Doctors Discover Copyright Law: Cognitive Screening Test Killed Over Infringement Claims

from the horrifying dept

We've certainly talked about how ridiculous patents have gotten in the way of health care professionals and doctors providing the best care they can. Beyond basic things like gene patents, the idea that diagnostic tests are patentable is somewhat horrifying for anyone with any sense of decency when it comes to trying to keep people healthy. But, apparently the issue doesn't stop there, and the medical community is suddenly grappling with some doctors using aggressive copyright enforcement to block competing diagnostic tests from being available.

The story comes from Dr. John C. Newman and lawyer Robin Feldman in the respected New England Journal of Medicine, where they recount the story of the Mini–Mental State Examination (MMSE). A simple 30-item screening test that was first published in 1975 basically became a defacto standard that was used (and published!) widely. As the authors note, it was available in textbooks, pocket guides and websites -- and "memorized by countless residents and medical students." All in all, it sounds like a useful tool that was being put to good use. But then, decades after it was created, the authors of the diagnostic test discovered copyright. And that's when the trouble began:
In 2000, its authors, Marshal Folstein, Susan Folstein, and Paul McHugh, began taking steps to enforce their rights, first transferring the copyright to MiniMental, a corporation the Folsteins founded, and then in 2001 granting a worldwide exclusive license to Psychological Assessment Resources (PAR) to publish, distribute, and manage all intellectual property rights. A licensed version of the MMSE can now be purchased from PAR for $1.23 per test. The MMSE form is gradually disappearing from textbooks, Web sites, and clinical tool kits.

Clinicians' response to this "lockdown" has been muted. A few commentators have expressed concern about continuing to use a now-proprietary tool in training or about implications for the developing world, echoing debates about patented pharmaceuticals. In our experience, many clinicians are either unaware of the MMSE's copyright restrictions or simply ignore them, despite the risk of copyright infringement.

But then in March 2011, a promising new cognitive screening tool that was to be available through "open access," the Sweet 16 -- a 16-item assessment of thinking, learning, and memory developed by Harvard's Tamara Fong -- was removed from the Internet at the request of PAR in an apparent copyright dispute. The Sweet 16 includes orientation and three-object recall items, similar to the MMSE's, along with a digit-span item. This action, unprecedented for a bedside clinical assessment tool, has sent a chill through the academic community; clearly, clinicians and researchers can no longer live in blissful ignorance of copyright.
It's difficult to see how this isn't copyright abuse in the extreme. The copyright on the MMSE is not on the "idea" of a "3 object recall" test, but the specific expression. If you look online there are a few different versions of the MMSE that you can find pretty easily and the content at issue seems really basic. For example, the "three-object recall test" appears to consist of this:
Name 3 objects: 1 second to say each. Then ask the patient all 3 after you have said them. Give 1 point for each correct answer. Then repeat them until he/she learns all 3. Count trials and record.
Then, a couple questions later, it says you should ask the patient to repeat the same 3 objects. This is pretty straightforward -- a direction. Suggesting a similar test, by itself, should not infringe at all in that it's not making use of any "creative expression" from the original (if there even is any creative expression in the original). And that's outside the question of whether or not there would be a fair use defense even if the sentence was used exactly and in its entirety.

But, even just getting beyond the copyright issue here, the very fact that Marshal Folstein, Susan Folstein, and Paul McHugh, along with their partner, Psychological Assessment Resources (PAR), are using copyright to stifle important and useful processes for diagnosing cognitive states should simply be repugnant to all.

The NEJM article goes on to talk about various copyright issues, and explain why it's important for doctors to understand concepts like open access, the public domain, Creative Commons and open source licenses.
We suggest that authors of widely used clinical tools provide explicit permissive licensing, ideally with a form of copyleft. Any new tool developed with public funds should be required to use a copyleft or similar license to guarantee the freedom to distribute and improve it, similar to the requirement for open-access publication of research funded by the National Institutes of Health. The solution can be as simple as placing a copy of the tool on the authors' Web site, with a statement naming or linking to the license. Clinicians and researchers would be free to use, copy, and improve the tool; improvements would have to offer a similar copyleft license, perpetuating the benefits. Yet authors would maintain ownership and copyright of their tool and could profit by licensing it for a fee to commercial users or publishers who wished to include it in a non-copyleft work.
We've certainly talked about the importance for folks in other professions to recognize the importance of open access. It's honestly tragic (and just a bit horrifying) that this should even be an issue in the medical space at all. Either way, it's yet another sad reminder of the state of "ownership culture" driven by copyright maximalists, pushing people into believing that ideas can and should be owned and limited.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    John Doe, Dec 30th, 2011 @ 10:12am

    Guess what the three objects are?

    Money, money, money.

     

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    identicon
    Anonymous Poster, Dec 30th, 2011 @ 10:13am

    Well, isn't this a lovely little piece of "what the fuck".

    This is disturbing on a whole new level.

     

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      identicon
      Anonymous Coward, Dec 30th, 2011 @ 10:30am

      Re:

      Intellectual property is way more important than a human being. A human being can only make money up until the point when they die, really. Or are incapacitated, you know, physically or mentally.

      But intellectual property can keep making money indefinitely.

       

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    :Lobo Santo (profile), Dec 30th, 2011 @ 10:38am

    Abolitionist

    So wholesale slash & burn of copyrights and imaginary property is generally regarded as the wrong way to go--but perhaps in fields where life & death are on the line it IS the right way to go.

    Let's abolish copyright/patents for medical & pharmaceutical everything in the name of a better future.

     

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      Hephaestus (profile), Dec 30th, 2011 @ 11:13am

      Re: Abolitionist

      "Let's abolish copyright/patents for medical & pharmaceutical everything in the name of a better future."

      I will do you one better. Let's keep it for a while longer then give a disease, we hold the patented cure to, to everyone in DC and Hollywood. Something with boils and oozing puss would be appropriate.

       

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      Loki, Dec 30th, 2011 @ 11:56am

      Re: Abolitionist

      Unfortunately the copyright maximalists are so unyieldingly unreasonable in their push that it is basically becoming an all or nothing game. Given they are completely unwilling to compromise on any level, than so am I. I vote nothing.

       

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    DogBreath, Dec 30th, 2011 @ 10:45am

    Next up they'll be threating to sue Paramedics

    Who generally ask the questions to accident victims to assess cognitive awareness:

    1) what is your name?

    2) what is the date?

    3) do you know where you are?


    because it sounds a little too close to their copyrighted method, and hey, it's "3" questions! How dare they! Those dirty thieving, copyright infringing, freetard paramedics!

     

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    fb39ca4 (profile), Dec 30th, 2011 @ 10:47am

    i bet mike would fail that test

     

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    Havoc (profile), Dec 30th, 2011 @ 10:50am

    Is copyright infringement what stopped us from using the mere name of Heimlich? This situation needs to be fixed by the courts, where the phrase "for the greater good" needs to be exercised more.

     

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    anonymous, Dec 30th, 2011 @ 10:57am

    unbelievable! by fuck have the US patent system, copyright laws, judges, law makers and government got some serious issues that need sorting out properly, once and for all!

     

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    Anonymous Coward, Dec 30th, 2011 @ 11:08am

    Some say that we need stronger Copyright laws to protect jobs and the economy.

    Well, I wish you good luck on stimulating the economy with a population that dies at the age of 30 because of poor health caused by diagnostic procedures being locked away due to Copyright.

    Copyright FTW, right?

     

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    identicon
    Anonymous Coward, Dec 30th, 2011 @ 11:12am

    With any luck at all karma will ensure that a greedy record/movie exec will lie gasping on a table while the attending physician explains why such-and-such a diagnostic test is not available at this time ...

     

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    New Mexico Mark, Dec 30th, 2011 @ 11:32am

    Complete rubbish

    Seems like a reasonable defense might be that procedural instructions like this are essentially a recipe and recipes are not subject to copyright.

    What next? Someone will copyright instructions for how to do an appendectomy, then all surgeons have to pay or find a creative new way to remove an appendix?

    "Yes nurse, I'm going to remove his appendix through the left nostril. When we finish, be sure to submit the instructions for MY method for copyright as well. There are only so many ways we can do this."

     

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    The Devil's Coachman (profile), Dec 30th, 2011 @ 11:42am

    To quote Dave Chapelle, from his Samuel L. Jackson Beer skit

    Yes, they deserve to die, and burn in hell.

     

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    average_joe (profile), Dec 30th, 2011 @ 11:47am

    A simple 30-item screening test that was first published in 1975 basically became a defacto standard that was used (and published!) widely. As the authors note, it was available in textbooks, pocket guides and websites -- and "memorized by countless residents and medical students." All in all, it sounds like a useful tool that was being put to good use. But then, decades after it was created, the authors of the diagnostic test discovered copyright.

    If that's the case, then perhaps the copyright was abandoned, i.e., the test fell into the public domain. It's a shame the Sweet 16 people backed off and didn't challenge. Whatever copyright the MMSE has is thin, if it exists at all, since ideas are not copyrightable.

     

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      Richard (profile), Dec 30th, 2011 @ 11:57am

      Re:

      Yes - the reason people get away with this stuff is that people fail to challenge it.

       

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        DogBreath, Dec 31st, 2011 @ 11:07am

        Re: Re:

        Yes - the reason people get away with this stuff is that people fail to challenge it.

        This MMPI (Minnesota Multiphasic Personality Inventory) copyright case might give some insight of how such a case might be decided, all depending on how PAR chose to defend their MMSE copyright claim against the Sweet 16 and any other tests like it:


        Are psychometric tests protected by copyright or patent?

        This excerpt from an opinion upholding a copyright in the MMPI addresses a lot of the issues involved in this kind of case.


        COPYRIGHT PROTECTION

        The district court held that the MMPI test statements could be copyrighted. The test statements are for the most part short, simple, declarative sentences, such as "I am a good mixer." and "No one seems to understand me." The district court held that the authors had used sufficient creativity and originality in drafting the test statements or in revising the questions and statements used in earlier psychometric tests. The district court further held that the testing data (scale membership, scoring directions, t-scores) could be copyrighted as the expressions of discovered scientific facts or processes. Plaintiffs do not claim copyright interests in their research per se; in fact, plaintiffs acknowledge that other researchers have used their MMPI research to develop other psychometric tests. The district court found that although the authors used statistical rules and algebraic formulas in developing their testing data, they selected particular formulas and then, on the basis of their clinical experience and expertise, adjusted the results they had obtained by applying those formulas.

        Defendant argues the district court erred in holding that the MMPI test statements and testing data could be copyrighted. Defendant argues the test statements cannot be copyrighted because they are "short phrases" within the meaning of 37 C.F.R. § 202.1(a) and because they are derivative works that do not contain any variation recognizable as that of the authors and therefore lack the requisite "originality." Defendant also argues the testing data (scale membership, scoring directions, t-scores) cannot be copyrighted because they constitute non-copyrightable facts or processes. In particular, defendant argues that the t-scores represent an attempt to copyright an algebraic formula.

        Computer programs may be protected by copyright. E.g., Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222, 1233 (3d Cir. 1986) (Whelan) (overall structure, sequence and organization of computer software), cert. denied, 479 U.S. 1031, 93 L. Ed. 2d 831, 107 S. Ct. 877 (1987); Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1246-47 (3d Cir. 1983) (computer object and source code), cert. dismissed, 464 U.S. 1033, 104 S. Ct. 690, 79 L. Ed. 2d 158 (1984). Defendant's personal computer-based software, MMPI Scoring Program I and II, duplicated first NCS's in-house computerized MMPI scoring and interpreting services and then NCS's own personal computer-based MMPI software, Microtest. Because we have already determined that plaintiffs owned the MMPI copyrights and it is not disputed that defendant's software copied at least some of the test statements (only MMPI Scoring Program I) and all the testing data needed to score and interpret the MMPI (both MMPI Scoring Program I and II), we are concerned only with whether the test statements and testing data are per se uncopyrightable.

        Defendant's first argument is that the test statements are not copyrightable because they lack originality.

        The standard for "originality" is minimal. It is not necessary that the work be novel or unique, but only that the work have its origin with the author -- that it be independently created. Little more is involved in this requirement than a "prohibition of actual copying."

        To be the original work of an author, a work must be the product of some "creative intellectual or aesthetic labor." However, "a very slight degree of such labor[,] . . . almost any ingenuity in selection, combination or expression, no matter how crude, humble or obvious, will be sufficient" to make the work copyrightable.

        West Publishing Co. v. Mead Data Central, Inc., 799 F.2d 1219, 1223 (8th Cir. 1986) (West) (citations omitted) (1976 Act; page numbering due to publisher's arrangement of opinions in reporters), cert. denied, 479 U.S. 1070, 107 S. Ct. 962, 93 L. Ed. 2d 1010 (1987).

        The test statements are short, simple, declarative sentences, but they are not merely fragmentary words and phrases within the meaning of 37 C.F.R. § 202.1(a). They are not names or titles or slogans.

        We think the test statements satisfy the minimal standard for original works of authorship within the meaning of the copyright laws, at least within the context of the administration of the MMPI. Clearly, the test statements that Hathaway and McKinley, and their university colleagues, independently created meet the originality standard. Rubin v. Boston Magazine Co., 645 F.2d 80, 83 (1st Cir. 1981) (particular questions about love and romance held copyrightable as original forms of expression); cf. Educational Testing Services v. Katzman, 793 F.2d 533, 539 (3d Cir. 1986) (questions in scholastic aptitude and achievement tests); Association of American Medical Colleges v. Mikaelian, 571 F. Supp. 144, 150 (E.D.Pa. 1983) (questions in medical school admission test), aff'd without opinion, 734 F.2d 3 (3d Cir. 1984); National Conference of Bar Examiners v. Multistate Legal Studies, Inc., 495 F. Supp. 34, 36 (N.D.Ill. 1980) (questions in bar exam), aff'd in partrev'd in part, 692 F.2d 478, 216 U.S.P.Q. (BNA) 279 (7th Cir. 1982), [**31] cert. denied, 464 U.S. 814, 104 S. Ct. 69, 78 L. Ed. 2d 83, 220 U.S.P.Q. (BNA) 480 (1983).

        We also think the test statements that are revisions of the questions in pre-existing psychometric tests represent "distinguishable" variations of the prior works. 1 Nimmer §§ 2.01[b], 3.01, 3.03. The revisions are recognizable as the work of the authors and thus are sufficiently original to warrant copyright protection as derivative works. See Toro Co. v. R & R Products Co., 787 F.2d 1208, 1213 (8th Cir. 1986) (citations omitted); see generally 1 Nimmer § 3.04.

        Defendant's second argument is that the test statements and testing data cannot be copyrighted because they are facts or methods or processes for discovering facts. Plaintiffs do not claim copyright protection for the MMPI research in itself, that is, the fact that there is a correlation between certain responses to certain test statements and particular psychological traits or characteristics. What they do claim is protected by copyright are the specific testing data developed by Hathaway and McKinley and their university colleagues to measure and evaluate this correlation. In other words, plaintiffs argue the MMPI testing data are copyrightable as expressions of facts or processes.

        Copyright protection does not extend to ideas or facts in published works. E.g., Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 547, 105 S. Ct. 2218, 85 L. Ed. 2d 588 (1985) (Harper & Row); Worth v. Selchow & Righter Co., 827 F.2d 569, 572 (9th Cir. 1987) (Worth) (works on trivia), cert. denied, 485 U.S. 977, 108 S. Ct. 1271, 99 L. Ed. 2d 482 (1988); Frybarger v. International Business Machines Corp., 812 F.2d 525, 529 (9th Cir. 1987) (Frybarger) (video games). "discovery of a fact, regardless of the quantum of labor and expense, is simply not the work of an author." 1 Nimmer § 2.11[E], at 2-169 to -170. "The copyright is limited to those aspects of the work -- termed 'expression' -- that display the stamp of the author's originality." Harper & Row, 471 U.S. at 547. This is particularly true of factual works. "Because authors who wish to express ideas in factual works are usually confined to a 'narrow range of expression . . ., similarity of expression may have to amount to verbatim reproduction or very close paraphrasing before a factual work will be deemed infringed.'" Worth, 827 F.2d at 572, citing Landsberg v. Scrabble Crossword Game Players, Inc., 736 F.2d 485, 488 (9th Cir.), cert. denied, 469 U.S. 1037, 83 L. Ed. 2d 403, 105 S. Ct. 513 (1984); see also Wainwright Securities, Inc. v. Wall Street Transcript Corp., 558 F.2d 91 (2d Cir. 1977) (abstracts of financial reports), cert. denied, 434 U.S. 1014, 54 L. Ed. 2d 759, 98 S. Ct. 730 (1978); Toro Co. v. R & R Products Co., 787 F.2d at 1211-12 (parts numbers).

        This is a close question. We think the MMPI testing data are copyrightable as expressions of facts or processes. Our conclusion is expressly based upon the district court's findings of fact about the methods the authors used to develop the MMPI testing data. The district court found that although the authors began with certain discovered facts, statistical models and mathematical principles, which cannot be copyrighted, they then made certain adjustments on the basis of their expertise and clinical experience. In other words, the MMPI testing data, at least for purposes of analysis under the copyright law, do not represent pure statements of fact or psychological theory; they are instead original expressions of those facts or processes as applied and as such are copyrightable. Rubin v. Boston Magazine Co., 645 F.2d at 83; see generally 1 Nimmer § 2.03[E], 2.11.

        On cross-appeal plaintiffs argue the district court erred in holding that the social introversion and correction (K) scales and the correlation or conversion tables are copyrighted only as compilations. We disagree. "If the underlying work is in the public domain, a copyright in the derivative work will not render the underlying work protectible." 1 Nimmer § 3.04, at 3-16 to -16.1 (footnote omitted). Plaintiffs conceded at trial that the social introversion and correction (K) scales in the card format were in the public domain, apparently because these materials were first published in the Journal of Applied Psychology under a copyright notice in the name of the publisher and the publisher of that periodical failed to renew the copyright. Under these circumstances, the district court correctly extended copyright protection only to the revised formats of these materials as they appeared in the 1960 MMPI Handbook or in other copyrighted publications.


        Applied Innovations, Inc. v. Regents of the University of Minnesota and National Computer Systems, Inc. , 876 F.2d 626; 1989 U.S. App. LEXIS 7444; 11 U.S.P.Q.2D (BNA) 1041; Copy. L. Rep. (CCH) P26,428 (8th Cir. 1989)

         

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      identicon
      Anonymous Coward, Dec 30th, 2011 @ 6:51pm

      Re:

      No one of them wants to become a Jammie Thomas-Rasset or a Joel Tenenbaum.

      Isn't a monopoly beautiful?

       

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      TtfnJohn (profile), Dec 30th, 2011 @ 7:26pm

      Re:

      I'd have to agree that this test isn't subject to copyright, though the expression they wrote up is.

      Thing is, they let it float around for 25 years without doing much of anything about it. To me, that too, would damage their case if they were challenged on it.

      But still, there's ridiculous and then there's beyond that into WTF territory and then beyond that...to this.

      What this seems to be is a near classic illustration of the misquoted New Testament passage "money is the root of all evil." It's actually "the LOVE of money is the root of all evil." I'd ay that fits here.

       

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    trish, Dec 30th, 2011 @ 11:50am

    Rule of acquisition #10

    Never kill a customer unless the profit you make off his death is larger than the profit you can make off his life.

     

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    hrusha, Dec 30th, 2011 @ 1:16pm

    DogBreath's little list
    "1) what is your name?
    2) what is the date?
    3) do you know where you are?"

    Is what I do everyday as an EMT... I really would love for someone to have a copyright challenge to those basics, a lot of folk have been clamoring to ignore software copyrights, EVERY single responder would ignore whichever company was claiming this (and then say a few strong words after every patient saved...).

    But, yeah, overall this whole situation is crazy, or as they say in this article “any copyright claim here is legally weak and morally indefensible”. http://mindhacks.com/2011/12/30/clinical-test-copyright-bullying-legally-dubious/


    (oh and thanks Mike for posting my article and expanding on what little I wrote in the submission! cheers!)

    hrusha

     

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    DataShade (profile), Dec 30th, 2011 @ 8:28pm

    "And first, do no harm."

    What oath are you talking about? I'm just waiting for my check.

     

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    Rekrul, Dec 31st, 2011 @ 4:42am

    DOCTOR: I have good news and bad news Mr. Johnson. The Good news is that I'm pretty sure I know what's wrong with you.

    Mr. JOHNSON: What's the bad news?

    DOCTOR: I can't test for it because the procedures to do so are copyrighted.

     

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      The Devil's Coachman (profile), Dec 31st, 2011 @ 8:43am

      Re:

      Mr. JOHNSON: Once the copyright holders are whacked by my brother-in-law, it really won't matter then. Schedule the procedure for tomorrow. Should be no problem.

       

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    identicon
    Anonymous Coward, Jan 1st, 2012 @ 7:37pm

    For the love of god....

    "With any luck at all karma will ensure that a greedy record/movie exec will lie gasping on a table while the attending physician explains why such-and-such a diagnostic test is not available at this time ..."

    The only problem is said exec probably has the money to pay for the copyrighted medical care. As usual it is the poor who will suffer the most.

    It just makes me sick. I am not usually a "copyright minimalist" but when I read about stuff like this I just want to abolish all copyright and patent all together for the sake of basic decency. We all absolutely must fight against this kind of greed.

     

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    Invisible_Jester89, Jan 2nd, 2012 @ 2:59pm

    Maybe those doomsday predictions for 2012 are right, but the apocalypse isn't going to come from asteroids, God's wrath, or a zombie outbreak. No, it's going to come from everything being so copyrighted that if you so much as breathe someone else's air, you're infringing on their intellectual rights.

    MEDICAL TESTS ARE NOT INTELLECTUAL PROPERTY. They are medical tests used to potentially save a person's life. And remember, without people surviving, you can't make money on your copyrights. ;)

     

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