There's a neat little rule in press coverage: three stories makes a 'trend' even if there's not much more to it. This works particularly well on stories where you're trying to scare people into worrying about something 'bad' happening out there. Of course, rather than explore how widespread the problem is, the report usually just quotes a few biased individuals and spreads the message of 'fear, fear, fear!' Witness this story in USA Today claiming that sexual predators are using gaming consoles to target kids. It hits all the points: scary situation, lists out three cases, quotes a few police officers claiming it's a big deal -- but doesn't provide any evidence or stats on how widespread this really is.

You would think that the press would have learned to be careful about this, given that a whole bunch of studies came out in the last year showing that the press greatly exaggerated the 'threat' of predators on social networks, as they're really not that widespread and the actual threat is minimal. But I guess reality and facts don't sell as many newspapers as blind fear mongering. So, while I'm sure that this is happening in a few isolated cases, it's hard to believe that this is particularly widespread. If it's not really happening much on social networks (where this sort of 'grooming' would be easier), it seems unlikely that it's widespread on gaming consoles. And, of course, most kids know better than to engage with such strangers online, anyway.

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Right on the heels of the awful court decision in France saying that eBay can be barred from selling even legitimate products, it appears some companies in England are shooting for a similar ruling. Jon Pyser writes in to let us know that a bunch of baby stroller companies in the UK are pushing hard to stop retailers from selling their legitimately purchased products on eBay. Effectively, they're trying to put EULAs on baby strollers suggesting that the retailer buyers don't actually have the right to resell what they've legally purchased. Not only is this questionable from a legal standpoint, it's dumb from a business standpoint. A healthy secondary market for products increases the value of the product itself, since buyers intrinsically recognize the potential resale market in determining the value of purchasing the original. In fact, one retailer notes that in taking away eBay sales, it's made selling that brand of stroller unprofitable. You would think, after 200+ years of economists explaining how protectionism hurts your own market, that people would understand this concept by now.

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There are some competing opinion pieces in the LA Times, starting off with one siding with J.R.R. Tolkien's kids in their legal fight for royalties from the Lord of the Rings trilogy movies:

Tolkien obviously isn't Peter Jackson, who directed the franchise, or Liv Tyler or Viggo Mortensen, who starred in it, or New Line Cinema, the studio that financed it, or Miramax, which owned the film rights for a second but couldn't get the movie made, or producer Saul Zaentz, who bought the rights in 1976. He's just the guy who dreamed up the cosmology, the whole shebang of hobbits and dwarfs, orcs, ents, wargs, trolls, whatnot.

Then, there's the other side, pointing out that while it might be true that they legally deserve the money, it doesn't make any common sense:

I find it offensive to common sense to argue that the heirs of J.R.R. Tolkien (who are as dismayingly numerous as Kennedys in the court filing) are entitled to a shilling for work in which they had no hand and which was completed in 1949.

Most of the essay focuses on the question of the length of copyright, which we all know has been expanded to ridiculous lengths. However, it does seem like a reasonable question to ask why the kids of Tolkien deserve money for a movie they had nothing to do with based on an idea they had nothing to do with.

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After reports said that UK broadband ISP Virgin Media would become the recording industry's copyright cop, Virgin came out denying it, saying that kicking users off the internet was draconian. However, it later admitted that it would send warning letters to people, based on the flimsy evidence used by the recording industry. Now Virgin has started sending out those letters, claiming that it's just sending letters and that there is 'absolutely no possibility' that it would ban file sharers from connecting to the internet. That must explain why it sent the first batch of warning letters to people in envelopes that read: 'Important. If you don't read this, your broadband could be disconnected.' Absolutely no possibility, huh? It's not necessarily bad that Virgin would let customers know that the recording industry had spotted their IP -- but it seems wrong to send out these messages that completely buy into the industry's spin on what that means. And, given how hard the recording industry is pushing governments to make 'three strikes laws,' that 'absolutely no possibility' is looking less absolute and more possible every day.

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Mark Cuban has a weird obsession with trying to convince people that YouTube is illegal, despite plenty of evidence to the contrary. His latest discussion on the topic is a real stretch. In response to the bad ruling that gives YouTube log files to Viacom, Cuban is saying that Viacom can now wipe out Google's DMCA safe harbors by showing that the company filters porn.

This is simply incorrect. The DMCA safe harbors do not claim that if you filter any material you must filter it all. Filtering out porn is a different beast than filtering out infringing content. You can tell that porn is porn simply by looking at it. But you cannot tell if content is infringing just by looking at it. It could be put up there on purpose by those who own the copyright. It could be fair use. It's not as simple as just saying that because YouTube removes porn it loses its safe harbor provisions. Also, while not specifically concerning the DMCA, other lawsuits involving the similar safe harbors in the CDA have found that intervening with content on a site does not mean that the safe harbors go away. Having knowledge that some content is porn is quite different than having knowledge of what content is infringing on someone's copyright.

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We've covered the concept of SLAPP (Strategic Lawsuit Against Public Participation) suits plenty of times before. These are bogus lawsuits filed to try to bully a critic into shutting up. In one such case, involving an incredibly broad subpoena against a librarian blogger compiling information on the potential link between mercury and autism, a magistrate judge has seriously smacked down the lawyer who filed the subpoena. The blogger had merely published on her blog information about the fees the lawyer in question had received. In response, the lawyer subpoenaed a ridiculous amount of information from her: 'all documents pertaining to the setup, financing, running, research, maintaining' of the blog, 'including communications with representatives of the federal government, the pharmaceutical industry, advocacy groups, non-governmental organizations, political action groups, profit or non-profit entities, journals, editorial boards, scientific boards, academic boards, medical licensing boards, any 'religious groups (Muslim or otherwise), or individuals with religious affiliations,' and any other 'concerned individuals.''

The judge quashed the subpoena quickly, but has now hit back really hard on the lawyer, Clifford Shoemaker, for filing it in the first place:

Shoemaker has not offered a shred of evidence to support his speculations. He has, he says, had his suspicions aroused because she has so much information. Clearly he is unfamiliar with the extent of the information which a highly-competent librarian like Ms. Seidel can, and did, accumulate. If Shoemaker wanted to know if Ms. Seidel was in part supported by or provided information by Bayer, he could have inquired of Bayer or limited the Seidel subpoena to that information. Instead he issued the subpoena calling for production of documents and a deposition on the day before he stipulated to dismiss the underlying suit with prejudice. His failure to withdraw the subpoena when he clearly knew that suit was over is telling about his motives. His efforts to vilify and demean Ms. Seidel are unwarranted and unseemly....

I find that Clifford Shoemaker violated Fed. R. Civ. P. 11(b)(1) and Rule 45(c)(1).... The 11(b)(1) violation may also violate Virginia's Rules of Professional Conduct .... Clifford J. Shoemaker’s action is an abuse of legal process, a waste of judicial resources and an unnecessary waste of the time and expense to the purported deponent.

The Clerk of Court is directed to forward a certified copy of this order, the motion to quash, the show cause order, and the response of Shoemaker and Seidel to the appropriate professional conduct committee of the Virginia State Bar in order that it may be made aware of Clifford J. Shoemaker's conduct and so that those authorities may take whatever action they deem appropriate.

As a sanction from this court, Clifford J. Shoemaker is ordered to attend within three months, a continuing legal education program on ethics and on the discovery rules in the Federal Rules of Civil Procedure. He is ordered to file a certification of completion of the programs.

Now that's a smackdown.

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Two different themes we've discussed here quite often are (1) that movie theaters need to stop worrying about piracy, and focus more on improving the moviegoing experience and (2) that advertising is content -- and it better be good content if you want the advertising to be effective. That's why it's somewhat encouraging to see that movie theaters are now experimenting with much more entertaining and interactive 'pre-show' advertising. They're doing things like using motion sensors to have the audience 'play' a game as a group, or having them use their mobile phones to vote on certain questions on the screen and immediately showing the results. That latter example may be doubly surprising considering how theaters these days are so anti-mobile phone. Still, while this is a move in the right direction, it's the wrong thing to be focusing on at this point. Improving the overall experience is much more important than making the pre-show ads better, so hopefully this is only one small part of what theaters are working on these days.

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A new survey on broadband adoption in the US suggests that broadband adoption in the US may be leveling off, or stalling out completely as the numbers aren't all that different than they were at the end of 2007 (55% have broadband now, compared to 54% in December). Of course, there are a variety of different groups out there trying to measure broadband penetration in the US, and they all seem to turn up different numbers -- so these numbers shouldn't necessarily be taken as fact. The report suggests the economic situation may have something to do with it, though there appears to be a variety of reasons that factored into the decision of many not to sign up for broadband.

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In the ongoing trainwreck that is Viacom's misguided lawsuit against YouTube (the one they would be better off losing) a judge has come out with a ruling on evidence that Google has to hand over to Viacom -- and it's being portrayed in the press as both a win and a loss for Google. On the 'win' side, Google does not have to hand over the YouTube source code (or the source code of its filtering system). This makes sense, as the source code is rather meaningless here, and this request was clearly a reach from the start.

However, much more troublesome is the judge's ruling that Google does need to hand over log files including the IP address and usernames of people who viewed YouTube videos. This represents a huge violation of privacy and a clear violation of the Video Privacy Protection Act (VPPA). This was the law we were just discussing, due to a lawsuit concerning Blockbuster revealing rental info via Facebook's Beacon program. It was originally passed after the video rental history of Supreme Court nominee Robert Bork was released in the press. The idea is that what movies you rent should be private info not to be shared.

The court pretty much ignored this law, only mentioning it in a footnote, suggesting that it only applies to video tapes. But, as the EFF points out in the link above, the law actually says 'prerecorded video cassette tapes or similar audio visual materials.' But, more to the point, it is not at all clear why Viacom should need this specific information. If it wants to show numbers of people who viewed certain videos, it seems that aggregate info should be sufficient. Having Google hand over much more info doesn't seem to serve any purpose related to the legal questions involved in the case. Update: There are now claims that Viacom will be very limited in how the data can be used -- with the threat of a contempt of court charge if anyone other than the lawyers involved in the case and specific experts see the data, but that's really not sufficient for privacy purposes. There's no way to make sure the data only stays in those hands, and even so it's still a violation of the privacy of users.

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The classic concept of how to force someone to think for themselves rather than mindlessly obey authority is to have two equally powerful authority figures demand that the individual do the completely opposite actions (an example: having two top generals on either side of a low ranking soldier, one demanding he sit down, and the other demanding he stand). Somehow, though, I doubt that's the reasoning behind conflicting messages coming from the US government concerning whether or not you should carry your social security number on you. Jim Harper points us to the fact that the Federal Trade Commission has suggested it's not wise for American citizens to carry their social security number with them in their wallet -- yet other government agencies seem to require it.

Medicare and the Defense Department each issue cards with the person's SSN included. Medicare seems particularly conflicted about the whole thing. It refuses to get rid of cards with SSNs, saying that 'it would be too expensive.' Instead, in order to deal with the risk of identity theft over this issue, it suggests that you only carry the card with you when you think you might need it: 'don't carry it with you unless you know you're going to need it.' In other words, always make sure to properly predict that heart attack or stroke ahead of time so you know to carry the card with you. Of course, Medicare also publishes a conflicting pamphlet that reminds people: 'Carry your card with you when you are away from home.' Mixed messages indeed.

Then, of course, the FTC also recommends that you not write your social security on any check, as that's an easy way for ID thefts to get a hold of it. Of course, on the other side, you have the IRS, who asks taxpayers to write their social security number on the checks you send in. So will the FTC now go after Medicare, the Defense Department and the IRS for helping to cause identity theft? Somehow I doubt it.

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Back in November, the news broke on the Friday after Thanksgiving that the federal government routinely asked for and received information from mobile phone operators about the location of various mobile phones (effectively tracking their owners) without bothering to show any sort of probable cause. This should raise plenty of concern (especially combined with the warrantless wiretapping program), as it effectively would mean that if you own a mobile phone, you've given the gov't the freedom to figure out where you are at any moment in time with no probable cause.

The EFF and the ACLU filed Freedom of Information Act requests to find out details of the program, which were (not surprisingly) denied by the Justice Department. The two organizations have now sued the government to find out more about these programs. Given the government's reaction to similar lawsuits on wiretapping, don't expect much info to come out of this lawsuit -- and do expect a vigorous attempt to get the case dismissed with various bogus claims of 'state secrets' and 'national security.' It all comes down to the same basic thing, though. The government seems to think it's above the law.

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For a while now, we've been pointing out how, for advertising to be effective, it also needs to be good content that people don't just 'not mind' seeing, but which they're willing to actively seek out. It appears that automaker Kia has decided to go with the exact opposite strategy. Reader Brooks writes in to point us to the news that Kia's new marketing director in the US doesn't want people entertained:

'We don't want to spend a good chunk of our time in a 30-second spot trying to entertain people.'

That's part of his plan to move away from a series of rather entertaining commercials that have provided plenty of free advertising for the firm, as people passed them around virally. Apparently, Kia would prefer that no one help them advertise and, indeed, that no one actually watches their ads. Time to think again, Kia. If you want advertising to be effective, it does need to entertain people.

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In the past, we've covered plenty of stories about social engineering to get people to admit stuff they shouldn't -- suggesting you really just need to ask people to give up personal info and they will (sometimes giving them a gift helps, but just asking alone will often do the trick). The latest study does go a little deeper, however, suggesting that the more informal the setting, the more likely people are to cough up info. For example, it found that when those asked for confidential information were promised that it wouldn't be misused they were less likely to hand over the info. Instead, if there were no promises about what would be done with the info at all, people felt that it was more informal and were more willing to give up the info. Another experiment asked people to reveal 'bad' activities to a website. In one test, the website was made to look like a university website, and in another an informal site with the title 'How BAD are U??' Not surprisingly, the latter got a lot more people to cough up the details of bad behavior. In that case, I'd even wonder if the 'competitive' nature of the question (suggesting that you should want to be 'badder' than others) also helped contribute to the openness of individuals.

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Here's one for the 'didn't quite think that through, did you' files. Gizmodo points us to the news that British authorities trying to prevent illegal trash dumping put a hidden camera at a popular dumping site. The only problem was that they disguised the hidden camera (which cost somewhere around $20,000 -- I have no clue why it cost so much) as a trash bag, and neglected to tell the folks in charge of cleaning up the site. So, yes, they threw out the hidden camera. Whoops.

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We were just complaining about the fact that governments should be exposing APIs on certain government data so that people can create more useful services out of them -- and it appears that someone in the UK was having similar thoughts. The government is now opening up a bunch of data to whoever wants to play with it. Not only is the gov't encouraging people to make mash-ups with the data, it's actually offering cash prizes to those who come up with the best results. Nice to see a government doing something smart.

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While there was some interesting chatter around some reports back in April that the last eight years of patent appeals board judges may have been unconstitutional, as we noted at the time, the whole thing was really a very, very minor procedural point. Effectively, the constitution requires the Secretary of Commerce to make the appointments, but a change in the law in 2000 allowed the Patent Office director to make the appointments. Of course, the reality of the situation is that if the Commerce Secretary were making the appointments, he would almost certainly just rubberstamp the recommendations from the PTO director -- and it seemed silly to make a huge deal of it in court (as one company was doing to try to shake up new interest in the patent infringement case it was losing).

While some commenters here tried to make it out to be a big deal, it's good to see that Congress looks ready to apply a quick fix to the situation, making sure that the Commerce Secretary will officially make all future appointments, with the 'help' of the PTO director (in other words, nothing actually changes in practice). Also, the bill in question would block lawsuits concerning the 40 judges appointed in the interim over this particular issue. Give your opinion for or against the bill here: While there are tons of problems with the patent system, finding a tiny procedural screwup and using it to send the entire system into chaos is not the answer. It doesn't help anyone -- and, in fact, would almost certainly backfire in bad ways, as it would focus everyone's attention on the wrong issues. Let Congress close the procedural loophole, and let's focus on the core issues surrounding the problems of the patent system, such as the ways its acting to hinder, rather than encourage, innovation.

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We were one of a very small number of people who actually saw some logic behind Blockbuster bidding for Circuit City -- though, it seemed unlikely that Blockbuster viewed the purchase in the same way we did. Most people assumed (probably correctly) that Blockbuster didn't really have much of a plan at all, other than to merge the two struggling companies and have an even bigger mess on their hands. Blockbuster has now withdrawn the offer to buy Circuit City, gamely claiming that it has to do with 'market conditions' and a better understanding of just how awful Circuit City's books appear to be. That's press release talk. What's more likely is that Blockbuster realized that everyone was right: it would screw up the merger and make a bad situation worse.

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Laws passed as an emotional reaction to a tragic situation are almost always bad laws. The state of Missouri has signed into law a bill to make online harassment a felony. This is in response, of course, to the infamous 'Lori Drew/Megan Meier' case that has received so much attention. Of course, when you look at the facts of the case, it's not even clear if this law would have mattered. Drew didn't set up the MySpace account to harass Meier, but to find out what she was saying about her daughter. The 'harassing' messages were actually sent by another teen, and weren't meant as harassment either, but as an (extremely misguided) attempt to get Meier to stop contacting the 'fake' person. It's certainly understandable that people feel that something should be done, since a young girl ended up killing herself, but rushing into laws won't necessarily fix the situation at all. Also, it needs to be asked: if the same set of facts existed, but the boy who made Meier angry was real instead of fake -- would he also have been guilty under this law? If so, a lot of angry messages between kids having silly school spats are going to be court material.

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There have been a series of lawsuits over the years concerning whether or not magazines could create CD-ROM archives of their magazines without having to pay all their freelance authors again. The court rulings have been mixed, to say the least -- with some ruling one way, and others ruling the other. The end result was some rather twisted logic that suggested magazine publishers could republish magazines via CD-ROM, but only if they did so in an incredibly annoying fashion.

Why? The reasoning shows the twisted impact of copyright law, but here we go: basically, if the CD-ROM is just a very limited reproduction of the magazines without any additional features (search being a key one), then it's okay. As soon as you add in anything useful that a digital version would allow (like search), then suddenly it changes the nature of the work, and it somehow violates the copyright of the writers. Bizarre? Indeed.

Luckily, however, in one of the ongoing cases, a full appeals court rehearing has reversed an earlier ruling, pointing out just how ridiculous this interpretation is. So, at least in this circuit, publishing a CD-ROM archive (even one with a search engine) appears not to violate the copyright of freelancers. However, as that article notes, what's truly scary is reading through the dissent by the judge who insists that the inclusion of that search engine really does change the very nature of the work, and who controls the copyright. Where it reaches the level of the truly absurd, however (as pointed out in the link above), is where one of the dissenting judges actually suggests that not allowing these archives to go forward wouldn't impact the historical archives of this content, because magazine publishers could just store archives that would only be available to be 'utilized primarily by researchers and scholars.' However, actually taking advantage of what the technology allows, and making it so everyone can benefit, and you've run afoul of copyright law. Luckily, the majority overruled this tortured reasoning.

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Ars Technica reviews Jonathan Zittrain's new book, The Future of the Internet and How to Stop It. Zittrain is by all accounts a smart guy and an engaging speaker, and it sounds like his book makes a lot of worthwhile points about the importance of open, 'generative' technologies. But I just can't get worked up about Zittrain's warnings that the dominance of open systems is a fragile, temporary thing. It seems to me that there's a basic tension at the heart of Zittrain's argument. On the one hand, he argues (correctly in my view) that open platforms are better for innovation because of their lower barriers to entry. On the other hand, he wants us to believe that despite that inherent advantage, open technologies are on the brink of being eclipsed by closed platforms like the iPhone.

I think this misses a couple of important points. In the first place, I think Zittrain draws the wrong lessons from history. Zittrain himself notes that until the 1990s, the world was full of proprietary networking technologies and computing platforms that had big advantages over open technologies like TCP/IP, Unix, and the mostly-open PC platform. Open technologies had a few advantages of their own -- most notably government support of TCP/IP -- but open platforms were definitely the underdogs in many respects. And then, of course, the open platforms utterly destroyed the closed ones. Almost everyone now uses TCP/IP, while AOL is now little more than a mediocre website. Virtually all desktops and laptops -- including Macs and a lot of Unix workstations -- now largely share a common architecture. And almost every operating system not made by Microsoft is built on some versian of Unix.

Zittrain would have us regard all of this as some kind of fluke or lucky break, that the whole thing could come crashing down at any minute. But I think it's evidence that better technologies tend to win out in the marketplace. TCP/IP beat out AOL and other proprietary services precisely because open architectures enable more innovation. And once an open architecture comes to dominate a given market, it becomes harder, not easier for a proprietary product to displace it, because network effects create tremendous intertia on behalf of established open standards. I'm hard pressed to come up with any examples of a well-established open standard getting displaced by a closed one. Rather, what tends to happen is that new, proprietary technologies tend to get built on top of open ones. The top layers of the iPhone software stack may be closed, but it's built on TCP/IP, HTTP, and a host of other open standards.

It doesn't, therefore, make sense to view the iPhone as a threat to 'generativity.' The iPhone itself may not be 'generative,' but it's built on the same open standards as more open devices. That means that growing the iPhone market is a net positive for openness overall. True, people who buy an actual iPhone aren't getting the full advantage of generativity, but they are helping to further entrench TCP/IP and the web, platforms on which other more generative technologies can thrive alongside the iPhone. Moreover, if Zittrain is right that open platforms promote more innovation, which I think he is, then we should expect the same thing to happen at the top of the stack as happened at lower layers of the stack: over time, open mobile platforms like Android should enjoy more innovation than closed platforms like the iPhone, and the former should gradually displace the latter. Consumers tend to choose more open platforms over time not because consumers care about 'generativity,' per se, but because they want the phone with the best software, and open platforms tend to get the best software over time. And smart companies will tend to open up their platforms over time, lest competitors leapfrog them with a more open product. Indeed, as Mike pointed out a few days ago, that's already happening with Nokia's decision to open source its Symbian operating system.

Timothy Lee is an expert at the Techdirt Insight Community. To get insight and analysis from Timothy Lee and other experts on challenges your company faces, click here.

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