For the past few years, I’ve used Cronometer as a nutrition app. It’s pretty good for tracking food, exercise, and much more. I appreciate that it has very detailed nutritional data, and even when it doesn’t, I’m able to upload nutritional labels with just a quick photograph on my phone. It’s a nice app.
So I was quite surprised a month ago to receive an email from the company saying that they no longer had a contract with a former data provider, a company called Trustwell, and because of that, the company had to remove previously recorded data from past meals that I had logged.
We write to let you know that a former food data provider, Trustwell (Formerly ESHA), is requiring us to remove their foods from our database. We believe their positions are improper and violate U.S. laws. Nevertheless, we are in the process of removing Trustwell foods from our database.
The removal will happen no later than February 15, 2025, and may need to happen earlier based exclusively on the actions of Trustwell.
It then informs me that it needs to remove data from two meals I had logged, both of them from last April. The company suggests that: “If this older data is of importance to you, we recommend locating the items in your diary, and replacing them with alternatives from our database prior to their removal.”
It doesn’t much matter to me anymore since I don’t really care what I consumed back in April, but the whole thing seems preposterous. There are no intellectual property rights over nutritional data. Under the Supreme Court’s ruling in Feist, I can’t see how anyone could possibly claim copyright in such data. Under Feist, which was about phone numbers in a phone book, purely factual data (in that case, phone numbers) can’t be subject to copyright, even if someone goes around and collects them in a single database. The same principle applies to nutritional data — these are uncopyrightable facts, not creative expression.
It is possible, as some suggested to me on Bluesky, that there was a contractual agreement between Cronometer and ESHA to delete any data if the contract concluded. If such an agreement exists, it should be limited to the database itself, not people recording such data into their personal journals. Because it’s not “the database” that is being copied into people’s tracking journals, but merely the factual data about particular foods. In addition, the users are not bound to whatever terms Cronometer has in its contracts with others.
However, after digging into this story, some more details showed up, including that ESHA sued Cronometer back in September over this. The lawsuit claims that the agreement between the two companies was that Cronometer would only use ESHA data for “its own internal analyses” and not build the data into its product. Cronometer’s answer to the lawsuit says all of this is compete bullshit. It notes that the company directly helped Cronometer implement the databases into the publicly available software, that the two companies were regularly in contact about it, that ESHA employees told Cronometer how excited they were to check out the app, and how ESHA even asked Cronometer if they could release a press release about the integration.
Even more telling:
ESHA’s co-founder later downloaded a publicly-available copy of Cronometer’s
software and praised Cronometer for its use of the ESHA database within that software,
thanking Cronometer for “playing by the rules.”
Either way, it’s yet another unfortunate example of the world we live in where digital services mean that things you think you control can get ripped out from under you.
The reality is that this appears to be yet another thing ruined by private equity. The email mentions that Cronometer had a previous deal with ESHA, which is now Trustwell. It appears that new name was a result of a merger between ESHA and FoodLogiq, which was done in combination with an investment from the private equity firm The Riverside Company. It seems entirely likely that post-merger, Trustwell has made it more difficult/expensive for apps like Cronometer to use its nutritional data, and is now either demanding more cash or the removal of already logged foods from users.
Indeed, Cronometer says in its legal filing that the private equity goons who put together Trustwell really just want to break the deal they had with Cronometer in order to build a competing app:
What actually underlies this lawsuit is not any “secret” “scheme” by Cronometer,
whose use of the databases has always been wide open and publicly recognized by ESHA.
Instead, this lawsuit is part of a scheme devised by Trustwell and its investors to create a
monopoly for one of its other products: Food Processor®, a dietary tracking app that
competes with Cronometer’s products. This lawsuit is fueled by an infusion of private
equity money that purchased ESHA and formed Trustwell. Those private equity investors
are seeking to monetize their investment by illegally propping up Food Processor®’s
market through the pursuit of baseless litigations against smaller companies like
Cronometer to scare them out of the market with the threat of substantial legal
expenditures.
Once again, this is why we can’t have nice things.
