with your analysis (or your rhetorical style, in resorting to insults in the absence of strong arguments), I appreciate that you thought about the issues.

Vitaly:
I actually tried to submit only once, but then was prompted to login (I forgot I had a WP login). Didn’t see it pop-up, so tried to put it in again, then saw it was awaiting moderation (that’s pretty lame by the way). Computer glitch, nothing more. I’m glad you only let one through. I hate when the whole “multiple-post” thing happens. Tho I wish you didn’t edit my reply, because now I feel like I have to put the unedited version on my own blog and rip this apart word by word. But I digress.

Why did you delete the part where I corrected you and said that Strava was a startup funded by investor $? 

“I don’t think it is too terribly hard to envision a circumstance where one could violate even the most basic duties of care between two unrelated parties by creating a Strava route that exposes another rider to an unreasonable risk of harm.” – That’s the point I’m making. There CANNOT be a duty of care between unrelated individuals. “Duty of care” is not some ambiguous thing. It’s a term of art defined statutorily or via common law. It simply does not exist in the context in which you present it. Period. If you think I’m wrong, please provide an example or a case that says otherwise. 

“Here in Illinois, an attorney would likely start with a motion to dismiss claiming that the lawsuit is affirmatively barred by other legal matter. Oh, and “admitting that the plaintiff has stated a valid claim” isn’t an entirely accurate description, Vitaly…you’re simply admitting that for purposes of the motion. It is not an admission that can be later used against you.” – Illinois! How fortunate, one of the states where I’m admitted. In Illinois, a lawyer worth his salt would first file a 2-615 motion to dismiss for failure to state a cause of action before going on to file a 2-619 motion to have the case kicked on an affirmative basis. Of course, there’s this unique 2-619.1 motion, but some judges are not keen on that (Cook County’s Kathy Flanagan comes to mind) in my experience, as in the 615 motion, you’re basically saying the plaintiff is full of shit, and in a 619 motion your saying “the plaintiff has a cause of action but is SOL because of….” But this is one of those side issues that’s not really central to your post anyway.

Thank you for the slander/libel correction, I of course mean the latter and have no issue admitting I was wrong in that statement. 

As I said in my original reply post, if the indemnity provision has the word “defend” in it, you’d be correct in some of what you wrote. As drafted, however, it does not obligate the user to pay for the ongoing defense. As far as whether the fees to have a frivolous suit dismissed could be charged to the user via this indemnity agreement, that’s a far stretch. You realize what type of legal gymnastics would have to happen here for this to even come into play, right? 

As I read this: “claim or demand, including reasonable attorneys’ fees” The fees go with the “claim or demand,” and don’t pertain to the cost of the defense. This seems pretty clear to me, but if you feel it’s ambiguous, that’s great! You probably know that ambiguities in indemnity provisions are interpreted against the drafter, as all contractual provisions. 

You claim that your blog post is a service to Strava users, but it isn’t. It doesn’t even come close. You raise a bunch of non-meritorious issues. If the main point you are trying to raise is that using Stava could expose someone to a frivolous lawsuit, well unfortunately so can doing pretty much anything else, from taking out the garbage to washing your windows. Congrats on being one of those sensationalists with no merit or substance.

Dean:
You’re still missing the point. I don’t have a particularly compelling need to determine which of us is the bigger e-badass of an attorney via blog comments. If you feel compelled to “rip this apart word by word,” then by all means, be my guest. One of the marvels of the internet is that it can be a forum for anyone, no matter how uninformed they may be. If you’re on a cycling blog and feel compelled to name drop and cite to the Code of Civil Procedure–well gosh, I just can’t help you there. Perhaps I can start a legal blog and we can debate this further…but since I practice law here in Illinois on a daily basis, I really don’t have a need to justify my professional abilities online. I’m really not sure why you have such a persistent bee in your bonnet. Frankly, I’ve never understood why people posting online feel a need to attack others, rather than have a reasonable, rational dialogue.
 
If you’re comfortable looking at an agreement that obligates you to indemnify a company based upon your conclusion that the language is ambiguous and will thus be construed against the drafter, again, more power to you. The risk that I’m describing in my post is a real potential risk–it certainly is no more tenuous of a legal argument than the underlying ‘real’ claim. Would such a claim survive? Will the underlying claim survive? The likely answer to both questions is no. That said, Strava’s terms show that they are thinking about the issue. Strava’s users should be thinking about the issue too.

Vitaly (this is the last comment that as of 8:24PDT has not yet been released from moderation):
I'd be more than happy to explain why what you wrote made me so angry, and why, as you say it, I have a "bee in my bonnet." The reason I am angry is because what you wrote is irresponsible and borderline unethical. In the above reply, you agree with me that claims predicated on acts in your original post would likely not survive. So why sensationalize the issue? Why make such crazy assumptions? Why be vague with the law, leading those who don't know better to believe that what you write actually has some meritorious legal analysis behind it? Yes, it's a cycling blog, but you are a lawyer. We are professionals 24/7, as you very well know, and just because you sit down to write a cycling blog, doesn't mean you can take your lawyer hat off. You put forth a specious legal argument I challenged, and you have twice now failed to address the challenge head on.


I asked you to give me an example, or a case, where two people, linked only by the fact that they use the same online service would be in such a relationship that would give rise to a duty of care, breaching which would be actionable in negligence (assuming the proximate cause and damages requirements would be met). Twice you have not bothered to address that argument, which is the central point of your blog. 


As far as the indemnity argument goes, here's the indemnity language from Wordpress: 


"You agree to indemnify and hold harmless Automattic, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of the Website, including but not limited to your violation of this Agreement." 


Where's the post warning bloggers they might be in trouble? Or is that coming in the next installment? Someone reading your blog could take it a legal advice, go out and sue Strava, lose, get slapped with sanctions, then sue Automatic, which would seek contribution from you for whatever judgment results. Sounds absurd, right? 


Coming full circle, the reason I'm angry is that lawyers like you give the rest of us a bad name. I don't post anonymously. You know my name and who I am, and what I do (if you bothered to use Google). But I can understand why you would want your name hidden. [Before I realized that BikeRumor had his name front and center, but it's nowhere on his blog] 


Do us all [attorneys] a favor and take this post down, please. 

Jun 8, 2012

The gadget bell curve

I got my start in road cycling through mountain biking. Kind of like Cadel Evans, except not at all like Cadel Evans. I enjoyed it, but was never very good at it, I’m still not very good at it, but I still enjoy riding dirt once in a while.

When I’d ride trails around my home in suburban Chicago, or singletrack in southern Wisconsin, I never really cared about how fast I was going, all that mattered was keeping it upright, which quite often proved to be a challenge.

Then a year later I got my first road bike, and compared to my mountain bike, it went fast. Clearly, the first thing I needed to know was exactly how fast it went. So I got one of those cheep cycling computers that just measures speed and distance. And that satisfied my curiosity.

Then, my friends, who have been road cycling a bit longer than I, said I really needed a heart rate monitor. “Why?” I asked. They told me that I would be able to train better with an HRM, and I would know my efforts and how hard I was going. “Huh?” I thought I could figure that out because I felt like I was going to puke and my legs were on fire?!

A year later, I got my first Garmin – Edge 305 with an HRM and a cadence sensor (a useless piece of information, I thought at the time). And all of a sudden, I could no longer go on a ride without one. I needed to know. I wanted to see how hard my heart was beating, how hard I was working. Going by feel suddenly wasn't enough. What's worse, I stopped trusting "the feel."

Instead of saying, “boy, that was one killer MTB ride we just did.” I’d say, “shit! I don’t think I’ve ever seen my heart rate that high for so long!” What the hell does that even mean?

Then a couple more years passed and I started getting curious about power. I started training indoors at Vision Quest in Chicago and really got hooked on them. I’m a numbers kinda guy in general, so it should come as no surprise. It would be another couple of years before I decided it was finally time to fork over the dollars for a power meter. And all of a sudden, riding became even more calculated and numeric.

Every race was a dilemma: do I race with my heavy powertap, or the lighter race wheel set but no power data? Almost always I’d opt out for the latter and feel a little guilty about it.

A little time passed, and I got familiar with my power outputs and stopped being dependent on the meter, and raced without it, being able to fairly accurately estimate the stress after the race given past performances with the power meter. So that became less of an issue. Then at one point, it was race day and my HR died, and I raced with no data other than the feelings in my legs and the speed on my Garmin – that first little piece of data I was curious about as a novice road cyclist.

And all of a sudden, I stopped caring about the numbers. I no longer need to see the numbers, and a lot of times I don’t want to see the numbers. (Interval training being the exception) “Why do I need HR and power?” – Sound familiar?

Numbers are great, and I love them. I love sitting down with my Golden Cheetah once or twice a week and checking out my workouts, and stress scores, and seeing what my body has been up to, but the desire for real time feed back during a ride or a race is no longer as important to me. In fact, I finally did what many of my fellow racers did a long time ago, I created a Garmin screen for racing only, time/distance/speed (that one I still enjoy seeing). I guess you can say I’ve come full circle. 

Jun 6, 2012

Sequoia Double Metric - a lesson in pacing

Another year has passed, and that means it was time to embark on my favorite organized ride of all time – the Sequoia Double Metric, organized by the Western Wheelers cycling club. This year, however, I wanted to do things differently.

The ride has incredible support, with the most out-of-this-world food at each rest stop and great treats at the finish. But I wasn’t planning on enjoying much of it. The ride came at an end of a heavy week, with a lot of miles already in my legs and quite a few intense workouts, not to mention a race on Saturday. Setting a goal of a finishing time would have been pointless because regardless of what that time would have been, it would not have been my  “best” time. Not to mention that the course was different this year, with an extra few thousand feet of climb thrown in for good measure.

I decided that this year, I wanted to do this ride on minimal stopping time. Given my past experience with long rides of this sort, I figured I should be able to do it on less than 10 minutes of total stop time. 

So I tweeted this:
Almost instantly, this followed:
Now it was on!

It helps to know where you’ll be riding to confidently state how much rest you’ll need. There are several factors, the main one being the weather. If it’s too hot, more water stops will be necessary. If it’s too cold, more food should be taken “on board” because the body burns more calories as it tries to keep itself warm. 

The plan was to ride out of the Palo Alto VA Hospital with the Mission Cycling Club and then see where my legs take me in terms of pace. 

We departed around 6:30 and rolled together for about the first dozen miles until we hit Redwood Gulch, a pretty nasty climb with some insanely steep pitches. Luckily, it’s sort of a ladder, so you get a breather between turning the legs at 40rmp. That’s where I let everyone who could and wanted to pass me. I kept my legs turning over steady, conserving energy, knowing that ahead are another 11 thousand feet to be climbed. 

I started the ride with two bottles of Cytomax, a banana, a PBJ sandwich, cut in half and individually wrapped in foil, and a little flask of GU. The weather was cool in Palo Alto and we headed up into the Santa Cruz mountains, which were also cool and shaded. I figured that what I had on me would get me through the first 65 miles of the ride and I wouldn’t have to stop until the lunch rest stop as long as I followed my feeding protocol

After passing the second rest stop, I knew that I was ahead of everyone I started with – I heard later many of them were lounging on the grass, probably enjoying coffee cake and hummus (was there hummus again?).  Somewhere between the second and third rest stop, Michael with a few others blew by me like I was standing still, but I kept on clipping along at my own pace. Then a few seconds after, Andrew came up behind me and we continued riding together. He’d drop me on the climbs a bit, I’d catch (and sometimes drop) him on the descents a bit, but we kept each other company. 

Then we came to the first new segment of the route on this year’s ride – China Grade. That was a total “WTF” moment. I’ve never done that climb before. It goes for 1.5 miles, averaging close to 11 percent with many sections over 14 percent. There were definitely a few moments where keeping the front wheel to the ground was a challenge. Unfortunately, my Garmin had mapping issues and placed me on a parallel road, so I have no personal data for that climb other than the memory of it being very slow and painful.  

The good news, however, is that once I was done with China Grade, I knew there was no significant climbing left in the ride other than the eight-mile climb up Tunitas Creek that came at me around mile 96, but more on that later.

Andrew dropped me on the climb toward Skyline and I was slowly catching up to him on the rollers before the turn onto Alpine Road, which lead to lunch. I figured if I didn’t catch him on the rollers, I’d certainly make contact on the 10-mile descent into La Honda. I was right. I caught him on the narrow twisty parts of that road, a few miles before the finish of the descent. I flew into the lunch stop and saw Michael (he told me he had already had two servings of rice and beans). Then it was down to business: bathroom first, water second, food third and back on the bike. 

I lucked out, as there was no line at the port-a-johns, then quickly to refill my bottles. I filled one bottle full of water, drank half of it where I stood, refilled it again, and put Gatorade into the second bottle – can’t believe that still serve this on long rides, but beggars can’t be choosers. Then it was time to find some salt. To my dismay, no chips, no pretzels, no cheesy crackers. Who the hell has the time for eggs, potatoes and rice and beans on my pace schedule? But there was a whole tub of quinoa salad (seriously, quinoa?), so I inhaled a bowl full of that and began to search for some bars to take with me. Couldn’t find any of those either – were they even there? Grabbed a few pieces of banana, hoped on my bike and off I went. 

I don’t think I rolled even a mile before G pulled up from behind and started pulling me along. I couldn’t in good conscience let him do all the pulling, so I said he’s welcome to draft me, but that I would not be matching his pulls, as I had a certain pace to keep and I knew he’d drop me as soon as the road pitched up anyway. Not too long after, Andrew came up behind us with a group of three to four in a paceline. Before I even had time to think, “Gee, what a nice group we have to work together,” everyone but Andrew and G made the turn to do the shorter, 100-mile route. So it was just the three of us, with less than 50 miles to go.

We continued together in a fairly constant pattern: ride the flats together, I’d pop off on the climbs, catch back on (or they’d wait up) on the descents and flats, and so on. 

As we approached the penultimate rest stop at the bike hut, I continued while my companions pulled off for a stop. I knew they’d catch me on the 8-mile climb up Tunitas Creek. However, Michael’s group was the first to catch me and they once again flew up the climb and left me in the dust – no surprise, no worries. I slowly continued to clip away. Then some dude went flying by like he just got stung by something. “Holy crap,” I thought, “he must not be on this ride and just training with some intervals.”  I passed him later on the climb as he was barely turning his legs over – probably hating himself for going out too fast.

Andrew caught me on the steep part of Tunitas, about half a mile from the grassy knoll. I did my best to stay with him and he end up pacing me all the way to the top, where he stopped to wait for G and I proceeded to descent Kings Mt. Road and make my way to the finish. 

I was surprised to see Michael come up behind me with Bruno and Ben, who I thought were long enjoying their It’s It at the finish. I gladly took the invitation to latch on, and did for a bit, before popping off and finishing at my own pace, probably five or so minutes behind them. 

Total stopping time for the ride was around seven minutes, two of which were due to stop lights getting out of the parking lot and on Foothill – I made sure to time all the stop lights coming back as to not actually stop at any of them. 

What did I eat/drink on the ride? 

4.5 bottles of liquid – 2 bottles of Cytomax, 1 bottle of Gatorade, 1.5 bottles of water = 450 Cal.
2.5 bananas = 400 cal
1 PBJ = 300 cal
1 cup of quinoa salad = 200 cal
4 GUs = 360 cal

This is the third year I’ve done this ride, and I’ve never finished it feeling better than I did this year. I’ve said it many times and will continue to say it over and over, nice and steady is far superior to hammer-stop-hammer-stop (unless you’re doing HIT). It’s not easy and it takes discipline. It’s hard to let people pass you know are slower than you. It’s hard not to grab that wheel and pick up the pace, but it’s even worse when after holding that wheel, that rider pulls off to take 10 minutes of rest and you have to keep going, having wasted an effort for nothing, as you would have passed him as he was stuffing his face with coffee cake. 

This way of riding isn’t fun for everyone, and it certainly not the most social way of riding. But I need my rides to be challenging. There always has to be a thought in the back of my mind - “there’s a chance I might fail” – and that motivates me to press on. While for some, riding 120  miles is a great accomplishment and I commend everyone for trying it and succeeding, simply going the distance is not really a challenge for me these days. Good problem to have, I know.