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| The Pinpoint Sight. Epic. |
Hiya – Pocket here. Well.. WOW.
To say that I'm feeling a bit overwhelmed is an understatement. To the messages of support and sympathy from all over the world – a big thank you. It's actually been a very stressful time for me and your thoughts mean a lot. What I'd really love to do is get back to doing what I enjoy- scouring the web for news, bringing out reviews and basically slamming the community with everything toy blaster that I can find- but I'm still a lil unsure atm till I can get this all sorted.
I've received a lot of moral support from different people since receiving the first letter from Baker & McKenzie. Even though the post after the jump is pretty long involved and a bit deep (what do you call it, TL;DR !) – I'm going to post it because it's a rather interesting commentary on the whole situation. It's from a reader who calls themselves "crazybear" and they have given me a lot of support these last few weeks. Crazybear calls it as they see it, so if you've got the time and inclination- it's a great read.
Thanks again folks.
Not Just a Nerf War about Toy Guns
I've been following the whole urban taggers/Hasbro/Baker & Mckenzie situation very closely and with great interest. I don't play with Nerf, don't think I've ever owned a Nerf product – sorry IP lawyers, should that be "NERF"? Like many, I'm a little perplexed about what seems to be a massive conflagration over what is essentially - a toy gun ...
Since the original Crikey article was published on Tuesday (http://www.crikey.com.au/2012/04/24/nerf-guns-at-10-paces-hasbro-faces-boycott-after-siccing-lawyers-onto-fan-site/), some comments from around the Net have really amused me:
"The fear here is that some third party might be running Nerf guns to North Korea or Pakistan, or heaven forbid, one of the big kids at Birch Elementary in Broomfield, CO!"
and
"In related news, Hasbro representatives burst into the bedroom of Tiffany Mae Walters and confiscated her My Little Pony collection after word leaked out that she was playing with them wrong."
and
"Hasbro will send their goons after taobao in China, taobao will accidentally kill one of them, this will enrage the US and create an international incident, China will refuse cooperation in punishing the killer, the US will threaten China, China will preemptively strike our allies, the US will retaliate resulting in full scale war. World War 3 starts because some Australian guy was buying Nerf guns online. Archduke Ferdinand ain’t got shit on Martyn Yang."
and one dear to my own heart:
"So glad the internet gives people a fighting chance at stopping this kind of bullying."
I am bemused that not only has Baker & McKenzie become a hash tag on twitter and a tag on a variety of news sites – so has the partner Robert Arnold himself. The incident even has the My Little Pony fans running scared.
All jokes aside, I do feel quite strongly about what I have read. I think what bothers a lot of people in terms of what happened to urban taggers is that the approach adopted by Hasbro and Baker & McKenzie just seemed wrong given the circumstances.
Even if you talk to lawyers, you'll receive a widely disparate range of opinions. Some believe that the Baker & McKenzie's actions may have been a little ill-advised (i.e. it would have been better to go letter, email, email further email instead of letter, email, email goon squad) – others believe that not only was it right, they should have gone in harder – how dare a jumped up little blogger from Canberra dare to give cheek to a multi-national corporation and the partner of a global law firm?? Who does he think he is? Let us squash him like a bug.
To be honest, it's probably not fair to tar all partners of the firm with the same brush – I'm sure other partners even within the same organisation might have taken a different approach to the same fact scenario. In this case, I think what happened was unfortunate judgment being exercised by Hasbro's internal legal team, Hasbro's publicity team and Hasbro's external lawyers. I know of a number of respectable senior partners who will go in hard and rain down absolute and total hell on the heads of wrong-doers and if you're doing the wrong thing, they're probably justified.
The issue is having the finesse, judgment and commercial nous to assess a situation and come up with a reasonable approach based on the individual facts. These days, lawyers can't just be black letter lawyers wearing jackboots and enforcing the law with an iron fist in every instance. Especially in the day and age of the social networking, many sophisticated and discerning clients expect their law firms to have a greater understanding of consequences of their actions and working in a way which protects the commercial/PR as well as legal interests of the client.
Let's summarise the current situation.
1. There was a leak of confidential information/products/images. This leak was committed by someone who probably had a direct relationship with Hasbro and was obliged to keep such things confidential.
2. This image was leaked onto the Internet by that person. It's at this point that the first 'breach' occurs. The wrongdoing is committed by the leaker at this point.
3. The information then floats around on the Internet until it gets to a blogger like urban taggers, whether by anonymous email tip-off or by his own search efforts. Bloggers and other websites know that the products in question haven't been released in Australia yet but given that the information is widely available out there on the Internet, figure that there's no harm in publishing it.
This is where things get a bit murky – arguably, information doesn't necessarily lose its confidential nature just because it's leaked been onto one site on the Internet for a short period of time. I think we saw that with wikileaks and the Barclays Bank vs Guardian incidents. That being said, if the information's been out there long enough and has been seen by enough people – can be hard to say it's still confidential. So, let's call point 3 a line-ball issue and say that Hasbro/Baker & McKenzie had the right to send a nice letter.
4. I'll bundle a few steps in here. Hasbro's product team (Team Hasbro) sends what seems to be a nice letter asking for the blogger's address to send some merchandise for the blogger to use to further promote Hasbro. This is the first time the blogger has ever heard from Hasbro so he's naturally delighted and the emails from Hasbro marketing look genuine and look as though Hasbro knows of the blog and approve of it. The blogger then gets a letter from the lawyers (Team Baker).
OK, the Team Hasbro look kind of bad here but I suppose that was the only way they thought they'd get the address. Team Baker actually don't look too bad at this point – the letter is polite, even friendly, asking the blogger to take down the images and asks for information about the source of the images. So at this point, it's thumbs down to Team Hasbro but Thumbs Up to Team Baker.
5. The blogger ponders his options. It's all very disappointing but given that he's not in the game to annoy Hasbro, which produces the product he has been so enthusiastic about – he sends a polite email to the partner saying that the images are already out there, but he's taken down the images. He says he doesn't have the information for the source anymore (could be anywhere really – this is a popular blog in Nerf circles) and to be honest, he wouldn't tell anyway – BUT he wants to be helpful so he points the law firm in the direction of how to search for those images using Google. He also takes down the blog temporarily as he considers his next options. He thinks it's over for now but the law partner then emails back saying he wants to talk more.
So at this point, we have thumbs up for blogger (compliant and helpful – also giving free Internet searching advice) but a half-thumbs down for Team Baker. I only give him a half thumbs down because at this stage, we don't know what he wants to talk about – it's possible he wants to push more (that would be a full thumbs down) but it's possible he wants to talk about Nerf and the Internet in general (thumbs up because a thirst for knowledge in anyone should always applauded and encouraged).
6. At this point, Team Hasbro emails the blogger again offering the free merchandise yet again and the blogger is perplexed (they already have his address so is this a real offer this time??) so he writes to Team Baker explaining that there's no point talking anymore because these are not the droids you're looking for and seriously, he does not have the information but he gives them Internet tips again. While he is at it, he asks if he's going to actually get free Nerf stuff this time or is he just going to get another free letter of demand/cease and desist letter (O poor Pocket, little do you know what's going to happen next). So at point 6 we give a thumbs down to Team Hasbro (for being confusing and sending mixed messages in a best case scenario and being misleading in a worst case scenario) and a thumbs up to the blogger who really just wants to be left alone, especially given that the blog is offline.
7. Team Baker then writes again and it turns out that they're actually interested in scoops regarding "Vortex Nitron" and "Rayven" that were reviewed by the blogger the year before. They want the blogger to sing like a bird and ask him to reconsider and talk to them. They explain that they know nothing about Team Hasbro's latest email, claim that Team Hasbro actually admire what you the blogger does with his "blogsite" and has no wish to shut him down. So … we have a thumbs down for Team Baker here for suddenly coming up with new questions or actually asking the questions they wanted to ask at the beginning – either they are disorganised or not up front so let's give them two thumbs down for that one.
They don't know about the Team Hasbro email so we give them another thumbs down for having poor client communication. They get a thumb and a half up though for praising the blog and for being polite about asking him to reconsider discussing the matter with them. They get half a thumbs down for calling it a "blog site" and another half a thumbs down for lacking Internet savvy. I've lost track of how many thumbs were given there but in any case, I need more thumbs.
8. Blogger is irritated by all of the emails from Team Baker and Team Hasbro, writes a response but gets distracted by real life and forgets to send his response. Blogger gets half a thumbs down for not replying to Team Baker immediately but we will be gentle with him given that blogging is just a hobby and he has real life outside of nerf. It's a half-hearted half thumbs down.
9. Blogger returns home on a Sunday afternoon to learn from the neighbours that some goons have been hanging outside the apartment complex. To his shock, the goon squad (Team Goon Squad) have been hanging around waiting for him! Team Goon Squad say they're from Team Bakers, they want him to disclose all. They want to record the conversation. Blogger is flabbergasted and instead of slamming the door shut, he talks to them and teaches them how to use taobao and ebay. Team Goon Squad claim that he should know the identity of nerf suppliers if he bought off ebay and taobao. Blogger explains that this is the Internet. Goon Squad go away saying that he's going to hear from Team Baker again. Team Hasbro get a bunch of thumbs down and my big toes, too for this. First "nice" email from Team Hasbro is followed by a letter from Team Baker, second "nice" email from Team Hasbro is followed by a personal visit by Team Goon Squad.
Team Baker get an equal number of thumbs down for not just sending a follow up email instead of sending Team Goon Squad. Team Baker gets more thumbs down for not realising early on in the piece that this is a false lead and calling off the hounds. It was all well and good if urban taggers was the only source of information – you could understand why Team Baker came after him, but once it became clear he was not the source or even connected in any way to the sources – they should have dropped the line of inquiry at that point. They also get a thumbs down for still lacking net-savvy. I don't care how old or technophobic you are, if you're an IP lawyer, you should know all about and be all over ebay, taobao and other similar sites. Blogger gets a thumbs down for being freaked out and agreeing to talk to Team Goon Squad when he was within his rights to slam the door and tell them to go away. He gets a thumbs up though for trying to be helpful and teaching them that you can buy things on the Internet.
10. Blogger sends frustrated email to Team Baker trying to end the matter once and for all, he then emails Team Hasbro and other members of Team Baker saying: "please leave me alone". Then because he really has nowhere else to turn because he can't seem to make Team Baker understand what he is saying – he posts everything to the blog – including any original typos in his emails. In his circumstances, he felt bullied and intimidated and this was his only course of action left. Thumbs up to blogger here. Many other bloggers would have posted the letter of demand as soon as they got it, he tried to resolve it amicably. Again thumbs up for trying to bridge the apparent poor internal communications between Team Baker and Team Hasbro. Half thumbs down for being a bit cheeky and telling the Team Baker partner he needs to learn Chinese but maybe thumbs up, too because according to Wikipedia, Mandarin Chinese is spoken by more than 1025 million speakers throughout the world and a grasp of this language would be invaluable for anyone really.
So at the end of the day – possibly good motives, wrong, overly heavy-handed approach. There were other ways to resolve this situation and the way it was done looks just like bullying, plain and simple. As mentioned above, for many lawyers, the Goon Squad tactic is entirely defensible and normal - but they really have to see how it will be perceived by non-lawyers or ordinary people.
In terms of lessons learned, I guess we just need to look at the growing list of links below:
http://www.crikey.com.au/2012/04/24/nerf-guns-at-10-paces-hasbro-faces-boycott-after-siccing-lawyers-onto-fan-site/
http://kotaku.com/5904920/hasbro-threaten-nerf-gun-blogger-act-like-total-dicks
http://boingboing.net/2012/04/24/hasbro-tricks-fan-blogger-into.html
http://www.reddit.com/r/technology/comments/sq0we/hasbro_tricks_fanblogger_into_revealing_his/
http://filmdrunk.uproxx.com/2012/04/hasbro-are-total-dicks
http://www.geekosystem.com/hasbro-targets-fan-blog/
http://equestriamlp.livejournal.com/334474.html
http://basicnerf.wordpress.com/2012/04/22/urban-taggers-is-back-shares-hasbro-lawyer-stories/
http://nerfhaven.com/forums/index.php?showtopic=22495
http://www.crazyontap.com/topic.php?TopicId=165056&Posts=4
http://tweetmeme.com/story/9640309551/nerf-guns-at-ten-paces-hasbro-facing-boycott-after-sicing-lawyers-onto-fan-website-crikey
http://shopping.tweetmeme.com/story/9647102119/hasbro-tricks-fan-blogger-into-revealing-his-address-so-they-can-send-him-legal-threats-over-widely-available-leaked-product-boing-boing
http://hackerne.ws/item?id=3886147
http://news.providencejournal.com/breaking-news/2012/04/hasbro-trains-l-1.html
http://blodic.us/technology/hasbro-tricks-fan-blogger-into-revealing-his-address-so-they-can-send-him-legal-threats-over-widely-available-leaked-product-86-0.htm
http://www.bay12forums.com/smf/index.php?topic=42204.77325
http://codechopper.com/2012/04/24/hasbro-guns-down-fan/
http://www.dailydot.com/news/hasbro-nerf-blogger-freebies-legal-threats/
http://m.z24.nl/bijzaken/artikel_345963.z24/Speelgoedmaker_Hasbro_misleidt_blogger_met_nepaanbieding_en_stuurt_advocaten.html
http://www.gizmodo.com.au/2012/04/has-hasbro-nerfed-its-own-fan-goodwill/
http://www.escapistmagazine.com/news/view/116946-Hasbro-Trips-Up-Nerf-Blogger-With-Dirty-Tricks
http://www.techdirt.com/articles/20120424/07014618631/hasbro-offers-nerf-blogger-free-samples-sends-lawyers-investigators-instead.shtml
http://techcrunch.com/2012/04/25/hasbro-goes-after-blogger-in-ip-theft-case/
http://www.geekosystem.com/hasbro-targets-fan-blog/
http://econsultancy.com/uk/blog/9697-hasbro-faces-social-media-backlash-after-blogger-shenanigans
http://knockoffreport.com/2012/04/26/if-hasbro-had-called-me/
http://www.rollonfriday.com/AsiaPacificWeek/AsiaPacificNews/tabid/336/Id/1977/fromTab/335/Default.aspx
http://korben.info/lembuscade-dhasbro.html?utm_source=twitterfeed&utm_medium=twitter&utm_campaign=Feed%3A+KorbensBlog-UpgradeYourMind+%28Korben%27s+Blog+-+Upgrade+Your+Mind%29
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