Home » Intelligent Design » Bolinski (XVIVO) Backed Down on Inner Life of the Cell lawsuit threat…

Bolinski (XVIVO) Backed Down on Inner Life of the Cell lawsuit threat…

Bolinski, with an undetermined appendage writes:

So go ahead and release your movie. Just keep track of how many tickets you sell.

Read Bolinski’s rant at Richard Dawkins’ website. It’s pretty funny.

My guess is either Bolinski got some advice from a real intellectual property attorney and/or got quietly told to back down by Harvard who doesn’t want its name dragged through the mud. I hope Doctor Bolinsky now knows that to protect styles, processes, and algorithms important to his company he must seek design and utility patents. Copyrights simply don’t protect those things.

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52 Responses to Bolinski (XVIVO) Backed Down on Inner Life of the Cell lawsuit threat…

  1. It looks like they’re hinging their case on inferring intelligence… I wonder how that will go over.

    Your honor, everything that happens happens by random chance except for when these people make a movie so don’t let them release it pretty please!

  2. I’m not sure where you get the impression that he “backed down.” After the line you quote, he says “We may just find that data valuable, too.” It’s clear that the line you quote is along the lines of “Go ahead, make my day.”

    Some comments on this blog appear to indicate that this was all part of a publicity stunt. If it was, it was poorly conceived. This is ID’s big opportunity to show itself to be new, creative, and better than the opposition — not get involved in a copyright infringement lawsuit over material put together by the opposition.

  3. When you produce something as well done and unique as Inner Life it shouldn’t be a surprise when it becomes the de facto standard of visualization.

    I think there would be more room to gripe if direct competition was an issue. We’re talking about a couple of clips of similar looking animation in a documentary. It’s not by any means a duplication.

    I understand they’re ticked that the movie is being released, and that it shows compelling cellular machinery visualizations reminiscent of their own; but the whole attitude really comes across as so much whining. It’s too bad for them that Darwinists don’t have a monopoly on showing how complex and wonderous the cell truly is.

    From a PR standpoint, I get the frustration. Millions of people will see that world brought to life for the first time, and will credit the ID side with showing it to them.

    Once you “raise the bar,” it doesn’t typically get lowered again. Tough luck.

  4. Apollos:

    I agree with you; the copyvio doesn’t have a leg to stand on, legally. But why do it intentionally? If you’re going to have a company reengineer it, why not have them do it better? Fix the mistakes? Use different camera angles? Take it to the next level?

    Why bait a lawsuit!?

  5. I’m not convinced they were really baiting a lawsuit.

    Here’s the situation. You have a documentary that would benefit from state of the art computer animation of cellular machinery. The group that produces the premier version of that animation hates you vehemently and will sue you even if it falls within “fair use.”

    The answer? Produce your own from the ground up, and make it as similar as possible in regards to quality, but only produce what you need to get the job done (a few minutes of compelling visualization).

    Trying to “beat” XVIVO might be the thing to do at some point, but not when you just need a few minutes of good footage.

  6. Apollos:

    Valid points. I guess I just would have varied it a bit more (camera angle, colors, details of the processes, etc.), unless I was trying to harken back to the other video.

    It does a fantastic job of bringing out the irrational bile and hatred, though. Holy smokes. If that’s what the producers were shooting for, mission accomplished.

  7. ungtss wrote:

    It does a fantastic job of bringing out the irrational bile and hatred, though.

    I agree. There might be more to it though. From Bolinski’s post:

    Equally astonishing is the “Intellgent Design” treatment of these and other proteins surfaces, which XVIVO derived using procedural iso-surface skinning of the PDB cloud data of our proteins’ atom placement. There are an infinite number of possble “correct” solutions to that problem.

    It may have taken more of a year to develop procedurally skinned point cloud data, but it only takes a fraction of that time when you’re able to focus directly on the appearance of the result rather than needing to develop the process.

    It’s easy enough to geek out on algorithms and processes that are really cool, and it must sting a little when another party can produce a compelling result without investing the same time and effort.

    Also, the algorithms used may very well be proprietary, but if they are what they claim, then they produced moderately accurate results. The effect is then an elucidation of biological appearances, and I’m not sure how you claim an exclusive right to that.

    Once you’ve “spilled the beans” on what biological machines look like and how they work, it hardly seems appropriate to claim exclusive rights to the visage of them.

  8. Apollos:

    All true, but we’re in the court of public opinion here. Most folks don’t have the sophisticated understanding of copyright law that’s being articulated here. Most folks think copyright and plagiarism are roughly equivalent.

    Plagiarism, while not illegal, is not ethical, particularly in the academic environment. And there’s a decent argument to be made that replicating the final product of a year of research without giving credit to those who did the research is borderline plagiarism. It’s pretty clear who did the heavy lifting here. They could avoid all this by giving props where they are due.

  9. 9

    Apollos,

    I copied copyright law and “best practices” into the earlier thread.

    http://www.uncommondescent.com.....g-harvard/

    Section 106 says that the copyright owner has “exclusive rights… to prepare derivative works based upon the copyrighted work.” Section 107 gives fair use limitations. I indicated that Expelled seems to make fair use of the XVIVO animation.

    Anyone who watches the Expelled animation right after watching the XVIVO video knows that it is a highly derivative work.

    “The answer? Produce your own from the ground up, and make it as similar as possible in regards to quality, but only produce what you need to get the job done (a few minutes of compelling visualization).”

    The producers of Expelled didn’t choose the answer you did. The animation is nowhere close to “from the ground up.” Watch the “walker” sequences in the original

    http://aimediaserver4.com/stud.....arvard.swf

    and then the derivative sequences in the previews.

    http://www.uncommondescent.com.....-expelled/

    I predict you won’t see the Expelled animation released independently as an ID educational resource. I think that would be legally risky. Inclusion in a documentary is what protects it.

  10. I hope Doctor Bolinsky now knows that to protect styles, processes, and algorithms important to his company he must seek design and utility patents. Copyrights simply don’t protect those things.

    Doesn’t that statement admit that the styles, processes and algorithms were indeed stolen and copied? Regardless of the patents or copyrights that may or may not be associated with them, Isn’t stealing wrong?

  11. ungtss

    Harvard refused to let any ID sympathizers display the video. I’m sure the producers of Expelled would have preferred to get the animation from Harvard unmodified and with full permission and credits. It’s to their benefit to have Harvard’s name on it to lend credibility for the depiction. All they wanted to do was let people see how intricate and orchestrated are the things that “science” says is a purposeless accident. Harvard produced this as an educational video but it appears they don’t want the unwashed masses to see it in the wrong context – the wrong context being “Look at this. Does it look like an accident?”

  12. ungtss

    Before you get too upset over this, keep in mind the following:

    In all probability the Expelled group asked politely to use the footage, offering to pay for the privilege and to plug the site in the process. After Dembski’s experience they pretty much knew what to expect, but did it anyway just to make the point, which will come out when the DVD is released. (And there was no risk; if XVIVO agreed, they had a bunch of low-cost video which made their point very well, thank you.) They figured on a refusal, and got their own people together working on a replacement video. They wanted to evoke the feeling the original gave, so they left most of the general scene intact, panning from the opposite side, changing coloration, adding spikes, etc. just enough so that nobody could make a copyright infringement claim stick, but close enough so that those who were not thinking this through objectively would be tempted to threaten and even file suit.

    These guys have used similar tactics promoting The Passion of the Christ, on which they got a lot of free publicity out of claims that the movie was anti-semitic. They are very good at this.

    I might feel sorry for the poor XVIVO folks at the borderline plagiarism if they didn’t have such a hypocritical dog-in-the-manger attitude. They put it out on the net for everyone to see. They allow YouTube copies–flat-out copies, for crying out loud. I’m sure that the video was shown in lectures, by people who got honoraria, before. But when Bill Dembski uses them, suddenly this is not fair, and the remedy is not for Bill to give them a cut, but for him to quit using the video altogether. Apparently anyone can use the video as long as that person is not an ID supporter.

    As someone else said in an earlier thread, the goal is not to get a reward for a job well done; it is to shut down speech of which they do not approve. So Expelled has beaten them at their own game and tweaked their noses in the process. Tough break, XVIVO.

  13. Good points — I hadn’t looked at it that way. You’re probably going to get the sheeple jumping to the conclusion that it’s copyvio without actually examining the facts (like the good PZ, at least for a while:). On the other hand, they’re already ignorant enough to believe whatever they’re told without looking into it, so there ain’t much we can do with them anyway:).

    And in the process, you’re going to get a lot of attention from both sides, maybe some media coverage, and (if they choose to exploit it) a chance to use it against the opposition, because of how beautifully their reaction illustrates the problem itself …

  14. Fear of a lawsuit may not bother Premise Media. However, any theater that shows “Expelled” with the video is also subject to suit for violating the “public performance” right of copyright; theaters do not enjoy getting mixed up in other peoples’ fights. The animation studio that produced the knock-off is subject to suit fro both direct and contributory infringement; it is inconceivable that they did not have access to the XVIVO video. And, if documents show that the Discovery Institute had any hand in the infringemen or in the decision to use the XVIVO video, then they are laible as well.

    While Premise Media and the others may laugh off the prospect of money damages, copyright infringement is also a Federal criminal offense. People do think twice when they risk going to jail.

    Despite the wishful thinking of some commenters, the copyright owner need not show any actual economic loss; see 17USC 505. These “statutory damages” can be 5 times higher for willful infringement. Court costs and attorneys’ fees will also be awarded.

    The copyright owner need not show that any proprietary methods or tools were used; access to the original work and similarity of the result are sufficient.

    Copyright court cases tend to involve a lot of black-hat/whiter-hat reasoning. Where the infringer is willful, perverts the purpose of the original, sullies the reputation of the producer, acts in an unethical manner, or tries to make a lot of money from the copying, he will get smacked down mercilessly.

    Despite their sans souci attitude, if Premise Media does not consider this matter very seriously, they are smoking something illegal.

  15. Congrats, Dave. You called it.

  16. If the errant message that’s been published by
    Dr. Egnor is real, not satire, then it seems to me that the Darwinists have screwed the pooch for good and all:

    http://xrl.in/2t9

  17. It’s satire.

  18. Paul Giem

    “They allow YouTube copies–flat-out copies, for crying out loud. I’m sure that the video was shown in lectures, by people who got honoraria, before. But when Bill Dembski uses them, suddenly this is not fair, and the remedy is not for Bill to give them a cut, but for him to quit using the video altogether. Apparently anyone can use the video as long as that person is not an ID supporter.”

    The difference is that in the version Dembski showed the copyright info was stripped out and an extra narration track was included that was not part of the the original video.

  19. Charlie

    The quotes from Larry Moran are what he actually did write on his blog.

    You can’t make things like that up.

    Amazing, innit?

    http://sandwalk.blogspot.com/2.....ively.html

    As we’ve seen time and time again on the blogs (and elsewhere), the Christian fundamentalists have erected very strong barriers against learning. It really doesn’t matter how much they are exposed to rational thinking and basic scientific evidence. They still refuse to listen.

    This is one of the reasons why I would flunk them if they took biology and still rejected the core scientific principles. It’s not good enough to just be able to mouth the “acceptable” version of the truth that the Professor wants. You actually have to open your mind to the possibility that science is correct and get an education. That’s what university is all about.

    Of course, we all recognize the problem here. How do you distinguish between a good Christian who is lying for Jesus and one who has actually come to understand science? It seems really unfair to flunk the honest students who admit that they still reject science and pass the dishonest ones who hide their true beliefs.

  20. jjcassidy

    I spent years working with IP attorneys at a $40 billion high tech company screening patent abstracts submitted by employees in all areas of operation. My job was to evaluate the abstracts for patentability (prior art, novelty, non-obviousness to an expert, and so forth).

    I don’t necessarily approve of the IP protection racket but I sure know how it works.

  21. austin_english

    I agree it’s a derivative work. Is is derivative enough to win an infringement suit? I don’t know and neither will anyone else until it’s given a fair hearing in a court of law. But it’s HARVARD, the owner of the copyrighted property, who might have a case based on the derivative claim. An infringement suit brought by XVIVO will fall flat on its face. They simply don’t own the artwork under contention. Harvard does.

  22. Hi Dave,
    I know the quotes are accurate.
    I’m saying the letter is a satirical and inventive way of presenting Moran’s quotes again.

    Been a fun couple of days, has it not?

  23. Re Math Student , 17:

    The is another side to the story you report, when you claim: Dembski showed the copyright info was stripped out and an extra narration track was included that was not part of the the original video.

    Namely:

    ______________

    News Release: Harvard’s XVIVO Video

    By William A. Dembski | originally posted November 26, 2007 | updated November 27, 2007

    Back in September of 2006 I announced at my blog UncommonDescent that a “breathtaking video” titled “The Inner Life of Cell” had just come out (see http://www.uncommondescent.com.....-of-a-cell). The video was so good that I wanted to use it in some of my public presentations, but when I tried to purchase a DVD of it (I sent several emails to relevant parties), I was informed it wasn’t ready (to my knowledge the video is still not available for sale in DVD or any other format — if it were, I would gladly purchase it and encourage others to do so). Moreover, at the time, the video did not have a voiceover explaining the biology of what was being shown.

    Although the video was at the time and remains to this day widely available on the web (YouTube has many copies — go, for instance, here), most simply have some background music that do not explain the relevant biology. A few months after announcing the video at UncommonDescent, I found on the Internet a version of the video that did add a voiceover, giving the relevant biology, and was in a format that allowed me to incorporate it into my PowerPoint presentations. I used the video a handful of times, including at a talk in Oklahoma this September. In consequence, some biologist(s) in the audience contacted the makers of the video, falsely suggesting to them and on the web:

    (1) That I myself had modified the video and given it a new soundtrack.
    (2) That I had stripped it of its copyright information.
    (3) That I had retitled it “The Cell as an Automated City.”

    Each of these allegations is false. Regarding (1), I downloaded from the Internet a version of the video with a voiceover describing the relevant biology. It seemed to me accurate and to have the best educational value for my listeners. The version I used took the original soundtrack, which simply had music, and added a voice. I had nothing to do with modifying or recrafting or authorizing the production of the video (in particular, that is not my voice on the video). The video I showed is the one I downloaded.

    Regarding (2), the version I used omitted the opening credits (a fact about which I became aware only in the last few days), beginning instead with the actual animation; however, at the end of the video that I showed, there is the following copyright notice:

    Conception and Scientific Content
    by Alain Viel and Robert A. Lue
    Animations by John Liebler / XVIVO
    Supported by the Howard Hughest Medical Institute
    Copyright (c) 2006. The President and Fellows of Harvard College [Screen shot follows] . . . .

    Finally, regarding (3), the phrase “The Cell as an Automated City” was simply a caption for the video as it appeared in my PowerPoint presentation (a caption I used in context with the preceding slide). It was never meant to be a retitling of the video. Indeed, that caption never bled into the actual video but was always separate from it in my PowerPoint presentation.

    I continue to this day to think that “The Inner Life of the Cell” is the best animation illustrating cellular activity. But there are other videos that make the same point. From now on, I will no longer use it and instead go back to using a clip from “Unlocking the Mystery of Life.”

    ###
    _____________

    I think you need to re-examine your clams and the credibility of the sources you are using.

    Especially since, resemblance to the now notorious KCFS-style PR strategy is obvious:

    [KCFS’ PR] strategy [as declared in their online forum by their PR person, circa 2005] . . . is the same as it was in 1999: notify the national and local media about what’s going on and portray them in the harshest light possible, as political opportunists, evangelical activists, ignoramuses, breakers of rules, unprincipled bullies, etc . . . . Our target [so this is a movement strategy not deniable and repudiated actions by a loose cannon individual . . .] is the moderates who are not that well educated about the issues, most of whom probably are theistic evolutionists . . . . The solution is really political . . .

    GEM of TKI

  24. In the other thread, http://www.uncommondescent.com.....g-harvard/,

    austin_english wrote (178):

    In weighing the balance at the heart of fair use analysis, courts employ a four-part test, set out in the Copyright Act [see post 142]. In doing so, they return again and again to two key questions:

    [1] Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than the original, or did it just repeat the work for the same intent and value as the original?

    [2] Was the amount and nature of material taken appropriate in light of the nature of the copyrighted work and of the use?

    The images in Expelled are certainly used for a different purpose than the original: They’re used in Expelled to promote ID; Harvard University doesn’t use “The Inner Life of the Cell” to promote ID. The (limited) amount and nature of the material used is almost certainly appropriate, too.

    Since it appears to qualify as fair use, it doesn’t matter if the new animation is a virtual duplication of the XVIVO animation. The producers could have used snippets of the original animation itself if they wanted. Their creation of their own animation appears to be a ruse, to confound the originators, get them to voice their offense, and thereby build interest in the movie — and effectively validate its premise, as well as the design inference itself. Way clever.

    The producers of the original animation may not like that their work is being used in the movie, but that’s just too bad. — It’s only fair for it to be used to promote ID.

  25. 25

    Regarding Bolinski’s charge that William Dembski stripped out the copyright information –

    XVIVO’s own online copy of the video has no copyright information — see
    http://www.xvivo.net/press/harvard_university.htm

    Harvard’s “high-speed” and “super-speed” versions of the “Inner Life” video start with the following notice –

    For educational purposes only.
    The use, duplication, or distribution of this material for any commercial purpose is strictly prohibited.

    from –
    http://multimedia.mcb.harvard.edu/media.html

    Of course, it would be illegal to show only the video and charge people admission to see it (except perhaps for non-profit or charitable purposes). But what if someone wants to incorporate the video into a much larger presentation for which admission is charged? Would XVIVO or Harvard be willing to sell or license the video for that purpose? Did the “Expelled” producers ever ask to buy or rent the video?

  26. DaveScot; austin_english:

    I agree it’s a derivative work. Is is derivative enough to win an infringement suit?

    I would disagree. That the portrayal of cellular processes is highly similar, even identical from ‘camera angle’ does not apply to the “derivation” claim but is a consequence of it being a true portrayal of natural fact, which fact or portrayal can not be copyrighted, nor can the end-result (the images) be patented.

    To be a “derivative” copyrightable work concomitantly requires that prior art or work product be at the base of the infringing work. Mere availability of equivalent knowledge and awarness of natural facts is not sufficient. XVIVO’s actual proprietary computer runs, data, software, storyboards, etc would need to have been copied or edited by Expelled for any derivative work infringement claim to withstand scrutiny. Near identical portrayal of the same facts of nature is not sufficient.

    If XVIVO had animated the “big bang” protraying it as a fact of nature, and were I then to be persuaded by scientists and science that the “big bang” phenomena is a fact of nature, and produce my own near identical animation of the “big bang”, striving for as much factual accuracy and detail as is presently known, there is no “derivation”. On the other hand, had I stolen negatives or edits or copies from XVIVO and altered them, that would be derivative and infringement.

    But starting from the same set of natural facts (however detailed and difficult to originate) once that knowledge is in the public domain only a patent restricts reuse of that knowledge (and even that depends on the extent to which is has been reduced to practice), and only a copyright protects the particular rendering of that knowledge.

    As long as the knowledge (our understanding of what underlies what we see on the screen) is not patented, then any rendering or portrayals (images on the screen) I generate on my own from that knowledge is free from infringment. There is no requirement to render or portray “less accurately” merely to be different.

    Unless Expelled materially copied or morphed XVIVO’s public footage or stole XVIVO’s proprietary input data, software, etc., then Expelled’s work neither infringes, nor is dertivative, nor requires shelter in “fair use”.

  27. 27

    Bolinski said:

    “a myriad of systems, functional structures and proteins in a cell”

    but he forgot to remind himself that all of it wasn’t designed.

  28. Mmm, like a fiddle…

  29. Given the vast number of structures to be removed, and given the structures remaining “on camera”, whose positioning and relationships, both aesthetic and functional, needed to remain true to the function and beauty of molecular biology, it is inconceivable, mathematically, that the animator hired by EXPELLED’s producers, independently and randomly came up with the same identical actin filament mesh XVIVO depicted in one scene…

    Hmm..lots of states, only a few functional states by comparison…so mathematically it is unreasonable to assume that random chance stumbled upon that functional subset?

    I agree. I think the video obviously inspiried Expelled.

    But don’t you love it when those who say ID doesn’t work use ID methods and reasoning to prove a point?

  30. “…so mathematically it is unreasonable to assume that random chance stumbled upon that functional subset?”

    Given infinite parallel universes, it was bound to happen eventually — there’s nothing anomalous here. It only seems extraordinary, since we happen to be around to observe it.

  31. kairosfocus:

    I’ve already read all that. Now please go back and reread my post. I didn’t accuse Dembski of stripping the copyright out or adding the voiceover himself or anything else. My only point was that he showed the video in that state while giving a paid lecture. You say that you’re sure others did this, but is there any evidence?

    The only evidence of anyone doing this was Dembski, and they, rightly, asked him to stop.

  32. austin_english wrote:

    “The producers of Expelled didn’t choose the answer you did. The animation is nowhere close to “from the ground up.” Watch the “walker” sequences in the original

    Sorry I missed this when it was posted.

    Unless the production team that put the Expelled animation together had access to original data, they would have had to develop the models, materials, and animations from the ground up. There’s no other way to do it.

    I’m not saying they don’t look similar, but similar is not a copy. They may have used the XVIVO clip for reference, but in order to produce their animation sequence, every one of the source assets would have been developed from scratch, period. There’s nothing in the video clip that could have been used as a raw asset for the reproduction of any aspect of the footage.

    Part of the entire misunderstanding from early on seemed to stem from ignorance of what it takes to produce a CG video clip. You can’t “copy” anything from a video in order to reproduce it in computer animation. You can’t “digitally capture” the data from the output and use it to produce a new CG sequence, excepting very limited ways.

    Any method that could have been applied in this regard, such as rotoscoping (and this would be limited to animated motions) would take longer to implement than to just reinterpret the motion altogether. There’s nothing I’ve seen in the clips that would justify the use of rotoscoping, or would indicate that it had been done to produce the observed result. It should be easy to prove otherwise.

    Unless the Expelled clip’s developer had direct access to the source data in some way, or committed some sort of espionage to get access to the processes used, there is simply no way to allege copying at all, except in regard to style of portrayal.

    Since neither XVIVO nor Harvard have exclusive rights to the biological machinery that are the subject of the video, there’s no infringement that I can see.

    Now if the Expelled video clips were a direct competitor in XVIVO’s market space, they could claim that the Expelled clips benefited unfairly from research and algorithms developed by XVIVO — since the Expelled developer was able to “shortcut” the burden borne by XVIVO in discovering the appearance and motion of certain cellular machinery — in which case the developer of the Expelled clips would most likely need to pay a licensing fee to Harvard, or make modifications to the structures and motions exhibited. In those cases where the XVIVO clips exhibited “artistic license” in regard to said structures and motions, any sufficient similarities would warrant modification.

    That’s my take. :wink:

  33. Before making too strong claims in your comments I recommend to read what Dr. Dembski wrote on copyright and ethics:

    There’s more to ethics, however, than legalities.

  34. 34

    Apollos wrote (#30) –

    They may have used the XVIVO clip for reference, but in order to produce their animation sequence, every one of the source assets would have been developed from scratch, period. There’s nothing in the video clip that could have been used as a raw asset for the reproduction of any aspect of the footage.

    Yes — it is sometimes very difficult just to produce a copy of something from scratch. For example, the Russians produced a knockoff of the Space Shuttle called “Buran” — the Space Shuttle is so complex that I don’t see how the Russians did it.

    . . .in which case the developer of the Expelled clips would most likely need to pay a licensing fee to Harvard, or make modifications to the structures and motions exhibited.

    It is still a mystery whether any of the parties ever offered or requested purchase, royalty payments, or permission for free use.

  35. Thanks for the link, sparc.

    Do you believe in an objective ethical standard of conduct that transcends human law? I’d be interested to know your take — the standard’s source, and how you see it applying to the Expelled clips.

    Also, in regards to my above post, what parts of the Expelled clip can be considered a copy, and what is the standard by which that should be judged? I’ve already pointed out the technical infeasibility of physically copying Inner Life’s output data for use in a new CG source. Which aspects remaining would constitute a copy or duplication of XVIVO’s video for unauthorized use?

    Additionally, how was XVIVO harmed in the process? If there was an ethical violation of some sort, certainly it could be defined by the harm done to another party.

    If the infringement is in the arena of “style,” which stylistic aspects in the XVIVO production are duplicated in the Expelled video, that can be considered entirely original to Inner Life?

    Here are some categories to consider:

    – The physical shapes of the depicted cellular machinery. If these are merely artistic interpretations, it should be demonstrated that they are uncommon to other depictions in the public domain. If they are physically accurate representations, then there is no stylistic infringement.

    – Surface shades of color, hues, and translucency. If more than a few cases of notable similarity exist, the clips in question can be considered to have duplicated this stylistic element, if not based on physically accurate models.

    – Animation motions. Once again, if these are merely artistic interpretations, then numerous similarities would warrant a concern of stylistic encroachment. If they are accurate to contemporary understanding of the processes depicted, then there really can’t be a transgression.

    – Camera motions and framing. These should be cinematographically unique and inspired, uncommon and specialized, to be considered central to a specific style.

    – Subjects displayed. There should be a direct parallel between more than a few on-screen subjects, if those subjects are uncommon to other contemporary productions.

    There may be others.

    To make a good case for a real stylistic infringement, you would have to demonstrate threshold commonality for multiple categories here. If there are other ethical considerations, then they should readily be definable by harm done to another party.

  36. mathstudent

    YouTube is a for-profit enterprise. The Harvard video is on it. Harvard has made no objection to that and I’d be very surprised if there was any monetary compensation given to Harvard from YouTube for the video. Additionally copies of it are available in numerous places on the internet not connected with Harvard and presumably not with Harvard’s explicit permission.

    Yet Harvard singled out one college professor with a cease and desist order. Why? Two reasons I should think would become clear to a judge presented with the facts surrounding the matter. The first is that Dembski’s use is low hanging fruit – easy to stop because one college professor is no match for Harvard’s vast prosecutorial resources. The second is that someone at Harvard simply doesn’t like Dembski. So it’s personal.

    If Harvard had undertaken any effort at all to stop unauthorized display of the video on YouTube and elsewhere they might have a legitimate claim in saying they’re interested in protecting the property. But they have not. They’re interested only in preventing use in contexts they don’t approve of and otherwise let it be freely infringed.

    This is why Harvard won’t ever take Premise to court over it. For one Premise can fight back and because Premise hired an independent artist to develop a replica there’s little chance of winning a copyright infringement suit. Second, even if Harvard did win a suit they couldn’t show any damages because they don’t sell the video and let many others use it freely without permission or protest.

    The net result for Harvard would be wasted money and worse, having their name dragged through the mud and be exposed as an institution with an atheist agenda to the general public. Premise on the other hand has much to gain and very little risk. They would leverage Harvard’s action into free publicity and use Harvard as another example of academic institutional suppression of the idea that there is design and purpose in the universe.

    So that’s why you’ll never see Harvard take Premise to court over this. XVIVO, being a two-man cottage shop limited liability corporation simply doesn’t have standing. They don’t own the copyright on the final work and they don’t have anything in it that can be protected by copyright. If they actually tried taking Premise to court whatever lawyer foolish enough to represent them would be slapped down with a frivolous prosecution charge so fast it would make his head spin off. And even if XVIVO did have a case for copyright infringement then how have they been harmed? What did Premise do that would damage their business? The video is already freely available all over the place. Premise did nothing that wasn’t already done. It’s not like Premise stole a model library and offered it for resale or anything like that. The Premise video reveals no more of XVIVO’s style and processes than does Harvard’s video.

    So the long and the short of this is that Harvard and XVIVO are angry that what they allowed to be freely distributed by some without regard to copyright infringement is being done by people they don’t like for purposes they don’t approve of. Tough luck. You can’t have your cake and eat it too.

  37. DS:

    Well said.

    Thanks

    GEM of TKI

  38. From the email in question:

    To Mr. [sic] Dembski…You have enough of a colorful history that Harvard, in its wisdom, decided to ‘swat the gnat’ with as little fuss as possible… [then it says] XVIVO has no intention of engaging alone, in asymmetrical fighting against an ideological entity with orders of magnitude more resources than we have…

    So Bolinsky is claiming that, late last year, they didn’t legally pursue what the email calls a “felony” for Dr. Dembski’s (fair) use of their video during educational lectures, because he is a “gnat.” Then in the same paragraph Bolinsky explains that they’re not going to legally pursue their allegations against the movie “Expelled: No Intelligence Allowed” because its producers have “orders of magnitude more resources than we have.”

    Then to ice the cake in his closing paragraph, Bolinski demands:

    …Just keep track of how many tickets you sell. We may just find that data valuable, too…

    So what’s the logic of this thinly-veiled threat? That all those ticket sales are going to provide the producers of the movie with resources at a lower order of magnitude relative to theirs?

    What’s clearly in evidence here is a mind that — likely from far too many years of dreaming up “just so” stories on behalf of a defunct theory — has become demented.

    With all the hubbub that their “cease and desist” letter has managed to produce (not to mention retracting the threat within three days’ time) — less than a week before the film’s opening — folks, there’s simply no way anyone could make up this level of sheer stupidity. [Insert sound of a fishing line being reeled in here.]

    (Dang, and I was so looking forward to a hefty dose of Mr. Steins world-class dry humor on Court TV!)

  39. DaveScot:

    1) Though you and kairofocus seemed to have abandoned the issue (and contrary to kairofocus’ assertions) the only evidence of any individual making money on the video is Dembski. Youtube is a for profit website, yes. I admit that I hadn’t considered that and I thank you for bringing it to my attention.

    2) I don’t think anyone is denying that what make Dembski’s use of the video in an intelligent design lecture sparked the C&D letter. As Bolinski said in the link you gave “The only reason I am involved in this discussion is because I do not want the reputation of my company, hard-earned as it is, to be sullied by even oblique affiliation to your sort of smarmy ethics, if only through works of ours, purloined to fit your agenda.”

    From his perspective, the video was being used to promote a view that he sees as pseudoscience. Given those assumptions, I don’t think it is unreasonable to ask that that be stopped.

    3) Let’s not forget the timeline involved here. A footnote in Design of Life references the Inner Life video with the date 1/25/07, while the lecture in question took place in November. Moreover, in the talk a picture from Design had a caption that referenced another footnote in the book that referred to the Inner Life video again, this time with a date in 2006.

    I kind of expect this to not get approved, or even get me banned. I sincerely hope not. If I’m right, then people here should know this info. And if I’m wrong (and I’m perfectly open to this possibility) I’d like to know why.

  40. DaveScot wrote:

    Harvard produced this as an educational video but it appears they don’t want the unwashed masses to see it in the wrong context – the wrong context being “Look at this. Does it look like an accident?”

    That’d be hilarious if it wasn’t so sad.

    “We are a top-shelf educational institution, and we’re producing an educational video here – oh wait, you can’t just show to anybody! They might become… *gasp* EDUCATED!”

  41. mathstudent

    Dembski’s use of the video has nothing to do with Premise. Dembski was asked to stop using it in his talks and he did. Premise was denied permission to use it (at least I think they were denied) so they hired or contracted with someone else to make one like it.

    I’m sorry if you don’t understand that copyrights offer limited protection (that’s why they’re free and don’t require registration or approval) to certain classes of artwork. I’m sorry if you don’t understand that styles, processes, and algorithms are not protectable by copyright and that those are protected by design and utility patents which are neither free nor automatically granted.

    From my point of view Harvard is quite possibly guilty of actionable discrimination. It appears to me they give permission (explicit or implicit) to anyone for educational use, or even for-profit use as in YouTube, free of charge so long as the user and the audience are sufficiently non-secular.

  42. Has Dembski stopped being paid for his lectures since he discontinued use of the video? If not, it’s hard to suggest that he made money off the video.

    Are church groups and young republicans’ clubs (assuming that’s all that would ask him) asking him “Where’s that video? We wanted to hear how crocked Evolution is, but not if you’re not going to bring the video!” Has any such organization made and offer and rescinded it because he’s not showing the video?

    Wouldn’t the “biased, anti-science” organizations be just as motivated to hear from Dembski, with or without a video? It’s hard to argue in the same polemic mode that this is usually argued, and support the idea of ID-consumers who wanted some kind of visual *proof*.

    You’re a math student, if we describe the frequency of engagement as F1 and F2, and the price per engagement as P1 and P2 and the money made from video as M, then this equation suffices:
    P1 * F1 = ( P2 * F2 ) + M. Provided that P1 = P2 and F1 ~ F2 (perhaps equally likely to be true that F1 2 as F1 2.

    Thing is, that you lose some the desired fanaticism if Dembski’s captive crowd is suggested to diminished either by lack of visual–because it’s not adherence to the system that determines it, or Dembski becomes less popular due to some suggested decline in ID.

    And with the loss in fanaticism, some gratuitous reason sneaks in. Thus the idea that reasonable people, will desire Dempski’s services less absent clips from this film, suggests that there is a better case for ID made *with* the film among incrementally more reasonable people than without it. The argument could be that it seems to support his point in at least a fractional amount of cases.

    Which is bad if you think that it was not created to support an ID perspective, but simply to document cell processes. Thus it is truly an independent source, which demonstrates the ID point better when individuals are allowed to see it.

    Its existence as a “scientific documentation” of parts is a bad argument that it “belongs” to any one individual. The many hours of participation by Harvard biologists make it less like a creation and an actual attempt to document natural processes. Not created by anybody. Things which exist in the animation not on the creative impulse of any participant but because they were a representation of the existing processes of the cells as understood by the participating scientists.

    The “unethical use” argument is a crock. It sounds more like an attempt to squash unofficial interpretations given the prohibitive “cost of entry” of making another document like it. I think one of the problems legally, is that there are not enough items in the category of “video documentations” for the court to realize that that is just what this is. And as such a document, the only way to “excerpt” it is to “play a clip” which proves our point.

    The argument that Dembski “profitted” from the video runs counter to 1) other common polemical arguments made about what’s really behind ID, 2) would need to be proved by either Dembski needing to reduce his speaking fee or a lower frequency of invitation–but to avoid a proper hoc fallacy, would have to include a convincing evidence that his unpopularity did not result from an increased report of his being “unethical”

  43. I know you did it for other reasons (google ranking) but is XVIVO’s action so different from yours some years ago?

    To address this I am going to post a copyright message at the bottom of our webpage saying that all content here is copyright and may not be reproduced without permission.
    [...]
    Several websites not under our control have mirrored our content without our permission. We are a blog with strictly enforced moderation rules for commenters. These other websites are mirroring our content so that they may comment on it without moderation.

    And isn’t Bolinsky addressing Dr. Dembski like you addressed Dr. Elseberry?

    Wesley, I know this will reach you. You are hereby explicitely put on notice that BUUD is illegally republishing our content which is protected by implicit copyright already and your actions have caused substantial real damages to uncommondescent.com, its owners, and content contributors. You will shut down BUUD immediately to ameliorate these damages.

  44. Can we lay the “Dembski made money from his lectures” canard to rest, please? Enough is enough. Last I heard Harvard charges money to attend its lectures.

    Dr. Dembski’s particular educational use of XVIVO’s video was precisely the kind of exemption that the Fair Use doctrine was (dare I say) designed for: to protect educators from unapproving copyright holders.

    Come on folks, this isn’t rocket surgery.

    I doubt that graciously acceeding to XVIVO’s C+D letter in any way waived his fair-use rights, should he decide he wants to use it again. Which of course, he won’t, since he’s got a brand-new better one he to use!

    Can’t wait to see the numbers from the first weekend!

  45. sparc

    They were just mirroring our content. ALL of our content. Without modification of any kind. XVIVO doesn’t own the copyright to the video in any case. Harvard does.

  46. MS, 39:

    FYI, I gave some corrective facts; which still stand.

    JJC and JS, as well as DS etc, more than adequately rebut the inference you invite, i.e. that WD was trying to make money by stealing Harvard’s intellectual property.

    The evidence in his statement, unrefuted on the merits, is that he made fair use, but waived his exercise of that right to prevent further slander. Especially as he had alternative — though less stunning — footage. [He has good enough -- and independently produced -- footage now, though . . .]

    As a fair comment, I observe that it is very hard to resist the obvious inference that slander in service of suppression of a vivid presentation of unwelcome truth (i.e. outside of the partyline-controlled materialist interpretation) of just how intricately complex and carefully organised the cell is is what the accusations against him plainly amount to. [BTW, I found a voiced over presentation at Youtube just the other day; stunning!]

    Plato’s cave games, in short . . .

    Step into the sunshine, MS!

    GEM of TKI

  47. “Doesn’t that statement admit that the styles, processes and algorithms were indeed stolen and copied? Regardless of the patents or copyrights that may or may not be associated with them, Isn’t stealing wrong?”

    No that isn’t true. Unless they are patented they cannot meaningfully be stolen. The point of a patent is to declare and idea/invention as something you want to be considered property.

    I suppose I they could appeal to trade secret law or something, but that would only cover the techniques used. A different technique to visualize the same result would not be covered.

    If XIVIO didn’t patent their algorithm then there is nothing to be stolen because no property claim exists on it. Copyright is automatic, but that applies to the original animation, you have to apply for patents.

  48. By the way, just for kicks I did a search of XVIVO on the USPTO database (searching the whole text of the database) and got a bunch of hits, but of the 68 patents found none seemed to have been filed bu XVIVO. Ok this is a rough measure at best as I didn’t check the body of the patent but normally the company name turns up in the title of the patent. I did search back to 1981.

    So at a guess, they don’t think anything they did in the animation is worth protecting with a patent.

  49. 49

    DaveScot said (#41) –

    Premise was denied permission to use it (at least I think they were denied)

    What do you mean, you “think they were denied”? We don’t know whether any of the parties ever offered or requested payment for the video or permission to use the video for free.

    From my point of view Harvard is quite possibly guilty of actionable discrimination. It appears to me they give permission (explicit or implicit) to anyone for educational use, or even for-profit use as in YouTube, free of charge so long as the user and the audience are sufficiently non-secular.

    We have not heard about any attempt by Harvard to prevent use of the “Inner Life” video in a specific instance. All we have is the following notice posted on Harvard’s “high-speed” and “super-speed” versions of the video:

    For educational purposes only.

    The use, duplication, or distribution of this material for any commercial purpose is strictly prohibited.

    from –
    http://multimedia.mcb.harvard.edu/media.html

    You are just jumping to conclusions, Dave.

  50. I can’t imagine that stealing is really stealing if it does not deprive the proper owner of use of–including use as product for profit, or even recompense. Most of the definitions of “stealing” follow this pattern.

    The idea is quite simple: I steal your car, you don’t have a car. I have a car, you don’t. Same thing with your 20-dollar bill.

    Stealing your car is 100% stealing and 100% wrong. So “stealing is wrong.” is pretty easy in this case.

    Even Jean Valjean deprives the baker of selling his loaf of bread by stealing it. But we’ve increasingly found it hard to say that “stealing is wrong” in this case.

    We have another case here: If you lend your copy of a game to a friend, and he makes a copy. He didn’t steal from you–as he would if he simply refused to give it back. The software company is the injured party. They laid a lot of money out to develop this product, which they hope to recover through sales. Your friend deprived them of the use of property in selling it to your friend–who evidently needs it.

    You may both agree that the company charges too much, but then again, that is the result of piracy. They know that not everybody who uses this software would have purchased it legally. Therefore, they charge their legal customers to make up for that shrinkage.

    A lot of people have a lesser problem with this “stealing” but it still is unethical, no doubt. Metallica was popularly reviled for thinking that everybody should pay to own their music.

    As we get further and further away from outright theft, we get into areas where calling it “stealing” is a bit overwrought and probably would not be maintained by the same people in similar conditions.

    Imagine if oil companies, who pay a good sum of money to produce yearly brochures could copyright this information so that journalist can only use the information compiled and presented by the company in ways approved by the company. In other words, their investors can know that they had record profits last year, but the public couldn’t unless they could agree what the discloser “stood for”.

    The video is supposed to represent fact, unless the professors at Harvard are willing to admit that they fudged a lot of stuff, the stodgy propping and whining comes off as narrow stipulation rather than an indication of a lack of ethics.

    There also is an issue whether or not any tax dollars went into funding this video–as it would be in many cases of scientific research. If such a thing could be found, appropriating funds from the public in order to create your own “property” where you can act as a miniature martinet is in some sense preventing the public from use of the proceeds of their money, i.e. “stealing”.

  51. For the record, I’m not ignoring the responses to my comments. We recently fuond out my wife has to have surgery, so my energies have been focuses elsewhere.

    Take care.

  52. Mathstudent, I am very sorry to hear this. I hope your wife does well through the surgery, and that the two of you find the support you need. Take care.

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