{"id":301,"date":"2009-03-21T11:29:58","date_gmt":"2009-03-21T15:29:58","guid":{"rendered":"https:\/\/antipolygraph.org\/blog\/?p=301"},"modified":"2009-03-24T02:27:21","modified_gmt":"2009-03-24T06:27:21","slug":"antipolygraphorg-receives-and-rejects-a-copyright-takedown-request","status":"publish","type":"post","link":"https:\/\/antipolygraph.org\/blog\/2009\/03\/21\/antipolygraphorg-receives-and-rejects-a-copyright-takedown-request\/","title":{"rendered":"AntiPolygraph.org Receives (and Rejects) a Copyright Takedown Request"},"content":{"rendered":"
\n

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

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.<\/p>\n

Here is the full text of the takedown request received by e-mail from Pearson’s lawyer (download<\/a> MS Word attachment):<\/p>\n

March 20, 2009\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 Sent Via EMAIL and POST<\/p>\n

AntiPolygraph.org
\nc\/o G.W. Maschke
\nVan Trigtstraat 53
\n2597 VX The Hague
\nThe Netherlands<\/p>\n

Email: info@antipolygraph.org<\/p>\n

Re:\u00a0\u00a0\u00a0 Unauthorized use and Reproduction of the Minnesota Multiphasic
\nPersonality Inventory-2 (MMPI-2)<\/p>\n

Dear Mr. Maschke:<\/p>\n

I represent NCS Pearson, Inc. (Pearson), the exclusive licensee
\nor publisher of the Minnesota Multiphasic Personality Inventory-2
\n(MMPI-2), which is a secure Assessment restricted to purchase by
\nqualified individuals.\u00a0 The copyright owner of the MMPI-2 is the Regents
\nof the University of Minnesota and NCS Pearson, Inc. is the exclusive
\nlicensee for distribution of the MMPI-2 in the United States and the
\nNetherlands.<\/p>\n

Unauthorized Reproduction<\/p>\n

As you are aware, both Dutch and U.S. Copyright Law give the
\ncopyright owner the exclusive rights to reproduce and control the
\ndistribution of its work.\u00a0 According to our information, you are
\ndistributing and infringing version of the MMPI-2 on an unsecured
\nwebsite, thereby allowing the materials to be downloaded to unqualified
\nindividuals without our permission.\u00a0 Copies of the screen shots are
\nprovided for your information.\u00a0 The websites in question are located at:<\/p>\n

In a posting by Thugcop at the below URL:
\nhttps:\/\/antipolygraph.org\/cgi-bin\/forums\/YaBB.pl?num=1109032158\/11<\/a><\/p>\n

In another posting by Thugcop at the below URL:
\nhttps:\/\/antipolygraph.org\/cgi-bin\/forums\/YaBB.pl?action=print;num=110903
\n2158<\/a><\/p>\n

Screen shots of the pages are attached<\/p>\n

Both United States and Dutch Copyright Law give the copyright
\nowner (or their designee) the exclusive rights to reproduce and\/or
\nlicense of its copyrighted property.\u00a0 The MMPI-2 and its normative data
\nand scoring algorithms are protected works under both United States
\nCopyright law and Canadian Copyright law.\u00a0 Both laws provide protections
\nfor such works of authorship with severe penalties for violations. As
\nthe United States (1989) and Netherlands (1912) are signatory members of
\nthe Berne Convention, as a citizen of the Netherlands you are obligated
\nunder The Berne Convention to recognize the copyright of American works
\nin the same way the United States recognizes the copyright of its own
\nnationals.\u00a0 Only licensed parties are allowed to reproduce any
\ncopyrighted portions of it, whether in computer software or otherwise.<\/p>\n

My client requests that you remove the above postings which contain its
\nproprietary material.\u00a0 We appreciate your cooperation in this matter as
\nit respects the rights of others which is the position I would hope
\nantipolygraph.org would subscribe.<\/p>\n

If you have any questions, please contact the undersigned
\nattorney directly.<\/p>\n

Sincerely,
\n\/Carl W. Covert, Jr.\/<\/p>\n

Attachments<\/p>\n

Carl W. Covert, Jr.
\nContract Attorney – Legal Department
\nNCS Pearson, Inc.
\n19500 Bulverde Road
\nSan Antonio, TX 78259-3701
\nTel (210) 339-5195
\nFax(210) 339-5059
\ncarl.covert@pearson.com<\/p>\n

Please consider the environment before printing this e-mail<\/p><\/blockquote>\n

AntiPolygraph.org respects intellectual property rights, and in January 2008, we promptly removed at Pearson’s request a series of posts<\/a> in the referenced message thread that purported to list all<\/strong> 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.<\/p>\n

This is AntiPolygraph.org’s reply to Pearson’s takedown request, sent by e-mail on 21 March 2009:<\/p>\n

Dear Mr. Colvert:<\/p>\n

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. \u00a7 107). For a recent example of such fair use by a professional association of American lawyers, see the November, 2006 Newsletter<\/em> of the Albany County, New York Bar Association, which similarly lists (at p. 6) selected questions from the MMPI-2:<\/p>\n

http:\/\/www.albanycountybar.com\/Nov.%20NL%2006.pdf<\/a><\/p>\n

Under the circumstances, I cannot consent to removing the post in question from the AntiPolygraph.org message board.<\/p>\n

Sincerely,<\/p>\n

George W. Maschke, Ph.D.
\nAntiPolygraph.org
\nVoice Mail\/Fax: 1-206-666-2570
\nPGP Public Key: 0x74DE6533
\nAOL Messenger: GeorgeMaschke
\nSkype (Internet Phone\/Text Chat): georgemaschke
\nGizmo (secured with Zfone): georgemaschke<\/p><\/blockquote>\n

What do you think? Is Pearson’s request reasonable? Or is it misusing copyright law to chill public speech?<\/p>\n

Update 1:<\/strong><\/span> 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<\/a> the post in question and have replaced it with a brief notice explaining the situation.<\/p>\n

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<\/a> (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.<\/p>\n

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.<\/strong> We promptly filed a counter-notice, Pearson took no further action, and we thought the matter resolved.<\/p>\n

Update 2:<\/strong><\/span> See discussion of this situation on Slashdot.org<\/a>.<\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

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