Slashdot Mirror
Dealing With a Copyright Takedown Request?
George Maschke writes "I recently received a takedown notice from a corporate lawyer demanding that I remove a post on my Web site's message board. It purportedly lists the first 75 of 567 questions on the MMPI-2 paper-and-pencil psychological test. It seems to me that such posting of a limited amount copyrighted material for discussion purposes on a public-interest, non-profit Web site falls within the scope of the fair use exemption of US copyright law. I have thus declined to remove the post. I believe that the corporation in question is seeking to chill public discussion of its test, which applicants for employment with many governmental agencies are required to complete. I would be interested in this community's thoughts on the matter."
I'm sure most people will agree that what you've done falls well within the realm of fair use. But you know very well that you're going to need to talk to legal counsel with expertise in copyright matters, and that means money. Maybe someone with contacts in the Electronic Frontier Foundation could give you a hand. Sometimes having a lawyer responding to the guy making the threat is enough to make them back down.
The world's burning. Moped Jesus spotted on I50. Details at 11.
This is a particular case, given that it is dealing with a psychological test. In many or most cases these rely on the test-taker not knowing the exact questions ahead of time. As you're dealing with over 10% of the test here, it's not all that far-fetched to say that foreknowledge of these questions could skew the results in a statistically significant way. This would count as causing harm or devaluing the original work (by causing prospective clients [the government] to doubt its results), which are direct reasons for fair use not to apply. Of course, IANAL and you should seek one, etc, but it seems to me that this is not that unreasonable a claim. A single question? Sure. 75 of them? Probably not so much.
Stuff.
Why do all of the Ask Slashdot questions boil down to: "I want free legal advice. Give me an opinion on x."
My thought is that you should really ask a lawyer what to do. Sheesh, do you really want free legal advice from random people with lots of free time on their hands?
Sorry, but 13% of the content is not "limited". If I reprint 85 pages of "Harry Potter and the Half-Blood Prince", would you consider that a "limited amount"? I don't think the publisher would... Not to mention you say "the first 75"... If it had been a 'random' 75, with commentary and discussion for each one; that would be one thing. Even then, it would be dubious. Even if I split it into one-paragraph sections, with commentary and discussion between each paragraph, 85 pages worth of Harry Potter would be difficult to claim under fair use.
For example, the usage of 400 words out of a 500 page book was considered infringement: Harper Row vs. Nation Enterprises.
Now, according to the wonderful DMCA, if you take the material down now, *YOU* are safe from prosecution. If you present the user of your board the opportunity to protest, then if they want to put it back up, *THEY* become the responsible party.
Limited liability or not, why not just submit the content to Wikileaks? Good luck to any lawyer trying to send them a take-down notice...
512 MB RAM, 20 GB disk, 200 GB transfer, five datacenters. $19.95/month.
The thing I do remember, very clearly, is her comments on "fair use." She said that "fair use" is hardly ever what we think it is. It is not what is fair. It is not what we want it to be. It is only what the courts have specifically defined it to be. In most cases, things we think are fair use have never been tested by the courts. How the courts would decide if they did hear the case, I would not try to predict.
Unless you can find a legal precedent where the issue you are dealing with has been clearly tested and declared by a court of law to be fair use, do not assume it is. If there are no precedents showing that what you are doing is a violation of copyright, then the other lawyers can also not assume they will prevail.
If you want to be the one to test this in court, more power to you.
A lawyer won't be any use.
The lawyer will tell you: "I recommend you take this down to avoid any chance of prosecution."
If you ask the lawyer "well, do I have any fair-use grounds for keeping it up?" the lawyer will still give you the same answer "I recommend you take it down to avoid any chance of prosecution."
If you ask the lawyer "if it goes to court what are my chances of winning?" the lawyer will still give you the same answer "We won't know until it goes to court; I recommend you take it down to avoid any chance of prosecution."
The lawyer's job is NOT to evaluate your best course of action that balances your wishes to keep the material with your wishes not to be sued. The lawyer will only do two things: (1) advise you to minimize your risks; (2) represent you if you keep the material up.
After consulting the lawyer on this question, you'll be none the wiser but you'll be poorer.
If you want to fight it, you and your layers need to come up with a good reason that you need to redistribute so large a percentage of a a test as "fair use."
Note that in your list 2 and 3 require money/resources and your 4th option isn't really an option, it's more a disclaimer saying you haven't thought of everything.
You could aggregate your options to this:
1) Take it down.
2) Spend money to maybe not take it down
The poster just has to work out which of the choices he wants to play with.
Moved to http://soylentnews.org/. You are invited to join us too!
The lawyer's job is NOT to evaluate your best course of action that balances your wishes to keep the material with your wishes not to be sued. The lawyer will only do two things: (1) advise you to minimize your risks; (2) represent you if you keep the material up.
Well, yes, if you hire a cereal container for a lawyer, this will certainly be the case.
If you however hire a lawyer and ask for advice on why this request for taking it down is not valid, you might get a list of responses that accurately answers the question. Or then again, you might get what you just wrote. When speaking to a lawyer, make sure they know your mindframe in this. Do you want to keep it up? Do you want to fight to keep it up? What is your motivation for keeping it up as opposed to just taking it down?
Should it get to court, chances are that you will want these sort of arguments presented just as much as the legal side of the fence.
Moved to http://soylentnews.org/. You are invited to join us too!
And this is precisely the problem with the DMCA. A large company who retain a team of lawyers on salary will have no problem firing off a few dozen such takedown notices. The cost of hiring a lawyer to screen them all for actual, valid complaints becomes rapidly prohibitive for the private citizen on the other end.
This is why the DMCA needs strongly punitive measures for repeat posting of unwarranted takedown notices for economic purposes.
Rampant carbon sequestration destroyed the Dinosaurs' tropical paradise. I'm here to help repair the damage.
The sad thing is that people who lie on the test (and are consistent about it) are the ones that are going to get hired.
Take for example, "It would be better if almost all laws were thrown away".
Now considering that this test is for the police force, it's obvious that the Human Resource types aren't interested in hiring a civil Libertarian, however purely philosophical he is in his beliefs.
I do not always tell the truth
If you answer "False" to this (like I would), then you would also be weeded out as a liar. Because well, most people lie most of the time, and according to the HR types, if you don't admit to lying then you are just a dishonest liar.
I have often had to take orders from someone who did not know as much as I did
This question is pretty much biased against geeks, or anybody who loves knowledge and education. The police (and companys in general) want people who can take orders without question.
TAKE NOTE: I have no inside knowledge, but I'm just making some educated guessing, and adding a bit of deduction to what I already know. Just my two cents as they say. In general with these types of tests it seems like they are looking for somebody average and socially adjusted (witch often isn't usually a good thing when average isn't a good thing. But I shall not bring authoritarian societies into the equation).
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, my understanding is that the material may be placed back on-line (PDF) promptly upon the service provider's receipt of a counter-claim (which I have already sent), that is, there is no need to wait 14 days.
Which clearly shows you are not competent in these matters. From USC 512(g)(2) found here:
(C) replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service providers system or network.
The ISP is required by law to follow this procedure to avoid liability. I wonder if your knowledge of "fair use" is much better.
Live today, because you never know what tomorrow brings
Elsewhere in the test there usually are complementary questions, or the same questions will be rephrased. If you do not answer them consistently the trust in your answers will be lower. If you want to fake such a test you need to have a good mental image of the person that you are representing. This test, as it seems, is for a low-IQ applicant for a menial job; the applicant is given 500+ questions and likely barely enough time (10 seconds per question?) to mark the paper up. In such conditions you have to either (a) answer the truth, or (b) lie randomly. The (b) will be detected (or estimated) by the questions which are there only for that purpose. This is why keeping the questions secret is so important - an applicant can prepare correct answers on most questions, given time, and memorize the profile that he wants to show.
I noticed several posts pointing out some of the seemingly silly questions (ie "My hands and feet get cold"). They may in fact be silly but there is reasoning behind them. I went and actually did some reading up on how the test is supposed to work. There are 8 different major scales measured and several other more minor ones too. For example Scale 1 is essentially looking at Hypochondria, a person's tendency to be really focused on (and maybe whiny) about every little ache and pain. The test understands that everyone has some stuff wrong with them and certain physical peeves too, so you're supposed to mark some of the stuff "T". But if you look at the questions, there are a bunch about this physical stuff and they are all over the place. If you put a "T" by a whole lot of them, then the test scores you higher on this scale. If you put an "F" by all of them, the test basically scores your "truthfulness on test questions" lower because these are things that everyone should complain about a few of.
The issue of test validity is a big deal and dealt with in different ways including checking for truthfulness by asking the same thing in a different way in different parts of the test. There are a bunch of these question pairs and there are some set up for consistent answers being "T/T", "T/F", and "F/F". There are also question sequences in the back half of the test designed to detect if the user is just starting to mostly randomly check or barely skim questions. Too high on this and the test is reflected as invalid.
Gaming the test is not as easy as it might seem at first glance. Some questions can be taken at face value, like "I sometimes think about killing myself". If you check that one "T" along with some other similar questions then you may well be suicidal. However, there are other questions that state mildly negative personality traits that most people have. If you refuse to admit to any of them then the test scores you as either trying to present an unrealistically positive image or as having an unrealistic self-image/ego. Answering some of those type questions with a "T" will get the test to paint you as a self-confident personality with a healthy self-image that feels no need to hide common human foibles.
Personally, I'm a skeptic of these kinds of tests. I think they may work to some degree in some scenarios with some people but there will be other scenarios or people for which the test will largely fail. This particular test is also susceptible to interpretation error. Some evaluators tend to focus in on individual scales but what I read says that that over-simple approach almost always yields skewed results. To get an accurate scoring the evaluator must consider the scales together. In large scale testing of different populations, the experts in this claim to have identified different groupings, for example two particular scales elevated while a third specific scale is lowered may represent a certain personality trait (ie rebelliousness or conformity). It's also said that the evaluator *must* have accurate background info on the subject (ie record of physical violence, manic behavior, etc). These factors can apparently change the assessment significantly.
Please note: A civil libertarian != a Libertarian. A civil libertarian is not likely to say "It would be better if almost all laws were thrown away," rather they would want more laws, you know Freedom of Information laws, laws restricting police powers, law restricting administrative powers, that sort of thing.
THIS is the most sane person here IMO. I am sure "those" who post entire copy written tests are subject to psychological evaluation too, no?.... pffft. All I can say is WAY TO GO MAN! Employers, PhD's and Law enforcement are not the only ones who can make an evaluation call on who is "psychologically sane", and screw your damn DMCA Bullshit, people have a right to know how "fair or unfairly" they are being judged. So stick that in your "psychological lab rat copy written money manipulation machine" and choke on it, Jerks!
it'd be interesting to see how many people have actually been prosecuted, however. I'm betting not many. Also, how does the law work when it's legally a corporate entity making the copyright claim? Anyone know?
I am fairly convinced many of these question would be illegal to even ask in an interview in the Netherlands. Saying that you can decline to answer is not a fair option because implicit is that you will be punished for not answering. I do not have to answer questions on my health, sexual preference or religion for any job unless relevant (epileptics probably shouldn't drive buses for example).
Asking such questions is inherently biasing the application process. I'm sure you van get away with it in the states. In my country you would end up saying sorry to a judge. You may get a union or two pissed off. Better not do it.
Of course the U.S. may consider sexual preference relevant for government fucntions. After all if you are of any sexuality other than straight or filthy rich then you are obviously hiding a secret so great that you are very blackmailable. Or you have no moral character.
" (3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value
of the copyrighted work."
Using 75 out of 567 is a substantial fraction of the whole. This might be more than you might casually get away with as an "excerpt".
Further, the MMPI is a "Personality Inventory" test... it may well be that the (alleged) effectiveness of the test relies on the test-taker to not know the questions beforehand. The test maker may therefore have a legitimate beef in regard to item (4).
Do not misunderstand me: according to my college psychology professor, tests such as MMPI and MMPI2 were thoroughly discredited many years ago. I question its worth from the beginning. But that does not mean that the copyright holder does not have a case.
Your question is a purely legal question. You should be addressing it to your company's lawyer. And you need to provide that lawyer with all the materials.
If 300 members of Slashdot tell you you're in the right, and they all get modded up to "+5", that doesn't mean you're in the clear.
Ray Beckerman +5 Insightful
Surely it is no suprise that years and years of being the other way is swinging back hard? And count on it getting a whole lot worse, look at the catholic church with child molestation on one side, the whole abortion view and last but not least their views on condoms.
He may have published 13% of the questions, but that's well under 10% of the total material related to the MMPI test - you need the scoring criteria as well. The questions, by themselves, are pretty much worthless, and you can be sure that the scoring criteria are longer than the test itself - otherwise, the test is even more bs than it seems.
So, since they already hand them out in such quantities (and they really do), there's no "trade secret". Anyone who has taken the test now has the "trade secret knowledge", and without a signed non-disclosure agreement to boot.
Tempest, meet teapot.
The questions themselves are a valid topic of discussion, especially when used in an employment context, where they are, in many areas, just plain illegal to ask.
Personally, I find these tests very informative. The test tells you a lot about your future employer. If I was given a test like that, the pay I would require would substantially increase :)
Not sure what the employer gets out of them. A feeling of security, perhaps?
Religion is regarded by the common people as true, by the wise as false, and by rulers as useful.
Hmmm, if 1% of the Christians are annoying fucks who try to covert me, isn't it safe to say rather then being all atheists like you claim, it's probably just the same 1% minority that are annoying fucks?
I've never once tried to convince someone there was no god unless they brought up religion.
Whenever you feel the need to say "The problem with Atheists..." you should stop there. Atheists, like any other group, are not a homogenous mass that all act and think exactly the same. Prejudice makes you look like an ass far more than militant atheists make atheists in general look bad.
Virg
USC Title 17 section 512 is the relevant part. My thoughts:
... though you should take anything I say as general information rather than advice specific to your issue.
The DMCA safe harbor provision is intended to cover user-generated content posted to your website by a third party. The idea is that you, as a website operator, should not responsible for someone else's conduct so long as you take it down.
There is also case law (Lenz v. Universal) out of a California District Court holding that a copyright owner has an obligation to consider whether or not a particular use of its work is fair use *prior to sending a DMCA takedown notice,* and that failing to do so could constitute bad faith abuse of the DMCA.
Sending a counter-notice, as you appear to have done, is definitely a good way to go especially if you believe that the reproduction of approximately 13 percent of the MMPI constitutes fair use. However, you seem to be in an odd situation. The normal case is for the website operator (you) to take down the post and notify the original author (the user). Then the user decides whether to file a counter-notice.
That being said, whether or not copying the questions constitutes fair use depends largely on a few things, which are embodied in the four-factor test that someone has surely mentioned in a post by now.
As a practical matter, it's all about context. Did you do anything other than just posting the questions? Showing that you used the questions as part of a larger work where you contributed your own thoughts and expression would make your fair use argument stronger (it's not copyright infringement - it's citation!). If all you did was copy the questions and post them without much of what courts call "transformative" use (i.e. creative input on your part), then that weakens your argument.
Looking at the Google Cache of the original post, it seems to consist of a brief introduction:
"I have done quite a bit of research on the MMPI 2 used by psychological testing. Here's the first 75 out of 567 questions. I could give out rest of them & how some of them are interpeted by psychologists for advice on admitting past history on the psych & medical tests. See my post on "Help with Admissions for Psych & Medial""
And then the rest is the questions. So the issue is whether or not the user-contributed content is enough.
You've setup your system backwards. If you start with the right single law -- the state has no powers except those explicitly granted to it -- then removing laws would necessarily do things like restricting police power and granting access to information because the police would only have been granted powers through laws, and the state would only have been granted the right to keep secrets through laws.
I'm sure the state would love this idea of a system where they implicitly have power and we must explicitly take it away with new laws, but it doesn't sound much like civil libertarianism or Libertarianism to me.
I'm an atheist myself but I've got to disagree with this - there's nothing wrong with the phrase "The problem with atheists is ... "
Repeat after me: "Generalization is flawed thinking only when applied to individuals".
I can say "this batch of lightbulbs have shorter lifespans than that batch of lightbulbs" even if there are individual lightbulbs in the inferior batch which have longer lifespans than individual lightbulbs in the superior batch. It's not faulty thinking at all and the same logic applies to groups of people whether politically correct tossers like it or not.
If someone was to say "The problem with atheists is they don't believe in god" then I might not agree it's a problem but there's no logical flaw in the statement.
Fair use is a gray area though. It all depends on how it's used.
If I took a 1000 question test, copied 100 questions from it, and sold that test, I'd clearly be in violation even though I didn't copy the whole thing.
If you took 100 of 1000 questions, used them for illustrative purposes, and wrote a long commentary on it, you'd be much safer.
In the real message, it was posted by itself. Not cited with a dialogue for a larger work.
For example, it could have been....
"In reviewing the MMPI-2 test, we found that some questions such as question #410 [blah][blah] are not helpful, and actually detrimental to the accurate evaluation of [blah][blah][blah]. In comparison, the 2009 Jones and Jones report titled "what do psych tests do" indicate [blah][blah][blah]."
Regardless of the later discussion on the board, that was a passage taken directly off of their copyrighted work, and a substantial portion at that.
It could be argued, but is it really worth it?
I've received C&D's in the past. I usually post the C&D in replacement of the material(s) cited in that.
[soap box mode on]
Personally, I hate those test. Well, I hate IQ tests too. They are cut and dry "this is the answer", but you don't have the opportunity to find out what the answer is, so you're doomed to fail unless you cheat. If it were a GOOD test, either the answer would be clearly calculated with no second answer that is correct, or where two answers are correct the answer can be explained and proven to the proctor. That simply doesn't happen.
For example, on one IQ test, it had a question very similar to the following. All along during this test, they've had comparison of the letters used, the length of the string, the shape of the letters, etc, etc.
Q: Which of these are least similar
1) Apple
2) Pear
3) Peach
4) Potato
So, we have 4 answers.
Answers 1 and 3 have 5 letters, so we have two odd answers (1 and 4)
Answers 2,3,4 all start with the letter "P", leaving answer 1 as being the odd answer.
Answers 1,2,3 all have the letter "E" in them, leaving answer 4 as being the odd answer.
Answers 1 and 4 have a letter repeated, giving 2 odd answers (2,3).
Answers 2,3,4 are dark yellow (tan to brown), while answer 1 is red.
Answers 1,2,3 are high in sugar, while 4 is high in starch.
I have 8 potential answers. Based on the number of times I matched the comparisons above, they rank:
1 37.5%
4 37.5%
3 12.5%
2 12.5%
Well, go with the better candidate based on the previous questions, which were more letter matching, It must be that all the answers starting with "P" are the same, and the odd one is "A". I picked my choice, and have a clear reason for choosing it. "Apple" is the odd answer.
Wrong. It was #4, Potato. The reasoning behind the "correct" answer is, the first three are grown above ground. The fourth is grown underground.
Unless properly proctored and graded by someone who is actually as intelligent or more intelligent than me (like, umm, can listen to all the words that I say and comprehend them), these "pick an answer" tests with a set it stone grade sheet are absolutely worthless.
But hey, I've taken several IQ tests, and score very very well on them. I could score better if I could argue the merits of my choices, rather than just conceding that the test was poorly designed. I'd still get some wrong, and I am wil
Serious? Seriousness is well above my pay grade.