Why the Australian Court’s judgment in favor of the Australian Vaccination Network doesn’t bother me

The Supreme Court of New South Wales, Australia, the highest court of that state, has issued a judgment (decision) declaring that the state’s Health Care Complaints Commission (HCCC) had no authority to issue its Public Warning about the Australian Vaccination Network’s (AVN) website.   The HCCC found that the website

  • provides information that is solely anti-vaccination
  • contains information that is incorrect and misleading
  • quotes selectively from research to suggest that vaccination may be dangerous.

After that, the New South Wales Office of Liquor, Gaming & Racing (OLGR) (perhaps my favorite public agency name ever) revoked the licence (spelled the Australian way) of the AVN to engage in charitable fundraising.

The AVN sued, apparently claiming that the HCCC had no jurisdiction, or power, to investigate the complaints against it that resulted in the warning.

A warning of my own before I go any further: I am a U.S. lawyer.  I don’t know a heck of a lot about Australian law.  But both U.S. and Australian law are based on English law, and the Australian judgment seems to be written in a language approximating the English language with which I am familiar.  Therefore, I am going to take a stab at interpreting it.  But don’t rely on my explanations here in the conduct of any of your personal affairs.

I’ve got four reasons why this decision really doesn’t bother me, as much as I hate people who try to turn parents away from vaccinating their children:

Reason # 1:  The court did not find that the AVN was truthful, correct, or unbiased.

The court concluded that the HCCC didn’t have the legal power to investigate the initial complaints against it (which were made by two or three apparently caring citizens).  It did not, in any way, shape or manner whatsoever, find that (1) the complaints were unjustified, (2) the HCCC’s conclusions were incorrect, or (3) that the AVN was justified in doing what it did.  This was a decision based solely on the failure of the evidence to establish some facts that were necessary for the HCCC to exercise its powers.

The key fact that the court said would be necessary for the HCCC to exercise its powers is that a particular person was affected by the AVN’s statements.  The court said that there would have to be evidence that there was an identifiable person who did not receive vaccinations because of the AVN’s statements or actions before the HCCC could act.  The only evidence presented, however, was general information about vaccination rates.

Reason # 2: The decision doesn’t permanently prevent action by the HCCC

I think, then, that if a complainant could show that there was an identifiable person who was unvaccinated because of the AVN’s website, a new complaint making the same allegations could be investigated.  As far as I can tell from what I have read, the complaint doesn’t have to come from the unvaccinated person.  Any resident of New South Wales who hears about a parent who did not vaccinate a child because of what the AVN says should be able to complain to the HCCC and begin a new investigation that avoids this problem.  Hopefully some accurate publicity in New South Wales will result in a new complaint.

And I have seen reports that the HCCC intends to appeal.  It’s too early to tell, or even to rely on a party’s announcement of an intent to appeal so quickly after a court decision.   Frankly, I’m not sure that it’s worth the while of the HCCC to appeal.  I think their resources would be better spent investigating complaints against health care providers.

Reason # 3: The Streisand Effect might actually result in some public education

An often-unforseen consequence of seeking the assistance of courts is that your dirty laundry can become very public, especially as you get to appeals courts, whose decisions are often published and picked up by the media.  The court’s decision will serve to remind the public about the finding by the HCCC against the AVN.  Remember, the court did not say that what the HCCC said was factually wrong.  It just said that the HCCC didn’t have the authority to say anything about the AVN.

The few examples of media reports that I have found seem to be fairly accurate.  They all repeat the HCCC’s finding that the AVN was misleading, and a couple say that the AVN is a danger to public health.  Most seem to accurately report that the court’s conclusion was only that the HCCC didn’t have the authority to issue the statement, not that the HCCC’s conclusions were inaccurate in any way.  The Sydney Morning Herald article even starts and ends with strong statements about the AVN’s nonsense and the resulting danger to public health.

Overall, I think–or maybe I’m just hoping here–that the court decision will only serve to impress upon the public that the AVN is not to be trusted.

On the other hand, doctors, scientists, skeptics, and public health officials ought to be careful about talking about the AVN too much, lest they inadvertently lead the public to the misleading information.

Reason # 4: AVN still can’t raise funds

Perhaps most importantly, the court declined to enter any order affecting the OLGR’s revocation of AVN’s license to raise funds.  (A personal appeal on a grammatical pet peeve of mine: please avoid using the “word” fundraise.)  The OLGR’s database shows that AVN’s license is still “expired,” so AVN can’t legally raise funds.  And it can’t accept any new members.  That might stop it from doing anything too bad.  It’s website seems to have been updated last in 2010 (except for what appear to be automatic displays of tweets), and the “News” page only has news up to 2008.

Other commentary on the decision

Thanks to The Drunken Madman, Jason Brown (Twitter: @drunkenmadman), for leading me to the decision itself so that I could read it.  The decision itself was posted by Dave the Happy Singer before the court posted it.  Both of their posts are definitely worth reading.

I was happy to see that another post by The Drunken Madman pointed to a portion of the decision that caused me to chuckle.  The decision basically said that there was no evidence that, as hard as the AVN tried, there was no evidence that it was successful in changing anyone’s mind about vaccination.

Lastly, if you want to keep up with this, The Drunken Madman (he really has to cut down on his bad habits) has started a wiki of info relating to the decision.

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Can parents be liable for falsifying vaccination records?

Todd W. of Harpocrates Speaks asked me and Popehat (my favorite law-related blog) to comment on a heartwarming story that he posted on his blog. Popehat said that it wasn’t his area of law, and that he’d have to research it. Unlike Popehat, I have no qualms about recklessly stabbing in the dark to come up with comments on something in which I have little expertise and on which I have done little research. To be fair to myself, though, I actually have some expertise in child abuse and neglect, and I currently work in a position where I deal with a very wide variety of legal topics.

So the story goes like this: A couple of months ago, at a day care far, far away (Todd does not say where), four children came down with chicken pox. Three of the children were above the age for vaccination, and one 6-month-old child, too young to be vaccinated, also came down with the disease. Two women on the staff at the daycare were pregnant, putting them and their unborn children at risk, especially since one of them did not know if she had been vaccinated against the disease.

Apparently, the day care required that all children be immunized, and the parents of the infected children had reported that the children were immunized, even providing documentation of the vaccinations. Todd says that the parents “faked” the vaccination records of their children to get them into the daycare, and that the daycare was not too careful about verifying the records.

A commenter then asked, “Could there be some kind of legal action taken against the parents who faked the immunization record?” We’ll take a look at criminal and civil liability here. I’m going to limit my answer to the question that was asked, which focuses on the faked immunization record. For an examination of the possible liability that parents face for failing to immunize their child if the child then gets sick and infects someone else, see Jann Bellamy’s post on Science-Based Medicine a year and a half ago.

Because laws differ from state to state in the U.S., I’m going to have to discuss this very generally, especially since Todd wouldn’t say where the day care was. Lawyers reading this will probably be saying to themselves, or shouting out loud, “No! Wrong! That’s not the whole story!” I know; I’m trying to simplify things here. As always, don’t take what I’m saying as legal advice.  If you face a similar situation yourself, go see a lawyer.

Civil Claims

The tort, or private/civil wrong, that the parents may be liable for is intentional misrepresentation or fraud. To win a case for intentional misrepresentation or fraud, the plaintiff basically has to prove that the defendant knowingly made a false statement for the purpose of getting the listener/reader of the statement to rely on it, that the listener/reader reasonably relied on the statement, and that the listener/reader suffered some harm/injury to person or property as a result.

I think that here the day care, but not other parents or day care staff, may have a shot at winning on a fraud claim against the non-vaccinating parents. The facts that we have say that the parents knowingly made false statements–the false documents showing vaccination–to the day care that their children were vaccinated. They did it in order to have the day care accept their children into the program. If the fake documents were realistic enough, then the day care probably reasonably relied on the statements. If the day care suffers any loss as a result, they should be able to recover those damages from the parents. To tell the truth, I can’t really imagine that the day care would suffer much loss from this. Perhaps they would have to hire subs for sick workers, or will be liable to the parents of any other kids who contracted the infection, but I doubt it (for reasons that I don’t have time to get into here). The day care would not be liable in any lawsuit by its workers; workers’ compensation laws would cover any illnesses or injuries by the workers and the day care would be immune from suit by its employees.

I don’t think that the parents would have any liability to other parents for the false statements, because the parents didn’t make any statements to the other parents. They made the statements only to the day care.

I can’t think of any other basis for a lawsuit by anyone for the parents’ act of falsifying the vaccination documents. If anybody has any other ideas, I’d love to hear them.

Criminal liability

Again, it depends greatly on what state we’re in whether the parents might have committed some crime here. State laws are surprisingly different when it comes to crimes. Just for fun, I randomly picked a few states and took a quick gander (I mean a casual look, not a fast male goose; I would never steal a goose) at their criminal laws to see if there was anything I could find.

The type of crime I was looking for was fraud or criminal misrepresentation of some sort, perhaps including forgery offenses. I’m sure that the vaccination documents are not sworn, so I didn’t bother to check for perjury offenses.

New York, in section175.05 of its penal law, defines the crime of “falsifying business records in the second degree” to include when a person, “with intent to defraud . . . [m]akes or causes a false entry in the business records of an enterprise.” From the definitions earlier in the penal law, I think the day care would be an “enterprise,” and I think the parents might be liable for “causing” the false entry in the day care’s records.

I couldn’t quickly find any applicable fraud crime in Illinois.  All of the Illinois fraud crimes that I could find involve financial fraud.

Colorado Revised Statues section 18-5-104 says,”A person commits second degree forgery if, with intent to defraud, such person falsely makes, completes, alters, or utters a written instrument” that is not specifically covered by statutes defining other kids of fraud.

The New York and Colorado statutes could be used to prosecute parents who falsify vaccination records.  In other states, like Illinois, there may be no law that specifically prohibits falsifying that kind of document.

I’d be surprised if any prosecuting attorney would take this kind of case.  I could not find any news article of a parent being charged for fraud involving a vaccination record.

Conclusion

As much as I hate to say it, it appears unlikely that the parents who falsified the vaccination records will face any real legal consequences from their fraud.  I can only hope that some brave prosecutor realizes the risk to public health that these parents created and charges the parents accordingly–if they live in a state that has laws that prohibit this kind of fraud in the first place.

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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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Quickie news: Wakefield sues British authors and publishers for libel–in Texas

I wish I had more time to write about this tonight, but I just had to post something on the lawsuit filed today (January 4, 2012) in a Texas trial court by Andrew Wakefield, the disgraced British former physician whose 1998 Lancet article created the modern vaccines-cause-autism myth. Wakefield is suing BMJ (the former British Medical Journal), Brian Deer, the author of a January 5, 2011 (Happy Anniversary!) BMJ article, and later follow-up article, that detailed Wakefield’s falsification of data and fraud in the Lancet article, and Fiona Godlee, a physician and editor of BMJ who authored an editorial in the same issue.

At first I wondered if the news of the lawsuit was just a bad rumor, but the available copy of the complaint has all the markings of a document that has actually been filed in a court.

My quickie analysis/prediction, subject to the usual caveats that I haven’t had a lot of time to research this and I have purposely over-generalized and simplified the law:  There are quite a few hurdles for Wakefield to clear to be successful.  First, he has to show that the Texas courts have jurisdiction/power to conduct the trial in the first place.  Wakefield is suing a British publication and two citizens of the United Kingdom in Texas because he resides in Texas now.  In the United States, a court has jurisdiction or authority over a defendant only if the defendant has sufficient contacts or involvement with the state in which the court sits.  Wakefield claims that Texas courts have jurisdiction over BMJ, Deer and Godlee because they “direct[ed] a significant and regular flow of publications . . . to institutional and individual residents of [Texas]” and because they committed a tort (a personal wrong) against him, and he is a resident of Texas.

A publisher of widely-disseminated material isn’t subject to the jurisdiction of every court where the material may end up.  Either the specific article involved must have been “directly aimed” at the state, or the publisher must have sufficient “contacts” with the state to give the state’s courts jurisdiction over any case involving the publisher (for example, the New York Times can be sued in New York, even if it is being sued for a car accident that one of its employees causes in Pennsylvania, just because it’s based in New York–or is it New Jersey now?).

Many courts have held that merely publishing materials that may end up in a given state is not enough to subject a publisher to the jurisdiction of that state’s courts.  The publisher must have “directly aimed” the allegedly defamatory material at the state.  The mere presence of the target of an article is not enough.  Although a famous U.S. Supreme Court case held that an article about an actress in California was enough to subject the publishing newspaper to a libel lawsuit in California, a recent federal appeals court decision noted that in that case the article was about the actress and her career in California, and wasn’t based on the actress’s mere presence in California.  Although this article is about Wakefield, who now resides in Texas, it wasn’t about Wakefield’s activities in Texas.  It was about Wakefield’s activities in the United Kingdom, where all of his defendants are.  I don’t know if the BMJ’s circulation is enough in Texas to give the court “general” personal jurisdiction over any case involving the publication, but I doubt it.

If Wakefield gets past the jurisdictional hurdle, he then has to battle the First Amendment.  I have no doubt that Wakefield is a “public figure” and the issue of the safety of vaccines is a public issue.  Because of that, the First Amendment’s protection of public discourse on items of public import requires that Wakefield prove “actual malice,” which means that he must prove that the authors and publishers of the BMJ article knew that the defamatory statements were false or that they made the statements with reckless disregard of the truth or falsity of the statements.  Wakefield actually alleges in his complaint that the authors knew the statements were false.  Saying it in a complaint is one thing.  Proving it is another.  Proving someone’s knowledge is a hard thing to do.  Not impossible, but very hard.

Another hurdle facing Wakefield is the legal concept of “res judicata,”  which roughly translates to “we’ve been through this already.”  (Some legal nit-pickers may claim that the real translation is “the thing has been adjudicated,” but don’t you believe them.)  The concept goes something like this: once you have had a “full and fair opportunity” to litigate some claim, issue or fact in one court, and have lost, you don’t get to litigate it again, even in some other court.  Wakefield has already been through a huge proceeding before the United Kingdom’s General Medical Council in which he lost his license to practice medicine.  He had a full and fair opportunity to litigate the matter there.  The Council found that he had falsified elements of his Lancet article and that he had abused developmentally disabled children (there’s a guy you want to bring home to mom).

My major question on this point is whether Texas considers results of administrative proceedings to have “preclusive” effect.  Some states say that a finding by an administrative agency has the same effect as a finding of a court.  Some states say that only court proceedings count.  If Texas is in the former group, then Wakefield will have a tough time getting to trial.  Any Texas lawyers who can answer that one?

Also, I have to question whether the BMJ article has really caused any damage to Wakefield’s reputation.  In order to recover some money damages, Wakefield has to prove either that he suffered some actual damage to his reputation or that the article damaged him in his occupation or profession, in which case he would get at least nominal damages.  I don’t think he’ll be able to prove that he suffered some damage to his reputation given the horrible worldwide reputation that he has.  Given the highly-publicized findings of the British General Medical Council a year before the articles in question, it’s hard to believe that the articles caused any additional harm to his reputation.  In addition, I don’t think that he will be successful in proving that the defamatory statements concerned his occupation or profession because they concerned his medical research as a physician–and he’s no longer a physician.  (Interestingly, one of the statements in the articles that Wakefield claims is false is “now apparently self-employed and professionally ruined, [and] remains championed by a sad rump of disciples.”  I didn’t know that “rump” was the collective noun for a group of disciples.  I thought it was “flock.”  You learn something new every day.)

OK, I really must go.  I may try to update and clean up this post in the coming days.  Comments, critiques and corrections are greatly encouraged and invited.

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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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Del Monte engages in legal thuggery against government scientists

When the mafia makes threats, it doesn’t pretend that what it is doing is legal.  Del Monte Fresh Produce, however, apparently likes to pretend that the law is on its side when it engages in thuggery.

For those of you who haven’t heard, Del Monte has sued the FDA after the FDA determined that Del Monte cantaloupes, which are imported from Guatemala, were contaminated with salmonella, and ordered that cantaloupes from Guatemala no longer be imported, at least temporarily.  (Speaking of the mafia, wasn’t there a famous mafioso named Sal Monella?)  Del Monte agreed to a voluntary recall of the product

Del Monte, apparently not satisfied with trying to reverse the official government action, has also threatened to sue an Oregon state epidemiologist for its role in investigating the salmonella outbreak.

The suit against the FDA

In its suit against the FDA (complaint), Del Monte claims that the FDA had insufficient evidence to conclude that cantaloupes, or cantaloupes from Guatemala, were the source of the illnesses.  It claims that the FDA never tested any cantaloupes, and in fact had recently inspected the farm in Guatemala and had not found any salmonella there.  Among its other claims were that one infected  patient denied having eaten cantaloupes, that the retailer who sold the cantaloupes had also sold non-Del Monte cantaloupes, and that contamination may have occurred at the retailer.

Del Monte’s legal claims were that the FDA acted outside of its legal authority, and that it acted based on “rules” that were internal policies that had not been properly subjected to the required public notice and comment period.

I don’t have a problem with the suit against the FDA, which is a request for a court order declaring the FDA’s order illegal, voiding it, and preventing the FDA from enforcing it.  It is perfectly appropriate for a company to seek review by a court of an administrative agency’s judgment and factual findings.  Indeed, Congress has created an entire procedure for review of most government actions, although Del Monte did not use that procedure in this case (I’m not sure why, although it may be that legally that procedure is unavailable to Del Monte in this case).

The threat against Oregon officials

Del Monte has also threatened to sue Oregon officials, including its public health department and an individual epidemiologist in that department.  Although the newspapers describe Del Monte as having made a “threat,” it appears to me that the document was probably a formal notice of a possible lawsuit.  In most, if not all, states, before you can sue the government or a government official, you have to give the government or official notice–often very quickly, like in a matter of a few months–that you are going to do so.  Many times, even after a notice is served, no suit is filed.  We don’t know whether Del Monte will end up suing.

From all reports, it appears that Del Monte is asking for monetary compensation from Oregon for its actions.  It’s not clear exactly what action Oregon took, other than investigating for the FDA and maybe reporting its findings to the FDA.

I don’t necessarily have a problem with the notice, because many times people serve these notices just to preserve rights and to give themselves some time to think about whether to sue.

If Del Monte decides to sue, I will have a huge problem with it.  Scientists who are protecting public health need to be able to do their work without the specter of a lawsuit hanging over their heads.  It’s unlikely that an individual who gets sick will sue an epidemiologist for missing some contamination, and the epidemiologists will therefore be subconsciously biased in favor of food suppliers, who have the resources to sue.

Even if Del Monte is not successful, just putting the epidemiologists through the emotional turmoil of a lawsuit would be enough to affect their judgment in the future.

Fortunately, if Del Monte does file its lawsuit, it appears to have extremely little chance of succeeding.  Government agencies and officials are protected by sovereign, or governmental, immunity for many actions, including (and especially) actions that involve their discretion and professional judgment.  The laws protecting governments from lawsuits for such acts were enacted to prevent the very situation that Del Monte might cause: making government agents afraid to do their jobs, thereby endangering the public.  Public officials owe their duties to the public, and not to individual companies or people.

Like with many other things, I think Del Monte would be better off staying the shadows until this all blows over.  If it does sue government officials who are trying to prevent consumers from getting seriously ill, it will, in my view, seriously hurt its own reputation and any trust that the public has in it.

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More lessons, this time from the California Science Center

The First Amendment is often inconvenient. But that is besides the point. Inconvenience does not absolve the government of its obligation to tolerate speech.
–Justice Anthony Kennedy (1936 – )

This is going to be a quick post, at least for now, due to my time limitations.

Yesterday, the California Science Center (CSC), a public institution and affiliate of the Smithsonian Institution, settled a lawsuit against it filed by the American Freedom Association (AFA). AFA had claimed that CSC had breached a contract for AFA’s rental of CFC’s IMax theater to show a pro-intelligent-design film. CSC claimed that AFA breached the contract first by falsely publicizing, through the Discovery Institute, that the event was sponsored or endorsed by CSC. AFA, in turn, claimed that it had no control over the Discovery Institute’s publicity of the event. More importantly, AFA claims that the CSC cancelled the showing because of the content of the film, and that it therefore violated AFA’s First Amendment rights.

I can’t express an opinion on the lawsuit itself, since I have not seen any of the court documents, the original rental agreement, the discovery from the lawsuit, or the publicity that was allegedly a breach of the contract. But I do want to correct some misperceptions and answer some questions raised in PZ Meyers’s excellent post (does he have any other kind?) on the topic, and in the comments to that post.  I will add links and references tonight, time permitting.  [Update: I don’t have the time tonight, but I have made some minor edits.]

Pseudo-scientists have just as much right to speak out as skeptics do. The first comment to PZ’s blog suggests that the CSC should simply not rent to organizations like the AFA. That, however, would be a blatant First Amendment violation. If a government institution makes space available to outside organizations to engage in speech, it cannot pick and choose arbitrarily what kinds of organizations it will rent to. There are two levels of First Amendment analysis here. The first level looks at the ability (or inability) of a government organization to choose what it would allow to be shown based on the subject matter of the speech. For instance, if the CSC has made a clear policy that it will only rent its theater to organizations showing films relating to science, it will likely be able to successfully defend any claim that it must require a knitting club to show the movie, “How to Knit a Killer Sweater.” If, however, the CSC simply made its theater available to all non-profits, then it can’t later choose to exclude a film on abortion because it’s squeamish about the subject.

The second level looks at the ability of the government organization to choose the organizations to which it will rent based on the viewpoint of the speech. Another commenter on PZ’s blog asks whether “what Luskin [the Discovery Institute’s lawyer] says about the First Amendment (i.e. that it “forbids government preference for one viewpoint over another”) sound like complete shite…?” No, it’s not baloney. It’s entirely accurate. The worst thing a government institution can do is discriminate on the basis of viewpoint. The CSC cannot say, “We’ll rent to films explaining evolution but not to films arguing against evolution.” Can it refuse to show any films about evolution? Maybe, given its ability to regulate the subject matter to some extent, but if it starts to make policies excluding only controversial science subjects, then the courts will question their purpose in making those policies, and if the intent was to suppress speech with which the CSC did not agree, then the courts may require the CSC to change its policies.

PZ himself asks in the comments,

You can’t have a general license agreement that spells out a list of things you will intentionally discriminate against, without discriminating. I wonder, though, if there aren’t models for exclusion that could be used. If the KKK asked to lease the IMAX theater, would they do so?

Again, this depends on the policies and the purposes behind those policies. If the KKK wanted to show a film arguing that there is scientific evidence that people of African descent have inferior intellect, and the CSC’s policies state that it will rent out the theater to organizations showing films on scientific subject matter, then the CSC would likely have to rent the theater to the KKK. There are “models for exclusion,” as PZ puts it. Public libraries around the country deal with this kind of problem (limiting the use of meeting rooms) all the time, and the American Library Association has some guidance for libraries on its website.

One commenter answers PZ by saying,

KKK is classified as a hate group so if fits into an entirely different legal area.

Obviously, the fix for this is to get these creationist groups categorized as hate groups. Then the museum would be legally backed up in saying they don’t want to associate with homophobic, patriarchal, lying bastards.

Well, not quite.  There is no such legal “category” as “hate groups.”  There are things called hate crimes, but the key is that whatever you’re doing has to be a crime in the first place.  Then the sentence or penalty can be enhanced if your motive was “hate.”  In other words, if you just beat the crap out of someone for fun, then you may only serve up to five years in jail.  But if you beat the crap out of them because they’re gay, then you may spend up to ten years in jail.  But the government can’t treat someone differently just because the person hates gays.

Many comments make the point that the CSC should have allowed the AFA to show the film, but engaged in its own speech to counter the message presented by AFA.  Some commenters suggested holding a lecture before or after AFA’s film, or putting up posters around the theater, or otherwise publicizing that the event was not sponsored or endorsed by the CSC.  I couldn’t agree with these comments more.  People much smarter than I have recognized that the marketplace of ideas will take care of itself.  The best way to counter speech with which you do not agree is to engage in more speech.

Speaking of more speech, I’ll post more later.  I’ve got to get back to work now.

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