Re: odd copyright issue (medical diagnostic program)

On Sun, 02 Apr 2000, Larry Weiss <pgw[_at_]idt.net> wrote:
>
> On Fri, 31 Mar 2000, Colin Seeger <seeger[_at_]ozemail.com.au> wrote:
> >
> > On Wed, 29 Mar 2000, Cynthia Chapman <cbccin[_at_]proaxis.com> forwarded
> > a message from Barbara B. Reitt:
> > >
> > > I've encountered a requirement from a copyright owner from whom I
> > > have sought permission to reprint something which appalls me.
> > > Briefly: my client is being asked to warn readers that they may
> > > not make clinical use of a diagnostic screen that is under copyright
> > > and that we are reprinting without first getting permission and
> > > paying a fee to the copyright owner. (The screen in question is
> > > the widely used Mini-Mental State Examination, and the owner of the
> > > copyright is a corporation set up by the screen's original author,
> > > Dr. Milton Folstein.)
> > >
> > > I should emphasize that my objection is not to the normal operation
> > > of copyright law and the need for my client, in this instance, to
> > > obtain permission before reprinting the MMSE screen. My objection
> > > is to this author's attempt to control the CLINICAL use of his
> > > screen and to derive income from its application in medical care
> > > generally. I see this as both a greedy over-reaching misapplication
> > > of copyright law and a move that, unopposed, could stifle scientific
> > > and medical progress. (Will every practitionaer have to pay a fee
> > > before making clinical use of techniques and treatment approaches
> > > described in copyrighted medical literature? What a prospect!)
> > >
> > > Are any of you aware of anyone's contesting this proviso by the
> > > Mini-Mental LLC (Folstein's corporation)? Or of any hospital or
> > > clinic that has agreed to pay the fee before allowing clinicians on
> > > staff to administer the MMSE to patients? Or of any court cases
> > > challenging this?
> >
> > I am wondering how much the good doctor is prepared to spend on
> > investigation and enforcement, given that his "warning" will doubtless
> > be heeded to the same extent as the admonition againt copying which
> > appears on every single CD ever issued. I wish I could say "good
> > luck" but it's not quite what I was thinking.
>
> I gather that the creator of the test objects to its being copied
> without compensation to him. Why is this any different in principle
> than, say, ETS objecting to a purchaser of one its its tests making
> copies to administer to schools and students who have not paid for
> it? The fact that the creator of a clinical test wants to be paid
> for copies made for the purpose for which the test was created is no
> more "appalling" than a pharmaceutical company insisting on its patent
> royalties for useful medications.
>
> What I find "appalling" is Mr. Seeger's advice that anyone who wants
> to use the material should just go ahead and use it without compensation
> to the creator as it is too uneconomical to investigate and prosecute
> the infringement.

Larry, RIGHT ON!!! I completely agree. I, too, find it disturbing that people take the liberty of infringing because they feel that their chances of being pursued or prosecuted are slim to none. By that standard, these people must also think that it's okay to participate in looting a store after a natural disaster such as a hurricane because, hey, there are 90 other people looting too and the chances of getting caught among them are slim to none. It must be okay to steal $100 from someone's jacket in the coatroom at a large function such as a wedding because, after all, the chances of getting caught and prosecuted are slim to none with 150 other people attending the wedding, right?

Incidentally, the risk of being prosecuted just might not be quite as remote as those people think. A similar type of instance happened a few years ago. Kaplan Educational Testing Service was sending people to several different cities to take the GRE exam and memorize as many of the questions as they could. They reproduced those questions and, by repeating this, were able to show that most of the test could be reconstructed. Therefore, it would be possible to give future test-takers the correct answers.

The Educational Testing Service, who administers the test in question, sued Kaplan for a litany of things, among them copyright infringement. The judge dismissed every charge EXCEPT that of copyright infringement -- he ruled that a trial should proceed on that count. Kaplan's argument was that they were doing this for the good of the public -- to expose a potential security problem with a national exam which could render the results useless. Kaplan paid $150,000 to settle with the promise that there would be no further efforts to reproduce the test.

Marty Hayes
<9ball[_at_]hostsite.net> Received on Tue Apr 04 2000 - 15:23:18 GMT