Recently I wrote about a dreadful article in USA Today hyping up the "oh-no-think-of-the-children problem" of predators using console games to seek out kids. This followed similarly bogus news articles hyping up the threats of predators on social networks. Yet, all the "panic" raised by those articles has politicians practically shoving each other aside to introduce legislation against those social networks, or just various Attorneys General threatening those social networks without any evidence that there's a significant problem, other than a few totally hyped up news articles.

It turns out that a PhD Candidate at NYU, Alice Marwick has recently published a paper discussing exactly this type of "moral panic," focusing on the situation in 1996 in which Time Magazine famously published a scare mongering article about porn online, now known as the Rimm Report. Sean Garret, who pointed me to Marwick's paper has a good analysis of the Rimm Report's ripple effects as well (as does Adam Thierer). Basically, the report, which claimed that 83.5% of images online were porn was based on ridiculously faulty premises and research. It was almost entirely wrong.

And while Time Magazine came out of it looking bad, it didn't stop politicians from using the "moral panic" created by the article to push through the Communications Decency Act -- which after many years of wasted taxpayer money was eventually declared unconstitutional. What's scary though, is how this process works: newspaper basically overhypes a non-story into a "big scary trend" and almost immediately politicians start pushing for questionable "save the children!" legislation:

This paper is about moral panics over contemporary technology, which I call "technopanics." I use two examples, the cyberporn panic of 1996 and the contemporary panic over online predators and MySpace, to demonstrate the links between media coverage and content legislation. In both cases, Internet content legislation is directly linked to media–fueled moral panics that concern uses of technology deemed harmful to children. This is of particular interest right now as a new Internet content bill, the Deleting Online Predators Act (DOPA), is being debated in Congress. The technopanic over "online predators" is remarkably similar to the cyberporn panic; both are fueled by media coverage, both rely on the idea of harm to children as the justification for Internet content restriction, and both have resulted in carefully crafted legislation to circumvent First Amendment concerns. While both panics have their roots in legitimate concerns, I am not primarily concerned with the extent of the purported harms. However, my research demonstrates that the legislation proposed (or passed) to curb these problems is an extraordinary response; it is misguided and in many cases masks the underlying problem.

The paper goes on to rip apart the media in blowing up these technopanics, often using outright incorrect or made up data, such as the idea that "50,000 sexual predators are online at any given time," a favorite of former Attorney General Alberto Gonzales. The problem is that this number was made up out of nowhere. In tracking down where the number came from, the sources basically admit they pulled it out of thin air, with one saying that the number 50,000 is a:

"Goldilocks" figure -- "Not small and not large." He added that it was the same figure that was used by the media to describe the number of people killed annually by Satanic cults in the 1980s, and before that was cited as the number of children abducted by strangers each year in the 1970s.

But that didn't stop Dateline NBC from using it repeatedly -- leading to politicians claiming it was fact. Marwick systematically goes through the various stats like this one used by politicians and destroys each one as being false or misleading. But, of course, neither the press, which popularized them, nor the politicians using them to push through legislation, are interested in the truth. They want sensationalism, because that helps both of them.

The paper concludes that this new law, DOPA, is targeting exactly the wrong thing (i.e., not the actual problem) and is merely a response to yet another moral panic that is likely to die out as people realize it's not as big a deal as the press and politicians are making it out to be. In the short term, though, passing the law could be quite harmful. Beyond wasting millions in taxpayer dollars (like the CDA and COPA did), it could make it more difficult for kids to use social networks and certain web services for beneficial purposes.

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Back in May there were a series of stories that made the rounds concerning a British girl who had her 16th birthday party at her parents pricey estate in Spain. The stories, based on the girl's own account on the social network Bebo claimed that she had posted an invite to various social networks, and tons of people showed up and it turned into a violent drunken mess. In an age of "oh no, look at what those crazy kids are doing on social networks!" reporting, the press had a field day talking about it.

There was just one problem: much of the story was apparently made up by the girl.

Now the mother of the girl is suing six newspapers for writing the story (found via Slashdot). There are a lot of questions raised by this. The woman's daughter spread the story herself -- so if the mother has a complaint, you would think it's with the daughter. But, at the same time, what kind of newspaper reports on something like that based on a single first-person account of the 16-year-old hosting the party, rather than getting any kind of fact check confirmation?

Still, it seems like some of the questions being drawn from this are going in the wrong direction. The article reports:

The case is expected to have far-reaching consequences for third parties who use or publish information from social networking sites. Lawyers say it could place a duty on all second-hand users to establish the truth of everything they want to republish from such sites. Mrs Hudson not only denies the allegations but accuses the newspapers of misusing information posted by her daughter on the Bebo site, saying there was no legitimate public interest in publishing material from the site. Mrs Hudson says that, because the information was inaccurate, the papers cannot rely on the defence of fair comment.

Her solicitor, David Price, said the case raised important issues of libel, privacy and copyright in relation to the unauthorised use of material taken from social networking sites.

That threatens to be quite chilling. If you can't republish direct quotes from someone who was at an event, it would seem to be quite stifling. I recognize this is in the UK, which has much stricter libel laws, but it still sounds like it might be going too far. As for the "copyright" claim, that's the most questionable of all. Claiming that the fact that her daughter's own account was incorrect means that "fair comment" is no longer allowed is ridiculous. If you're quoting someone for news purposes, the copyright issue shouldn't depend on whether or not the person you're quoting is lying.

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Every time we talk about music industry business models, we get some folks who have to chime in with some claim about how musicians should be able to sell their music just like they have for years. Of course, the truth is that it's quite rare for any musician to make money from selling their albums, as has been pointed out for years. The latest to make that point is Lyle Lovett. Reader Rose M. Welch sends us this link to a story about Lyle Lovett, pointing out that in two decades of making music, selling 4.6 million albums, he's "never made a dime" from album sales, but has instead used those record sales to make money on tour:

"Records are very powerful promotional tools to go out and be able to play on the road..."

He does go on to say, however, that he thinks music sales should be self-sustaining. Of course, if he can make money from playing on the road, and giving away the music means it's an even more "powerful promotional tool," then why not focus on that? At least he seems open to new ideas:

"If a major label is interested in working with me after these next two records and is able to come up with a strategy that does engage some of the new technology in a way that can benefit everybody, I'd be very interested in that."

The problem, of course, is that most record labels aren't looking at using technology in a way that can benefit everyone. In the mind of your typical record exec, it's the recording industry against anyone else -- and if others are benefiting, that's a sign that the industry is losing. The idea that everyone can benefit doesn't even register.

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Remember all those lawsuits against Google by people who didn't like how Google listed them (i.e., they felt that Google had them too far down the rankings)? Well, it appears that some similar lawsuits are being filed against eBay. One jewelry sales company, Windsor Auctions, felt that it should have been making more money via eBay and sued the company after realizing that a competitor was using tools eBay provided it to get better listings. Windsor mostly relied on a depression-era law that tried to stop big companies from engaging in predatory sales practices (using its marketing muscle to force suppliers to give it better deals). As Eric Goldman points out in the link above, the law makes almost no sense today (and it's questionable if it ever did). It certainly doesn't seem to apply to this case -- and the court has agreed, tossing out those charges, though leaving some others dealing with a implied covenant of good faith and fair dealing. It's difficult to see how eBay can be at fault here for offering up tools that will help sellers, but as we've seen with all those Google cases, companies always look for someone to blame when someone beats them in the market -- and the company with the big pockets is always an easy target.

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For quite some time, we've been pointing out how patent holders have been using a bit of a loophole to get two separate shots at getting an injunction against other companies in patent disputes. This became even more popular after the Supreme Court ruled in the MercExchange case that injunctions banning the sale of goods often did not make sense. The loophole is that, rather than go through the court system, patent holders would go to the US International Trade Commission, claim that the goods they believed were infringing were an "unfair trade practice" and demand an injunction against importing them into the US -- effectively the same thing as a court injunction against sale (assuming the good was manufactured outside the US).

Since then, we see it's happening all the time that companies sue in the courts and use the ITC loophole as well. The ITC doesn't need to abide by the court's rules either, making it even easier to get an injunction this way. We found it quite problematic that patent holders were getting two hacks at the same ball -- especially when one of those hacks doesn't need to follow the Supreme Court's rules on when an injunction is and is not appropriate. Others disagreed with our assessment, claiming that it's not a loophole, but an important way to stop foreign companies from unfairly entering US markets.

Luckily, there's now some actual research looking into the details of how the ITC is used for these sorts of things. Eric Goldman points our attention to a law review article looking at data on how the ITC patent injunction process has been used over the past twelve years, and the results aren't pretty. It found that the ITC is used just as often between two American companies as it is used by an American company against a foreign company. Why the International Trade Commission gets involved in disputes between two domestic companies is not clear at all. It also found that many companies use both processes simultaneously, allowing them two separate attempts at getting the same injunction. Finally, the report finds that while there's only a slight increase in the likelihood of the ITC finding in favor of the patent holder, it's much more likely to grant an injunction barring the sale of a product.

As the report notes: "In the absence of coordination between the venues and with the high rate of parallel litigation, this two-track system may invite judicial waste and expose parties to the risk of duplicative litigation and potentially conflicting outcomes." Hopefully this will help Congress realize that the ITC loophole on patents needs to be closed.

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We've already pointed out how ridiculous it is for NY Attorney General Andrew Cuomo to be pressuring ISPs to start blocking news groups and access to certain websites with "objectionable" content. Doing so actually makes the problems Cuomo is trying to fix worse. That's because he's not actually going after the source of the problem, meaning that it will continue to exist and just be harder for law enforcement officials to track down. This is pure political theater with Cuomo getting his name in the headlines for pretending to solve the problem, when all he's really done is get some ISPs to sweep the problem under the rug -- where it's only going to fester more.

Even more ridiculous, however, is the latest announcement from Cuomo, gloating over the fact that two more ISPs, AT&T and AOL will join with the ISPs from the original announcement and cut off access to newsgroups and objectionable websites. In the case of AOL, this is especially ridiculous since it's already done this for many years. Declan McCullagh even got AOL to admit: "We have not changed any policies or procedures as part of today's announcement."

Of course, "we're doing what we've always done" doesn't make good headlines for ambitious politicians.

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Just a few months ago guitar maker Gibson sued just about everyone for patent infringement over a patent it held on "virtual concerts." It looks like that lawsuit may have woken up others who happen to hold "virtual concert" patents. Video game maker Konami, which had some virtual concert games years ago, also happened to get some patents on the concept and have now sued Harmonix, the makers of Rock Band. Once again, this looks like a "losers litigate" strategy. Harmonix has created a hugely successful product in the space -- Konami has not. Yet, Konami wants a cut of Harmonix's profits. That's not the sort of incentives that should be encouraged.

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It's no secret that plenty of newspapers have been cutting staff and even the size of their papers in recent months. It's really a reaction to the fact that newspapers spent way too many years in denial that they were no longer the only news sources in town. So now they finally have to adjust, and one first step is shedding some overhead. However, one newspaper subscriber to the News & Observer in North Carolina is suing the paper over its recent cuts. It sounds like it's mostly just a publicity stunt, but Keith Hempstead, a lawyer (and former reporter), says he renewed his subscription in May, just before the paper announced cuts. Thus, he claims, he's getting less than what he was promised when he subscribed -- and that's somehow fraud. It's doubtful this lawsuit will go anywhere and the "point" Hempstead is making actually seems backwards. Marketplaces change and companies in those marketplaces need to change to keep up with the market. Suing them for changing is hardly going to encourage newspapers to embrace necessary change.

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The MPAA has probably been the worst of the various Big Copyright industries in terms of the level to which their studies exaggerate the negative impact of unauthorized copying, while totally ignoring any positive impact. For example, it likes to widely cite a study (which it paid for) that triple- and quadruple-counts "losses" by noting the ripple effects. At the same time, it totally ignores the same positive ripple effects (the ones that cancel out the negative ones, and may even outweigh them). Of course, a big part of this is the claim that an unauthorized copy is a "lost sale."

Now it appears that Macrovision, the big DRM company that supplies DRM to movie studios has cooked up its own study trying to support the MPAA in this argument, claiming that lots of people are copying DVDs and that most of them would buy the DVDs they copy otherwise. However, the LA Times' Jon Healey does an excellent job pointing out the many significant weaknesses in the study, starting, of course, with the fact that it was paid for by Macrovision, with a clear intent in the results. And while Macrovision hypes of the fact that many people in the survey said they would have bought the DVDs they copied, it ignores the fact that the majority of folks they spoke to said the DVDs they made copies of were ones they already legitimately owned.

Even then, the results really aren't as significant as Macrovision would like you (or, rather, Hollywood) to believe. As Healey notes, the study completely ignores the positive impacts of being able to make a copy of a DVD. In fact, the most common reason for making a copy was for perfectly legal time-shifting or back-up purposes from DVDs they legitimately own. In other words, being able able to make those copies is a valuable part of the DVD. Take that away and people will buy fewer DVDs because you've made them less valuable. But, of course, that doesn't show up anywhere in the results, because that's the last thing Macrovision wants people thinking about.

While the study also hypes up the fact that more TV shows are being copied via DVD, it ignores the fact that this is probably quite beneficial. Since TV shows are ongoing experiences, you want more viewers -- and if a copy of a DVD gets someone new hooked on the show, they're more likely to start watching it on TV or to buy a future DVD. But, again, that's not mentioned at all. Either way, props to Healey and the LA Times for digging into the numbers a bit and not just parroting the press release findings, like many other news sources.

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There was plenty of attention given to the judge's order that Google hand over log files to Viacom's lawyers in the Viacom/YouTube lawsuit, with much of it focused on what an awful ruling this was. Now it appears that some are trying to use this bad ruling to actually focus negative attention on Google instead. A lawyer who is also suing YouTube over copyright issues mistakenly claims that Google has tricked the press into making Viacom the enemy here. That's not quite true, though. Most of the anger was focused on the judge's decision, not on Viacom. However, he does make another, related point that is getting picked up by others as well: "How else do you explain why they have been collecting and using IP addresses to monetize their site (for a while now), yet only now, with great self righteousness, claim to be concerned about producing IP addresses?"

Of course, that's not quite an accurate portrayal of the situation either. It's one thing to store your own log files -- it's quite another to be asked to hand them over to a random third party. Louis Solomon's statement above is like saying "how can a doctor store your medical info and then, with great self righteousness, claim to be concerned about protecting your medical info." It's rather easy: the doctor has a right to the medical info, while a third party does not.

However, that hasn't stopped some privacy advocates from asking why Google has kept the log files in the first place. This doesn't strike me as being that big a deal, to be honest. There are plenty of reasons why Google should be able to control its own log files. I can understand questions concerning what it does with the log files should those actions violate user privacy -- but merely tracking how people use their websites hardly seems like a privacy violation.

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