News Corp Plans to Block Google From Wall Street Journal
Rupert Murdoch, chief executive of News Corp, recently landed on headlines when he said in an online interview that News Corp is planning to block Google from crawling into its web sites.
The interview, conducted by David Speer of major network Sky News Australia, discussed a wide range of topics, from the debate between free and paid to an evaluation of the performance of President Barack Obama. In the interview, Mr. Murdoch expressed disagreement over free access to information that should have been paid for in other sites.
Murdoch said, “I think we’ve been asleep.” He added, “It costs us a lot of money to put together good newspapers and good content. They’re very happy to pay for it when they buy a newspaper, and I think when they read it elsewhere they’re going to have to pay. Not huge sums. You’d be surprised how much can be done, how cheaply, into the average home.”
Other News Corp. executive have similarly declared against this form of “kleptomania” and “parasitism,” and have lobbied to prevent Google from showing their content in its many properties. In a nutshell, Mr. Murdoch has accused search engines of stealing their content. News Corp., however, has been silent about Murdoch’s views.
In the interview, Mr. Speers argued that search sites are claiming to help news outlets by directing the searchers to the site when they click on the search results. This, he said, makes the scheme symbiotic.
But Mr. Murdoch countered that the searchers are not immediately converted into loyal readers. “We’d rather have fewer people coming to our Web site by paying,” he added.
Mr. Speers raised another argument advanced by Google, which said Internet sites are free to choose whether or not they want to be appear in search engines. “You could simply refuse to be on it, so that when someone does to a search, your Web sites don’t come up. Why haven’t you done that?”
To which, Mr. Murdoch replied that he thinks News Corp. will explore that possibility. “We do it already, with The Wall Street Journal. We have a wall, but it’s not right to the ceiling. You can get the first paragraph of any story, but if you’re not a paying subscriber of WSJ.com, you get a paragraph of any story, but if you’re not a paying subscriber to WSJ.com, you get a paragraph and a subscription form.” At the moment, content in WSJ are organized by search engines and are feature for free in Google results. When searchers click on the link, they are directed to the article, and then directed to the pay wall after accessing a few articles.
According to Mr. Murdoch, News Corp. is a supporter of the fair-use doctrine. Under the fair-use doctrine, users may use copyrighted materials provided that the use is fair. Search results are traditionally covered by the definition of “fair use” but this remains to be decided upon by the courts.
Mr. Murdoch’s statements have drawn different reactions. Some have said they do not believe that News Corp. would give up the search traffic to restrict its contents. Others believe that News Corp. could do it if they want to. Techdirt even commented that taking out News Corp’s sites from Google search is a major step, which is “one right off the side of a big cliff.”
Entrepreneur Mark Cuban has expressed support for Mr. Murdoch’s remarks. According to Mr. Cuban, social networking sites such as Facebook and Twitter could reinstate the potential decrease in Google search traffic to News Corp.’s websites, as these do not prohibit the sharing of content.
As of press time, Google has not commented to directly address the remarks of Mr. Murdoch. The internet giant however stated that it believes its search engine and news pages are benefiting news organizations by directing web traffic to their own sites. It added that news organizations are allowed to take out their content from Google properties.
Neutrogena & Coppertone in Lawsuit: Sunscreen Advertising
Earlier ruling. Plaintiff (Coppertone for convenience) makes Coppertone Sport sunscreen, introduced in 1992, and defendant makes Neutrogena Ultimate Sport sunscreen, introduced in late 2008 and first advertised in 2009. There were false advertising claims and counterclaims; both prevailed in part.
The parties disagreed about whether a sunscreen’s ability to protect against UVA rays is subsumed within the SPF measurement, which definitely measures UVB protection. Another measurement, protection factor A (PFA), can be used to quantify protection against UVA rays.
Coppertone challenged a Neutrogena Ultimate Sport ad, “best line of sport sun protection,” claiming superiority based on “average” combined SPF and UVA scores across the parties’ sport product lines, which compared Neutrogena and Coppertone Sport with the phrase “Best average UVA/UVB protection vs. leading sport lines” next to a chart.
The big problem, in my opinion, was that Coppertone’s line included SPF 15 to SPF 70 products, whereas Neutrogena’s line began at SPF 55, leading to very different averages. The other problems were, Coppertone alleged, that Neutrogena double-counted UVA, since it was already measured by the PFA test, and because Neutrogena’s PFA testing wasn’t sufficient to support the “best line of sun protection” claim.
The court found that the bar graphs constituted an implied establishment claim: a signal that numerical values for UVA and SPF were “derived from some manner of product testing.” Neither party presented the court with enough evidence to analyze Neutrogena’s PFA testing, so the court found that Coppertone hadn’t met its burden to show that the tests were inappropriate/unreliable. Thus, notwithstanding “obvious deficiencies” in Neutrogena’s substantiation, this claim failed. This result is a good reminder that even when an establishment claim is challenged, the plaintiff has the burden of proof on something: to cast sufficient doubt on the quality or relevance of defendant’s studies.
On the motion for preliminary injunction, the court had refused to find literal falsity for the differentials between the combined SPF and UVA bars. Coppertone offers products from SPF 15-SPF 70, average 38.5; Neutrogena offers SPF 55-SPF 70, average 64; and the difference across the lines is 40%. Because the SPF portion of the bars in the ad differed by about 40%, there was no literal falsehood. Likewise, the PFA scores across the entire product lines were approximately correct, showing a near 100% difference in relative heights based on a 30.2 average for Neutrogena and 16.7 for Coppertone.
However, the court found that the bar graph was misleading in other ways. First, using UVA and SPF as separate measures of protection. UVA is a kind of ultraviolet light, not a measurement of skin protection. Neutrogena argued that there was nothing false about using PFA scores to make UVA claims, but Neutrogena didn’t use PFA scores to draw its comparison. Instead, it stacked a UVA value on top of a SPF value. On the motion for preliminary injunction, the court had found that this was an ambiguous message, not unambigously double-counting.
After trial, the court found literal falsity. Due to the predominance of UVB in SPF measurements, SPF is commonly understood to refer to UVB, and the FDA has issued a statement to this effect. But at least 10% of SPF correlates to UVA. The ad is literally false because it provides a separate UVA quantification which is “neither an accurate description of protection nor completely independent of the SPF value.” It conveys, by using different labels, that UVA and SPF are different measurements, and this is “indisputably not so.” Though Coppertone and Neutrogena were both treated the same, the “absence of bias” caused by the double-counting doesn’t eliminate the falsity.
The core of the implied falsity argument was that consumers perceive the ad (which was labeled with brand names, not SPF numbers) to reflect an “apples-to-apples comparison of similarly-labeled sunblocks”—Neutrogena SPF 70k to Coppertone SPF 70k, for example, while in fact the comparison is an average and the number of products compared isn’t disclosed. (I would have been willing to find this message conveyed by necessary implication. It doesn’t make sense to compare one brand’s SPF 35 product to another’s SPF 20—even accepting, as a commenter on my earlier post pointed out, that above a certain level all sunblocks provide the same protection; in fact that position makes the ad even more dubious.)
But because the court saw this message as one conveyed only by implication, Coppertone had to prove consumer reception. Coppertone offered a survey conducted by Gary Ford, who concluded that “consumers perceive that they can get greater protection … and/or durability from Neutrogena than Coppertone after seeing [the Best line ad].” He found a 24% difference between test and control groups. But his testimony was brief and summary-level, and Coppertone redacted the details, apparently in response to Neutrogena’s pretrial objection; thus the court found that Coppertone hadn’t met its burden to prove actual deception.
The counterclaim dealt with a Coppertone Sport ad showing athletes running in the ocean, applying sunscreen, then running/swimming/biking. The voiceover says, “You give your sport 100%–so should your sunscreen. Coppertone Sport® spray and Neutrogena spray provide the same amount of sun protection. Coppertone Sport® gives you better coverage. Waterproof, sweatproof–Coppertone Sport®–100%.” “Better coverage” accompanies an image in which a Coppertone spray user is depicted covered by blue shading, while a Neutrogena spray user is covered by slightly lighter blue shading. Text at the bottom says, “Simulated coverage study results. Among sprays with comparable SPF.” One version of the ad also had a visual where the Coppertone user was labeled “100% sunscreen formula” and the Neutrogena user “28% chemical propellant,” with a voiceover to the same effect.
The court agreed that “better coverage” was an establishment claim not supported by sufficiently reliable tests. To date, Coppertone hasn’t performed an in vivo coverage study on either spray featured in the ad, though it has tested other non-sport-branded products. In that earlier test, Coppertone Ultra-Guard outperformed Neutrogena Fresh Cooling Mist only in density, and there was testimony that density alone provides better coverage, as well as corroborating in vitro evidence.
The court disapproved of running a head-to-head comparative ad without testing the actual products. Coppertone argued that its in vivo study showed that its method of delivery provided better coverage than Neutrogena’s aerosol, regardless of formulation. The court found this conclusion “too sweeping” to be based on a comparison of just one of each party’s products. Neutrogena’s sport spray has a different formulation and different orifice size for its aerosol can than its Fresh Cooling Mist. A J&J scientist (Neutrogena’s parent company) testified that these specific formulation differences made extrapolation of test results impossible, and a consultant with experience in aerosol design made the same point about ingredients and orifice design.
Though they didn’t detail how these differences affected performance or substantiate the claim with scientific evidence, Coppertone’s witness admitted that they might produce different results in vivo. Coppertone’s director of packaging said that there were “too many other factors” to “categorically” state that a small orifice results in a particular spray. The court found this convincing as comporting with the “generally-accepted scientific principle that compositions of different molecular weights tend to have different properties. In this context, some differences in the formed aerosol droplets and their trajectories appear to be more likely than not.”
Even testing the right products, the in vivo test was insufficiently reliable to support a coverage claim. The test had no specific goals for substantiation; it looked at density, evenness and thoroughness, and Coppertone chose density after the fact when that was where Coppertone prevailed. But density doesn’t equal “coverage.” Ultimately, Coppertone used a non-standard protocol (there is no standard one) with no particular goal in mind, and the analysis “was driven by the results obtained by the tests.” (In a footnote, the court stated that it didn’t want to discourage novel protocols; the issue here was not novelty but overall unreliability, “a portion of which” is attributable to the lack of protocol or cited industry support for Coppertone’s methods.)
Given the differences between the products tested and the products in the ad, there was no “true scientific basis” for attributing the Neutrogena Fresh Cooling Mist data to Neutrogena Ultimate Sport. Coppertone “elected not to test the competitive product at the heart of its advertisement and, instead, superimposed data from an in vivo test of another competitive product into its commercial. This type of unsubstantiated ‘scientific’ claim is precisely what the Lanham Act seeks to prevent.”
The court also addressed the “28% chemical propellant” statement in one version of the ad. The court found that the “ultimate import” of the ad was that the Neutrogena sunscreen “as applied on the athlete” was 28% propellant. This was undisputedly false: though the can is 28% propellant by weight, that primarily evaporates when the aerosol is used. The ad “contrasts two sunscreens, not two cans or delivery methods.” The visual—overlaying the words “Neutrogena” and “28% propellant” on the bare chest of an athlete—reinforces the message that 28% is applied to the body. There was no qualifying statement or other clarifying language. This was a literally false message, unambiguously conveyed by necessary implication.
In conclusion, the court commented that these ads were “essentially meaningless and, therefore, of no help to the consuming public who, finally, is paying attention to the health concerns presented by overexposure to the sun.” The consumer was the real loser.
Schering-Plough Healthcare Products, Inc. v. Neutrogena Corp., — F.Supp.2d —-, 2010 WL 960635 (D. Del.)
[thanks to florian and rebecca tushnet via cc]
How Canadian ISPs Are Responding to Net Neutrality Rules
Last fall, the Canadian Radio-television and Telecommunications Commission issued its much-anticipated Internet traffic management ruling, better known as the net neutrality decision. The case attracted national interest as the CRTC established several key requirements for Canada’s Internet providers.
These included new transparency obligations that forced ISPs to disclose their network management practices, such as why the practices were introduced, who will be affected, when it will occur, and how it will impact users’ Internet experiences (down to the specific impact on speeds). The CRTC also opened the door to complaints about network management practices by establishing a test that any harm to users be as little as reasonably possible.
Several months later, Canada’s ISPs have had ample time to comply with the new requirements, yet a review of the policies from the biggest ISPs – including Bell, Canada Rogers Communications Inc., Shaw Communications Inc., Telus, Cogeco, Inc. and Groupe Vidéotron – reveals a decidedly mixed bag.
Two of the six providers – Telus and Vidéotron – do not have explicit network management practice disclosures since neither currently uses throttling or traffic shaping technologies that limit the speeds of some applications. Of the remaining four providers, no one makes it easy to find the disclosures and at least two may not be compliant with the CRTC requirements.
Bell features the most detailed disclosure, providing specific information about its policies and their impact. While critics may object to the positive spin the company uses to describe limitations on its service, it has done precisely what the CRTC asked. The Rogers policy is not quite as extensive, yet it also covers much the same terrain, including a description of the policy, the frequency of traffic shaping, and the resulting limitations in their service (including the specific impact on speed).
By contrast, neither Shaw nor Cogeco appear to meet the CRTC requirements. Shaw’s policy, which can be found within its terms of use, does not disclose the actual speeds users encounter when it throttles peer-to-peer activity. Cogeco, which implausibly claims “customer experience is never affected by the application of [its] measures,” similarly does not disclose the speeds that result from its throttling practices.
Not only are two providers arguably failing to meet the transparency requirements, but some traffic management practices may be ripe for complaint.
Telus and Vidéotron once again get a pass, since neither uses throttling technologies, opting instead for economic measures that add additional costs for heavy broadband users. Shaw’s policy also appears compliant with the CRTC minimal harm threshold, since it limits its throttling practices to actual instances of congestion on specific segments of its network.
Meanwhile, Rogers and Cogeco continuously throttle all upstream P2P traffic. Both providers admit that the limits on their service occur on a 24 hour, 7-day basis, regardless of whether the network is actually experiencing any congestion. For example, Cogeco claims “it is [our] experience that congestion created by P2P can occur at any time within a 24-hour period.” This may be true, but the failure to limit throttling activities to instances of actual congestion is surely grounds for a CRTC complaint.
While Bell limits its throttling practices to specified periods, its defined period is so broad that it too may be the target of a complaint. Bell discloses that its throttling practices, which target upload and download traffic, runs from 4:30 pm to 2:00 am. By covering nearly half the day, the company could face questions about whether the policy limits harm as much as reasonably possible.
The CRTC’s net neutrality guidelines garnered well-deserved plaudits last year, yet the true test will be whether the guidelines will be enforced effectively. Last month, the CRTC sent letters to several ISPs – including Shaw, Rogers, Cogeco, and Bell – seeking action. The ISPs have yet to respond.
[thanks to jason walton and michael geist via cc]
