Beware Garmin’s ActiveCaptain!

Are you a member of Garmin’s ActiveCaptain? Or are you considering becoming one? If so, have you actually read the new Terms of Use you must to agree to?

The bottom line is that you should be extremely careful what information (“User Submissions”) you share on that platform. Why?

Because you are taking on a virtually unprecedented amount of liability in doing so.

For example, if you were the one that placed one of these anchorage markers on the north side of Vieques several years ago…

That picture above of the exploding boat above could very well happen.

And YOU’LL be legally liable for it…not Garmin.

The Hubbub

This conversation started back when I was still on the sadly lame Chesapeake-area sailing forum, Sailnet. A friend there talked about Garmin’s post-acquisition reworking of the also lame sailing guide, ActiveCaptain, and I mentioned this issue of liability…

What’s more important than ownership of the info/data (which has always been part of the AC TOS) – is LIABILITY. AC changed its TOS terms a few years ago to put the liability for incorrect/unverified information on the boater – not AC (who claimed to “verify” that very data).

This means AC gets to own the data free and clear, but YOU get sued for that data if someone comes to trouble with it.

Tidy, eh?

That was like saying “Beetlejuice” three times…

Because immediately, my old stalky pal and AC’s biggest superstar Jeff Smeagol (I think that’s his name but I could be wrong)…

…pops up under the sockpuppet name “Red Head” and starts spouting outlandish BS about “His Precious”.

And, as usual, I was obligated to smack his grubby little hand to protect the sailing masses (that is before he got perma-banned yet again from this same forum – third time under various usernames).

Here was his first salvo regarding your liability under his TOS:

As I understand it (and I’m the author of the original TOS prior to Garmin’s changes), users own the copyright to their submissions.  So any discussion of what “the man” is trying to do really needs a full understanding of the various laws. It’s a complex topic and doesn’t lend itself to shoot-from-the-hip assumptions.

Essentially, it’s a “complex topic” that you, the average sailor, couldn’t possibly comprehend. It takes superior intelligence you see. So you should just leave it to him and AC. After all, he’s got the back of the boating community, right?

Here’s the deal…it’s really NOT that complicated, unless one needs it to seem that way for business reasons. I’m confident you’re smart enough to understand it. So let’s go through this…

The part of the TOS that Jeff quoted above pertains only to you granting Garmin a “royalty-free, perpetual, irrevocable, non-exclusive right and license” to the info you put into AC.

So here, we’re talking about, as Jeff points out, copyright – ownership. You “own” it, yes – but they can do anything they want with it for their own purposes and profit – forever. And they don’t owe you a dime – ever.

However, what is NOT in that snippet that, in the case of boating, is FAR more important – is the LIABILITY surrounding this submission information you own and are broadcasting (and warranting) to the entire boating world through Garmin.

For example, the first sniff of the liability issue is this part of that same paragraph: “By submitting material to any Site, you automatically grant, or warrant that the owner of such material has expressly granted…”

Now, being that GarminAC is a site that uses crowdsourcing to harvest its license-able data essentially for free – you might automatically assume that it’s always YOUR data you’re putting in. But what if you come across a warning about a hazard somewhere online (via the CG or some other source) and you put that wording into that marker on AC (which goes on a lot actually)?

Read that sentence above again. Did the CG, or other source, expressly grant to YOU – and therefore Garmin – these rights? If not, who is on the hook?

You are…now potentially from multiple sources.

So, what was posted above by Jeff is only one paragraph of the GarminAC TOS. And it certainly doesn’t tell the whole story by any means…which makes this part of his statement above very telling…

…it appears to be fertile ground for those with an agenda to pull pieces out of context to push their agenda.

Now, you can decide for yourself whose agenda you’d like to be skeptical of – but let’s at least look at the facts behind the game of Litigious Chicken that you are playing via your membership in and contributions to Garmin’s ActiveCaptain.

As you can see in this particular SN post of mine, in 2012 pre-Garmin AC claimed ownership of ALL the IP. However, user-submitted info was not specifically worded to be part of that.

This changed the following year with this sentence regarding user submissions:

It is important that Intellectual Property including reviews and ratings on the Sites be relevant, helpful, and trustworthy. Therefore, Active reserves the right to edit or remove any Intellectual Property that contains:…

So now AC owned your submitted information. It became their IP. The problem is, Smeagol didn’t think through the legal implications of actually owning The Ring. It is complex after all, right?

So, a couple of years later, when he finally figured out his true exposure, the language changed yet again…

Intellectual Property Owned by You
All Intellectual Property posted by you on the Sites is owned by you. By posting such content, you hereby grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license (the “IP License”) to…

So, now AC owns all your stuff and can make money with it forever, and you’re on the hook for it from a liability perspective…forever.

Easy-peasy.

The BoomBoom

Back to the exploding boat in that nice little anchorage of Bahia Icacos where you placed that AC anchorage marker so you could get that killer hat.

Thinking back now, you fondly remember that distant “No Wake” buoy you could just make out as you were coming in at dusk – ensuring you that it would be a nice calm anchorage.

You dropped your Danforth, loaded the kiddies and the missus into the dinghy, and headed to the beach. It was such a lovely place with interesting metallic playthings scattered about for the rascals to romp on…

And lots of colorful signs in weird languages marking inviting “Peligro Hikes”!

It had been the perfect spot – a Caribbean paradise!

So in went that GarminAC marker to tell all your fellow boaters how great of a place it was (and to get the hat by golly). After all, that’s the whole point of this wonderful application, right? Sharing helpful first-hand information with the global boating community!

ActiveCaptain Community

Want to know the best rated marina? Local attractions? Uncharted hazards? The ActiveCaptain community connects you to up-to-date feedback from fellow boaters about marinas and other boating points of interest.

Of course, that was 7 years ago – and you’d completely forgotten about it…until…

The world-famous ventriloquist and sailor Sir Walter Schmenke, his longtime partner Sherpa WooTang, and their 6 St. Bernards anchored their boat in the same place using your GarminAC marker as reference. And when they dropped their cheap Chinese Rocna, the patented inferior-steel roll bar kicked in and…

Oopsie.

So now the well-heeled lawyers immediately start their work tracing that GarminAC anchorage marker of yours to find who’s legally and financially responsible for this outrageous calamity!

Let’s look at your exposure now via that TOS you agreed to.

Your Liability

At first glance, the liability bar sure seems to be really low. After all, as you can see, to register for AC you simply have to enter an email address and a password. No social security or credit card numbers or even a pap smear are required! You could be anybody!

However, let’s take a closer look at this little box you just checked for this precious crowdsourcing community you’ve idealistically joined…

*I have read and agree to the Terms of Use and Privacy Policy.

ActiveCaptain Community Terms of Use

(Note: The above link is a pdf I captured of the TOU at the time of this writing. Things might have changed since then in the above live links.)

First, despite the fact that you can sign up for GarminAC relatively anonymously with just an email address as shown in that image above, here’s what you’re actually promising…

YOUR PROMISE TO GARMIN ABOUT WHO YOU ARE: You agree to provide, maintain and update true, accurate, current and complete information about yourself.

And here’s how GarminAC obtains this personal data of yours after that innocuous email entry…

After all, it’s all about the community, right? I mean, how else are they going to get your hat to you if they don’t have your address and phone number – and listing of friends, and photos, etc.?

But the lawyers don’t even need that address! GarminAC knows exactly where you are…all the time…

They can just come right over for a chat.

But what if you publicly directed the owner of ActiveCaptain to delete your AC account several years ago and he assured you he would? That would save you, right?

Oopsie. My old account info is still there six years later despite his assurance that AC was all about honesty and integrity!

But surely your personal data would still be safe and protected. Right?

Well, this is what you grant to GarminAC when you check that box…

YOUR RIGHTS TO PRIVACY AND SECURITY: You acknowledge that Public Forums and features offered therein are for public and not private communications, and you have no expectation of privacy. Garmin cannot guarantee the security of any information you disclose.

So, no, nothing is private or secure. You should have no expectation of that. And even if you DID ask for your account and submission to be deleted as I did (GDPR anyone?) – which would (or at least should) also have deleted that old marker of yours – it appears that such requests fall on deaf ears. It seems to still be there – leaving you on the hook forever.

And that’s scary.

So, we’re now back to that old explosive anchorage contribution of yours and who’s liable for it. Well, here is the skinny on anything you contribute to GarminAC…

YOUR CONTRIBUTIONS: Whatever information, content, material you provide to ActiveCaptain are deemed “User Submissions” for viewing by one or more Site users, including without limitation a message board, forum, social community environment, conversation page, messaging function, review or blog.

And here is what you grant to GarminAC for all that risk, effort, and work in finding those anchorages and submitting all that info…

YOUR OFFER TO GARMIN: You automatically grant, or warrant that the owner of such material has expressly granted, Garmin the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate and distribute such material (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for the full term of any copyright or other rights that may exist in such material.

So, this is a freakin’ awesome business model! You do the work, bear the liability – and they just make the money! Brilliant!

But who’s gonna pay the huge settlements for all the WooTang/Schmenke-Clan’s damages, injuries, former St. Bernards, shredded Blue Water Boat, etc.?

Well, you’re the one that placed that anchorage marker in the minefield  seven years ago and ensured this to other boaters around the world – including Sherpas with big dogs…

YOUR OFFER TO OTHER BOATERS: You also permit any other user to access, view, store or reproduce the material for that user’s personal use.

Remember, the entire marketing angle of GarminAC is all about “info you can trust from fellow-boaters”…

ActiveCaptain Community

Want to know the best rated marina? Local attractions? Uncharted hazards? The ActiveCaptain community connects you to up-to-date feedback from fellow boaters about marinas and other boating points of interest.

So, it sure looks like Garmin is encouraging boaters like you to provide such contributions to “help the community” – despite the dangers to both you and them. Pre-Garmin AC certainly did so with its infamous Hat Initiative. And sure you placed that marker several years ago and forgot all about it – but that doesn’t matter. Because you’ve agreed to this…

YOUR RESPONSIBILITY: You are and will remain solely responsible for the User Submissions you distribute on or through any Site in any Public Forum and for the consequences of submitting and posting same.  

You will be solely liable for any damage resulting from any infringement of copyrights, proprietary rights, or any other harm resulting from a User Submission.

It’s up to you to continually maintain ALL 250 markers you put in for that hat – forever.

So, thanks to your “up-to-date feedback to fellow boaters”, you’re going to owe hundreds of thousands, if not millions, to the WooTang/Schmenke-Clan, the Government who put up markers warning of the unexploded ordnance for all the environmental damage you caused…AND probably even Garmin!!!

YOUR RESPONSIBILITY:  You will be solely liable for any damage. You may be held legally responsible for damages suffered by other users, Garmin or third parties.

But wait, you say, surely Garmin has SOME exposure here! I mean it’s their app from which they are making money – and they “encouraged” me to put this information into their app!

Au contraire, mon ami.

Let’s take a look at Garmin’s skin in this game…

THEIR LIABILITY: Garmin is not legally responsible for any User Submissions.  For example, we are not responsible for, and we do not endorse, the opinions, advice, or recommendations posted or sent by users in any Public Forum and we specifically disclaim any and all liability in connection therewith.

Hell, they don’t seem to even care if the info is accurate or “up-to-date”.

THEIR LIABILITY:  For example, we are not responsible for, andwe do not endorse, the opinions, advice, or recommendations posted or sent by users in any Public Forum and we specifically disclaim any and all liability in connection therewith. You may not imply that any User Submission is in any way sponsored or endorsed by Garmin. We do not confirm nor verify the qualifications, background, or abilities of users or the information they post in any Public Forum. Therefore, we recommend that you be careful and exercise common sense and good judgment when using any Site or Public Forum.

And why should they care? As far as they are concerned, according to the above language the WooTang/Schmenke-Clan was just as much at fault as you were. You two will just have to work it out through your lawyers.

Again – it’s you. All you. Always. Forever.

The Conclusion

So you really need to think about whether you want to provide information to GarminAC. First, I’ve demonstrated that despite public assurances, your account and info will apparently NOT be deleted even at your explicit, written direction to do so.

More importantly, all the legal language above makes it very clear that you are taking HUGE risks in helping GarminAC make money with your information. Sure, from the marketing language, it all seems like the idealistic, helpful boating community tool Jeff and the Garmin machine color it to be. But their own legal language in the TOS is where the real truth lies. And that’s a completely different story…where AC users are thrown squarely under the bus…forever.

So, I just thought you should know. You might want to reach out to Garmin’s privacy folks to see about reducing your liability. Unfortunately, they didn’t get back to me when I did so* – but hopefully they will get back to you before the next BoomBoom happens at your marked anchorage.

euprivacy@garmin.com
privacy@garmin.com

[*Note: See post below. I emailed Garmin about whether your markers, etc. would be deleted with a GDPR request and never heard back.]

As always, it pays to read the fine print.


[Here is a mod-deleted post from that thread on SN in response to Smeagol}:

If you and Garmin really believe this – and if you helped write the TOU – then whey did you refuse to protect your members? Instead you made sure you and Garmin were protected, then threw your members squarely under the bus. There’s really no question about that in terms of the language in that TOU.

The only hope these members have – as you’ve seen written above several times now – is the doubt that litigation could ever really happen. Surely not – because it hasn’t happened yet. So, they are willing to take that gamble with their own resources – for you – in the face of this TOU. That’s impressive.

And on this…

Let’s start with that bold sentence. It boggles my mind that so many here will blindly defend AC in the face of the very readable and very clear terms of use/service you and Garmin have written and put out. I have to give it to you – you’ve done a tremendous job marketing this thing, Jeff. Seriously. You should write a book.

Next, on the GDPR privacy issue you say this: “At its core, it gives a lot of excellent rights to user.”

This, yet again, is the marketing angle. Your and Garmin’s work to make AC GDPR compliant is obviously a required business decision if you have a footprint in Europe. You have no choice. It has very little to do with “excellent rights to the user”.

Why do I say that? It goes back to your TOU and the consent the user is giving Garmin both in regards to the data that user is providing and the willingness to take on all the liability for it. Information about the GDPR consent issue can be found defined in Article 4 and further information in Article 7.

But here’s an even more potent kicker – despite your assurance here that “At its core, it gives a lot of excellent rights to user.” – your and Garmin’s TOU explicitly says the opposite regarding the actual rights to privacy and security under this brave new model:

Those are the actual “excellent rights” of this user of GarminAC due to his/her consent to your much more readable TOU…even per the GDPR.

So again, my hat is off to you. Your members will staunchly defend AC regardless of what they’ve actually consented to in the TOU. That’s a very, very impressive feat.

For those who are not yet rabid AC members, I would highly recommend that you read the entire TOU that is currently posted here:

https://activecaptain.com/terms/

This is really all you need to read to make a decision of whether the liability is worth it to you. Don’t rely on stated assumptions or partial snippets and marketing spin. None of that matters. Just read it. Because it’s what YOU are consenting to.

And while you’re at it, look up the term “onerous”.

+++++++++++

PS – Per the GDPR, I don’t see where the TOU specifically addresses how Garmin handles a user’s data if they withdraw their membership (or the portability issue). What is the policy there, Jeff?

You talk above about the “right to be forgotten” – which, as the Wiki article says, has been replaced with a more limited “right of erasure” (Article 17 in the actual GDPR). So you need to keep these facts straight if you’re going to tout them. And it makes the answer to this question of how Garmin is handling this much more important since you still seem to be speaking for them.


A Prediction (And Future Topic)

My prediction is that Garmin will slowly do away with anchorage and hazard markers. They are just too problematic – especially if people actually catch on to this liability issue.

I fully believe that the reason Garmin bought both ActiveCaptain and Navionics was purely due to the value in crowdsourced bathymetry. There is REAL money there.

The strategy is clear: ActiveCaptain provides to Garmin a large, global base of brainwashed indentured laborers and users of the app, and Navionics gave Garmin the Quickdraw/Community Maps technology to make that happen, and Smeagol bought a new boat with some red on it. Win/win/win, right?

I called it a while back with my GeekZone video here:

As for me, I think I’ll sit out this particular “revolution”. I go out to sea to be out to sea. Not to work for and line the pockets of the Gollums of the sailing world…

You decide for yourself what’s more precious to you.

Smack out.

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