Misusing Copyright Laws in Medicine
The Mini-Mental State Examination (MMSE) is a questionnaire that has been used by doctors throughout the world for more than thirty years to test the cognitive function of those suspected to suffer from dementia. It is very simple and quick to administer, consisting of 30 items, and must by now have been used millions, if not hundreds of millions, of times.
Developed by three psychiatrists, Marshal Folstein, Susan Folstein, and Paul McHugh, it was published in a medical journal, but the authors retained their copyright. Nevertheless, the questionnaire’s format was reprinted in many textbooks and manuals, and physicians all around the world still use it without realizing that they might be infringing copyright. It is still easy to find on the internet.
It is only in 2000, 25 years after it was first published, that the authors, or inventors, of the MMSE tried to assert their copyright. In 2001, they granted a corporation, Psychological Assessment Resources, a license to publish, distribute, and manage all intellectual property rights of the questionnaire.
An editorial in the latest New England Journal of Medicine discusses the problems arising from the assertion of copyright. For example, a recent attempt by other researchers to develop a different questionnaire has fallen afoul of copyright because it used many of the same, or very similar, questions.
Some of these questions are “What day is it today?”, “What month are we in?”, “What year is it?” and “What is this address?”, which in the context of cognitive testing may now be copyrighted, though they were asked to test cognition of patients well before the MMSE ever saw the light of day. Presumably, once the answers to these rather banal questions are used to produce a score on a scale that is itself used to decide whether a patient is suffering from a cognitive defect, they become copyrighted.
His freelordship is one of those wishy-washy RINO’s, goodvolks who are content with no more than gettin’ along by goin’ along. Even by the neostandards of Rio Limbaugh / Port Ste. Lucie, “it is against human nature to expect” is hardly to be accused of being an argument.
Were this indeed the case, it would, of course, be Human Nature that ought to defer to Hire Law.
Oh, for a wingnutette (or even a wingnut) who is serious about Absolute Whighteousness, an’ will stand up an’ get counted with Paul Elmer More:
Happy days.
Hey, you got some derp in my derp there!
I’m lost. What, and even Who, the hell are you talking about?
I’m not certain but wouldn’t the uncontrolled usage of this questionnaire for 25 years constitute “open source”?
no. But a court may well decide that the lack of prior enforcement creates a situation in which enforcement now is unreasonable and even impossible.
If this has not entered the public domain by default, nothing has.
Not to mention that if the questions are truly as generic as the article states, then they’re clearly in Common Use.
This reminds me of the Apgar score for newborns. It also reminds me of Benjamin Franklin who did not pursue a patent on his home furnace/stove invention so that fewer people would freeze to death.
OK, so now every time someone saves a life with the Heimlich maneuver, should we send the inventor some kind of royalty? But Dr. Heimlich is made of nobler stuff.
Hate to tell you but the Heimlich is no more. It is called ‘abdominal thrusts’ in first aid classes. Same basic manover without the name b/c of copyright issues.
Hmmm…Dr. Heimlich is NOT made of nobler stuff. See http://medfraud.info/
Thank goodness, Webster did not copyright the English language when he published his first dictionary. Think of having to pay for the use of each word in a lecture, a book, or a letter. Would his heirs be drawing royalties today, or would they be embroiled in constant legal fights over the use of the word ‘potato,’ for example? You say, ‘Po-tay-to; I say, ‘Po-tah-to’.
By the way, please be warned that this comment is copyrighted and cannot be repeated in whole or in part without express written consent from the author. The words, their arrangement, and in some cases, the spelling are solely the creative work and intellectual property of Hubbub and his heirs…and their heirs. My lawyer will contact you.
Mr. Dalrymple, himself an author, should be well aware that the questionnaire he is discussing is not newly “subject to copyright law”; it was always protected by copyright law. The authors’ belated efforts to enforce that copyright may, as a practical matter, be akin to trying to stuff toothpaste back in the tube—but that is because they failed to assert their authorship rights at the outset, not because those rights did not then exist.
Like many other defamers of copyright today, Mr. Dalrymple attempts to bolster his weak and highly slanted case against the authors whose rights he resents by waving the bogey of worst-case-scenario penalties that have absolutely no chance of being imposed in the real world.
What a disappointingly low-quality screed.
Of course, if Drs Folstein and McHugh had asserted their copyright from the beginning then the MMSE would never have developed into the popular tool it is today. 25 years of promotion via medical texts and tear sheets and laminated cards dispensed by drug reps to several generations of medical students and residents have promoted the test far beyond what would have been possible without an open source environment. Also, medicine, and science in general, were both pursued in a more gentlemanly manner in that era. The concept of restricting the free use of an idea to earn $1.23 would have been considered dishonorable.
Everyone in the world has contributed his or her own mite of wisdom to society. Only certain people have decided to use the force of government to control and thereby profit from that wisdom.
When a man has spent a year or two writing a book, he deserves to be compensated for the use of that book. When a man comes up with some novel device to enrich our lives, he needs to be paid for that, too.
However, this tit for tat minute parsing of otherwise mundane crap into works of genius by merely writing down what everyone else already thought, and charging those same people for using it, must stop. There are only so many leeches one may affix before the host simply dies.
We are at that point, now.
Hubbub,
Please refer to the “terms of use” to which you agreed by the posting of your comment. Your property, intellectual and otherwise, contained within, suggested by, or extrapolated from your comment is now under absolute ownership and control of PJMedia, except where superceded by force of law for the benefit of Homeland Security, TSA, EPA, DOJ, DoEd, SEIU, OWS, ACORN, or other such groups, persons, or foreign entities as SOPA/PIPA may provide.
Thank you for playing.
Congress
cc: Eric Holder
Dagnabit! Foiled again by the long arm of political law. Good one. LOL.
Let’s cut through some of the nonsense that is starting to well up here, as it always seems to when copyright is discussed online.
1) Everyone here holds the copyright to his or her own words. There is a nonexclusive license tacitly granted to PJ Media by the act of posting here, however—and any quotation of one person’s post by another for purpose of comment will be permitted as a fair use.
2) As far as the questionnaire which is the subject of this article is concerned, there are a number of questions which the article does not answer. If the questionnaire was first published in the US, has it been registered in the US—by the authors, not by the journal which published it? If so, then the copyright is at least theoretically enforceable; if it has not been registered, it is not enforceable until registration has been effected. Mere affixation of a copyright notice does not substitute for registration.
3) Whether the questionnaire displays sufficient originality to support a copyright registration is a question that can only be answered by finding out if, in fact, it has been registered. If the questionnaire has not been registered, it is entirely possible that the publisher is attempting to collect licensing fees on an unenforceable copyright claim based upon demand letters, since it can be less expensive to pay a small licensing fee than large legal fees.
4) The likelihood of an infringement suit for unauthorized usage of a questionnaire that has been in common circulation for 25 years is next to nil; the likelihood of any recovery by the plaintiffs is next to nil. The gaudy damages cited by Mr. Dalrymple—up to $30,000 per infringed item, imposed at the discretion of the court, which the court may increase up to $150,000 upon proof of willfulness—are available only for infringements which have occurred following registration of the work. Infringements which occur prior to registration will only bring the plaintiff provable actual damages, which from the article appear to be so minimal as to not pay for the federal filing fees and service of process, let alone pay for the attorney who would prepare the papers.
See Michael Crichton’s book, NEXT, about the idiocies of patent law.
Patent law, of course, being wholly unrelated to copyright law, and therefore irrelevant to this discussion.
Acquire and read Spider Robinson’s “Melancholy Elephants” for a preview of where this crap ends up. Be informed and afraid…
I have just read the story you mention. It is idiocy.
The original terms for copyright as established in 1790 allowed for an initial fourteen year period with the opportunity to request one fourteen year extension. This allowed twenty-eight years of protection for the creator of the work to profit before the work entered the public domain for the benefit of all.
Now, thanks to the diligent work (buying of Congressmen) by Disney and other content creators, the copyright laws have extended to the life of the author plus seventy years. You can bet your bottom dollar that these limits will be extended the next time Mickey Mouse is faced with public domain.
Through the DMCA, our corporation owners effectively eviscerated the idea of fair use, now with SOPA/PIPA their lock on thoughts and ideas will be complete. But don’t cry over this loss of freedom as Disney owns the copyright to that emotion.
Utter nonsense; fair use is stronger than it ever has been before. It was grotesquely expanded, far beyond its statutory limits, by the US Supreme Court in the case of Campbell v. Acuff-Rose (the “Pretty Woman” case), where the Supreme Court gave the green light to infringing derivative works being considered “fair use” if the attorney for the thief could make a plausible argument for “transformativeness.”
Add to that all the “[your] information wants to be free [while my information must remain protected]” guff spewed by the anti-copyright copyright bar, and the dumb, resentful, peasantlike OWS-flavored envy with which Internet users regard anything someone else has created, and it is obvious that copyright protection has more holes in it than Swiss cheese.
Utter nonsense that the DMCA removed the right to make an archival copy of digital works you own by making it a crime to bypass DRM?
If you want to throw about court cases, I volley with Story v. Holcombe (1847), which held that something as substantive as an abridgement did not infringe on the author’s rights, while Stowe v. Thomas (1853) held that a German translation of Uncle Tom’s Cabin was not infringement. Contrast those rulings with the current situation in music where a sample of four notes or less can be considered infringement and tell me again how the current version of fair use is “grotesquely expanded.”
First, if you are going to throw around court cases, try throwing around cases that are not quite so antique. You might try something that was decided at least under the 1909 law, if you can’t quite attain the current law which replaced it.
Second, if you are going try and argue for specious “rights,” perhaps you will explain why and how making an “archival copy” of a rights-managed work (over and above the “archival copy” which is the actual copy you own) is in any sense a “right.”
Third, kindly cite your authority for “four notes or less.” Is this from a particular case, or are you quoting streetcorner copyright?
My cases were archaic to prove a point, that fair use was originally far more broad than it is currently. You claimed the opposite.
The idea behind an archival copy of my DVD is so that if it breaks or wears out I still have a copy. That right is established in fair use doctrine, but was bypassed by the DMCA. http://www.copyright.gov/help/faq/faq-digital.html
As to the four notes: Elsmere Music, Inc. v. National Broadcasting Co. While the court decided in favor of NBC, the court did so based on the work being a parody. With regard to the size of the sample, the opinion states: “In its entirety, the original song “I Love New York” is composed of a 45 word lyric and 100 measures. Of this only four notes, D C D E (in that sequence), and the words “I Love” were taken and used in the SNL sketch (although they were repeated 3 or 4 times). As a result, the defendant now argues that the use it made was insufficient to constitute copyright infringement. This Court does not agree.”
What you appear to miss is that since “fair use” is not a “right” but an affirmative defense, one has to admit to infringement before one can invoke it. In other words, if one can claim “fair use” protection on the grounds of parody, one is saying, in effect, “yes, I infringed, and I admit I infringed—but my infringement should not render me liable, because this infringement is forgiven under the law.”
Thus, for the court to find that there was a protected parody under the doctrine of fair use, it of necessity had to first find that the work had been infringed.
As to “fair use being more broad” 150 or 160 years ago, that is largely because copying was more difficult and therefore less likely to occur. The very thing that you so celebrate—the ease of copying using digital technology—is what has narrowed protection for certain forms of copying.
Fair use, however, is expanding astronomically in other ways. The doctrine of “thin copyright,” for example, which gives little protection to things which courts judge to be only “nominally original,” expands fair use at one end of the spectrum, while the concept of “transformative use” expands fair use at the other end by in effect permitting derivative works to be considered “fair use.” The short-sighted advocates of restricted copyright protection do not realize what a hideous Pandora’s Box they are opening by permitting judges to make aesthetic judgments.
Actually no, fair use as defined in section 107 of title 17 is not infringement: “Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work… is not an infringement of copyright.”
As a practical matter, the only time fair use is determined is when a court rules that something is fair use, at which time fair use has been pleaded as an affirmative defense. Thus, regardless of the language of the statute, a determination of “fair use” is a recognition that something has been used without the permission of the copyright holder, and a court has decided that this non-permitted usage will not subject the user to liability.
In other words, fair use is a defense against imposition of liability for having infringed.
No. In your earlier post you stated: “one has to admit to infringement before one can invoke it.” This is not the case. If I claim fair use in court, I am not affirming infringement; I am saying there was no infringement because by law fair use is a limitation to the exclusive rights of the author.
It may seem like semantics to you, but there is an important distinction between using fair use to defend infringement, and saying fair use is not infringement.
It is you who is engaging in semantics. I have had to deal with “fair use” claims in court. The defendant who claims fair use is always admitting to the usage when making such a pleading; had the defendant not made use of the work without permission—one of the classic definitions of an infringement claim—there would be no claim against the defendant, and no court case. The pleading of fair use is always grouped with the other affirmative defenses.
So—to claim its use was “fair,” the defendant must, by nature of its pleading, admit to the usage. If the defendant must claim “fair use,” it is admitting by doing so that it did not have a license for the use—for if the defendant did have a license, there would be no need to claim “fair use” at all. Thus, regardless of what the statute says, the claim of fair use is always an admission of unlicensed usage. The court may decide to hold the liability for such unlicensed usage in abeyance by ruling that the usage was “fair”—but an admission of unlicensed usage by the defendant it remains, each and every time.
You are changing your language as the discussion progresses. There is a distinct difference between “admitting unlicensed usage” and “admitting infringement.” Your initial post stated: “one has to admit to infringement before one can invoke it.” That statement is wrong. Had you said: “one has to admit to unlicensed usage before one can invoke it,” I would have agreed with your assertion.
“Thus, regardless of what the statute says, the claim of fair use is always an admission of unlicensed usage. The court may decide to hold the liability for such unlicensed usage in abeyance by ruling that the usage was “fair”—but an admission of unlicensed usage by the defendant it remains, each and every time.”
Of course fair use is an admission of unlicensed use, as by law no license is necessary for fair use. I am troubled by your comment “regardless of what the statute says,” as this implies you and the courts are ignoring the spirit and letter of the law: fair use is not infringement.
What you apparently refuse to understand/countenance is that “unlicensed usage” is infringement.
“Unlicensed usage” is the very essence of what infringement is, for the copyright law grants to the author, or the author’s designated stand-ins (i.e. his/her licensees or assignees) the exclusive right to do certain things with a copyrighted work. Accordingly, if a defendant has engaged in unlicensed usage, the defendant is of necessity an infringer—no matter what the statute says—unless the unlicensed usage is “fair,” which is to say, an unlicensed usage which a court has determined shall not carry liability.
Again no. Unlicensed use in the case of fair use is not infringement of the exclusive rights of the author. The exclusive rights provided an author under copyright law are bounded. Fair use is one of the activities that reside outside those bounds. Sections 107-122 of Title 17 delineate the various exceptions, not infringements, to an author’s exclusive rights.
Finally again, no matter how you try to parse it, Federal law explicitly states that fair use is not infringement.
It seems to me that this issue could be taken up on the British sitcom ‘Doc Martin’. That is if more episodes are planned.
Lot’s of potential issues with this:
1. If these questions were used previously by physicians, they were probably written down somewhere and even if this group can claim copyright on the test as a whole, those previously used questions can still be incorporated and used in new tests.
2. Did these physicians own the copyright? In the past 25 years physicians employed by medicals schools etc. normally assign away to the school all intellectual property rights to their inventions and articles?
3. 25 years of nonenforcement for obvious public use – textbook case of laches.
I would never invest in the company acquiring the “copyright”. Picking black or red in Vegas gives you better odds.
“the only time fair use is determined is when a court rules that something is fair use”
This type of arrogantly monopolistic overreach is precisely why the courts are held in contempt by a majority of the American people under the income level that needs lawyers. If the only remedy for lawyers is more lawyers, killing them all will sound less like a joke and more like sound social policy.
Has anyone actually litigated the issue against the purported “copyright” owners? If doctors are copying the exact form, then yes, that may be copyright infringement. But if doctors change it around just a bit, and maybe add their own introduction paragraph or something like that, then the case starts to look almost exactly like one of copyright law’s most fundamental cases, Baker v. Selden, in which the defendant was ruled not to have violated copyright.
Supremes just expanded copywright more.Yum,yum.More lawyers.It now takes 1.8 lawyers in med law for each doc.When I got out of law school 4 decades ago, I thought where are all us lawyers gonna go for lazy jobs that pay big bucks.Hah,hah.Now I know there is no worry. We closed down med schools and built more law schools. Hell,we can import all the docs we need, but who wants a foreign lawyer.Lawyers are needed to get rid of lawyers.Govt law is the greatest. Get a job nobody wants done, that’s the key.Under Obama,the Feds can be anywhere;a doc now needs a lawyer and a contract to empty the trash.