Announcing Data Portability and Platform Competition - Is User Data Exported From Facebook Actually Useful to Competitors?

This post originally appeared on the Engelberg Center blog.

The Engelberg Center on Innovation Law & Policy is pleased to announce the publication of a new whitepaper: Data Portability and Platform Competition: Is User Data Exported From Facebook Actually Useful to Competitors?. The paper explores how useful data exported from Facebook might be to a potential competitor. The answer: not very.

data portability paper cover

The paper, authored by Gabriel Nicholas and Michael Weinberg, focuses on a seeming paradox in the current debate around the size and power of platforms such as Facebook, Google, and Amazon.

For those wary of breaking up these large platforms, data portability has emerged as an attractive alternative. Data portability would allow users to take their data from a large platform to a competitor, potentially making it easier for a competitor to grow and thrive.

The challenge with this hypothesis is that large platforms have allowed users to export their data for almost a decade, yet no major competitor has emerged. Why is that?

In order to find out, the authors leveraged the Engelberg Center’s access to New York City’s tech community. They exported data from Facebook and held a series of workshops with engineers, product managers, and executives from a wide range of technology companies. They asked participants how useful data exported from Facebook would be in building a competitor, and in doing so, learned about some of the limitations of data portability.

The paper documents the weaknesses in data portability as a tool for competition in the context of social media sites, and provides lessons for policymakers interested in integrating data portability into a large set of solutions.

You can read the entire paper here.

This post originally appeared on the Engelberg Center blog.

Today we are thrilled to be launching the Engelberg Center’s Innovation Colloquium Podcast. This is the Engelberg Center’s first podcast, and it is designed to bring you inside one of our most interesting programs of the year. You can subscribe on itunes, spotify, other other services. You can listen to the first episode in your browser below.

Each spring the Engelberg Center hosts the Innovation Policy Colloquium. The Colloquium is a semester-long program to bring in speakers built around a theme related to promoting creativity, invention, and new technology. Speakers present cutting edge, often still-in-development work and enter into a lively question and answer session with participants.

While this is a fantastic event for the current NYU Law community, it is not easy to access from further away. The podcast is an opportunity to make the Colloquium available to everyone.

In addition to their presentation at the Colloquium, as part of the Colloquium each speaker also sat down for an interview to discuss their work. Reflecting the nature of the Colloquium, these interviews touched on a wide range of topics, including celebrities trademarking their own names, how geographical indications will respond to climate change, how privacy regulation and innovation can coexist, and labeling traditional knowledge.

For the next ten weeks we will release a new episode every Wednesday featuring an interview with a Colloquium participant. As an introduction to the series, the first episode is a conversation with Professors Barton Beebe and Jeanne Fromer who oversaw this year’s Colloquium.

You can find links to subscribe to the podcast in the player above. We hope you enjoy listening as much as we enjoyed putting it together.

The Greatest Simulated Legal Open Mic Night of the Season - Guaranteed

Legal Madness Graphic

You should go to the website right now to check this out.

Here’s the deal. Sarah Feingold (former Etsy and Vroom GC, current Engelberg Center Fellow) and I were talking about all of the stories that in-house tech lawyers have about the things they have dealt with over the years.

“We should have an open mic night where everyone gets up and shares their stories” we exclaimed together.

“But wait, confidentiality rules would prevent any lawyers from actually telling stories at an open mic night” we also exclaimed together.

“What shall be done?” we wondered aloud, again, together.

What shall be done, indeed.

We collected the stories anonymously. We compiled them into a script. We hired actors to play the role of “tech lawyer at an open mic night” to tell them. We rented out a cool club in the Village. All that is missing is you.

Join the NYC legal tech community for the greatest simulated open mic night is has ever seen. Laugh. Cry. Commiserate. Share a story (anonymously) for next year…. for tickets and info

Lego recently sent a series of takedowns to websites that host 3D printable models, including MyMiniFactory.* It looks like some of Lego’s claims are legitimate, while others appear to be less so. Taken together, the claims highlight the complicated ways in which IP attaches to 3D printable models, and the ways in which various legal ambiguities can allow a large company like Lego to try and control behavior that is probably not legally within its right to control.

The Notice

The notice link received by MyMiniFactory is interesting in and of itself. While many people refer to these types of notices as “DMCA” notices (after the Digital Millennium Copyright Act), this notice actually combines both copyright and trademark claims (this is going to become relevant later).

Dear LEGO A/S, LEGO Juris A/S and LEGO System A/S (collectively but not exclusively “the LEGO Group”) hold exclusive worldwide rights to the LEGO® intellectual property, including but not limited to the famous LEGO word mark, the famous red-square LEGO logo and the Minifigure figurine. These trademarks and copyrights, registered and/or protected under US and international trademark and copyright law, are used to identify, advertise and promote products and activities developed and/or held by the LEGO Group of companies. In addition, LEGO holds exclusive Copyright and Trademark rights to the world-famous LEGO® Minifigure figurine design. The LEGO Minifigure design is protected by United States Copyright registrations VA655104, VA655230. The LEGO Minifigure design, since the first launch in 1978, is protected by copyright laws and enforceable internationally through application of the Berne Convention. I, the undersigned, state UNDER PENALTY OF PERJURY that: 1. I am an agent authorized to act on behalf of the LEGO Group, of certain intellectual property rights; 2. I have a good faith belief that the URLs identified below offer items or contain materials that are not authorized by the the LEGO Group, its agent, or the law, and therefore infringe the IP Owner’s rights; and 3. The information in this notice is accurate. Please act expeditiously to remove the listings identified below:

I understand that the notice then goes on to list a number of models, but does not make an attempt to match the individual models with any specific accusation of infringement. That leaves it up to the platform and the user to guess which rights Lego believes any individual model might infringe upon. That ambiguity makes it hard for an accused user to evaluate the claim against them.

Differences Between the Type of Right Allegedly Infringed Matters

This kind of ‘we have lots of rights so take it all down’ approach to takedown notices does a disservice to both creators and platforms. From the perspective of a platform potential liability for infringement, it makes a huge difference if the model is being targeted because of claimed copyright infringement or claimed trademark infringement.

If the claim is based in copyright, the platform is generally immune from liability because of the safe harbors created in the DMCA (the DMCA is a US law but EU law - at least as of now - currently provides the same types of protections). The DMCA also creates a system where the user can challenge the takedown without needing the platform’s permission.

If the claim is based in trademark, the platform’s liability is less clear. At a minimum, there is unlikely to be a way for an accused user to challenge the takedown request without the agreement of the platform. Since it may not be worth the platform’s time to even analyze the accusation (let alone push back on it), and a platform is unlikely to allow a user to push back if the platform itself could be held liable for infringement, in practice that makes it much easier for a rightsholder to bluff their way into having something taken down for an alleged trademark infringement than for an alleged copyright infringement. The combined nature of the notice enhances this power, as it is not clear from the notice itself which models are being accused of infringing what kinds of rights. A conservative platform doing a cursory review of the letter would assume that all of the models are being accused of trademark infringement and take them down without asking too many questions.

By combining all of these issues into an omni-notice, Lego has made it much more costly for the platform to evaluate its validity, and making it much easier (at least in the short term) to just take everything down without giving accused users a way to fight back.

Might those users want to fight back even if they could? Let’s take a deeper look at how copyright and trademark law might connect to the models.

Although the language is not particularly clear, the only copyright that Lego claims is in the Minifig design. This makes sense, because the lego blocks themselves were patented (patents and copyrights are generally mutually exclusive, so if something is patented it is not eligible for copyright protection (there are a thousand lawyerly qualifications I could add here, so see disclaimer below)) and that patent expired some time ago.

That means it is not copyright infringement to make lego blocks, or models that are compatible with lego blocks. It might be copyright infringement to reproduce a full minifig. It is probably not copyright infringement to create an accessory for a minifig and then take a picture of that accessory with the minifig itself.

The upshot of this is that Lego’s copyright claims are probably fairly narrow, clustered around models that replicate minifigs. Anything beyond that is unlikely to be a copyright issue. That means that Lego is probably leaning fairly heavily on its trademark claims.


Lego’s letter specifically references ownership of trademarks in the world “LEGO,” the stylized representation of “Lego” in a red box, and in the minifig (unlike patents and copyrights, trademarks and copyrights are not necessarily mutually exclusive). It is important to remember that trademarks are all about showing who is responsible for goods. That means that merely copying or using a trademark does not mean you are infringing on it.

Instead, trademark infringement is all about causing confusion in users. If you are using the Lego trademarks to make it appear that your models are coming from the Lego company you are likely infringing on Lego’s trademarks. In contrast, if you are merely using Lego’s trademarks to show that your model is compatible with Lego, you are unlikely to be infringing on that trademark (here is a longer explainer on how all of this works).

It seems that many of the targeted users are not trying to pass their goods off as official Lego goods. Instead, they are using the term “Lego” to indicate that their model is compatible with Lego-style connectors. One could argue about ways to make that more clear - say by using a term like “Compatible with Lego” or “Lego-Compatible” - but it seems unlikely that a consumer looking at at least some of these models would be confused as to their source or origin.

These Models Are Unlikely to Compete with Lego

That is all the more true because the reality of the situation is that almost no one would buy a 3D printed lego-style block if an injection molded one existed. Lego is really good at making lego bricks. In a head-to-head matchup, a lego-produced brick is going to be cheaper and better than a 3D printed one by almost any metric.

The only reason to turn to 3D printing is to create a lego-compatible object that does not already exist. If you need something custom or specific that Lego does not make, 3D printing is probably your only option. And if you need a custom lego-compatible block, that is probably because you already have many, many official Lego blocks. You are probably already a Lego superfan.

That means that the 3D printed Lego-compatible market is almost purely complimentary to the official market. Lego’s fair play guidance is interesting and helpful, but it does not define Lego’s legal rights. Complying with the guidance may help you avoid a nastygram from Lego. Stepping outside of its bounds does not mean that Lego has a legal right to stop you.

That makes MyMiniFactory’s response kind of a fun one. After inviting Lego to collaborate with the community instead of attacking it, they announced a “OGEL” competition to redesign the building blocks. Submissions close on November 14th and the winner gets a brand new 3D printer.

*As with everything posted on this site, nothing in this post should be construed as legal advice. If you have been targeted by a takedown notice that you believe to be illegitimate you should contact a lawyer who can be your lawyer. Unless I am sending you a bill I am not your lawyer.

This post originally appeared on

In the beginning there were conferences. Over time, as those conferences grew, attendees needed ways to identify each other. This need gave us the conference badge.

No one knows what the first conference badges looked like, but we can be confident that they were relatively simple affairs. Over time paper was put in plastic sleeves, which eventually became information printed on hard plastic. Sometimes that plastic wasn’t even rectangular.

At some point batteries were introduced and things started to get a bit crazy. Today many conference badges are intensely elaborate affairs. Some of the best of them are also certified open source hardware.

The SMD Challenge


Image: MakersBox under CC BY license.

The SMD Challenge was born from an insight into the human condition, as its creators (explain)[]:

“Making LEDs blink is what people think make Makers happy, but they are wrong. Makers want to be miserable. They like to make mistakes and to have to try things over and over again. That which does not kill us, makes us stronger. This project will make you strong!”

The SMD challenge is a badge you make yourself. This project starts with a relatively easy to solder resistor and LED. It then moves into increasingly tiny resistors and LEDs. Coming in both “Regular Edition” and “Misery Edition,” the SMD challenge is designed to challenge—and break—all but the most determined solderers.

If you do manage to make it all the way to the end (and can document your success), you can enter the prestigious 0201 Club. If you prefer to experience the misery (and success) secondhand, the club also features links showing many of the successful attempts.

FRI3D Badge 2018

Fri3D Badge

Image: Fri3D under CERN OHL 1.2

The badge (nicknamed Ph0xx) for Fri3D Camp 2018 also has the distinction of being the first piece of certified open source hardware from Belgium. Ph0xx is more than a simple conference badge. It features WiFi and Bluetooth (thanks to an ESP32), native USB connectivity, four buttons, two 5x7 LED matrices, a piezo speaker, and an accelerometer.

Since this badge is open source, you can immediately start taking advantage of all of these features. Fri3D even created an app to help you get started by animating the eyes.

The Open Hardware Summit 2018 badge

Open Hardware Summit 2018 Badge

Naturally, the Open Hardware Summit has a badge that is both awesome and certified open source hardware. In addition to WiFi connectivity, the badge features a programmable e-paper display.

At the start of the Summit, that display loaded just the wearer’s name and contact information, but since the badge is open source, it quickly displayed much more. Drew Fustini even provided an overview of the badges at the Summit to help people start hacking:

Demand the best: Open source conference badges

In a world full of good conference badges, open source makes them great. If you are a conference organizer, open sourcing your badges helps make sure that they live on well after the event. If you are a conference attendee, open source badges become a platform for all sorts of future hacking.

Let us know about other great badges in the comments. If you are putting together a badge for an upcoming event, don’t forget to certify it as open source!