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Bolinski (XVIVO) Backed Down on Inner Life of the Cell lawsuit threat…
| April 11, 2008 | Posted by Dave S. under Intelligent Design |
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.
52 Responses to Bolinski (XVIVO) Backed Down on Inner Life of the Cell lawsuit threat…
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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.
austin_english wrote:
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.
Before making too strong claims in your comments I recommend to read what Dr. Dembski wrote on copyright and ethics:
Apollos wrote (#30) –
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.
It is still a mystery whether any of the parties ever offered or requested purchase, royalty payments, or permission for free use.
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.
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.
DS:
Well said.
Thanks
GEM of TKI
From the email in question:
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:
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!)
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.
DaveScot wrote:
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!”
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.
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”
I know you did it for other reasons (google ranking) but is XVIVO’s action so different from yours some years ago?
And isn’t Bolinsky addressing Dr. Dembski like you addressed Dr. Elseberry?
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!
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.
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
“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.
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.
DaveScot said (#41) –
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.
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:
from –
http://multimedia.mcb.harvard.edu/media.html
You are just jumping to conclusions, Dave.
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”.
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.
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.