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Copyright Claim Sets Back Cognitive Impairment Testing

Soulskill posted more than 2 years ago | from the we-invented-the-question-mark dept.

Medicine 116

Kilrah_il writes "A recent New England Journal of Medicine editorial talks about the mini-mental state examination — a standardized screening test for cognitive impairment. After years of being widely used, the original authors claim to own copyright on the test and 'a licensed version of the MMSE can now be purchased [...] for $1.23 per test. The MMSE form is gradually disappearing from textbooks, Web sites, and clinical tool kits.' The article goes on to describe the working of copyright law and various alternative licenses, including GNU Free Documentation License, and ends with the following suggestion: '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.'"

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oh YEAH (-1)

Anonymous Coward | more than 2 years ago | (#38538016)

BOOYA

"Deeper!" cried Penny, as Sheldon recoiled (-1, Offtopic)

Anonymous Coward | more than 2 years ago | (#38538028)

Sheldon Cooper spooning Penny, tonight, only on UHF!

We've got it ALL on UHF!

First Post (0)

flurp (2541198) | more than 2 years ago | (#38538092)

btw this post is copyrighted. $1.23 per download

Re:not First Post (0)

Anonymous Coward | more than 2 years ago | (#38538128)

That's fine. I won't quote you and I'll compose my own post.

Re:not First Post (1)

trum4n (982031) | more than 2 years ago | (#38538172)

But you used the thought of independence. Which he used before you. You owe him $975,235.45. Maybe that will teach you about "thinking", smart ass.

Re:not First Post (3, Informative)

Mordok-DestroyerOfWo (1000167) | more than 2 years ago | (#38538956)

That's fine. I won't quote you and I'll compose my own post.

With blackjack and hookers!

Re:not First Post (1)

MightyMartian (840721) | more than 2 years ago | (#38541732)

I'm sorry, I have patented the process of creating new posts, and you'll have to pay me for each one you make. I'm a reasonable man, unlike those copyright goons, and I'll only charge $0.73.

Re:First Post (1)

Zandamesh (1689334) | more than 2 years ago | (#38538332)

Don't forget to bill my ISP!

Raise pot (1)

grimJester (890090) | more than 2 years ago | (#38538934)

btw this post is copyrighted. $1.23 per download

This one costs whatever one quote plus two downloads of your post makes. Additionally, for some obscure reason I now have the rights to anything you write using Microsoft Word.

I hope Karma's a bitch. (4, Informative)

Nemesisghost (1720424) | more than 2 years ago | (#38538174)

I sincerely hope that all of the authors either have a stroke, Alzheimer's, or some other disease that impairs mental faculty and the attending doctor doesn't know how to perform this test due to their idiotic copyright enforcement.

Re:I hope Karma's a bitch. (1)

Bengie (1121981) | more than 2 years ago | (#38538236)

Their Real Life Karma gets downgraded to flamebait?

You failed the (comprehension) test (5, Informative)

Mathinker (909784) | more than 2 years ago | (#38538244)

The authors were letting everyone download the new test for free; a corporation, PAR [parinc.com] , to which the old test had been licensed is to blame for claiming copyright over (elements of) the new test which may eventually replace the old one.

Unfortunately, there's no easy way to leave them a comment about one's opinion of their behavior on their website. I looked.

Re:You failed the (comprehension) test (2, Informative)

pla (258480) | more than 2 years ago | (#38538468)

Unfortunately, there's no easy way to leave them a comment about one's opinion of their behavior on their website. I looked.

You could try cs@parinc.com, their customer service email address.

You could also try rsmith@parinc.com, their CEO.

That said, pond scum doesn't usually care what you think about it.

Re:You failed the (comprehension) test (1)

NeutronCowboy (896098) | more than 2 years ago | (#38539338)

Unless, apparently, it results in 10s of thousands of emails clogging their inbox, a public bitch-slapping of the companies that employ said pond scum and the hints to the wife of pond-scum that she married pond scum.

Then pond scum seems to suddenly care.

But that requires us to care. I think the current evolution of the testing methods, whereby the copyrighted tests are slowly erased from the working memory of the field, is bitch-slapping enough.

Re:You failed the (comprehension) test (1)

Rone (46994) | more than 2 years ago | (#38540738)

...pond scum doesn't usually care what you think about it.

If the backlash is big enough, it will.

See the recent case study of Paul Christoforo (Captain "I wwebsite as on the Internet"), for example.

Re:You failed the (comprehension) test (1)

Luckyo (1726890) | more than 2 years ago | (#38542096)

There is a pretty major difference between a PR agent working solo, and a medical company that only sells to other companies in terms of caring about its reputation among geeks.

Re:You failed the (comprehension) test (3, Interesting)

Sloppy (14984) | more than 2 years ago | (#38539686)

Unfortunately, there's no easy way to leave them a comment about one's opinion of their behavior on their website. I looked.

You can leave a comment about the business, and a rating of their trustworthiness and vendor reliability here [mywot.com] . They should see it if they care about their website, and some of their site's visitors (depending on installed FF plugins) may see it. Whether that effects their business prospects is dubious, but it's something.

If a business publicly asserts that a test which has similar mechanics to their test (but is a completely different expression) is a derived work, I'd say they're a bit untrustworthy (though to be fair, matters of law aren't something they claim expertise with -- OTOH, trustworthy people usually try to STFU on topics they don't understand (but we all make mistakes sometimes)). If they issue DMCA takedown notices based on that misconception, I'd say they're dangerously untrustworthy and no one can safely interact with them in commercial matters, which also impacts their "vendor reliability."

What troubles me more than the copyright issue, is that TFA makes it sound like they sell a "licensed version" of the test. It doesn't say authorized copies (copyright terminology), but a licensed version, which implies there might be terms of use or a contract, wholly unlike how people normally buy most copyrighted works (though many proprietary software publishers now assert that too). That is a pretty threatening idea. I wonder if TFA got that right.

Apologies (1)

Mathinker (909784) | more than 2 years ago | (#38538326)

Sorry, I didn't see that the summary incorrectly states that the authors of the older test were claiming infringement. AFAIK, they're not.

I guess I failed the comprehension test. Actually, I didn't really read the summary carefully, since I was already familiar with the actual facts.

Re:Apologies (5, Informative)

John Newman (444192) | more than 2 years ago | (#38540452)

Sorry, I didn't see that the summary incorrectly states that the authors of the older test were claiming infringement. AFAIK, they're not.

I guess I failed the comprehension test. Actually, I didn't really read the summary carefully, since I was already familiar with the actual facts.

I am one of the authors of the NEJM op/ed article.

It is all a little confusing. There are three parties here:
1. The original authors of the MMSE, who through PAR are strictly enforcing copyright protections of the MMSE
2. The authors of a new tool, the Sweet 16, which was created as an open-access alternative to the MMSE but was "taken down" by PAR in a copyright dispute
3. Us, the authors of TFA, who have no relationship to #1 or #2 but are very worried about what this all means for the practice and progress of medicine

Re:Apologies (2)

CmdTako (2503216) | more than 2 years ago | (#38542390)

I am one of the authors of the NEJM op/ed article.

"permissive licensing, ideally with a form of copyleft." permissive licensing [wikipedia.org] is copycenter NOT copyleft.

Another brick in the wall (1)

Latent Heat (558884) | more than 2 years ago | (#38541654)

Another brick in the wall, but maybe that phrase is also under Copyright.

For a while there I thought that maybe to start asking someone who does or says something lame, "Who is the President of the United States? What State (of the Union) are we living in? What did you have for lunch?" was a malicious yet funny put-down, much as the terms "Florida driver" and "I've fallen, and I can't get up!" have become part of the lexicon. But for now, the Mini-Mental is a dark inside-joke, a kind of battlefield humor for those of us who have gone into medical exam rooms with parents or other family members. I had long heard those questions, but I never heard the term "Mini-Mental" until it was used by an elder-care advocate.

So to those of you who have taken offense already, why do I consider the mini-mental to be "funny"? Aging and the memory loss and loss of cognitive ability with the diseases of aging along with the gradual yet complete destruction of a human being, when that human being is first Grandma, and then Ma and then followed by Poppa is not funny. And to reflect that one has inherited the same genes and it won't be funny at all when it happens to you, pal! But it is funny, because sometimes to see the dark humor in a situation is the only coping mechanism we have, especially when it is some kind of slow-motion train wreck over which we have no control.

So what is so funny about the Mini-Mental? For one thing, that test is administered by the people who are supposed to be helping you, but there is very little help they can offer apart from pulling your driver's license by writing to DMV under the authority of their medical certificate and by inducing you into a kind of prison, from the halfway house of an assistant living facility, to the nursing home or perhaps a Memory Unit with locked doors, or maybe even a state-run mental hospital if the disease process gets to the part of your brain affecting social control before it gets to that part taking your ability to get up and walk. So the Mini-Mental is part of the process of social control where Grandma gets evicted from her apartment because the neighbors don't want to have anything to do with her wandering and knocking on their door.

So now that the test is under copyright, does this mean when my wife gives me the stink-eye for doing something stupid, and I start my litany of self-deprecation to deflect the impending criticism by suggesting I am going senile by saying "Who is the President of the United States? What State are we living in? What did you have for lunch" that I have to write some dude a check for $1.23? That my wife and I cannot have our private joke about the horrors my parents went through and with some high likelihood in 20 years here husband will go through? That I will have to pay someone money for reenacting what happened in my family?

As to the dude's who want to collect that money, I have some questions I want to ask you. Who is the President of the United States? What State are we living in? What did you have for lunch . . .

Public Funds (4, Insightful)

fedos (150319) | more than 2 years ago | (#38538182)

Any new tool developed with public funds should be entered into the public domain.

FTFY

Re:Public Funds (2)

firex726 (1188453) | more than 2 years ago | (#38538242)

Exactly...

We should not allow a private entity to use public funds to offset development costs then privatize/copyright the profits.

Re:Public Funds (1)

currently_awake (1248758) | more than 2 years ago | (#38539714)

If it was made using public funds then it's "a work for hire"- meaning we own the copyright. We really need to insist on our (public) rights to the things we pay for.

Re:Public Funds (4, Informative)

Anonymous Coward | more than 2 years ago | (#38538248)

Do you have any evidence this test was developed using public funds? I honestly don't know, but Wikipedia says it was developed by Marshal F. Folstein, Susan Folstein, and Paul R. McHugh in 1975. McHugh is the only author with his own Wikipedia page (and I'm too lazy to do further research), but in 1975 he worked for Johns Hopkins University, which is a private university.

Re:Public Funds (2)

moortak (1273582) | more than 2 years ago | (#38538980)

A private university that receives about a half billion in annual NIH grants. http://report.nih.gov/award/trends/FindOrg_Detail.cfm?OrgID=4134401 [nih.gov]

Re:Public Funds (0)

Anonymous Coward | more than 2 years ago | (#38539042)

If every work ever created by any organization that received government grants was public domain, nobody would ever take a government grant. In addition, on further investigation, it appears Marshal Folstein, a junior attending at the time, wrote the original questions of his own volition to help Susan Folstein, a resident, to asses patients. They then formalized and published the test with the assistance of Paul McHugh, and did so independently of the hospital. They were not hired by or even encouraged by the hospital to make this test, it was their own creation, so there's really no argument that they didn't own the copyright.

Re:Public Funds (2, Interesting)

Anonymous Coward | more than 2 years ago | (#38539336)

If every work ever created by any organization that received government grants was public domain, nobody would ever take a government grant. In addition, on further investigation, it appears Marshal Folstein, a junior attending at the time, wrote the original questions of his own volition to help Susan Folstein, a resident, to asses patients. They then formalized and published the test with the assistance of Paul McHugh, and did so independently of the hospital. They were not hired by or even encouraged by the hospital to make this test, it was their own creation, so there's really no argument that they didn't own the copyright.

And yet any programmer / sysadmin / who develops a tool on his/her own time stands a chance of losing control of that tool to his/her employer. Hmmm, makes perfect sense to me.

BTW, I'm not saying that the test should be public domain or copyleft.

Re:Public Funds (2)

ortholattice (175065) | more than 2 years ago | (#38539652)

If every work ever created by any organization that received government grants was public domain, nobody would ever take a government grant.

Yes, I'm sure the primary motivation of researchers in abstract mathematics, theoretical physics, astronomy, etc. is the hope of someday getting rich by selling their discoveries.

Re:Public Funds (1)

CrimsonAvenger (580665) | more than 2 years ago | (#38541210)

If every work ever created by any organization that received government grants was public domain, nobody would ever take a government grant.

And this would be bad how?

Option 1: take government money, results (that the public paid for with their tax dollars) are public domain.

Option 2: refuse government money, develop privately, results are privately owned, government saves money.

Looks like a win-win to me.

Re:Public Funds (2)

dargaud (518470) | more than 2 years ago | (#38542332)

If every work ever created by any organization that received government grants was public domain, nobody would ever take a government grant.

If all the assholes whose primary interest is money went into banking instead of research or medecine, those fields would be all the better for it. And yes, I'm dead serious. I studied engineering in France, where everybody wants to do an MS in engineering because it's the best and quickest way to a good salary, no matter what you do afterwards. I don't remember the statistics, but only about one student in 5 kept at engineering afterwards, all the others going into management, banking, and whatever the fuck else. The problem is that they never had any interest in engineering in the 1st place, taking the spots of people who weren't as bright as themselves but who would have made better engineer, simply because they would have _wanted_ to be engineers.

Re:Public Funds (0)

Anonymous Coward | more than 2 years ago | (#38541534)

From the text of the original paper publishing the MMSE, it's unclear how it was funded, but at the tiem of publication, the Drs Folstein were working at New York Hospital-Cornell Medical Center and Dr. McHugh was at the University of Oregon. Wouldn't any research findings by them be considered the intellectual property of the universities? Unless their employment contracts said otherwise, I guess.

Re:Public Funds (1)

Registered Coward v2 (447531) | more than 2 years ago | (#38538748)

Any new tool developed with public funds should be entered into the public domain.

FTFY

True, but you would have to define what constitutes "developed with public funds." I do work for the government, and will sometimes modify something I've already developed for them. While I think a valid argument could be made that the modifications were public domain; the original work is not. It's not as easy as it sounds, especially when the work in question is:

A derivative work, and

not necessarily something that is specifically covered by a contract (i.e. - not a "develop this test" or "write code that does this."

Same thing daily in clinics with CPT codes (2)

KWTm (808824) | more than 2 years ago | (#38538794)

A similar situation, where copyright shows its ugly leash, appears in everyday medical practice. The Current Procedural Terminology (CPT) codes describe the type of service that a doctor has provided (e.g. simple office visit, complex office visit, appendix operation, etc.) and is used a few dozen times a day by insurance companies all around the USA to determine payment for services. It becomes essential for every doctor and every clinic/hospital to know the definition of these codes in order to remain financially solvent. If you surgically extracted a lipoma, but didn't know that the correct code for that particular case was 11424 (if the incision was 4cm long and the location was on the foot), then the insurance company just got a free ride and your other patients are subsidizing the cost of that operation.

You'd think that, for such an important part of daily operations, there'd be a list of all the CPT codes and what they mean. It should be a plain text file. I myself tried to get such a list --a simple text file, to call up on my laptop or handheld or something. Alas, nothing so simple. Yes, there's a list available for purchase, published on paper in thick books the size of a white page phone book (remember those?). If you wanted an electronic version, you'll have to hope someone wrote an app for your particular platform to display the text, because the American Medical Association holds the strings to that piece of text [wikipedia.org] and doesn't want you to do your own searches in your favourite editor or sort the text alphabetically, etc. I'm not sure why such a code is not in public domain if it's so essential to keeping healthcare running smoothly.

I'm told that doctors are one of the most developmentally delayed professions when it comes to adapting to technology, and this is not the first time they seem woefully ignorant of issues in the information age which are screwing them over. I imagine that if someone held the intellectual property rights to the names of diagnoses ("You're not allowed to say 'appendicitis', doctor, because you haven't paid the licensing fees!") then doctors would just bend over and hand over some lube.

Re:Same thing daily in clinics with CPT codes (1)

Mathinker (909784) | more than 2 years ago | (#38539122)

Uggh. Reminds me of how Pantone has all the colors copyrighted.

It's things like this which make me even surer that copyright needs a really big overhaul, if not being abolished totally.

Re:Same thing daily in clinics with CPT codes (2)

dmr001 (103373) | more than 2 years ago | (#38539458)

1. The AMA came up with the CPT code list, so they hold it hostage for money to fund updating it (and perhaps for hookers and coke - who knows). In any event, most electronic medical record software has searachable CPT lists; most doctors only use a small subset of the list which they memorize; and if you're stuck and don't have a book around you can do a search on the AMA website for free (https://catalog.ama-assn.org/Catalog/cpt/cpt_search.jsp?locality=OR) or just google it (try "CPT circumcision").

2. Thanks for the anal raping analogy, but the issue isn't copyright over names of diagnosis but a bunmch of numbers that go with them that the AMA and feds agreed to standardize on. Doctors may be slow to adapt some technology (due to immense cost of anything that gets used in medicine, the relative simplicity of paper, the fact that historically most physician practices were independent small businesses with fairly low overhead, and that most electronic medical record software sucks) but it's not due to ignorance. Where technology is easier to implement with fewer rules and hope of remuneration (surgical robots, diagnostic ultrasound, MRI imaging), if anything, it's overused by physicians.

Re:Public Funds (1)

i.am.delf (1665555) | more than 2 years ago | (#38540424)

Let me introduce you to the Bayh Dole act. http://en.wikipedia.org/wiki/Bayh%E2%80%93Dole_Act [wikipedia.org] Before this act, all IP generated by federally funded research was assigned to the federal government which in essence put it into the public domain. The argument comes down to this. Before Bayh-Dole, most research likely to result in profitable products was conducted in companies and the results of the research were kept as trade secrets. After Bayh-Dole, we have much more research being conducted in universities and non-profit institutes. You need to publish your results in order to secure more funding, but the products of the research are assigned to the schools who license them. These licenses in turn fund the schools. Bottom-line, returning to public domain for federally funded research would "close source" research and probably stifle innovation.

Re:Public Funds (1)

gstrickler (920733) | more than 2 years ago | (#38540858)

I agree with the concept, but I disagree in practice. Tools, copyrightable material, patentable materials, etc developed in part or in whole with public funds should be owned (in part or whole) by the public (i.e. the gov't). Whether those items are then put into the public domain, or whether the gov't receives it's share of any royalties can be decided on a case by case basis.

Some may ask, why should I pay a royalty to use something I already paid to fund? First off, all taxpayers funded it, yet not all taxpayers will use/benefit from it, therefore, it's appropriate to charge those who use/benefit from it's use. Second, if companies are making a profit selling products using those copyrights/patents, the taxpayers who funded it should receive some return for their investment. People in other countries may benefit from it as well, yet they didn't pay the taxes to fund it, so licensing it is again appropriate.

The inventors, authors, etc. and any non-public funds investors should also have partial ownership. I don't think we want the government involved in marketing patent and copyright licenses, so the licensing should be handled by commercial or non-profit entities who would receive a "commission" for each sale/license.

open source medicine (0)

Anonymous Coward | more than 2 years ago | (#38538208)

All the medical discoveries, procedures or other elements that have immediate clinical application should be under a copyleft type of licensing, patent encumbrance is the number one reason why healthcare costs have skyrocketed in recent years compared to other public service areas. As a side note patents slow down the speed of advances in research by promoting hoarding of data instead of open sharing and it's also detrimental for the patient community as patents increase the costs of new life-saving life-improving medicine. One might argue that patents are an incentive for pharmaceutical companies to invest in research and recover their money but let's look like other domains like astronomy, there have been major breakthroughs in the way we understand the universe due to community collaboration and sharing of data although there was no immediate monetary incentive, this can also happen in medicine but considering there's a huge monetary incentive it's going to remain a slow developing field in desperate need of disruption.

So change the test, duh? (4, Insightful)

pla (258480) | more than 2 years ago | (#38538238)

Copyright covers the actual content of the test, not the concept of a short battery of simple test of various cognitive skills.

So... Rewrite the damned test. Use different math problems, different spatial problems, different linguistic problems, which gets around the copyright issue entirely but still fundamentally measures the same underlying capacity.

17+34 doesn't magically measure basic math ability "better" than 15+29 just because Folstein, Folstein, and McHugh blessed it.

They did. Didn't help. (5, Insightful)

Mathinker (909784) | more than 2 years ago | (#38538290)

The authors did. That didn't help them against the infringement claims of the corporation which benefits from an older test.

This is one example why many believe copyright does on the whole more damage than benefit to society.

Re:They did. Didn't help. (1)

brainzach (2032950) | more than 2 years ago | (#38538610)

Anyone can claim copyright infringement. Having a judge enforce the copyright is a completely different matter.

Re:They did. Didn't help. (1)

ColdWetDog (752185) | more than 2 years ago | (#38538790)

That's correct. But if you are just a couple of clinicians seeking to Do Good and you come up with a test that looks like a product protected by Copyright, then you get Evil Lawyer contacting you with vaguely threatening letters. Then you have to hire your own Evil Lawyer to contest this.

Costs money, takes time.

Granted for something as important as the mini mental status exam (which is used daily by thousands of people) might be able to find an organization willing to go through with the process but it's a real problem for normal folk.

Re:They did. Didn't help. (1)

brainzach (2032950) | more than 2 years ago | (#38538964)

It was just a website that took the test down. They probably thought it wasn't worth the effort to fight.

If they tried to take on author of the new test and demand compensation, there would have more incentive to defend it in court.

Re:They did. Didn't help. (4, Informative)

John Newman (444192) | more than 2 years ago | (#38539890)

I'm one of the authors on the NEJM article.

The developers of the Sweet 16 - the test apparently "taken down" for copyright infringement of the MMSE - were all Harvard faculty, and work for academic centers that are affiliated with Harvard and its hospitals (Hospital Elder Life Program, Institute for Aging Research and Hebrew Senior Life). The senior author of the Sweet 16 is a well-known Harvard professor [hebrewseniorlife.org] . One of the things we find concerning about this case is that Harvard Medical School probably has some claim to ownership of the Sweet 16, and was presumably involved in its defense. If Harvard, with its vast resources, could not or chose not to defend the Sweet 16 successfully, what hope do any other researchers have to develop new cognitive testing tools?

Re:They did. Didn't help. (1)

brainzach (2032950) | more than 2 years ago | (#38540310)

I'm not a lawyer but claiming that you can use copyright to prevent others from creating cognitive test just doesn't smell right. If they had a patent, I can see them enforcing it, but not a copyright. I would like to know a legal opinion on the matter.

Pressuring a website is different than preventing others from using the Sweet 16 test. Maybe the website was being overly cautious or did a costs benefits analysis and they thought it wasn't worth the costs of litigation. There just seems to be more to the story than what is reported.

Re:They did. Didn't help. (1)

Mathinker (909784) | more than 2 years ago | (#38538816)

And having the money to defend yourself is a completely different matter.

It seems to me, however, that some medical institutions might be able to organize a not-for-profit holding corporation to which the copyrights of the newer test are assigned, and fund it to distribute the newer test for free with open licensing while having the means to defend against the infringement claim.

Re:They did. Didn't help. (0)

Anonymous Coward | more than 2 years ago | (#38538782)

An example maybe. We'll have to see if the authors' new version is actually copyright infringement on the old one.

In theory, I have no problem with someone exercising their copyright protection on a test they've written. At least, no more than someone that writes a book or article.

It's the fringe cases that test the boundaries of that protection... and this might be one of those.

Re:They did. Didn't help. (3, Informative)

Mathinker (909784) | more than 2 years ago | (#38538952)

> We'll have to see if the authors' new version is actually copyright infringement on the old one.

I'm sorry to have confused the discussion here by emphasizing something not mentioned in the summary and only in the linked article. It's actually two tests from two different sets of authors. The newer test is called "The Sweet 16" (what a terrible name) and as far as anyone can tell (the newer test is unavailable, even in this era of the Internet, AFAIK), it is unlikely that any claim of infringement is valid.

I just hope some clinician who managed to download the newer test, in the few weeks it actually was available, will have the good idea to ask a favor from a friend who knows how to anonymously publish information on the net.

Re:So change the test, duh? (2)

thesandtiger (819476) | more than 2 years ago | (#38538862)

While it probably wouldn't be a problem to re-write the test with different questions, there is a question of testing the validity and reliability of the new items.

The original has been in use since the 70's and has had the validity and reliability demonstrated multiple times. New questions that seem the same might actually not get at the same constructs as well or might have something else going on. Generally instruments like this aren't modified casually.

In my work (psychology and public health research) we have had to modify widely used measures and when we have replaced one question with a seemingly identical question in the past, sometimes there're we're hidden gotchas that changed the responses enough that it was clear that despite our best efforts, the new questions didn't get at the same constructs as the old ones.

All that said, I don't think it would be an issue in this case to change the questions a bit, but I do wonder if legally that would be sufficient to protect against copyright claims.

25 Years (0)

Anonymous Coward | more than 2 years ago | (#38538246)

They created this in 1975 and waited until 2000 to start taking steps to enforce their rights after it had basically become standard practice.

Copyright is so broken it's not funny. When this country started Copyright was for 17 years and distribution was painfully slow. Now distribution is ridiculously fast and yet Copyright keeps getting extended (it's at what life + 75).
If this goes to court the delay and the public importance of this work should mean it gets ruled as public domain.

Cognitive Impairment? (2)

Shoten (260439) | more than 2 years ago | (#38538268)

...uh, I don't understand...

Sweet 16 vs MMSE (4, Interesting)

sudnshok (136477) | more than 2 years ago | (#38538304)

According to the article, an alternative test called Sweet 16 was produced and was subsequently killed by the MMSE copyright owners' legal action. It sounded like the Sweet 16 used completely new copy but similar logic. Can you copyright logic if all the words are completely different? I'd love to see a comparison of those two tests.

On a side note, I hope no one owns the copyright on the eye chart. I like getting my eyes checked every year or two.

Re:Sweet 16 vs MMSE (3, Interesting)

Dcnjoe60 (682885) | more than 2 years ago | (#38538384)

According to the article, an alternative test called Sweet 16 was produced and was subsequently killed by the MMSE copyright owners' legal action. It sounded like the Sweet 16 used completely new copy but similar logic. Can you copyright logic if all the words are completely different? I'd love to see a comparison of those two tests.

On a side note, I hope no one owns the copyright on the eye chart. I like getting my eyes checked every year or two.

If the logic is germane to the item in question, yes you can copyright logic. Think of it as music and the logic is the step changes from note to note. Changing all the notes to a different key isn't unique enough to say it is a different work.

Re:Sweet 16 vs MMSE (0)

Anonymous Coward | more than 2 years ago | (#38538462)

I'd like to see a legal opinion that you can copyright logic. As far as I know, the "logic" in this case is an algorithm, and algorithms aren't copyrightable, they are patentable. You patent ideas, you copyright expression. I am not a lawyer, but that has always been the basic principle of intellectual property I was told by those who are lawyers.

Re:Sweet 16 vs MMSE (0)

Anonymous Coward | more than 2 years ago | (#38538558)

And you can't Patent algorithms that describe a science. Which oddly enough should be all Algorithms

Re:Sweet 16 vs MMSE (2)

AthanasiusKircher (1333179) | more than 2 years ago | (#38538800)

If the logic is germane to the item in question, yes you can copyright logic. Think of it as music and the logic is the step changes from note to note. Changing all the notes to a different key isn't unique enough to say it is a different work.

Maybe. But is your analogy accurate? You can't, for example, copyright a chord progression -- otherwise, all 1950s and 60s bubble-gum pop would be considered the "same song."

I don't know enough about the specific test in question, but the idea that you can copyright the logic necessary to solve a problem or a specific collection of similar types of problems sounds absolutely crazy. How can anyone ever publish a new math textbook then, without someone claiming copyright infringement? Surely the methodology for solving basic algebraic equations is the same, and the types of problems used to test understanding are very similar.

This isn't like claiming copyright over a melody in a different key. A better analogy: you can't copyright a recipe (as a list of ingredients), but you can copyright a specific expression of a recipe with the more-or-less exact wording of instructions, background, etc. In this case, they're trying to copyright a recipe that isn't even expressed directly. How does that make sense?

Re:Sweet 16 vs MMSE (1)

BillX (307153) | more than 2 years ago | (#38540716)

This case sounds more like they are claiming copyright on a particular dish itself based on the inclusion of a couple key ingredients, regardless of the actual recipe steps, text or ingredient proportions.

Re:Sweet 16 vs MMSE (1)

AthanasiusKircher (1333179) | more than 2 years ago | (#38542670)

I agree with what you're saying regarding the whole test.

However, regardless of the status of the whole collection of the test, as I understand it, it seems the complaint is arising over a claim of copyright on those few key items and their specific content. My question (and the one the GP was addressing) is whether one can claim copyright over something as general as a problem type.

To be clear, my analogy was referring to the specific types of problems/questions used, and to the GP's reference to "logic" used to solve/answer them. In that case, the specific "steps" of the recipe (i.e., the way to solve the problem) are implicit, rather than expressed outright.

If the text of the test was exactly the same with some numbers or something changed, they might have something. But I'm assuming the wording of these problems/questions has been altered enough that the expression is rather different. In that case, the only claim to copyright would be concerning the form of solution to the questions, which seems a rather odd thing to claim copyright over, given that the methodology of the solutions wouldn't even be contained in the text of the test.

Intellectual Property is the problem (0)

Anonymous Coward | more than 2 years ago | (#38538894)

Should Tolkien's estate sue every author who writes about elves, dwarves, and dragons? No. The whole concept of Intellectual Property is corporate tyranny which has been imposed upon us by corrupt politicians.

IANAL, but the fact that the authors chose not to enforce their rights makes it much harder for them to enforce them in the future. The enforcement is actually being handled by a third party. http://www.geripal.org/2011/12/copyrights-and-copylefts-in-medicine.html Righthaven is all over this matter. The trick is to find someone to defend this matter to the end.

Until this is resolved, boycott the MMSE. There are already other alternatives, such as MoCA, that can be used.

Re:Intellectual Property is the problem (1)

MightyMartian (840721) | more than 2 years ago | (#38542292)

I get what you're saying, but the only time the Tolkien Estate sues is when someone tries to write some new material within Tolkien's mythos, and even Tolkien, in his later years refused permission to derivative works. If the Estate truly did try to sue everyone who wrote about elves or dwarves, a fairly big chunk of fantasy written in the last half century would be eradicated.

Not that I'm defending the Tolkien Estate, but they're using the laws that the politicians have put in place. If copyright was what it had been half a century ago, the Estate could do nothing if some guy decided to write a sequel to the Lord of the Rings.

Re:Sweet 16 vs MMSE (4, Informative)

urulokion (597607) | more than 2 years ago | (#38539246)

No you can't copyright logic. Nor can you copyright a thought. Nor can you copyright a plot. Copyright protects the expression of logic, thoughts, plots, et. al. So you can't copyright a plot, but you can copyright a screenplay which is an expression of a plot. You can't a thought, you can copyright a poem which expresses that thought. And you can't copyright the idea of a way to testing cognitive functioning, but you can copyright a standardized test to test cognitive functioning

The only way the Sweet 16 test could me infringing is if it's a derivative of the MMSE test. And I would suspect the creator of the Sweet 16 explicitly avoided that particular trap. It sounds like she created her own test using the general methodology used by the MMSE. Hmmm. Why does that sounds familiar...protection of methodology? Because that's the realm of patents. That's the only thing that the Sweet 16 test could be infringing. But any possible patent protection for the MMSE test has long since expired.

Re:Sweet 16 vs MMSE (1)

pclminion (145572) | more than 2 years ago | (#38539562)

No you can't copyright logic.

So, I can take the Linux kernel source and run it through a program which changes identifiers and manipulates loops so that the same effect is achieved in different "words", and gain complete rights?

Re:Sweet 16 vs MMSE (1)

Dragonslicer (991472) | more than 2 years ago | (#38540090)

So, I can take the Linux kernel source and run it through a program which changes identifiers and manipulates loops so that the same effect is achieved in different "words", and gain complete rights?

No, that would still be a derivative work.

Re:Sweet 16 vs MMSE (1)

urulokion (597607) | more than 2 years ago | (#38540260)

The Linux Kernel source code is an expression of logic which is copyrightable..

Your example would be a derivative work which would be infringing. And debatable whether it qualified for copyright protection itself. It's a mechanically created rendition lacking any creativity.

Re:Sweet 16 vs MMSE (1)

gl4ss (559668) | more than 2 years ago | (#38540282)

if you could do that without the linux source.

but - the point is here, that if the crappy corps claims were valid, then NOBODY could write a new operating system and linux would be a derivative of minix.

Re:Sweet 16 vs MMSE (1)

Dcnjoe60 (682885) | more than 2 years ago | (#38539624)

No you can't copyright logic.

I'm pretty sure my Philosophy 101 book was copyrighted. It was full of logic. :)

Re:Sweet 16 vs MMSE (1)

JimCanuck (2474366) | more than 2 years ago | (#38540004)

The moment the person or people who wrote the Sweet 16 test, read a copy of the MMSE test, its a derivative work, which is why Compaq, Award and Phoenix all created the IBM BIOS in clean room techniques so that the people writing their code had never seen IBM's, and therefor non-infringing.

Re:Sweet 16 vs MMSE (1)

brainzach (2032950) | more than 2 years ago | (#38538654)

According to the article, the Sweet 16 test was killed by the THREAT of legal action.

It was taken down because the organization doesn't want to spend money and go to court to defend the test.

Re:Sweet 16 vs MMSE (0)

Anonymous Coward | more than 2 years ago | (#38538720)

Can you copyright logic?

If so I'm going to get rich by copyrighting the nxor gate logic! (It returns a 0 if exactly one of the inputs is a 1, else a 1)

Re:Sweet 16 vs MMSE (4, Informative)

John Newman (444192) | more than 2 years ago | (#38540092)

I'm one of the authors of the NEJM article.

We didn't have the space to describe the MMSE and Sweet 16 in detail, but here's a brief description:

The MMSE has 30 items, which include 10 orientation questions (what's today's date, where are we, etc.) and 6 questions for recall (say 3 standard words, repeat them back and remember them for 5 minutes or so).

The Sweet 16 has 16 items which include 8 orientation questions and 6 questions for recall (using different words than the MMSE). The other two questions involve repeating a sequence of numbers backwards.

So there is a lot of overlap between the two tests, and that was presumably the basis for an infringement claim. However, the items that overlap - orientation and recall - are quite generic and were in wide use long before the MMSE was created in 1975. Nevertheless, the authors behind Sweet 16 and their institution could not or chose not to defend the Sweet 16.

It's a little hard to imagine a cognitive assessment tool that doesn't include orientation or short-term memory recall questions, so this will strongly discourage progress in the field. Perhaps one of the Alzheimer's advocacy groups will take notice and defend researchers trying to advance the state of the art.

Re:Sweet 16 vs MMSE (1)

urulokion (597607) | more than 2 years ago | (#38540428)

It's a little hard to imagine a cognitive assessment tool that doesn't include orientation or short-term memory recall questions, so this will strongly discourage progress in the field. Perhaps one of the Alzheimer's advocacy groups will take notice and defend researchers trying to advance the state of the art.

Good grief! That confirms what I previously posted. The tests are embodiments of methodologies that have been developed in the field over the years. Unless the Sweet 16 test lifted entire sections, MMSE has absolutely no copyright infringement case against the Sweet 16 test. You can't use copyright law to protect method. That is what patent law is for. But PAR is a licensee of the MMSE test, MMSE's coporation might have recourse via the license terms.

Re:Sweet 16 vs MMSE (1)

MightyMartian (840721) | more than 2 years ago | (#38542268)

All that counts is whether you have the legal clout to stare down the other guy. It has nothing to do with what is right or what is strictly legal. It's pure brinkmanship. What counts in almost every case is how deep your pockets are, frivolousness or abusiveness of lawsuits is only meaningful in the size of the check you can write to your lawer. Sad sometimes when the IP game detrimentally affects the most vulnerable people in society, but this is America, the land where the lawyer laws you!

Public domain (2)

J'raxis (248192) | more than 2 years ago | (#38538336)

Any tool developed using public funds should be placed in the public domain.

I use copyleft for my own works, but I do so as a defense against anyone else trying to claim a standard "all rights reserved" copyright over my works. I would public-domain them if I could do so safely. I use copyright law and its ability to place restrictions upon the free flow of information merely to make sure someone else can't take a piece of information I wish to offer freely and wrap it in their own, non-free, worse "all rights reserved" copyright and license.

So, whereas I personally support the restrictions that copyleft creates, in the broadest sense, one must admit that copyleft's restrictions are as much restrictions as standard copyright's are. "No" is "no" whether or not you agree with it. It's an individual, political/ideological decision to copyleft a work rather than use a standard copyright.

And works paid for by the public---paid for by everyone, without their explicit consent---should not be subject to political/ideological decisions. Everyone paid for these works, including people who strongly oppose the spirit of copyleft. Therefore, these works should be returned to the public with no restrictions placed upon them.

Corporation, not authors (4, Insightful)

Mathinker (909784) | more than 2 years ago | (#38538380)

The corporation, PAR [parinc.com] , to which the older test is licensed, is behind this. AFAIK, the doctors who authored the older test haven't personally claimed infringement. My guess is that they received a single payment for licensing their test to PAR, and therefore they have no financial stake in the success or failure of the newer test.

WOW (1)

Skal Tura (595728) | more than 2 years ago | (#38538410)

This world is CRAZY.
Come on, copyright on a medical test oO;
This is like a band doing cover song of other bands song, and being forbidden to do that due to copyright. Which afaik is a form of fair use.

Next someone has copyrighted showing the middle finger.

Re:WOW (1)

saphena (322272) | more than 2 years ago | (#38538692)

Why would you consider that to be an example of "fair use"? Looking at http://en.wikipedia.org/wiki/Fair_use#Fair_use_under_United_States_law [wikipedia.org] I get "purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

The band in question wouldn't be "forbidden" to make the cover, they would simply need to agree licensing terms with the copyright holder. That [licensing] sounds perfectly fair and reasonable to me, your "form of fair use" sounds like simple theft.

Summary misses the worst part (2)

Mathinker (909784) | more than 2 years ago | (#38538476)

The corporation PAR [parinc.com] , which benefits from the older test, the MMSE, has caused a newer, openly licensed test called "The Sweet 16", to be taken down by claiming infringement on elements of the older test, even though as far as anyone knows, they have no legal basis for doing so.

Hippocratic Oath ? (0)

Anonymous Coward | more than 2 years ago | (#38538650)

Part of the oath says:
'I will respect the hard-won scientific gains of those physicians in whose steps I walk, and gladly share such knowledge as is mine with those who are to follow.'
'I will apply, for the benefit of the sick, all measures [that] are required, avoiding those twin traps of overtreatment and therapeutic nihilism.'

It seems that lately the business people in the medical sector should request a change in something like this:
'I will respect the hard-won scientific gains of those physicians in whose steps I walk, and gladly share such knowledge as is mine with those who are to follow. If they empty their pockets and make me rich'
'I will apply, for the benefit of the sick, all measures [that] are required, avoiding those twin traps of overtreatment and therapeutic nihilism. But will make sure I can buy myself whatever luxury item I ever wanted.'

This money hunting in the medical sector realy is making me angry. It clearly shows some people realy have no respect for the sick & wounded.
Fortunatelly there still are some people willing to help without making profit, a thanks to all volonteers who put their abbilities availble around the globe.

Re:Hippocratic Oath ? (2)

ColdWetDog (752185) | more than 2 years ago | (#38538850)

The Hippocratic Oath [wikipedia.org] begins with the invocation:

I swear by Apollo, the healer, Asclepius, Hygieia, and Panacea, and I take to witness all the gods, all the goddesses, to keep according to my ability and my judgment, the following Oath and agreement:

While fine by me (they sound as reasonable as the rest of the loonies in Godville) it's hard to take everything the Oath says at face value.

Re:Hippocratic Oath ? (1)

MightyMartian (840721) | more than 2 years ago | (#38541932)

Sounds better than the Cthulic Oath...

Re:Hippocratic Oath ? (1)

bargainsale (1038112) | more than 2 years ago | (#38540934)

It's a myth that doctors take the Hippocratic oath, at least in the UK. Never have done. It explicitly forbids abortion, incidentally.

Eat junk food (2)

Chemisor (97276) | more than 2 years ago | (#38538802)

This clearly illustrates that cognitive impairment is caused by copyright, not junk food, as the above mentioned study concludes.

SWEET16 (0)

Anonymous Coward | more than 2 years ago | (#38539008)

“The Sweet 16 is a copyrighted instrument. It can be used free of charge only by nonprofit organizations and educational institutions (such as universities).” As well as: “All for-profit organizations or entities must contact the Aging Brain Center at: 617-971-5390 or email: AgingBrainCenter@hsl.harvard.edu for permission to use the Sweet 16.”

It's no better than the PAR MMSE in the regard of copyright hassle and possibly cost. Most doctors work for for-profit organizations. Hospitals are generally nonprofits, but most of the doctors that work in hospitals work for for-profit physician groups that are contracted to the hospital. The vast majority of physicians' offices are also for-profit organizations.

MoCA test seems to better in that regard. [mocatest.org]

Re: SWEET16 (1)

Mastodon (757726) | more than 2 years ago | (#38539544)

MoCA test seems to better in that regard. [mocatest.org]

Yes. The Montreal Cognitive Assessment is starting to replace the MMSE, both because it is not encumbered and because it does a better job of assessing executive function.

Copyright Term Reduction (0)

Anonymous Coward | more than 2 years ago | (#38539670)

...and again a drastic copyright term reduction to 20 years (same protection duration as patents offer) strangely doesn't come up. This "test" was first published in 1975! The year the Altair 8800 was released, birth year of Jolene Blalock and Tiger Woods.

And ? (0)

Anonymous Coward | more than 2 years ago | (#38539796)

The people who devised the test spent time and money to do so. They created the original work. Why shouldn't they be able to license it for fee to others? They've got college loans to pay off. OH so now educators and researchers have to live under the specter of copyright laws! Boo hoo welcome to the real world!

Re:And ? (1)

John Newman (444192) | more than 2 years ago | (#38540718)

The people who devised the test spent time and money to do so. They created the original work. Why shouldn't they be able to license it for fee to others? They've got college loans to pay off. OH so now educators and researchers have to live under the specter of copyright laws! Boo hoo welcome to the real world!

I am one of the authors of the NEJM article.

We did not get into ethical issues in the article. But much of the current value of the MMSE does not lie in its contents but rather in the past 35 of research on it. Hundreds or thousands of studies from researchers around the world have shown doctors in exquisite detail exactly how and when to use the MMSE to best care for patients.

It is this vast accumulation of data on the validity and utility of the MMSE that makes it so valuable - and little of this was done by the MMSE's authors or PAR. In fact, much of this research might never have been done if the MMSE had had its current strict licensing terms 30 years ago. Some people have compared this behavior - waiting until the test is ubiquitous to start enforcing copyright - to patent trolls [geripal.org] .

Nevertheless, the MMSE authors and PAR are entirely within their legal rights, and that is why we suggest that policy needs to change to prevent this from happening all over medicine.

Public research is supposed to be PD (0)

Anonymous Coward | more than 2 years ago | (#38539828)

Isn't public research supposed to be public domain? They probably weezled out of that with some kind of corporate contract that made it private research funded with public money. 1. That needs to stop. 2. The research should be public domain--the most liberal "open source" license there is. 3. Whenever this kind of thing comes up we need to remind ourselves that it's just part of the larger problem. "Separation of corporation and state" should be a mantra for our government as much as separation of church and state is.

Time Zone Database connection (2)

macraig (621737) | more than 2 years ago | (#38539930)

This reminds me of the Time Zone Database debacle of this year, when that astrology products company bought out the atlas/almanac from which much of the data was derived, and then immediately turned around and sued the two individual authors of the Database, even though they never made a dime from it and included a full attribution of the source in the Database. How did that turn out? It's been months with no further word here or anywhere else frequent.

These are two of the best anecdotes to highlight the surreptitiously greedy stupidity of current (and most historical) copyright law.

Not a big loss (1)

dogmatixpsych (786818) | more than 2 years ago | (#38540032)

As someone who administers cognitive tests for both research and clinical work, I can state that the Mini-Mental is not a very useful test (we sometimes use it clinically {because medical doctors want it} and for research {because some reviewers think that it's necessary information, which is ridiculous given the amount of other cognitive data we collect}). It's a screener that is easy to administer but it is neither sensitive nor specific. The test, frankly, doesn't tell us very much. There are other alternative and better screeners out there, the MMSE is just the most widely used. The sooner that it stops being used, the better; then we can start giving more useful tests. I'm not saying the MMSE is useless, it's just no big loss if there is copyright being claimed now. We'll move on to something else.

Re:Not a big loss (2)

John Newman (444192) | more than 2 years ago | (#38540314)

I'm not saying the MMSE is useless, it's just no big loss if there is copyright being claimed now. We'll move on to something else.

I'm one of the authors of the NEJM article.

People already are moving on. In our practice we mostly use the Montreal Cognitive Assessment (MOCA [mocatest.org] ) for screening, which is much more sensitive and has liberal licensing terms for non-commercial use.

But this is a general issue. The Sweet 16 was an attempt to move on, halted by PAR. I'm surprised that PAR hasn't already sued the MOCA authors given that the MOCA includes recall and orientation, like the Sweet 16. Even if it survives, the MOCA is not perfect- it has laudably generous licensing terms for copying, but no provision for derivative works. In 80 years, the heirs of the MOCA authors might well start suing researchers who use a trails test, clock draw and animal recognition in a new test.

Whether we move on from the MMSE or not, the threat to scientific progress will remain.

Re:Not a big loss (1)

Mastodon (757726) | more than 2 years ago | (#38541954)

But this is a general issue. The Sweet 16 was an attempt to move on, halted by PAR. I'm surprised that PAR hasn't already sued the MOCA authors given that the MOCA includes recall and orientation, like the Sweet 16. Even if it survives, the MOCA is not perfect- it has laudably generous licensing terms for copying, but no provision for derivative works. In 80 years, the heirs of the MOCA authors might well start suing researchers who use a trails test, clock draw and animal recognition in a new test.

I am a neurologist. We were having people draw clocks (and publishing the results) long before the MOCA was thought of.

And how can you possibly copyright "What day is today?"

Estoppel (1)

kawabago (551139) | more than 2 years ago | (#38540690)

The legal doctrine of estoppel says that you can't give a work away freely for decades and then suddenly start charging for it. The rights holders are estopped from enforcing their rights.

Re:Estoppel (0)

Anonymous Coward | more than 2 years ago | (#38540948)

No, it doesn't. And even if it did, that doesn't really have any bearing on what has happened here.

Copyright (1)

the eric conspiracy (20178) | more than 2 years ago | (#38540998)

Copyright covers an expression, not an implementation (the domain of a patent).

All that is necessary is for someone to rewrite the description of how to do the test, and disclaim copyright. Voila, the problem is solved.

Work in social work (0)

Anonymous Coward | more than 2 years ago | (#38541130)

In the social work field, this is not how it works. No agency I have ever worked for has ever had legit copies of anything. (Unless, it was the first copy they obtained). Copyright with actual normalized tests is really limited to the university publishing arena. Most individuals actually giving the MMSE or other basic tests have never seen a copy from any publisher, just from the nearest copier.
People will still get their MMSE, and be referred to a doctor if he/she fails for further testing. It is useful and it works for people administering the test, especially intake workers who may just have a high school diploma or an certificate.

CopyWrong (0)

Anonymous Coward | more than 2 years ago | (#38541244)

Its why we don't have nice things.

doctrine of the laches (1)

voss (52565) | more than 2 years ago | (#38541396)

Ive never seen a clearer cut case. They allowed people to become dependent on using their tool for a period of twenty years.

I read this title as; (1)

Vitriol+Angst (458300) | more than 2 years ago | (#38541724)

I read the title as; "Copyright Claims Set Back Cognition: Impaired Testers."

Actually, sometimes a Freudian Slip is more insightful than the actual statement.

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