Rattle wrote:

In the United States, intellectual property, or IP, law ensures that creators and inventors will get paid for their work, while doctrines like fair use and time-limited rights leave enough breathing room for the next innovator to use existing creations to comment, critique or make something new. But we have increasingly seen owners leverage their IP rights to get control rather than to get paid.

Jennifer Granick has an article on Wired about how the National Academy of Sciences and others are using the "copyright misuse" doctrine in a strategy to wrangle Kansas into not teaching intelligent design.

I fully agree with her that using this type of tactic is very bad. Fighting a bad problem by using bad law creates an even worse problem.

For those unfamiliar with the "copyright misuse" doctrine Jennifer talks about, there is a page on Tech Law Journal which explains it.

The defense of copyright misuse was raised in this case because Disney licensed its movie trailers subject to license terms that prohibit the licensees from using the movie trailers in a way that is "derogatory to or critical of the entertainment industry or of" Disney. That is, Disney uses the exclusive rights conferred upon it by the Copyright Act, not only to obtain a return for its creative efforts (which is consistent with the purposes of copyright protection), but also to suppress criticism (which is contrary to the purposes of copyright protection).

It's always Disney... Several decades from now, when history pages are written about intellectual property in the early days of the information age, Disney is going to be cast in the role of the great villain.

This is a great example of using copyright law as a method to obtain prior restraint. The only goal I see here is to get people to shut-up and not make any negative commentary under the threat of lawsuit. In short, it's a convoluted way for a transnational media corporation to achieve censorship in it's interests. Disney laid ground here that others can use.

And the evolution crew thinks this is a good idea?? [rattle rubs his temples] I'm seeing something.. I'm seeing a lawyer sitting behind a table... He's excited.. He's saying something... "But it's brilliant! The church can't use it! All their IP is in the public domain!" [rattle slams his head into the table] IMAGE BEGONE!

I'm confident that this type of thing will either get struck right down if it comes before the Supreme Court, or it will be allowed to happen freely and lead to a future that looks like a William Gibson novel. Be ready for it either way..

I somewhat agree with this but at heart don't. The core of this is, the NAS wants to be as far away from this turkey as possible. To that end, they are saying, you can't use own standards, you can't use our anything. They're telling Kansas to go screw using every means at their disposal. And good for them. I think Kansas has managed to make some very serious errors that will kill science in some schools, and kill everything else in others. but that's a different point. NAS wants to tell Kansas to go to hell? If IP law lets them do it, good for them.

I somewhat agree with this but at heart don't. The core of this is, the NAS wants to be as far away from this turkey as possible. To that end, they are saying, you can't use own standards, you can't use our anything. They're telling Kansas to go screw using every means at their disposal. And good for them. I think Kansas has managed to make some very serious errors that will kill science in some schools, and kill everything else in others. but that's a different point. NAS wants to tell Kansas to go to hell? If IP law lets them do it, good for them.

Ok. Let me extend the logic in play here... This is kinda what you are saying:

A black guy kills someone. It's complicated. Rather than go through the effort to prove he killed the person, they just throw him in jail because he is black. Something on the books could be used to do it, and no one was going to stop them. It was easier. People say "Oh well.. He killed someone, he is in jail. Justice was done."

This isn't how justice works. It's how bad law gets in the books, and stays there.

Rattle wrote:

I somewhat agree with this but at heart don't. The core of this is, the NAS wants to be as far away from this turkey as possible. To that end, they are saying, you can't use own standards, you can't use our anything. They're telling Kansas to go screw using every means at their disposal. And good for them. I think Kansas has managed to make some very serious errors that will kill science in some schools, and kill everything else in others. but that's a different point. NAS wants to tell Kansas to go to hell? If IP law lets them do it, good for them.

Ok. Let me extend the logic in play here... This is kinda what you are saying:

A black guy kills someone. It's complicated. Rather than go through the effort to prove he killed the person, they just throw him in jail because he is black. Something on the books could be used to do it, and no one was going to stop them. It was easier. People say "Oh well.. He killed someone, he is in jail. Justice was done."

This isn't how justice works. It's how bad law gets in the books, and stays there.

No, I'm saying something completely different. Bob wants to do "thing" and as part of "thing" he wants to include stuff from Fred. Fred gets wind of what Bob is doing, wants no part of it, and even though he has not in the past made an issue of people using his stuff before goes after Bob for doing it.

If you want to make your argument, that would be the Al Capone scenario. We can't get him for all the other crap he did, but we can get him on tax evasion.

In any case, none of those arguments (including the one in the Wired article) are making the argument you try to analogize to here.

No, I'm saying something completely different. Bob wants to do "thing" and as part of "thing" he wants to include stuff from Fred. Fred gets wind of what Bob is doing, wants no part of it, and even though he has not in the past made an issue of people using his stuff before goes after Bob for doing it.

If you want to make your argument, that would be the Al Capone scenario. We can't get him for all the other crap he did, but we can get him on tax evasion.

In any case, none of those arguments (including the one in the Wired article) are making the argument you try to analogize to here.

The argument I'm making is that using bad law to attack a problem is not an acceptable tactic. It gives strength to the bad law. Another approach is necessary in order to not create another larger problem. There is an ethics issue at hand.

Everyone has to pay taxes for the system to work. To that end, tax law is not only necessary, but a good idea. Al Capone was making tons of money, he was not paying taxes, tax law is valid, going after him with tax law is A-OK. It does serve as a good example, just not of the point I'm making.

It's more like this: Bob is a bad scientist with a crack pot theory. He is using selective parts of Fred's research to support his own, along with the works of others. Fred gets wind of what Bob is doing, and invokes bad law that allows him to limit the usage of Fred's work in ways that are "derogatory to or critical of" Fred's theories. Fred's tactics are generally supported because his goals are in line with what the educated open-minded majority wants. However, the long term effects of supporting this tactic are damaging because they go directly against what educated open-minded people depend upon for their free expression rights and ability to comment on research. Years later, the situation comes back to bite Fred and all of his colleagues in the ass when the same law is used on him after he releases a paper citing the environmental damage created by the usage of a certain chemical. The chemical maker sues him saying that he cannot include any mention of any actions or research the chemical company did in a paper that is "derogatory to or critical of" the chemical company or its products. After removing all references to the company's actions and it's own research, the paper is unable to explain Fred's findings in a way that allows others to understand them.

We all build our work on the backs of each other's work. The mechanisms that support that cannot be allowed to come under threat just because it's necessary to confront one crackpot idea.

Granick is making the same point I am. What she says supports my argument that this is IP being used for censorship, as she clearly states that "we have increasingly seen owners leverage their IP rights to get control rather than to get paid." I fully agree with her assertion that copyright owners should not be able to "enforce an ideological litmus test for permission to use a work."

Intelligent design is bullshit, but this isn't the right way to attack it.

Rattle wrote:

No, I'm saying something completely different. Bob wants to do "thing" and as part of "thing" he wants to include stuff from Fred. Fred gets wind of what Bob is doing, wants no part of it, and even though he has not in the past made an issue of people using his stuff before goes after Bob for doing it.

If you want to make your argument, that would be the Al Capone scenario. We can't get him for all the other crap he did, but we can get him on tax evasion.

In any case, none of those arguments (including the one in the Wired article) are making the argument you try to analogize to here.

The argument I'm making is that using bad law to attack a problem is not an acceptable tactic. It gives strength to the bad law. Another approach is necessary in order to not create another larger problem. There is an ethics issue at hand.

Everyone has to pay taxes for the system to work. To that end, tax law is not only necessary, but a good idea. Al Capone was making tons of money, he was not paying taxes, tax law is valid, going after him with tax law is A-OK. It does serve as a good example, just not of the point I'm making.

It's more like this: Bob is a bad scientist with a crack pot theory. He is using selective parts of Fred's research to support his own, along with the works of others. Fred gets wind of what Bob is doing, and invokes bad law that allows him to limit the usage of Fred's work in ways that are "derogatory to or critical of" Fred's theories. Fred's tactics are generally supported because his goals are in line with what the educated open-minded majority wants. However, the long term effects of supporting this tactic are damaging because they go directly against what educated open-minded people depend upon for their free expression rights and ability to comment on research. Years later, the situation comes back to bite Fred and all of his colleagues in the ass when the same law is used on him after he releases a paper citing the environmental damage created by the usage of a certain chemical. The chemical maker sues him saying that he cannot include any mention of any actions or research the chemical company did in a paper that is "derogatory to or critical of" the chemical company or its products. After removing all references to the company's actions and it's own research, the paper is unable to explain Fred's findings in a way that allows others to understand them.

We all build our work on the backs of each other's work. The mechanisms that support that cannot be allowed to come under threat just because it's necessary to confront one crackpot idea.

Granick is making the same point I am. What she says supports my argument that this is IP being used for censorship, as she clearly states that "we have increasingly seen owners leverage their IP rights to get control rather than to get paid." I fully agree with her assertion tha... [ Read More (0.2k in body) ]

I am not in favor of censorship, but I do think that if someone wants to use something of mine, then it is mine. If someone wants to use it in ways that I do not find fit, then as the "owner" I should not be required to accept money to be used to support an abhorrent position. That strikes me as "30 pieces of silver."

I think there are a number of questions involved here because we are dealing with NAS as opposed to a purely private body. We may want to draw some lines, because I do not accept the idea that an illogical extension of something I created is fine to use simply because someone pays me.

The only situation I can think of where compulsory licensing exists is music. If you write a song, you have the right to publish exclusively until it's been published the first time. At that point, others can record it without permission as long as they pay the standard royalty.

If you write a song called "The Copyright Blues", and I hear you play it at a private party.. I can't go off and record it without infringing your copyright. If you put it on an album and release it, I can then record it. I just can't make significant changes. I can change it to suit my style, but I can't make any significant changes to the lyrics or song structure.

If I did make significant changes to the song, than it would qualify as a derivative work. Derivative works are a right retained by any copyright holder, and the right exists in all mediums. If you write a book, and I make a Readers Digest like abridged version, it qualifies as a derivative work and I'd need permission.

Referencing work is a different story. That's covered by the fair use defense. It may or may not be allowed depending on the nature of the work (non-profit, profit), how its used, how much of it is used, and if any damage is done to the original work's profit potential.

In the case of classroom material, it would depend on how it is fixated and used. If it's in a textbook, it's the publishers of the textbook who matter. They are the ones responsible for making sure they have the rights for whatever they publish. In this case, my understanding is that it's teaching guidelines. If the schools are copying them and distributing them to teachers, then they would need permission depending on how it's licensed.

If someone is looking at the guidelines, and using them as a model for how to create their own.. It would depend on how much is copied. You can't copy verbatim, but nothing is stopping you from using the same style and structure. Even incorporating some of the data. Lots of grey area.

For instance, you can't copyright forms. To obtain (an enforceable) copyright, the work in question must have some form of originality.

You can't copyright facts either. No one has a monopoly on the truth. That could figure into any copyright angle taken on evolution material. You can however copyright a work that conveys facts.

We're getting far afield from where this started. NAS and NSTA have developed a set of standards that they publish. This is their work. They allow other states to use that work in developing their curriculum. They are refusing to allow Kansas to copy their work because they see Kansas as having adopted something that fundamentally disagrees with their standards.

I find what Disney does insulting because they do things like ban the mouse from daycare centers, they are protecting a financial interest in an area where they make no provision, and that seems to be a bad practice. Diebold used their usage to stifle criticism. That's obviously wrong. NSA and NSTA are using copyright law to stop their work from being used where the governing body has adopted standards that have a fundamental opposition to their standards.

I don't have an issue with what they have done and I think Granick is wrong. This is exactly what the law was designed for, not the financial gain of Disney nor the censorship of Diebold. NAS and NSTA are saying, "You want to do this? Then you need to do this part without our help." This isn't anything like the other cases. If Kansas wants to work within fair use and write their own standards, I don't see where NAS or NSTA is blocking that, Kansas wanted to simply copy their whole thing. Because Kansas also adopted something into science that isn't science, NAS and NSTA said no. That's not ideology, that's science.

Rattle wrote:

In the United States, intellectual property, or IP, law ensures that creators and inventors will get paid for their work, while doctrines like fair use and time-limited rights leave enough breathing room for the next innovator to use existing creations to comment, critique or make something new. But we have increasingly seen owners leverage their IP rights to get control rather than to get paid.

Jennifer Granick has an article on Wired about how the National Academy of Sciences and others are using the "copyright misuse" doctrine in a strategy to wrangle Kansas into not teaching intelligent design.

I fully agree with her that using this type of tactic is very bad. Fighting a bad problem by using bad law creates an even worse problem.

.

True...
They should consider suing for libel. How would you like to have a respectable science book, and be suddenly responsible for the "science" that kansas is making. "Oh look... It's that book that makes people STUPID!" It's like painting a picture, selling it to someone... And that person wipes his ass on it and sells it in your name in a very public sale. If they want to sell "shit" they should be the ones to take responsibility for it.

Decius wrote:

NAS and NSTA do not have to endorse the Kansas Board of Education's decision to teach intelligent design. The theory isn't supported by science, and Kansas should not be able to imply that teaching it comports with NAS or NSTA standards. United States trademark law would certainly prohibit Kansas from claiming NAS or NSTA approval for its alternative curriculum. But instead, the organizations are leveraging their copyrights in the standards manuals to get Kansas to accept evolution theory.

I've avoided commenting on this discussion for a couple weeks specifically because I think the devil is in the details here, and no one talking about this has really illuminated the details to the point where I feel comfortable taking a position.

In general, I don't like the idea of copyright controlling derivative artistic works, because I think it limits people's freedom of expression, but there is a problem here. Ultimately, if you are taking a large chunk of my IP, you really aren't making a "fair use" of the material, particularly if the thing you are publishing serves the same purpose that mine does. So you need to pay me. Its impossible for the legal system to distinguish between a scenario where I refused to sell you the rights because you can't meet my price, and I refused to sell you the rights because I hate you. So ultimately, copyright holders are going to have some control over the artistic nature of derivative works. It cannot be avoided.

Furthermore, if you accept the line of reasoning that copyright should only serve a financial purpose you MUST reject the GPL, and you must at least raise questions about BSD licenses. These licenses do not require payment for a work. They simply impose a set of controls on the use of that work by others. How is that for a philosophical pandora's box? I'm not sure I'm afraid to open that box. Hence my unwillingness thus far to talk about this question.

Why is this science standard copyrighted? Does that copyright exist entirely for the purpose of control, or do they charge for it? If they charge for it, and Kansas wishes to use it almost in it's entirety but with criticial changes, is it not within their rights to refuse to sell it. Is all use of copyright for control bad?

I think the standard that we have is that you can use copyright to control, but only certain kinds of control are ok. You cannot prevent comment, criticism, etc... You can prevent the release of closed source modifications, or competitive works that are largely derivative. These balances are muddy and messy and still evolving. I don't think there are any bright lines here. I do wonder if the fair use exemptions for educational purposes might apply to Kanas in this case?

On the other hand, Its not clear that this decision by this science board is simply an attempt to stifle criticism. It may be an attempt to prevent a copyrighted work fr... [ Read More (0.4k in body) ]

Mike the Usurper wrote:

The position of NAS/NSTA is that what Kansas has done is flat opposed to what they have put out. Their statement and the NAS/NSTA are incompatible and because of that, they have declined to let Kansas include their publications.

But why is it copyrighted in the first place? Why not put it in the public domain? Is this the only reason it is copyrighted, or are there other reasons? Does Kansas pay for it?

Decius wrote:
Mike the Usurper wrote:

The position of NAS/NSTA is that what Kansas has done is flat opposed to what they have put out. Their statement and the NAS/NSTA are incompatible and because of that, they have declined to let Kansas include their publications.

But why is it copyrighted in the first place? Why not put it in the public domain? Is this the only reason it is copyrighted, or are there other reasons? Does Kansas pay for it?

Beats me, but the books sell for $20 for the NAS book and $30 for the NSTA one.

The comment from Ralph Cicerone, President of the NAS reads: "In summary, it is our conclusion that the revisions made to the KSES in Version 2-d compromise the National Science Education Standards, and therefore you may not use components of the National Science Education Standards in the KSES as currently drafted." I think what that means is that if you want to use them, you have a vetting process. If you want to critcize them, go ahead.

The best place to find out what is really going on in this isn't Granick, it's the original sources I linked to earlier.