There have been a number of attempts over the past few years to revive the sagging news weekly magazine Newsweek (including an amusing attempt to stop being thought of as a news weekly, despite the name). There's also the still confusing merger with the website The Daily Beast. Still, old media tends to live on well past its sell-by date, as you can usually find enough advertisers who will pay just based on name recognition alone. However, it looks like Newsweek may really be reaching the end of the road as the latest issue apparently could only muster up a grand total of six advertisements. Kind of makes you wonder why they even bothered printing the magazine...

A San Francisco tour company is now suing Groupon because it doesn't like the company's ads that were placed on Google AdWords. As you probably know, Google AdWords involves buying up keywords for ads that will be shown when people search for those words. Part of the process is that you bid how much you're willing to pay per click, and Google sprinkles some of its magic pixie dust and ranks the ads on a combination of how much people are willing to pay... and how often such ads are clicked (i.e., how effective they are).

However, San Francisco Comprehensive Tours is claiming that Groupon put up false or misleading ads based on the types of terms it used to buy. Things like "San Francisco Tours," "Alcatraz Tours," and "Napa Wine Tours." Apparently Groupon bid a high amount, because its ads shot up the list and the tour company claimed it had to pay more itself to keep moving up the ad listing. Of course, that's just how AdWords works, so what's the problem? Well, according to the tour company, Groupon was being misleading, because most of the time it offers none of the things that were being advertised, though in a few rare instances it has offered those things.

I can certainly understand why the tour company is upset, but I'm not sure it should be legally actionable. First of all, assuming there was a legitimate competitor, and they did the exact same thing, there would be no problem. Thus, just having your ads pushed down by a competitor is not and should not be against the law. And, if that's the case, can the tour company really claim "harm" here? It could have faced the exact same issue from a competitor, or even from someone who just bought the keywords to advertise something else. So, the real issue is whether the ads were misleading. And, if that's the case, it seems like more of an issue for the FTC rather than a private company. In fact, I'm wondering if there really was that much "harm" to the tour company? After all, if someone really is looking for a Napa wine tour, and they go to Groupon and see no such tour being offered, they're likely to go back and visit the next compelling ad on the list. In other words, this seems like the sort of thing that should pretty quickly work itself out.

Ads can be controversial sometimes -- designed to attract attention. Most ads catch your eye with attractive people or shocking images, but the "best" ads also stick in your mind and remind you who the actual sponsor was. We're always interested in "good" ads (not the ads that get attention for how hated they are). So here, we've found some interesting ad-related articles and videos that demonstrate how ads can be entertaining.

The BBC picks 6 ads that it thinks changed the world. Don't worry: "Apply directly to the forehead" didn't make the cut. [url]

If you could save an online banner ad for later, would you? This sounds like a really bad copy of Instapaper.... [url]

LEGO has made a couple interesting short films. But still, I always forget that it's not Legos. [url]

Can any kind of internet meme effectively sell a mobile phone? If so, let loose the CaTz of advertising. [url]

One of those class action specialist lawsuit firms, who seem to file lawsuits mostly designed to make the lawyers money, rather than correct any sort of improper actions, has sued Apple and some app makers over supposed privacy violations. At issue is the fact that some apps pass on the unique UDID code that is associated with each iPhone to advertisers. This lets advertisers track the same user across multiple apps -- similar, in some sense, to a browser cookie. The "difference" is that a browser cookie is deletable, while you're stuck with your UDID. This all came out a couple weeks ago in a WSJ article, and since these kinds of lawyers are opportunists, they're always quick to jump on any lawsuit opportunity whenever the press highlights a story like this.

Not surprisingly, it appears this case is yet another attempt to abuse the CFAA (Computer Fraud and Abuse Act), which is generally thought of as an anti-hacking law, but which is continulously stretched and abused to pull in other situations. In this case, the lawyers are claiming that accessing the UDID without permission is the equivalent of accessing a computer without authorization. Think about that for a second and then realize how silly this is. No one is hacking anything to get this info. The info is made available, and so it's been shared. Using the CFAA here is ridiculous. They also seek to use a similar California anti-hacking law in a similar way. This is clearly not what those laws are intended for.

Furthermore, it seems silly to blame Apple for the way that some app providers are sharing data. To get around this issue, the lawyers rely on two key points. First, that Apple itself recently changed its terms to ban apps from sending data to third parties such as ad networks. Of course, most people realized this was not about protecting privacy, but about forcing developers to use Apple's own ad platform. Second, the fact that Apple approves each of the apps in the marketplace. I know that some people assume this automatically adds liability to Apple for anything those apps do, but that seems like a bit of a stretch as well. It's ridiculous to assume that Apple tests all aspects of an app, and thus becomes liable for anything those apps do.

All in all this looks like yet another attempt by some lawyers to take some fear mongering and make some money out of it. It's not going to do anything to protect anyone's actual privacy.

As DVRs usage and on-demand program watching increases, commercial breaks are becoming easier to skip. Product placement has long been discussed as a way to combat this trend, with shows like SNL getting into the act. However, if more shows are going to be placing products into their shows, it's important to remember that it's not just a matter of shoehorning a sponsor's product into the plotline. The soap opera, Days of Our Lives painfully illustrates this point with several embarrassingly awful product placements. Sure, the writing on soap operas might not be great to start with, but the product placement in these spots is so incredibly awkward, that it's hard to believe that the sponsors were happy with these ads. Surely writers struggled with trying to fit the term "Wanchai Ferry Chinese Food" into normal dialogue:

But, the phrase sounds painfully out-of-place, even in soap opera land, which, ironically, was created by Procter & Gamble as a platform with which to hawk their wares. Of course, it's not exactly clear if these are paid placements, since there's no active indication on the screen as such. Then again, when a bag of Chex Mix gets an obvious close up:

it certainly feels like a paid placement. These placements almost feel formulaic, when you start to watch them in succession. Product shot, check. Marketing message inserted in dialogue, check. This placement for Cheerios follows this formula perfectly, and ends with a hilariously melodramatic shot of the comely protagonist, with a huge box of Cheerios included inexplicably in the shot:

These placements are so bad that I almost wonder if this is yet another case of anti-product placement designed to muster negative sentiments for a competitors' products.

This one's just bizarre, but the story is making the rounds that Apple threatened to takedown Newsday's apps if Newsday didn't kill the following commercial that's been making the rounds: The commercial is marginally funny, but it makes no sense why Apple would get so upset about it. Apparently, the reason given so far is that the company doesn't like that the glass is shown shattering into large jagged pieces -- but it's not like that's going to cause people to go try to recreate the situation in the commercial. And, if the rumor is true, threatening to remove Newday's apps from the app store is just petty (which, it should be admitted, Apple seems to have no problem with). Of course, the end result of all this -- yet again -- is that more and more people are viewing the ad. And even I don't think Apple is so crafty as to issue the takedown just to get the ad more attention.

Sometimes you wonder if executives realize what they're saying before opening their mouths at times. In an interview with TheRegister, Yahoo's chief economist appears to happily admit to manipulating ad auction results in order to force advertisers to bid more:

"When someone has a really high ad click probability, they're very hard to beat, so it's not a really competitive auction," McAfee told The Reg. "So that they don't just win [every auction], we do squashing. This makes the auction more competitive.

"It's like handicapping. We handicap the people with the high click probability."

This, McAfee said, can increase Yahoo!'s revenues. "The bidders respond by bidding higher. The one who was destined to lose is now back in the race, so they bid higher trying to displace the number one, and the number one is trying to fend them off so they bid higher too.

"We can make the competition a bit more fierce using squashing, even on keywords where there's not much bidding."

While that may seem like a neat trick from an economics standpoint, it certainly seems like a pretty questionable business practice from an advertisers' standpoint. Having a company secretly manipulate the results of an auction to make participants pay more? That sounds like fraud. As Eric Goldman notes, this appears to be a lawsuit waiting to happen.

Last fall we wrote about how a company named Ultramercial had sued Hulu, YouTube and WildTangent over patent 7,346,545 for requiring people to watch an ad before being able to access content. It resulted in an interesting discussion in our comments, where some patent system defenders insisted that the patent was perfectly legit. Unfortunately, the court disagrees with those folks. It has ruled that the patent is not valid (the ruling covers Hulu and WildTangent -- YouTube was dismissed from the case). Perhaps most interesting is the fact that the court chose to use the "machine or transformation test" for judging the patent. While some have read the Bilski ruling to "reject" the "machine or transformation" test, that's not quite true. It just said that's not the only test. The court in this case went through an explanation for why it felt this was still an appropriate test:

It is important to note, however, that even after the Supreme Court's decision in Bilski, the machine or transformation test appears to have a major screening function--albeit not perfect-- that separates unpatentable ideas from patentable ones. Indeed, four of the Justices, listed on Justice Stevens's concurring opinion, would have taken the machine or transformation test to its logical limit to hold that business methods are categorically unpatentable. Id. at 3257 (Stevens, J., concurring). Joining a concurring opinion, Justice Scalia, who signed on to parts of the plurality opinion as well, would not hold all business methods unpatentable, but would agree with Justice Breyer that "not [] many patentable processes lie beyond [the] reach [of the machine or transformation test]." Id. at 3258 (Breyer, J., concurring). In sum, at least five (and maybe all) Justices seem to agree that the machine or transformation test should retain much of its utility after the Supreme Court's decision in Bilski. Therefore, even though the machine or transformation is no longer the litmus test for patentability, the Court will use it here as a key indicator of patentability.

And, using that test, the court finds this particular invention not patentable subject matter. It also points out that the patent is really just covering an abstract idea (the reasoning used by the Supreme Court to reject the Bilski patent):

At the core of the '545 patent is the basic idea that one can use advertisement as an exchange or currency. An Internet user can pay for copyrighted media by sitting through a sponsored message instead of paying money to download the media. This core principle, similar to the core of the Bilski patent, is an abstract idea. Indeed, public television channels have used the same basic idea for years to provide free (or offset the cost of) media to their viewers. At its heart, therefore, the patent does no more than disclose an abstract idea.

I'm guessing this will likely be appealed, so it should be an interesting case to follow. You can read the full (quite clear) decision below:

Two supermarkets based in the northeast are involved in a legal dispute after one of them, Stop & Shop, put out an advertisement with the tagline "Save More Every Time You Shop." Competing market A&P (which few people remember actually stands for The Great Atlantic & Pacific Tea Company) is complaining that it's false advertising to say that you'll save every time. While I generally tend to have a problem with false advertising claims, you do have to wonder if a throwaway line like the one here actually leads anyone to believe that "every time" they go to this one store, they'll save money. A&P does have a few more specific claims about the details of the ads, which show two shoppers who apparently saved a certain amount compared to the same items bought at a nearby A&P (including the fact that they have no records of bills in the amount in question at the local shops on the days the comparison was supposedly made). Those might have a bit more sway, but it seems like a silly tagline is unlikely to really lead to any actual harm in terms of people believing it to be true.

One of the claims we regularly hear from supporters of online newspaper paywalls is that even if it decreases page views, it can actually increase ad revenue, because the publisher has a lot more information about the audience and can sell that for more -- and, in theory, the audience is more loyal and engaged. We still haven't seen that in practice, of course. And it's worth pointing out that Cablevision, who put up a disastrously ill-conceived paywall for the newspaper Newsday, is now reporting that ad revenues continue to decline pretty substantially. To be fair, some will point out that Cablevision doesn't care that much, and is really just trying to use Newsday to stop people from dumping their cable TV/broadband offerings. That may be true -- and the same report does note that Cablevision added both TV and internet subscribers -- but it's worth pointing out for other news publications who make the claim about how paywalls can boost ad revenue.