Category Archives: Copyright

Evidence of Bigfoot in a government office!

Well, it does sound impressive.  If you have no idea what a “copyright” is.

An announcement on the blog Bigfoot Evidence cries out: “Impending Copyright Application for text, photograph(s), compilation, editing, Data Tables.”  The entry lists

entries . . . from the U.S. Copyright Office website. They are copyright application submitted by Melba Stinnett Ketchum. They will contain photographs and most likely data from the Sasquatch mitochondrial genome sequence and nuclear DNA variation . . . .

Then come the links to the real evidence:

In case you didn’t follow those links, they are to database entries of the U.S. Copyright Office, a division of the Library of Congress.  The text of the links above are the titles of the works registered with the Copyright Office.  The author is Melba Ketchum, who apparently holds a doctorate in veterinary medicine and runs a DNA lab.

The post is making a rather weak attempt at using a common logical fallacy: the argument from authority.  Apparently, we, the faithful readers of Bigfoot Evidence, are to be duly impressed by the acceptance of the evidence that has been submitted to the U.S. Copyright Office, an obviously august and trustworthy government agency, given its impressive-sounding name.

Let’s take this bit by bit, shall we?

First of all, the proceeding in the Copyright Office is not “impending,” it’s “pending”–or at least the site wants you to think that.    “Impending” means “about to occur.”  But Ketchum has already filed the documents.  What they meant was “pending,” which means awaiting some action.  They are trying to imply that the Copyright Office will be making some decision about the proceeding, like saying, “Yes, Ketchum filed information on Bigfoot DNA.”

Second, the proceeding is not an “application.”  It is a “registration.”  There is an enormous difference.  When you apply to some authority or agency, you are seeking permission to do something.  A common example is applying for a building permit. You provide information about what you are going to build, and the government gives you permission to build it.  The law prohibits you from building a structure without permission.

When you register something, on the other hand, you are merely telling the authority or agency some information; the agency does nothing with the information other than record it for future reference or use.  A common example is registering a dog.  You provide information about your dog, and the government records the information so that the police can access it when they find your dog digging up the neighbor’s petunias.  The government doesn’t say, “Yes, this is indeed a dog” or give you permission to keep the dog, because the law doesn’t require you to get permission before you can have a dog.

Have you figured out my point yet?  It’s this: the Copyright Office ain’t gonna do diddly (for those of you non-Americans who may not understand that oft-used phrase, it means, “isn’t going to do anything”) with the registration except keep the information in its database.  The purpose of having it there is essentially so that Ketchum can prove in court, if she has to, that she was the first to create the copyrighted work.

Oh, but look!  The U.S. Copyright Office says that it has on file information about a new species of human!  That must mean something!

Yes, it means that someone gave it information and claimed that it was information on a new species of human.

This reminds me of the sleazy sales pitch of the International Star Registry, which used to say on its radio ads that when you have them name a star for you, the star name is “recorded in book form in the U.S. Copyright Office,” or something like that.  Now, their website says,

Because these star names are copyrighted with their telescopic coordinates in the book, “Your Place in the Cosmos,” future generations may identify the star name in the directory and, using a telescope, locate the actual star in the sky.

Like with Bigfoot Evidence, the implication here is that registering the copyright gives the information some official imprimatur.  That is, at best, misleading.  And if future generations want to look up your star, they’re going to have to pay the Copyright Office for a copy of the book, or at least of some pages from the book.

Third (remember, I had a list going!), the “most likely data” statement is amusing.  There will “most likely” be data sent to the Copyright Office?  Does that mean that the data doesn’t exist, or that it may not be recorded?

Fourth, how can you have a new species of Homo sapiens?  What does it mean to have a new species of a species?  I think they mean new species of Homo, but I’ll leave it to scientists to explain that one.

Ironically, a later post on Bigfoot Evidence has a quote from Ketchum regarding a 2010 preregistration of a motion picture that Ketchum also made in the U.S. Copyright Office:

[T]he information pulled off the US Copyright website for a 2010 preregistration for a proposed media project is not an accurate summary of our scientific testing and data and does not reflect the current conclusions of our scientific paper.

Wait a minute.  Dr. Ketchum, you mean to say that something isn’t true just because it’s registered with the Copyright Office?  Say it ain’t so!

I’ve learned something else from doing this post: I shouldn’t necessarily be so happy as my blog readership goes up.  Maybe some visitors are just checking out my site for the pure entertainment value, and laughing at me all along the way like I did as I explored Bigfoot Evidence.

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More Legal Thuggery: Publishers of cognitive test instrument force “open source” test offline

Although the controversy was conceived almost nine months ago, the authors of a New England Journal of Medicine (NEJM) “Perspective” article recently gave birth to a flood of commentary about the actions of a current owner of the copyright to a long-used mental status examination demanding that a recent, free, “open source” mental status exam be taken down from the website where it was available.

Our villain is PAR, “also known as” (its words, although to me that always evokes an image of an evlidoer who seeks to hide its identity) Psychological Assessment Resources, which “publishes psychological assessment instruments, software, books and other related materials in the following areas: personality/counseling, neuropsychological assessment, forensics, achievement/development/learning, intellectual/ability/cognitive, behavior/health, and career development/business.”

Since 2001, PAR has owned the copyright to the “Mini-Mental State Examination” (MMSE).  Before PAR acquired the copyright from the MMSE’s authors, the MMSE, according to the NEJM article, was “widely distributed in textbooks, pocket guides, and Web sites and memorized by countless residents and medical students” and had become the de facto standard for cognitive testing of patients in clinical settings.  The test consists of 30 short questions and tasks that a medical provider asks a patient to answer or do.  PAR charges $1.23 per copy of the test instrument. Although the MMSE is apparently now in its second incarnation, I was able to find a copy of what is apparently the first edition of the test.

Our heros are Tamara G. Fong, MD, PhD, and her colleagues, who developed, tested, and made available to the world–for free–the “Sweet 16” cognitive impairment test.  If all scientists did this all the time with their inventions, the world would be a wonderful place indeed.

But, as they say, no good deed goes unpunished (has anybody ever performed a scientific study of that?).  PAR, apparently afraid of losing its sales of the MMSE, demanded that the Sweet 16 be removed from its internet home at the Hospital Life Elder Program.  The Sweet 16 was removed, and there is no indication from any player whether that might change any time soon.

The Legal Background

A fuller and better explanation of why PAR is way off base with its claim that the Sweet 16 infringed its copyright is presented by law professor James Grimmelman.  But I’ll give the Reader’s Digest version of applicable copyright law, and hope that Reader’s Digest doesn’t sue me for copyright infringement.

Article I, Section 8 of the United States Constitution gives Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”   Congress, never one to exercise restraint in wielding powers, has created an extensive set of laws to protect authors–whether or not their art is “useful”–and inventors.

Section 106 of Title 17 of the United States Code, the copyright law, gives the owner of the “copyright” to the work several exclusive rights in the work, including the rights to

  1. Reproduce the work;
  2. Prepare derivative works based on the work;
  3. Distribute copies of the work;
  4. In the case of artistic works, perform the work publicly;
  5. In the case of artistic works, display the work publicly;
  6. In the case of audio recordings, “perform the copyrighted work publicly by means of a digital audio transmission.”

Apparently, PAR’s claim here is that the Sweet 16 was a “derivative work” of the MMSE.  Section 101 of he Copyright Act defines “derivative work” as follows:

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.

I cannot fully determine whether the Sweet 16 is a derivative work because I can’t find a copy of the Sweet 16 to compare to the MMSE, and, frankly, I don’t really know what the above-quoted language would mean when applied to a test for cognitive status.

Even without seeing the Sweet 16, however, I am comfortable saying that I would find it hard to believe that it would qualify as a “derivative work” of the MMSE.  As Professor Grimmelman explains, and as Section 102(b) of the Copyright Act provides, copyright protection is not available to a process or procedure (don’t ask me what the difference between “process” and “procedure” is):

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

To the extent that the MMSE is merely a process to determine a person’s cognitive state by asking certain types of questions, it’s not subject to copyright protection.

Also, the MMSE is probably not protected because it’s not truly “original.”  Copyright law protects only “original works of authorship.”  According to some of the medical articles I read in researching this, the kinds of questions embodied in the MMSE–questions like “What is the year?”–have been around a long time in assessing cognitive status.  Perhaps the specific order and wording of the questions is protected to the extent it might be “original,” but the use of the questions themselves is apparently not original.

The moral background

It seems that, for PAR, what’s good for the goose isn’t good for the gander.  According to a complaint filed against PAR that ended up in federal court, in the mid-2000s PAR was asked by an author of one of its tests to take down from the internet a revised version of the test.  The author was concerned that important portions of the test were missing from the internet version, and that the internet version as published had not been validated by scientific studies.   According to the complaint, a contract between PAR and the author prohibited PAR from making revisions to the test except by agreement with the author, and PAR breached that agreement by publishing the internet version.  Because that case appears to have been settled out of court, it is impossible to know what happened in the end, although the test in question is still on PAR’s website, in several versions.  But it appears that PAR did not act so quickly, if at all, to remove a disputed work from the internet, as it demanded that the Sweet 16 authors do.

And, at least one commentator has not-so-subtly implied that the “Brief” version of the MMSE-2, published by PAR, of course, may actually be a spin-off of the Sweet 16.  If that’s true, then the moral lows to which PAR has sunk become even deeper.  If it’s the other way around, that is, if the Sweet-16 authors “copied” the brief version of the MMSE-2, that still doesn’t change my mind: the “brief” version of the MMSE-2 would still be a “process” that is not subject to copyright protection, and PAR would be merely trying to suppress a legal alternative to its tests.  I can’t find any indication of when the “brief” version was first published or whether PAR even claims that the Sweet 16 was copied from the “brief” version of the MMSE-2.

Why was the Sweet 16 taken down?

We can’t know for sure why the Sweet 16 was removed from its internet site.  My guess (not very skeptic-like, I know) is that the authors/owners thought that they were acting perfectly legally, but the mere threat of a lawsuit and its resulting cost, in both time and money, stopped them from litigating the matter.   This is the problem with threats of legal action–the victim of the threat has to make a judgment as to whether the any legal fight is worth it, and whether the risk of a loss is worth it.  Here, where the authors were not making any money from the test, it understandably isn’t worth it to them to fight PAR’s threats.

What can be done?

I wish there were some scientists’ or skeptics’ legal defense fund to assist scientists and skeptics who seek to improve the world by promoting science and scientific discussion and preventing quackery, legal thuggery, and other enemies of science.  Otherwise, entities like PAR will, in the interest of their profits, make meritless threats in an effort to chill the progress of science.
I also wish the parties involved, especially PAR, would be more open and let everyone know exactly what the problem with the Sweet 16 is.  I’d love to hear from PAR with a defense of its actions and, like any good skeptic, I’m willing to change my mind after receiving convincing evidence that indicates that I am wrong.  Without a full explanation from PAR as to why the Sweet 16 was infringing on their work, however, the world is left with the impression that they are merely using their resources to stomp a lowly “competitor” into the ground to protect their own bottom line.

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