AntiPolygraph.org Receives (and Rejects) a Copyright Takedown Request

On Friday, 20 March 2009, AntiPolygraph.org received a communication from a lawyer for NCS Pearson, Inc. demanding the removal of a post from our message board that purports to list the first 75 questions of the 567-question Minnesota Multiphasic Personality Test 2 (MMPI-2). (A seemingly knowledgable poster on the message board maintains that the questions are not from the MMPI-2, but from the older MMPI.)

Many government agencies in the United States use the MMPI-2 to screen applicants for employment, so it is of considerable public interest. The post, made some three years ago, initiated one of the longest discussions on our message board–one that remains active with over 260 posts to date.

Here is the full text of the takedown request received by e-mail from Pearson’s lawyer (download MS Word attachment):

March 20, 2009        Sent Via EMAIL and POST

AntiPolygraph.org
c/o G.W. Maschke
Van Trigtstraat 53
2597 VX The Hague
The Netherlands

Email: info@antipolygraph.org

Re:    Unauthorized use and Reproduction of the Minnesota Multiphasic
Personality Inventory-2 (MMPI-2)

Dear Mr. Maschke:

I represent NCS Pearson, Inc. (Pearson), the exclusive licensee
or publisher of the Minnesota Multiphasic Personality Inventory-2
(MMPI-2), which is a secure Assessment restricted to purchase by
qualified individuals.  The copyright owner of the MMPI-2 is the Regents
of the University of Minnesota and NCS Pearson, Inc. is the exclusive
licensee for distribution of the MMPI-2 in the United States and the
Netherlands.

Unauthorized Reproduction

As you are aware, both Dutch and U.S. Copyright Law give the
copyright owner the exclusive rights to reproduce and control the
distribution of its work.  According to our information, you are
distributing and infringing version of the MMPI-2 on an unsecured
website, thereby allowing the materials to be downloaded to unqualified
individuals without our permission.  Copies of the screen shots are
provided for your information.  The websites in question are located at:

In a posting by Thugcop at the below URL:
https://antipolygraph.org/cgi-bin/forums/YaBB.pl?num=1109032158/11

In another posting by Thugcop at the below URL:
https://antipolygraph.org/cgi-bin/forums/YaBB.pl?action=print;num=110903
2158

Screen shots of the pages are attached

Both United States and Dutch Copyright Law give the copyright
owner (or their designee) the exclusive rights to reproduce and/or
license of its copyrighted property.  The MMPI-2 and its normative data
and scoring algorithms are protected works under both United States
Copyright law and Canadian Copyright law.  Both laws provide protections
for such works of authorship with severe penalties for violations. As
the United States (1989) and Netherlands (1912) are signatory members of
the Berne Convention, as a citizen of the Netherlands you are obligated
under The Berne Convention to recognize the copyright of American works
in the same way the United States recognizes the copyright of its own
nationals.  Only licensed parties are allowed to reproduce any
copyrighted portions of it, whether in computer software or otherwise.

My client requests that you remove the above postings which contain its
proprietary material.  We appreciate your cooperation in this matter as
it respects the rights of others which is the position I would hope
antipolygraph.org would subscribe.

If you have any questions, please contact the undersigned
attorney directly.

Sincerely,
/Carl W. Covert, Jr./

Attachments

Carl W. Covert, Jr.
Contract Attorney – Legal Department
NCS Pearson, Inc.
19500 Bulverde Road
San Antonio, TX 78259-3701
Tel (210) 339-5195
Fax(210) 339-5059
carl.covert@pearson.com

Please consider the environment before printing this e-mail

AntiPolygraph.org respects intellectual property rights, and in January 2008, we promptly removed at Pearson’s request a series of posts in the referenced message thread that purported to list all questions in the MMPI-2. However, Pearson’s demand that the initial post, with a limited number of questions that give one a sense of what the MMPI-2 is all about, seems geared not so much at protecting legitimate copyright interests, but rather at stifling public understanding and discussion of the MMPI-2.

This is AntiPolygraph.org’s reply to Pearson’s takedown request, sent by e-mail on 21 March 2009:

Dear Mr. Colvert:

I believe the posting of such a limited selection of questions from the MMPI-2 for discussion purposes is permissible under the Fair Use clause of the United States Copyright Act of 1976 (17 U.S.C. § 107). For a recent example of such fair use by a professional association of American lawyers, see the November, 2006 Newsletter of the Albany County, New York Bar Association, which similarly lists (at p. 6) selected questions from the MMPI-2:

http://www.albanycountybar.com/Nov.%20NL%2006.pdf

Under the circumstances, I cannot consent to removing the post in question from the AntiPolygraph.org message board.

Sincerely,

George W. Maschke, Ph.D.
AntiPolygraph.org
Voice Mail/Fax: 1-206-666-2570
PGP Public Key: 0x74DE6533
AOL Messenger: GeorgeMaschke
Skype (Internet Phone/Text Chat): georgemaschke
Gizmo (secured with Zfone): georgemaschke

What do you think? Is Pearson’s request reasonable? Or is it misusing copyright law to chill public speech?

Update 1: On 23 March, AntiPolygraph.org’s webhosting provider (CanadianWebhosting.com) received a communication from its bandwidth provider (Peer1.com) that unless the post that is the subject of the DMCA takedown notice was removed, the entire server (which hosts other Canadian Webhosting customers, too) would be taken offline. We have reluctantly agreed to temporarily remove the post in question and have replaced it with a brief notice explaining the situation.

Peer1.com seems to be under the impression that once a DMCA takedown notice is received, the material mentioned in the notice must be removed for a period of 14 days, after which, if the complainant does not provide notification that it has sought a court order, the material may be restored. However, it is our understanding that the material may be placed back on-line (PDF) promptly upon the service provider’s receipt of a counter-claim (which we have already sent), that is, there is no need to wait 14 days.

It’s also worth noting that Pearson, the copyright holder of the MMPI-2, filed a takedown notice for the very same post in 2007. We promptly filed a counter-notice, Pearson took no further action, and we thought the matter resolved.

Update 2: See discussion of this situation on Slashdot.org.