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Expelled Plagiarizing Harvard?

Premise Media has just been slapped with a “cease and desist” letter from XVIVO, the group at Harvard that produced the video clips from which the still images at the top of this thread were taken. They are alleging copyright infringement (not to mention blatant plagiarism). The full text of the letter from XVIVO’s lawyers can be read at:

ERV: Expelled Epelled for Plagiarism
ERV: About That Cell Video in Expelled

The letter makes it clear that if the offending video clips are not removed from the film and all promotional materials by the opening date, immediate legal action will be taken to stop the release of the film.

Thanks to Allen MacNeill for bringing this accusation to our attention.

This accusation first became public when PZ Myers claimed that the Expelled movie used the Harvard “Inner Life of the Cell” animation. We’re currently investigating this claim and hopefully we’ll have more information in the next couple hours. But when asked about this, Jonathan Wells had this to say:

Expelled does NOT use the Harvard animation. The producers paid a professional to create a new animation that is more accurate than the Harvard one (based on current knowledge of cellular processes). Any similarities between the Expelled animation and the Harvard one are due to the fact that both animations depict many of the same processes.

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189 Responses to Expelled Plagiarizing Harvard?

  1. Um, having watched the new video on the site, they either ARE using the Harvard animation OR they have created an exact replica. When I saw it, it was immediately recognizable as the Harvard animation.

  2. A university coercing people with legal muscle from seeing the true of interworkings of a cell?

    Then they’ve already lost.

  3. I seem to recall that P-Zed noticed a similarity to the Harvard XVIVO animation in a post of his a month or two ago. In that post, he thought it WAS the XVIVO animation, but in another post, backed off those allegations and said the animation was similar but it wasn’t the Harvard animation. I just cannot recall where I saw his comments. Does anyone else recall this???

  4. I’m sure it is basically reversed engineered animation. I believe Miller has admitted as much. If they didn’t examine the copyright angle — then they will have to die by the rules of the game. Which would be disappointing.

    I think the point is that the truth seems to be a problem for Harvard — that is, the truth in the hands of the wrong people.

    The game is over — the paradigm has shifted, we are just seeing a period of readjustment.

  5. “I just cannot recall where I saw his comments. Does anyone else recall this???”

    Umm, perhaps on his blog where he posts all of his stuff?

    http://scienceblogs.com/pharyn....._expel.php

    His original claim was that they actually USED the Harvard animation. Then after comparing them side-by-side, he decided that it wasn’t actually the same video, it was just a shameless rip-off (which can be determined by the fact that they made the same mistakes as in the original Harvard video, chose to show AND HIDE the same structures and processes, and even used the same basic “camera” angles.)

  6. With tickets already available online can the film actually be prevented from being released? Is it physically possible at this point to remove the clips? I hope there is some good news on this soon as it threatens to really ruin my day.

  7. They’ve got to come up with something to drag the Expelled producers to court over…might as well be the cell animation. They’ve tried a few other angles already…none have panned out for them.

    But, come on people, a cell’s a cell…I mean if you’re making a computer generated animation, I’d assume that you’re going to see some similarities between them.

    It wouldn’t matter if the animations were significantly different…if they were dragged to court, they’d most assuredly come up against some blazingly liberal judge just waiting to be showered with accolades from the “scientific community” and looking to dethrone JJ from his current reign as Mr. Intellectual (or rather Mr. Plagiarism himself).

    Never ever a dull moment folks..

  8. I wouldn’t worry too much, having a university cull scientific research from the public — because “they might get the wrong idea.” Is absolutely priceless.

    The little people just can’t handle the Mass in english, or the sacred texts in the vernacular. You couldn’t purchase that kind of malignant hypocrisy for all the tea in China.

  9. “I think the point is that the truth seems to be a problem for Harvard — that is, the truth in the hands of the wrong people.”

    No kidding…that animation is all over the internet and on youtube of all places. Harvard didn’t seem the least bit concerned until an ID proponent showed it.

    Truth is, that when people really contemplate the inner life of a cell, you cannot miss the design….*that’s what worries them*.

  10. wnelson:
    XVIVO’s animation is freely available on their web site (http://www.xvivo.net/press/harvard_university.htm) and on youtube. It’s hard therefore to argue that they are doing this to prevent people from seeing it (especially since Expelled producers want to charge for their version). I guess they do want to be in control of how it’s used, especially in for profit activities.

    Also, XVIVO is a private company (see http://www.xvivo.net/) and not part of Harvard. It apparently took them, in collaboration with a team of Harvard scientists, more than a year to generate the animation, so it’s understandable that they are proprietary about it.

  11. Just suppose, hypothetically, that they did copy the XVIVO product extensively. Irrespective of all the other issues, would that be morally wrong?

  12. “Irrespective of all the other issues, would that be morally wrong?”

    For-profit plagiarism?

    Umm, I’m going to go out on a limb and say ‘yes’.

  13. Andrea: I’m sure XVIVO knows which side their bread is buttered on. There’s no sense in being naive.

    And no, I don’t have a problem with them shutting the film down. If Promise didn’t play by the rules, then that’s that.

    Maybe the ID movement needs to walk away, start the long process of getting funding, endowments, etc., and do their own thing. Let the old institutions rot.

  14. Here’s what I don’t get. There seems to be some disagreement, as expressed by Gods iPod, as to whether or not the Expelled clip is really identical to the “Inner Life of the Cell” video. Why should there be?

    I’d love it if someone could post a link to the Inner Life video (I know it was removed from YouTube, but maybe it’s somewhere else?) because I’d like to see it again and compare the two.

    Judging from the Expelled clip in the earlier thread, I noticed immediately that certain aspects of the segmented were reminiscent of the “Inner Life” video, but that clearly this was a different video.

    Even the details and proportions of that ‘walking’ gizmo struck me as slightly different. Unless there’s been a new version of the “Inner Life” video released, I cannot see that one was copied from another in a way that would violate a copyright.

    Gods iPod seems to have an entirely different take, however, so I’d like to see which “Inner Life” video he/she saw.

  15. I see that Andrea posted a link to the video. Thank you!

  16. How typical.

    I wonder, could XVIVO be held accountable for the same thing? Random mutation and natural selection just might slap a lawsuit on them.

  17. Jonathan Wells:
    “Any similarities between the Expelled animation and the Harvard one are due to the fact that both animations depict many of the same processes.”

    But to the warped darwinian mind, you see, anything that is similar to something else HAD TO HAVE COME FROM a common progenitor.

    The proof is in the homologies and that’s all the counts.

  18. JPCollado:
    I think the irony is that the XVIVO authors claim that the very close similarities between the two animations are due to design, while ID supporters argue that they are the product of sheer chance. (To complicate matters a bit, in this case we would even know who the designer is, and how and why he/she acted, but the principle still applies.)

    Thinking of it, perhaps Dr. Dembski may want to apply his Explanatory Filter to the case, so that we can compare the results to whatever the evidence presented at trial will demonstrate. That would be a first!

  19. Harvard probably doesn’t mind if others use their product for free. This is common in open source/freeware software. As long as you don’t use their product for commercial purposes, the author doesn’t care. However, once you tread into the commercial world, you better cough up the dough.

  20. Okay, I just watched all three clips… the two from Expelled and the (abbreviated) “Inner Life” video.

    My recollection was correct. (no gloating, though!) This is quite obviously NOT the XVIVO video. Similar? Yes. Does it show some of the same processes? Without question. But it is a new animation. If they are able to shut the movie down because of THIS, then the problems here in the U.S.A. are much worse even than I thought.

    This is a naked attempt at exactly what the movie is about. Suppressing the teaching, even in the free marketplace, of a particular idea.

    For those of you reading this thread who are sympathetic to the threatened legal action, you ought to be ashamed. You are fascists, plain and simple. You want to SHUT UP an idea that (switch on sarcastic, nasally tone here) you just don’t personally take a liking to. What arrogance. Incredible.

  21. I object to being called a fascist just because I believe in protecting people’s copyright protections.

    The fact that it is a new animation is not the issue – no one is claiming that Expelled actually uses the XVIVO animation. The issue is whether, and to what extent, the presentation in Expelled was copied from the XVIVO product.

    This is not about suppressing ideas. Of course the Expelled folks are free to talk about the cell all they want. They are also free to learn about the cell from any source they want.

    What they are not free to do is to just make a copy of XVIVO’s work on the subject and put it in their for-profit movie.

    These should be fairly clear distinctions.

  22. “For those of you reading this thread who are sympathetic to the threatened legal action, you ought to be ashamed.”

    Is there any reason NOT to expect XVIVO to react when they spend over a year and tons of money producing a video, and then someone–with whom they are at philosophical odds no less–takes their hard work, makes a blatant-but-mediocre copy, and passes it off as their own *for profit*?

  23. I just watched both “walking” sequences, and you’ll notice that in the XVIVO video the scene begins with a close-up of the walker then pans from left to right. IN the Expelled version, the scene pans in from the opposite side (from right to left), so the scene sequence isn’t even the same. I don’t think they have a case, as it was obviously not copied. Similar yes, but similarity without copying isn’t protected, as far as I know.

    It would be like a musician saying “My song is G-C-D and his is D-C-G; plus they were both played on acoustic guitar at the same tempo.” No. As long as the work in question wasn’t “sampled” meaning copied mechanically (it was an original creation) and there are differences between the two, you cannot claim copyright infringement.

    I’m not a lawyer, so I’d like to hear from someone who knows the law better. But dealing with record companies on sample clearance, I can tell you that a “cover version” is not treated the same as a “sample” in music law. I’d guess tha same applies to other forms of media.

  24. I have worked as both a teacher and curriculum director in a public high school, and I have worked on both specific plagiarism issues and more general plagiarism policies.

    One common problem that we have is that some kid copies some material, a paragraph to a whole article, from a website (Wikipedia is popular), and then goes through and changes some words, possibly omitting some stuff, maybe moving a sentence or two around, and then hands it in as his own work without any citation.

    That is plagiarism. That is cheating. It is copying (not verbatim, but substantially in both specific content and in general structure), and we flunk them for it.

    Should we not? Should this be acceptable?

  25. 27

    BarryA?

  26. Jack Krebs wrote:

    “I object to being called a fascist just because I believe in protecting people’s copyright protections.”

    That’s nice, but no one’s calling you a fascist because you believe in protecting copyrights.

    But if you want to contrive a copyright infringement where none exists for the sake of suppressing an idea that you don’t personally like, then you are a fascist.

    The only way that XVIVO can claim that this is really a copy of their video is if they also claim that their animation is not true-to-life. As has been pointed out here in an earlier comment, if both videos represent something that is accurate and true-to-life, then inevitably they will have many things in common.

    A reasonable person with no axe to grind would recognize this plain fact and wouldn’t consider legal action against someone else who also wanted to depict these biological processes and ended up depicting some of the same things and in a similar fashion. In fact, they would expect that to happen if indeed they were confident that their video was true-to-life.

    But all that goes out the window when folks wish to suppress Intelligent Design and, at the same time, protect their own precious reputations.

    It makes me sick.

  27. So, Jack, considering your just-stated position, what do you have to say if it turns out the creators of “Inner Life” at XVIVO borrowed ideas from another artist, Graham Johnson, and didn’t give proper citation? Graham’s work is at http://valelab.ucsf.edu/images.....inrev5.mov . I’m hoping you wouldn’t have a double standard.

    In any case, this is all about 3d modeling and animation of real objects. You cannot copy and paste 3D models from a video. It’s possible that both animation studios purchased the same source models, but if not each set of artists had to create the models from scratch and animate them. Both animation teams had to do the work separately, so I don’t see how anyone could call this plagiarism. They both did the work.

    We’re also talking about real-world objects. Let’s say you’re modeling a stock AR-15 firing. Even considering all camera angles, there’s only so many variants of animations that can be produced.

    Now if Promise Media had used the Harvard source video or produced their own and claimed it was the Harvard video (forgery) then we’d have a problem. I’d be the first to decry their actions.

  28. So Trout, is there any level of similarity between the XVIVO product and what eventually shows up in Expelled that would lead you to say that Expelled had copied, and that they were wrong to have done so? Is there any line here that could be crossed, in your opinion?

  29. Creep into thy narrow bed,
    Creep, and let no more be said!
    Vain thy onset! all stands fast.
    Thou thyself must break at last.

     Let the long contention cease!
    Geese are swans, and swans are geese.
    Let them have it how they will!
    Thou art tired; best be still.

     They out-talk’d thee, hiss’d thee, tore thee?
    Better men fared thus before thee;
    Fired their ringing shot and pass’d,
    Hotly charged—and sank at last.

    Charge once more, then, and be dumb!
    Let the victors, when they come,
    When the forts of folly fall,
    Find thy body by the wall!

    Relax, guys — they’re only stopping a movie. You can’t stop the signal.

  30. Jack Krebs wrote:

    “One common problem that we have is that some kid copies some material, a paragraph to a whole article, from a website (Wikipedia is popular), and then goes through and changes some words, possibly omitting some stuff, maybe moving a sentence or two around, and then hands it in as his own work without any citation.”

    Apples and oranges.

    For this to be comparable, the producers of the Expelled clip would have to have access to the animation files themselves, in whatever software was used to create them, where they could then go in and edit them, using the same models, etc. but changing vantage points, colors, etc. But it’s clear that, using the “imperial walker” as an example, that the same models aren’t even used. This is a new animation through and through.

    I wouldn’t have any problem with the assertion that the “Inner Life” video provided a measure of ‘inspiration’… meaning that the Expelled producers wanted to show similar things in a similar way for a similar effect. But that’s not plagiarism.

  31. Folks, the extent of apparent similarity of the videos is just a minor part of the story here, little more than a hint (and of course if you are trying to avoid a copyright infringement suit, you are not going to make an exact copy).

    The work that went behind each of these animations in terms of analysis of the published scientific data, selection between alternative models, three-dimensional modeling of individual proteins, complexes and organelles, kinetic representation of processes, all the way to the methods for computer-generated rendering, can be easily examined by experts to establish if primary and independent sources were used to generate the Expelled version. That is the intellectual property XVIVO wants to protect, not just the pretty pictures (which are, by the way, not what the inside of a cells actually would look like if we could directly peer into it in real time, as any biologist knows, so they are not “true-to-life” but an artificial and selective representation of reality).

    There really isn’t much leeway there: it took XVIVO a large effort to make their movie, and a similar amount of effort would be expected from anyone trying to produce similar results independently. Anything else is copying.

  32. Patrick,

    1. I don’t claim to know if Expelled copied – evidence that there might have been a common source of ideas that both Expelled and XVIVO drew on is pertinent, as might be other kinds of evidence.

    2. These are NOT like a AR-15 firing. No one has pictures of the cellular processes shown – deciding how to depict those process in animated form has taken considerable creative work. It’s not like two people painting the same tree.

    3. But I’m glad to see that you would find some level of copying unacceptable.

  33. Jack Krebs wrote:

    “…is there any level of similarity between the XVIVO product and what eventually shows up in Expelled that would lead you to say that Expelled had copied, and that they were wrong to have done so?”

    No. There ARE similarities, of course, but none that would lead me to believe that actual plagiarism took place. Patrick expressed my thoughts very well when he said you can’t just copy/paste these things from a video. I do some 3D modeling and, well, that’s just not how it works.

    Again, as Patrick pointed out, there are bound to be similarities if they both are modeling the same subjects.

    These people are just trying to shut the movie down because they don’t like its message and they’re embarrassed that they’ve been caught. Simple as that.

  34. This legal threat stunt reeks of National Center for “Science” Education (NCSE) invovlement.

    Consider, for example, that a laser printer quality PDF version of the letter was available at the NCSE website mere hours after news broke.

    I expect ERV to be hired by Eugenie soon.

    The Harvard video in question oozes with “intelligent design” and I suspect the NCSE threatened to Sternberg the scientists involved if they did not play ball. And former NCSE minister of propaganda Wesley Elsberry seemed to be in the know early.

    Please see: Legal threats and copyright shakedowns

    ERV knew that this was going to break at 12:54 p.m. PT-mafia time, according to comment-150049 for the entry “truth-tickets” at the PT-mafia lair.

  35. Jack Kerbs — That is plagiarism. That is cheating. It is copying (not verbatim, but substantially in both specific content and in general structure), and we flunk them for it. Should we not? Should this be acceptable?

    It really depends on the point of the exercise, doesn’t it?

    If you are trying to determine whether a student has learned a lesson and by his widespread use of copying he indicates that he has not, it is quite appropriate to mark him down.

    And of course, if someone claims someone else’s research as his own for his own personal benefit that is also grounds for sanction.

    OTOH, if the goal is to disseminate accurate information for the understanding of all, and if it is obvious that the intent is not to claim someone else’s work as one ‘s own (the definition of plagiarism) which appears to be the case in Expelled, then you are complaining about the wrong thing.

    Now, there may very well be a copyright issue involved, but even there one ought to avoid getting on one’s high horse about it.

    Even if a copyright violation is found, it is almost certain a result of ignorance rather than an intent to deceive.

    And what if it is ruled there is no copyright violation? Do you say you are sorry?

  36. Now one could make the case that the animation studio purposely copied aspects of the artistic style (not completely, obviously, since there are notable differences in the textures and models). That’s not plagiarism nor would I consider it unethical. If that was the case then every artist since Picasso would be in trouble if they ever copied the cubist style.

    BTW, I’ve worked in developing 3D rendering. There’s only so many modeling/rendering suites used in the industry; they may have used the same one (although it’s hard to tell with the low resolution videos). I can often recognize a renderer for its sublte differences, even when the same category of effect or full-screen filter is being applied. Both studios apparently used a Depth-Of-Field shader, which gives some objects that soft look.

  37. Another thing — I suspect that the people upset about this alleged irregularity are just fine with the inherent deceptions in the films of Michael Moore and Al Gore.

    What’s worse splicing parts of disparate speeches together to make a living breathing (at the time) person look like he was saying something else to open him to public scorn, or basing an animation on a widely seen free video to reveal a truth to the general public?

  38. Re: Andrea(35)

    Correct me if I am wrong, the intellectual property you are referring to are scientific papers in academic journals. These journals are usually available for a fee, and are also made available in University libraries for free. Once published, they are on the open market (i.e. can be references in other papers, used for grounds for future research by another institution, etc.)

    A possible explanation could be the producers of Expelled got a hold of these papers by either paying for them or have collected them through academic studies and forwarded them to their animation team to create the video. This sounds perfectly legal to me.

    I have a collection of engineering journal articles that I use to do my job. No one has sued me for this. I can’t think of one case in the engineering profession where this happened.

    If I can get paid to look up journal articles to use in my design for a client who then uses my design for profit, then using a journal article to create an animation to be used for profit is OK too.

  39. XVIVO uses LightWave, a commericial product anyone can buy and use. And one might expect that this package would produce similar looking models….but…and I have posted this in another thread. The producers would have to show in court all the intermediate modeling and animations steps leading up to the final clip, because it is possible to use a video editing application and simply “doctor” the original a bit, change some colors, etc., which in my opinion, would be a copyright violation.

  40. Guys!

    If Promise co-opted Harvard’s research, then it’s a done deal — I’m sure if XVIVO wants more work from Harvard they’ll do what they’re told — or maybe just score some points. If it was about the money, they’d be asking. But they’re not. Neither the researchers nor animators want this in an audience-friendly format.

    Regardless, take the hit, rub some dirt on it, and get back in the game! By the time the next movie comes out, the complexities of what we know about the cell will likely have increased by an order of magnitude.

    Meanwhile Harvard will get a black mark for suppression — and the public’s understanding will react to that suppression — if only viscerally.

    They can’t win.

  41. A possible explanation could be the producers of Expelled got a hold of these papers by either paying for them or have collected them through academic studies and forwarded them to their animation team to create the video. This sounds perfectly legal to me.

    Of course, if the Expelled people did and can document all the footwork from the evidence in the primary literature to the generation of the final product, then they are in the clear. As I said, it should be pretty straightforward: if the case goes to court, there should be piles and piles of notes, papers, files of intermediate production stages that will be subpoenaed, the computer animator(s) and cell biologist(s) Expelled employed will testify, etc.

    Neither the researchers nor animators want this in an audience-friendly format.
    Friendlier than freely available for anyone, you mean?

  42. Andrea:

    No — “friendly” as in friendly to the idea that we have souls.

    Dembski already has this pulled on him.

  43. Jack *is* a fascist…

    *snicker*

    [Don't ban me, Dave. I couldn't resist.]

  44. Andrea writes, “There really isn’t much leeway there: it took XVIVO a large effort to make their movie, and a similar amount of effort would be expected from anyone trying to produce similar results independently. Anything else is copying.”

    The first innovator always goes to much more trouble than the subsequent competition.

    Intellectual property law only protects the intellectual property created.

    There is, I am afraid, no compensation for the fact that others study the original innovation to build their own models – unless one counts the honour of being first.

    I suppose many unremembered people observed Wilbur and Orville Wrights’ work and went away and built their own airplanes, without making all the Wrights’ mistakes.

    That’s life.

  45. Way to take the high road, ftk.

    You’ll probably say “just joking,” but if I cared at all I’d expect an apology.

  46. So my question is, will the producers of “Expelled” cower to this silly threat, or will they thumb their noses and let the movie show? And when will we know that?

    Naturally, these are rhetorical questions only… I don’t expect that anyone here could answer authoritatively.

  47. 49
    Horace_Worblehat

    The XVIVO amination is a stylised representation of the molecular processes. A diagram. Tracing over a diagram and using different colours does not make it an original work.

    As has been mentioned, the animation is on the Internet and can be viewed – it is not being suppressed. That does not make it public domain and permit its use in a for profit movie.

    How similar is it?

  48. O’Leary wrote (in #48):

    “Intellectual property law only protects the intellectual property created.”

    So, if somebody published a book entitled The Spritual Nervous System, and you discovered upon reading it that it had the same chapter titles, the same sequence of ideas, and the same text, but with every third word changed, you wouldn’t consider this to be theft of your intellectual property?

  49. because it is possible to use a video editing application and simply “doctor” the original a bit, change some colors, etc., which in my opinion, would be a copyright violation.

    Agreed.

  50. So my question is, will the producers of “Expelled” cower to this silly threat, or will they thumb their noses and let the movie show? And when will we know that?

    I think they’ll show it anyway. I doubt XVIVO could win substantial damages for Premise independently making a (strikingly) similar video. It is like when Mad TV does spoof music videos; they slightly alter the melody and change enough things to legally protect themselves. I’d think it is the same here.

  51. Ms. O’Leary:
    I am quite sure that if someone copied a book of yours, changing a few words and correcting a few adverbs, printed it in a different font, and claimed that whatever original idea you may have had was now in the public domain, you would argue differently.

    As for the Wright Brothers, they did in fact apply for a patent on their work (not on the idea of a flying machine, which of course had been around for centuries, but on the details of how to make one actually fly in a controlled fashion, IIRC), and won some patent infringement cases based on it.

  52. After reading Andrea’s comment (#19), has anyone else considered the possibilty that Expelled could use this for a publicity stunt?
    i.e.
    “Go ahead and sue! You’ll just be making our point for us that you’ll do anything to squelch ideas you don’t support. And we ‘prove’ that ‘our’ video was ‘designed’ by us.”

    (Or something like that.)

    Now I fully support copyright laws, and in fact, I would expect Expelled to pay any damages that could be proven. But, hey, that might be worth the price?

  53. @Allen in 51:

    The videos are not the same. I mentioned earlier, the shots are different (from different angles), the panning is different, etc, which shows that the video was created independently. In your example, two thirds of the text would be the same and would be an identical copy. That is the difference: there is nothing in the Premise video that is an actual copy.

  54. Andrea @54:

    See my comment 56.

  55. I haven’t seen the videos in question yet (downloading now, I’m on dial-up).

    However I gather it’s fairly evident that the XVIVO video was used as reference for the Expelled video.

    It’s not that difficult to model from reference: Sharpie Model. I’m not sure it can be considered unethical. While the XVIVO video is certainly a creation of the developer, the subject matter is an artistic impression of a biological process.

    I’ve seen many images representative of atoms and molecules, DNA, etc., and they all are somewhat similar. I don’t think that plagiarism has occurred in those cases, nor copyright infringement. Who owns the notion of multicolored spheres connected with cylinders in a double helix shape, slowly rotating and/or panning?

    Additionally, no original ideas were duplicated, nor any of the original work used. (If you compared the sundry pre-rendered animation and model files, I’m positive you wouldn’t find much similarity in model topology nor animation timings, number and position of key frames, etc.) This seems apparent from the start.

    The above is my impression of a Sharpie. I don’t own the idea of the Sharpie, but I “own” those pixels. Nothing prevents someone from producing a rendering of a Sharpe with similar placement and camera perspective, depth-of-field and lighting. I might not like it if they do, but there’s nothing illegal or unethical about it, AFAICT. However I would only have cause for offense if someone used that very image without my permission.

    If it were, however, a model of a subject of my creation, to which I owned patents or copyrights, that would be another story.

    I’ll reserve my own judgment until I’ve seen the videos in question, but would be interested in knowing if there’s anything “owned” by XVIVO except for the video and its constituent files. What intellectual property is really in question that’s within the content of the XVIVO video?

  56. According to the letter on the ERV sight XVIVO is claimin that Expelled somehow stole the image through a computer generated means. In other words they didn’t render and animate it themselves. If that is true they shouldn’t use the footage. If the gripe is just that there are similarities, and Expelled does in fact have models, they should change up some of the scenes so that it is not “substantially similar.”

    What they don’t have to change is the basic things they are depicting because that is scientific knowledge in the public domain. You can’t copyright facts.

  57. Anyone else find it amusing that the second paragraph which was meant to start out with a lawyerly

    It has come to our attention that

    Is instead

    It has come to our intention that

    Good one, Irons Peter whoever you are!

  58. BTW, I am a lawyer who does a fair amount of work in intellectual property, although copyright is really not my thing.

    Is the expelled animation still up anywhere? From reading the PZ Myers article and looking at the screenshots, it doesn’t look like XVIVO has a case in my professional opinion. PZ Myer’s claim of shared mistakes also looks very thin since the so-called “mistake” is really one of Myer’s bias. Myers felt that the interactions were depicted to fluidly in the XVIVO animation and should have appeared more stochastic and jerky.

    Maybe there is more to it than what I am able to gleen at this point but I don’t have much to go off.

  59. Jehu wrote:

    “According to the letter on the ERV sight XVIVO is claimin that Expelled somehow stole the image through a computer generated means.”

    Indeed that is the claim. But it appears to me that this would be quite impossible.

    Reading the various posts from those who appear to be defending the legal action, two things are apparent: They seem to ignorant of how such things could or could not be copied from a practical, technological viewpoint, and they seem to be Hell-bent to shut the movie down.

    They appear to be predisposed to play fast and loose with the word “copy” and to make ill-conceived comparisons which do not correspond with the reality of this situation.

    It’s all very unfortunate.

  60. I’ve gotten to know the producers quite well. As far as I can tell, they made sure to budget for lawsuits. Also, I know for a fact that they have one of the best intellectual property attorneys in the business. I expect that the producers made their video close enough to the Harvard video to get tongues awagging (Headline: “Harvard University Seeks Injunction Against Ben Stein and EXPELLED” — you think that might generate interest in the movie?), but different enough so that they are unexposed.

    It was a nice touch on the producer’s part to use the same music as the XVIVO video. Presumably they got permission from the artist — or is that another possible oversight to explore? But then again, one of the producers was for years in the music business. So most likely they’re covered here as well.

    BOTTOM LINE: Before you think the producers of EXPELLED are idiots, you might think that they are chess players who have seen several moves ahead. For instance, have you ever thought who stood to gain the most from the Machine Video featured at UD a week ago? . . .

  61. This is an intriguing challenge. If Expelled goes forward, XVIVO will have two options — to press their case, which likely means very expensive and public court proceedings, or to decide that just because they barked, they don’t have to bite.

    If they press their case, the Expelled attourneys would probably challenge XVIVO on the accuracy of their depiction. To the extent that their depiction is accurate, it becomes like two people photographing the same landmark, say niagra falls. If their depiction is accurate, the only copying that happened is XVIVO’s copying of nature. The only way that XVIVO could claim copyright infringement is for them to acknowledge that their movie does not accurately represent the original. The latter argument would potentially damage the credibility of their original movie. A catch 22.

    However, there is another well recognized method of proving copyright infringement. I remember a famous case years ago between IBM and Phoenix. IBM was vigorously defending the copyright of the bios of the original PC. Phoenix got a programmer who certainly had not seen the original source code. They gave the programmer the “specs”, and sequestered him. In this way they were able to prove that he had not copied IBM’s code. In the same way, if XVIVO could demonstrate that the artists who produced the Expelled footage had first seen their footage, they would have a strong case. If Expelled could demonstrate that the artists had not seen XVIVO’s footage, but gleaned their rendering from the source scientific research, XVIVO would be out of luck.

    Expelled my also have a case if XVIVO could reasonably have known of the infringing content significantly before sending the demand letter. It would seem near impossible for Expelled to remove the footage at this late date. Theaters are booked, film has probably already been produced — maybe even mailed. I don’t know if there would even be time to replace the footage with a blank screen or nasty notice.

    As far as the Write Brothers and patents go — patents are a fundimentally different cup of tea than copyright. A patent is on a method. No proof that the infringer knew of the patent is required. If the infringer uses the same method as a patent, even if he adds steps, he is infringing.

  62. Dr. WMaD,

    If you’re right, then a brilliant play on their part.

  63. One thing is clear: whether or not the animation in the movie meets the criteria of “plagiarism,” I’m sure the producers considered this issue before making the film public. Although XVIVO’s suit couldn’t have been predicted with certainty, the producers certainly must have considered the possibility.

    What a delicious irony the suit creates! If we simply “let the facts speak for themselves,” they seem to support a design inference, and are seamlessly incorporated into an ID-friendly film. The animation makes the point–in spades–that ID isn’t based on a “gaps” footing, but considers the evidence.

    I’m inclined to agree with Graceout that any damages or settlement costs Premise ends up paying to XVIVO are likely to be offset by the publicity the suit creates. I only hope the NYT picks it up! (Graceout, I hope U don’t sue me for building a little on your idea! :-) )

  64. I hate to spoil the fun here but Harvard University is the copyright holder named on the video. Watch the “super speed” version and see.

    The animation is credited to John Liebler/XVIVO. That’s right there next to it on the Harvard site. A credit isn’t a copyright. XVIVO has no standing. Harvard University does and I very seriously doubt they’ll attach their name to legal action over this. Too bad. This could have been a category killer in free publicity.

  65. Before you think the producers of EXPELLED are idiots, you might think that they are chess players who have seen several moves ahead.

    Awesome!! That is really clever on their part to contrive the video so that they will get sued by Big Science. They have entrapped Harvard in a web of their own creation!

  66. Gentlemen, how do you get a new thread started on this site. I found the following article on livescience: “Shock: First Animal on Earth Was Surprisingly Complex”
    http://www.livescience.com/ani.....nimal.html

    This needs a dialog!

  67. The only way that XVIVO could claim copyright infringement is for them to acknowledge that their movie does not accurately represent the original. The latter argument would potentially damage the credibility of their original movie. A catch 22.

    Got them in a vise!

  68. Davescot:
    XVIVO has no standing.

    Peter Irons must not be much of a legal scholar as easily as you outflanked him.

  69. For instance, have you ever thought who stood to gain the most from the Machine Video featured at UD a week ago? . . .

    Sure. Richard Dawkins. Before 90 percent of the country thought of him as the Family Feud guy with rest thinking he was an obnoxious English guy from Oxford.

    Now, everyone knows him as Dawk the Dick.

  70. Oops! This thread is moving so quickly that I didn’t see Dr. Dembski’s post before mine went up. Sorry! (So sue me… :-) )

  71. Like I said…

  72. The big version, at the very end:

    Copyright 2006 The President and Fellows of Harvard College

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

    There seem to be a growing number of entities claiming to be the copyright holder.

    Anyhow, that was the first time I watched the “big version”. It was breathtaking and unlike dumb bunnies who write for the New York Times not only did I know what I was watching was science I knew that in real life all that we saw depicted happens a million times faster.

  73. Jack Krebs

    Were you this offended when Judge Jones was caught plagiarizing some 90% of his science “opinion” straight from an ACLU brief?

    People who live in glass houses shouldn’t throw stones.

  74. This is also creating awareness for the original video.

    Very clever.

  75. DaveScot wrote:

    “Anyone else find it amusing that the second paragraph which was meant to start out with a lawyerly…”

    Yes, I spotted that right away and posted my own snide comment in the earlier thread. Such an error really made me question whether this whole thing wasn’t just a prank. Like one of those e-mails you get from Nigeria.

    Too funny.

    Although I must admit it’s no more embarrassing than the fact that in one of those clips posted on the other thread, Dr. Dembski’s name is spelled wrong.

    I sure hope they fixed that in the final edit. If I see that error when I go to the theater in a couple of weeks, well, that’s just embarrassing.

  76. The end of the one I just watched says “©2007 Rober Lue and Alain Viel, Harvard University”

  77. Just for the sake of completeness we need to know XVIVO has indeed filed the letter the NCSE is publishing as “in the name” of XVIVO and Peter Irons.

    Given the spelling error Troutmac found it is possible the NCSE was had. Given Josh Rosenau works there, that wouldn’t surprise me.

    But it would be good to check.

    Given Harvard owns the copyright and not XVIVO, this is possibly a hoax to make the NCSE look like idiots.

    I’m not asserting that the NCSE are idiots, however. Someone once confided to me they thought Eugenie Scott was as smart as Satan, if so, then the letter could be legit, but I’m not so sure.

  78. Not a comparable situation, Dave; off topic; and I’ve never said I was offended about anything (except ftk calling me a fascist.)

    I never even said that I think they did copy. I don’t think any of us know enough, based on the short clips in question, to know.

  79. Were you this offended when Judge Jones was caught plagiarizing some 90% of his science “opinion” straight from an ACLU brief?

    Well, if this goes to court, maybe this time we’ll get a solidly conservative judge appointed by President Bush, rather than some ACLU loving liberal.

  80. It’ll be interesting to see if this does get to court. No doubt the NCSE’s tatic is to naively hope that there is no background research supporting the science depicted in the video that can be used in court to defeat the idea that it’s simple a shot for shot reworking of the original, errors and all. Has anybody done or seen anywhere a shot for shot or split screen comparison?

  81. To clarify my last comment, when I spoke of errors I’m not aware that any significant error has been “copied” but simply that when depicting such processes there will be a large amount of artistic licence when deciding what to show and how to show it. It’s like that scene in “working girl” where how the idea is thought up is just as important as what it is, if you can’t say what inspired you to do it that way….

    Well, that’s how it happened in the movie. Maybe they hired it out at the NCSE video night? :)

  82. Mr scorova

    Given the spelling error Troutmac found it is possible the NCSE was had.

    TroutMac also found a spelling error in a expelled clip, Dr Dempski. Who’s been had now? :)

  83. Peter Irons is not an intellectual property attorney. I have previously described Peter Irons on this blog as a militant atheist who doesn’t have a high school level understanding of biology. Peter Irons responded by sending an email to O’Leary accusing me of anti-semitism and asking that my post be removed. The whole exchange was then posted at Pharyngula. So basically I take it that Peter Irons’ modus oprendi is that whenever he has no good argument he makes some unrelated accusation to distract from the real issue. Anti-Semite! Copyright Infringer! The real issue is the complexity of life at the molecular level, the Peter Irons’ red herring is copyright infringement.

  84. Professor Bill,

    This is the first I’ve heard from you on the subject.

    I wrote before that I thought this was an example of people with marketing degrees baiting people with science degrees into making big PR blunders. So far PZ Myers and Richard Dawkins were made into assclowns either by design or by accident. As usual, I’m agnostic but leaning heavily towards design.

  85. “The fact that it is a new animation is not the issue – no one is claiming that Expelled actually uses the XVIVO animation. The issue is whether, and to what extent, the presentation in Expelled was copied from the XVIVO product.”

    Actually Copyright law is only going to cover the original production. If someone went and reproduced it themselves then Copyright Law isn’t going to apply. It isn’t a copy.

    Unless there is a patent on the process used to create the film, I suspect it will get nowhere.

    It isn’t like the Expelled producers are passing off the animation as if it was the XVIVO animation.

    This is little more than a legal attempt to censor an idea some people don’t like.

  86. 88
    William J. Murray

    I can just see all the game companies suing each other because they modeled a bridge, a building and deers “just like the other guys did”. There’s no intellectual property available in a 3-D depiction of a real-world object unless it’s a direct copy.

    If I see a great picture of the empire state building, and then find a location to mimick the shot, is my photo plagiarism?

    Please. They have no case, and no matter what happens, it’s positive publicity for the movie. Can you imagine? “The Truth They Tried To Keep You From Seeing”.

    These guys are sinking their own boat faster than we can put holes in it.

  87. I wrote before that I thought this was an example of people with marketing degrees baiting people with science degrees into making big PR blunders.

    Is it a unpardonable sin to play tricks on the less intelligent and then laugh at them? I sure hope not!

  88. #63 W. Dembski: “Before you think the producers of EXPELLED are idiots, you might think that they are chess players who have seen several moves ahead.”

    Good point Bill. But let us look at this thread. What should we think of people such as andrea and jack krebs, who immediately come here to blame some (hypotetical) copyright crimes?
    Gentlemen, this seems just an escalation in the subjects to be expelled …

  89. I think most people here are in agreement that they simply did not watch the Harvard video and then copy it wholesale without any understanding of the science and bio-physics involved in what they were depicting.

    I wonder if this latest development will get picked up by Fox news etc any time soon?

    Jason

    Actually Copyright law is only going to cover the original production. If someone went and reproduced it themselves then Copyright Law isn’t going to apply. It isn’t a copy

    I believe reproductions of the effiel tower at night are copyright. Sure, you can take a picture from the street but if you want to publish it in a magazine you owe them $$$!

  90. William:

    I can just see all the game companies suing each other because they modeled a bridge, a building and deers “just like the other guys did”. There’s no intellectual property available in a 3-D depiction of a real-world object unless it’s a direct copy.

    I belive the issue is more subtle here. It’s more like if you asked people to draw a picture of an atom. People with a lay eductation draw a dot and a circle round it with a dot on it. An atom. As more is learnt, the picture becomes more complex. So the question is not why did they depict that “bridge” in that particlar way when there were innumarable other ways to depict it and still represent the process (just as there are many different bridges that all look different but still are bridges, many ways to depict an atom). It’s an interesting question to be sure.

  91. Allan 51 and Andrea 54:

    Change every third word?

    The process you describe is an excellent way of turning “book” into “gunk.”

    Why worry about such a Category suicide mission?

    Should The Spiritual Brain be a key book in its category, I fully expect cheapie riffs and quick knockoffs in future years. And no, I don’t care.

    Knockoff books demonstrate that one has discovered a winning formula.

    Copyright violation occurs when, for example, someone translates the book into Klingon and sells it without acquiring translation rights. Or photocopies three chapters for the entire Psychology 101 freshman enrolment, again without paying permissions fees.

    I was a permissions editor for some years, in my misspent youth, and a part of my job was determining what we could do that did not violate copyright or trademark laws.

    I will be very surprised if the Expelled team does not have someone minding that desk.

    Incidentally, Andrea (?) changed the subject re the Wright brothers. Of course they could sue for patent infringement. But Andrea seemed to think that originators are entitled to expect that every subsequent entrant into a field do as much work as they did. It does not work that way. The ease with which subsequent entrants can compete without violating copyright is none of the originator’s business.

  92. Knockoff books demosntrate that one has discovered a winning formula.

    I guess it depends on your definition of winning. Clearly, Denyse, you aren’t motivated by money, since you seem cool if people don’t buy your book.

  93. Were you this offended when Judge Jones was caught plagiarizing some 90% of his science “opinion” straight from an ACLU brief?

    LOLOLOL!!!! EXCELLENT POINT!! Dave

  94. The Expelled producers are not fools, but they clearly may be a bit careless, since the first version(s) of the movie actually had the original XVIVO movie, uncredited and unauthorized. This version of the animation was created/introduced later, when it became obvious that the first was violating XVIVO’s intellectual property.

    As for the Harvard/XVIVO copyright issue, as I explained before, it is not the pretty pictures (i.e. the movie) that are the object of the infringement, but the XVIVO-proprietary methods of creating molecular models of proteins and cellular processes and rendering them graphically.

    And again, the point is entirely mute if the Expelled graphic professional(s) used original methods, instead of just using XVIVO’s product as a starting point. This should become obvious at discovery, if the case gets there.

    Now, assuming that the Expelled animation methods were indeed completely original, I don’t know what additional implications would stem from Dr. Dembski’s revelation above that the final Expelled animation may have been purposefully fashioned to closely resemble XVIVO’s. That may open another legal can of worms, depending on what the court may decide their goal was. I suspect that faking a violation of copyright for the specific purpose of instigating a lawsuit from the copyright holder may not be viewed kindly by a judge, but I am not a lawyer, so what do I know.

  95. Well, if this goes to court, maybe this time we’ll get a solidly conservative judge appointed by President Bush, rather than some ACLU loving liberal.

    Jones (cough cough) was picked by Dubya. (Granted he didn’t give it as much consideration as he would for a SCOTUS pick)

  96. Let me try this post again, as it is burried more than 20 posts deep already.

    Gentlemen, how do you get a new thread started on this site. I found the following article on livescience: “Shock: First Animal on Earth Was Surprisingly Complex”
    http://www.livescience.com/ani…..nimal.html

    This needs a dialog!

  97. I believe reproductions of the effiel tower at night are copyright. Sure, you can take a picture from the street but if you want to publish it in a magazine you owe them $$$!

    This would probably be no hoopla at all if the producers–arguing all the hard work that went into “the original masterpiece” would take money for it. The movie probably could have used the original and properly credited Harvard and/or XVIVO and have done.

    The lawsuit doesn’t mention financial damages. It says remove or we’ll stop the movie.

    Your point demonstrates the common resolution to copyright issues. Pay and/or credit the right people.

    This is not an average case. By nature it is more like a rock group not wanting their music used by an organization they oppose. Of course, the difference with this is that the depiction is in someway supposed to be a sort of scientific document, representing positive facts, and science isn’t supposed to have ideological biases.

    There is a frontier where such a film could become “artistic” and less “scientific” and where it is “scientific” and less “artistic”. Again, this differs from the Beatles and Nike. They were in an “artistic” realm where a majority of the rationale and motivation for their product is selected by them.

    That’s the problem with this authoritarian action. If it succeeds it’s likely going to be by stretching precedents that have strong counters to being applied in this case.

    I would like XVIVO try to explain how they were damaged. Outside of the fiat of a Jones-like judge, I don’t see how they could carry it off. Expelled is not marketing itself to diminish XVIVO’s market share. It is not absorbing their markets. I doubt if it’s in the interest of the film, had they used the original, to give them a bad name. My understanding is that there is a lot of interviewing that XVIVO did not conduct, so as to say that the work profits from derivative nature is a stretch for most reasonable conversations.

    I doubt they’d sell even one ticket because “Hey, they’ve got this neat 3D animation of a cell. I think ID is crap, but I’ve got to see that 10 (I’m guessing) minute snippet of film!!”

    The critics are right. They’re not afraid of Expelled making money off of their year of toil. They’re afraid of what might be inferred from a reasonable simulation of fantastic natural processes. This isn’t about rights, it’s about control.

    I have little to say to the sophists who want to stand behind whatever laws work as the best bludgeon.

  98. “but the XVIVO-proprietary methods of creating molecular models of proteins and cellular processes and rendering them graphically.”

    I think you’ll find you are mistaken there. I assume you are refering to patent law, but in that case, it isn’t using the patented technique to produce it that is a problem, but sticking the patented technique in a product without the appropriate license.

  99. Sorry, I should add, you can rip off patented techniques all you like as long as you aren’t trying to sell them into the jurisdiction in which the patent applies.

  100. Tribune7, haven’t you figured out that poachy is a troll?

    (Poachy, can you explain again why your sister gave you that nickname? It seems to fit…)

  101. Jones (cough cough) was picked by Dubya.

    Genetic fallacy spoken here, I see.

    Jones is just as much a purveyor or long inferential chains as any liberal attorney. And since he signed on to a majority of what the ACLU argued, it matters little the projected opposition of who appointed him.

  102. Okay, I’m going to go out on a limb here and make a prediction…

    None of this nonsense will ever be heard in a court of law.

    Now, I’ll tune into my physic abilities and share an overwhelming sense that I am currently experiencing…

    I see the Expelled producers and film makers gathered around their laptops trying to keep their giggles from turning into cachinnation, but failing miserably.

    Do not worry my friends, all is well…

  103. What should we think of people such as andrea and jack krebs, who immediately come here to blame some (hypotetical) copyright crimes?

    Not to mention use painfully bad analogies of somebody changing every third word–as if Expelled was about 3D animation and contained end-to-end animation. If somebody changed every third word, then there probably would not be as much of original interviews, or they’ve already abandoned that pattern. And nothing that I see suggests that were the producers were the original made available are 1) trying to market themselves for their 3D modeling skills by claiming the work as their own. That’s something you would have to do to make a sort of reasonably rational human change every third word in a book.

    Also as it was used in relation to school plagiarism, passing off the work as your own is the key there.

  104. Whoopsie…[psychic]

    We psychics aren’t great spellers…lol

  105. Peter Irons must not be much of a legal scholar as easily as you outflanked him.

    Or he’s a paid/interested sophist like so many other attorneys these days.

    Peter Irons may be an excellent legal scholar, but to argue that it precludes him from having any interest is a little naive or disingenuous. It’s the old thing of “How can you doubt the people who agree with me? I don’t.” Pretty convincing to the convinced.

  106. It’s like that scene in “working girl” where how the idea is thought up is just as important as what it is, if you can’t say what inspired you to do it that way….

    Yet another example where there is financial damage or competitive edge to passing off work as your own. In all the promos, I’ve seen from this movie there is more about Ben Stein in Angus-Young-style shortpants than this awesome blockbuster 3D video.

    I’m going to go out on a limb and suggest that this–were it even the original–would fall more under “fair use” because their is no case that can be made for market dilution competitive advantage or marketing based on this.

  107. bFast (99) pointed to the article Shock: First Animal on Earth Was Surprisingly Complex, but the supplied link did not work. Here are links that should work.

    at LiveScience.com

    at news.yahoo.com

  108. 110
    Horace_Worblehat

    An author is not obliged to give permission for his product to be used, even if he is offered compensation. By the same token he does not have to show a financial loss to be able to obtain an injunction against its unauthorised use. If a party, after being advised, goes ahead with a copyright infringement then punitive damages can be awarded.

    ‘Fair use’ does not encompass showing substantial portions of the work (or a derivative work) in a for-profit film.

    I suspect that XVIVO are a little suspicious that a work which took them a year to develop in conjunction with a team of leading biologists was reproduced in a few months. Let’s also remember that the XVIVO animation is not a realistic portrayal of what you would see if you stuffed a nanocamera n a cell. It is a stylized representation – a diagram designed to show how the parts work.

  109. Get a load of this.

    Mathis shares his conversation with Dawkins that took place after the private showing of Expelled.

  110. “BOTTOM LINE: Before you think the producers of EXPELLED are idiots, you might think that they are chess players who have seen several moves ahead. For instance, have you ever thought who stood to gain the most from the Machine Video featured at UD a week ago?”

    I pray that you are correct Dr. Dembski.

  111. “Eugenie Scott was as smart as Satan”

    This wouldn’t be that funny if Eugenie Scott wasn’t so nasty.

  112. “This is little more than a legal attempt to censor an idea some people don’t like.”

    Good point. Jason Rennie, where have you been? Good that you are a back just in time as things are heating up. About a week away till the release of Expelled.

  113. JJS P.Eng.: “Correct me if I am wrong, the intellectual property you are referring to are scientific papers in academic journals.”

    You are mistaken. The intellectual property at issue here is artistic interpretation. An accurate representation would be unintelligible and unwatchable. For example, look at the pulsating Golgi apparatus in both the original and copy. The Golgi does pulsate like that, but not in the absence of microtubules and actin filaments, both of which were removed as artistic decisions in both the original and the copy.

  114. Lutepisc, I realize that I am not the most educated of persons and am not particularly a good writer, but I am trying my best to be supportive. I am not sure why you want to label me a troll. As for my nickname, I share the story with my friends. I don’t believe I consider you one.

  115. Poachy, are you Chuck Humphrey too??

  116. Anyway, I guess I can’t help feeling that this is a real goof up by the Expelled people.

  117. RichardFry: “To clarify my last comment, when I spoke of errors I’m not aware that any significant error has been “copied”…”

    I am.

    “… but simply that when depicting such processes there will be a large amount of artistic licence when deciding what to show and how to show it.”

    The artistic license in this case is in what one chooses to omit (which constitutes the vast majority of what is happening).

    “I think most people here are in agreement that they simply did not watch the Harvard video and then copy it wholesale without any understanding of the science and bio-physics involved in what they were depicting.”

    But are any of the people here who agree with you familiar with the relevant biophysics involved, let’s say, with kinesin? Has anyone ever seen any data that show that a kinesin has ever taken 9 forward steps with the same intervening time? That’s what is shown in the video.

  118. After reviewing the three clips I have no idea what the fuss is about. The biggest similarity between the productions is that they are both computer animations dealing with the same subject.

    This appears to be nothing more than some exuberant wishful thinking on the part of Expelled’s opponents in an attempt to score gotcha points.

    There was a mild similarity in the track-walking animation, but that’s a lot to hang a case on, considering these are two independently produced graphic representations of a process that nobody holds any legal claim to.

    I’m guessing this will turn out to be much about nothing. We can only hope it attracts more attention than this little controversy is actually worth.

  119. Apollos, my friend. I hope you’re right. :)

    I am really looking forward to Expelled and it would be a shame if it wasn’t released.

  120. Today, XVIVO was been issued a cease-and-desist order by the original designer of the cell for copyright infringement. After they relinquished all rights to their work, they also ceased all cellular activity and structure and turned into large puddles of goo to comply fully with the order.

  121. William Dembski @ 63

    I’ve gotten to know the producers quite well. As far as I can tell, they made sure to budget for lawsuits. Also, I know for a fact that they have one of the best intellectual property attorneys in the business. I expect that the producers made their video close enough to the Harvard video to get tongues awagging…

    Jehu @ 86

    Peter Irons is not an intellectual property attorney. I have previously described Peter Irons on this blog as a militant atheist…

    Something tells me they’re going to have a hard time trying to Win Ben Stein’s Money :)

  122. And let’s not forget that Ben Stein is himself an attorney, who was first in his Yale graduating class.

  123. Poachy, if you are a troll you are a dang good one!!

  124. Jones (cough cough) was picked by Dubya. (Granted he didn’t give it as much consideration as he would for a SCOTUS pick)

    Poachy knows that.

  125. Oh, I see that’s been covered. Sorry.

  126. I am baffled! I went thorugh each of Poachy’s posts in this thread. None of them in any way suggest to me that he is a troll. Can y’all provide quotes from Poachy that lead you to this view so that I know what to avoid so that I don’t get flamed in the future?

  127. Hi bfast,
    Yep.
    The poorly-veiled sarcasm:

    Davescot:
    XVIVO has no standing.

    Peter Irons must not be much of a legal scholar as easily as you outflanked him.

    Which just happens to hit a prespecified target in this case:

    Well, if this goes to court, maybe this time we’ll get a solidly conservative judge appointed by President Bush, rather than some ACLU loving liberal.

    http://www.uncommondescent.com.....mment-8210

    Judge John E. Jones on the other hand is a good old boy brought up through the conservative ranks. …
    (who in turn is deep in George W. Bush’s circle of power), and finally was appointed by GW hisself. …Unless Judge Jones wants to cut his career off at the knees he isn’t going to rule against the wishes of his political allies. Of course the ACLU will appeal. This won’t be over until it gets to the Supreme Court. But now we own that too

    This has ATBC written all over it.

  128. But I think the more appropriate term is “sock-puppet”.

  129. This entire thing is not hard to figure out. Darwinists are scared excrementless about being exposed to the public for what they are: ideologues who don’t want to give up their power to indoctrinate others, and especially other people’s children, with public funding. They will resort to any means available to suppress dissent. It’s extraordinarily despicable and wicked.

    The 18th of April is just eight days away, and they are in a state of panic, because their de facto antitheocracy is in jeopardy.

  130. That’s rather hyperbolic, I think.

  131. C’mon you guys. Does this site care about recent discoveries that are solidly not predicted by NDE or is it just focused on the politics of ID?

    “Shock: First Animal on Earth Was Surprisingly Complex”
    http://www.livescience.com/ani…..nimal.html

    ‘Turns out that the first animal was a jellyfish, complete with complex nervous system etc., rather than a much simpler sponge.

  132. W. Dembski (The Logical Underpinnings of Intelligent Design)

    when both record the same errors, it is perfectly legitimate to conclude that whoever published second plagiarized

  133. 135
    irreducible_complacency

    Open, Sez Me!!!!

    sparc this is I think the secret message within the ring.

    PROOF that the Explanatory Filter is indeed an empirical instrument. I congratulate Dembski and Sal for pulling this fast one over on the materialists and improbable PZ worshippers. Mathematics can never ever lie, and Dembski described this very same scenario so many years ago and all of the culture elitist and chance loving atheist jihadists just yawned and claimed it was written in Jello.

    Makes me think of some great old kung fu movie lines.

    We see who raf rast.

    The shoe is on the other hand now!

  134. Jack Krebs

    This is not about suppressing ideas. Of course the Expelled folks are free to talk about the cell all they want. They are also free to learn about the cell from any source they want.

    What they are not free to do is to just make a copy of XVIVO’s work on the subject and put it in their for-profit movie.

    These should be fairly clear distinctions.

    It is exactly about supressing an idea. That and only that is precisely what this is about. The Darwinians are in frenzy over this film. Why? Because it presents their philosophy masquarading as science for what it is and that it what has them in a stew.

    I have a nice photo book here at home of Rocky Mountain National park with a spectacular photo taken at Bear Lake in the park. I also have a photo that I took of Bear Lake when there on vacation. My photo and the one in the book look quite similar. Did I plagarize the book photo? No. But I did stand in the same or nearly same spot and wouldn’t you know it, those very same mountains and the very same water appeared in my photo. Are you seriously suggesting that if I published a photo book with that photo in it I would be open to plagarism from the photographer of the other book? You’ve got to be kidding me. He or she may have a copywrite on their book, but they do NOT have one on the subject of their photo…a place out in nature.

    Its the same here. XVIVO may have a copywrite on their film, but they do NOT have one a cell. If the two films show the same stuff or look similar, well, DUH, its the same basic subject matter.

  135. bFast,

    I agree with you, that article is interesting. Not just that the first animal was so complex but how it skews the entire phylogeny.

  136. 138

    DaveScot (#67) said,

    I hate to spoil the fun here but Harvard University is the copyright holder named on the video. Watch the “super speed” version and see.
    The animation is credited to John Liebler/XVIVO. That’s right there next to it on the Harvard site.

    Thanks, Dave, that answers some questions that I have been asking for a long time. We have been hearing the name “Harvard,” “Harvard,” “Harvard” repeatedly here but we have not heard a peep from Harvard in regard to this accusation of copyright infringement. The original video was created by the collaboration of Harvard and XVIVO — see

    http://www.xvivo.net/press/harvard_university.htm

    So maybe XVIVO is co-holder of the copyright — I don’t know. I would like to see the contract between Harvard and XVIVO.

    Also, the “super-speed” and “high-speed” versions of the XVIVO/Harvard video open with the following notice:

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

    So maybe that’s why the “Expelled” producers decided to create their own copy — I was wondering why they didn’t just buy or rent the XVIVO/Harvard video. Anyway, if the “Expelled” video was created from scratch, I don’t see how it can fairly be considered to represent “use, duplication, or distribution” of the XVIVO/Harvard video.

    BTW, Harvard’s arts and sciences faculties have an “open-access” program for posting free research papers online:

    Harvard University’s arts and sciences faculty approved a plan on Tuesday that will post finished academic papers online free, unless scholars specifically decide to opt out of the open-access program. While other institutions have similar repositories for their faculty’s work, Harvard’s is unique for making online publication the default option.

    The decision, which only affects the Faculty of Arts and Sciences, won’t necessarily disrupt exclusivity agreements with journals or upend the academic publishing industry, but it could send a signal that a standard bearer in higher education is seriously looking at alternative distribution models for its faculty’s scholarship.

  137. Andrea

    Methods aren’t protected by copyright. Those are protected by patents.

    http://www.law.cornell.edu/usc.....-000-.html

    TITLE 17 > CHAPTER 1 > § 102. Subject matter of copyright: In general

    (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

    I did a search of granted patents and published patent applications. XVIVO doesn’t appear to hold or have applied for any patents. So much for any claim of infringement on methods. XVIVO’s threat is without merit of any kind. Harvard may have a case but it certainly isn’t open and shut.

    Just to be thorough I checked the registered copyright database and found no registrations by XVIVO and no registrations for “The Inner Life of the Cell”. Copyright protection doesn’t require registration but it sure helps in court.

  138. 140

    This could be a hoax. XVIVO doesn’t hold the copyrights. The Visual Artists Rights Act of 1990 definitely doesn’t apply to technical applications or to works done under contract. I can’t see how the Digital Millenium Copyright Act of 1998 applies. But the Copyright Act is relevant.

    § 106. Exclusive rights in copyrighted works

    Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

    (2) to prepare derivative works based upon the copyrighted work;

    The Expelled animation is obviously derivative. But it may also be fair use.

    § 107. Limitations on exclusive rights: Fair use

    Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
    (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    (2) the nature of the copyrighted work;
    (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    (4) the effect of the use upon the potential market for or value of the copyrighted work.

  139. Hi bfast, thank you for your support. I suppose I should thank you for your confusion, but that doesn’t sound right even to a “sockpuppet” like me. I will admit to not being the most well-read or a good writer, so maybe I have broken some unwritten rules around here. I hope the mods will correct me if I have. I don’t understand alot of what is posted around here, but I was excited about Expelled and the Drawinists shooting themselves in the foot. I suppose that most folks just want me to be quiet.

  140. Charlie in 127, I didn’t even read this site back in 2005. I didn’t even sign up here until November 2007. I guess I should have researched further, but since everyone talks about what a activist judge Jones was, that I just assumed he was a liberal. Sorry, if I embarassed you, Dave.

  141. Poachy.

    You are a troll LOLOL.

    But you are a good one.

  142. Personally, I’m just glad to hear that the Darwinists are such paragons of virtue. Guess I won’t have to lock up my daughters after all!

  143. allanius wrote:

    Personally, I’m just glad to hear that the Darwinists are such paragons of virtue. Guess I won’t have to lock up my daughters after all!

    The best protection for your daughters in that case is to encircle them with lawyers.

    I don’t know how to protect your daughters from the lawyers, though. Maybe rabid weasels or landsharks. The only problem there is distinguishing the difference between the weasels, landsharks, and lawyers.

  144. The only problem there is distinguishing the difference between the weasels, landsharks, and lawyers.

    Landsharks carry candygrams.

  145. He’s a man. He’s fat. He’s old. But most of all, he’s angry.

    Angry Old Fat Man?

  146. Tribune7 wrote:

    You are a troll LOLOL.

    But you are a good one.

    Yes, indeed. It’s a shame to see all that shrewness and native ability go to waste like that. Poachy, I hope you’ll hang around and allow yourself to learn! Maybe ID has some points worth considering…

  147. Poachy

    No embarrassment. I’ve written probably a million words on this blog and when someone has to reach back years through all of that to find a mistake it’s a clear example of the exception that proves the rule. The rule being that I, like Rush Limbaugh, am right 99.7% of the time. Maybe more.

  148. 150

    yeah, and the other .2 or .3% is when your debating me dave.

  149. One troll-feeding only …
    Poachy at 144,
    The date that you signed on here has nothing to say about when you started following the subject.
    Say it does, though …
    Since and including Nov. 2007 I find one reference to Jones as an activist, and that by your fellow, Leostotch.
    His reference was an equally sarcastic jab at the supposed liberal tendencies of an activist judge.
    You didn’t get the impression from this site that everyone was calling Jones an activist.

    Almost every comment I’ve seen you issue here is a backhanded reference to an PT talking point.
    Your reference to ID as a circus with the pseudo-naive reference reference to a “big top” strategy was charming though.
    Be honest and take your banning like a man.

  150. Charlie, I doubt that poachy will be banned.

    I don’t have time to track this down, but IIRC poachy told us that he got his nickname from intruding repeatedly into his sister’s space in the back seat of the family car when they were young. No doubt his sister objected to this, but poachy always had enough deniability to avoid a reprimand. It’s part of the art of being, well, “poachy.”

    Being “outed” as a sock puppet from time to time will be helpful, though. We need to keep an eye on poachy, like his sister no doubt did.

  151. (Or “her” sister…)

  152. Here’s a question which poachy never has answered: “Poachy, are you a troll or a sock puppet?”

    TIA.

  153. Hi Lutepisc,
    I agree.
    I meant to say that the puppetry is dishonest. If somebody thinks his/her honest opinions/positions would result in a banning then behave honestly and take the consequences. If you don’t think they’re welcome then why masquerade behind a childish game?

  154. Okay . . .

    I seem to recall, some years back, a toy firm produced the GI Joe action figure.

    It checked its lawyers.

    They could not copyright the human figure [I guess big G owns that copyright . . .], and so they deliberately reversed I think it was the thumbs. [And I guess the linkage and flexing mechanisms were not non-obvious developments of the state of he art.]

    That way any actual copy would highlight itself.

    Now, let us contrast this case, best as I can see from the above:

    1 –> Stein et al have plainly shown similar but distinctly diversely presented features of the cell to the XVIVO animation, and in a context where they may well be using the same or similar off the shelf software or adaptations thereof.

    2 –> On claimed copied errors — h’mm isn’t that FSCI as a reliable sign of design PZM et al? — it seems (and I stand to be corrected) that we have a similar decision to be smoother rather than jerkier, not an error of biology per se.

    3 –> So, to my mind this looks like fair use of a source in portraying common facts in a non-academic context, leading to a presentation of an in- the- public- interest, fair comment diverse interpretation of underlying facts.

    4 –> We are also dealing with a public policy issue presented to and for the general public, and one side of a debate that is often not accessible to the general public in its usual media — academic web sites etc don’t count here. That suggests that academic rules on explicit citations don’t apply.

    5 –> Besides, they are not trying to claim the animations as academic original work, while stealing an idea [or for that matter its specific presentation] from someone else. [Can someone show that they are using actual data from the XVIVO clips, rather than developing their own animation that runs differently, as Atom highlighted?]

    6 –> Similarly, it is unlikely that XVIVO or Harvard will lose revenues from the showing of the animations in the published, commercial form of the movie — as opposed to working prototypes. [That is there is a question as to whether actual harm has been done, and/or that duties of care have been neglected. Also, I am intentionally implying that something was very wrong in how Judge Jones tried to rule based on rejected working editorial drafts in the case of Pandas and People.]

    7 –> On the other hand, there are very obvious agendas, people, institutions and movements who would benefit if Expelled or key parts of it do not see the light of day, or if it is cast under a confusing cloud of suspicion or accusation.

    8 –> In particular, there is an obvious agenda-serving interest on the same parts to minimise the graphic impact of reasonably accurate animations of the inner workings of the cell in movies and DVDs accessible through normal locations for general audiences, which would be to make the FSCI and organised complexity of the cell a matter of easily remembered, large scale public record. (This looks a lot like the general suppression of visuals on babies in the womb and what abortion does to them, by media that routinely show far more graphic and disturbing images. You CAN find the images, but they are not exactly available to a general audience. No prizes for guessing why, once you see the patterns of the politics of the relevant media houses.)

    9 –> So, so far, this looks a lot like censorship of unpopular ideas and ad hominem attacks against their presenters [sounds familiar, JK? Or do we need FtK to tell her story again?], far more than any real complaint against abuse of copyrighted materials. [Plagiarism does not even seem to be a relevant issue.]

    So, now, JK et al, where am I missing the material facts, the ethical issues that underpin tort, or the logic?

    GEM of TKI

    PS: JK, you have some pretty serious matters still to answer to as can be seen from this earlier thread, from about 117 on. I would not go to the sort of language FtK used, but the behaviour evident from the thread is a pretty serious matter. Indeed, much of the exchange in this thread and its wider context, from your side, looks a lot like:

    [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 . . .

  155. I suppose I should be honored that my poor contributions are worthy of so much of your attention, but I guess I am frustrated that I am not better at expressing my level of support for ID. And perhaps there hasn’t been alot of talk about Jones being an activist judge. Maybe I should have used the term “narcissistic putz.” Would that have been better? I guess the message I need to get is that I am not contributing much to the conversation and should crawl back under my bridge. Got it, loud and clear.

    FYI. You might want to google “Leopold Stotch”, then tell me who is the troll.

  156. frosty

    yeah, and the other .2 or .3% is when your debating me dave.

    That should be “you’re” not your. :-)

  157. 159
    IntellectualPropertyRights

    I have worked professionally in a field that involved engineering and artistic creativity. Intellectual property rights are a complicated subject in their own right and especially in a field that is highly competitive and in our world now where much is free for certain uses.

    In 3D animation production such as this, it is definitely true that in order to create the end product a series of art assets are necessary: 3D models, textures, light maps, algorithmic affects, animation data, etc. And on the science side, it is necessary to develop or use engineering solutions to render and animate your art in an environment.

    This is a highly demanding task and professionals of both sides will look to what has been done before and what is readily available for free along with developing their own content and engineering solutions. There are stock art assets available for some starting points to build from or the artist will have to start from scratch if desires depart from common objects. With cellular parts resembling somewhat basic shapes (comparitively) I imagine most art packages and assets out there could be utilized and slightly modified to meet the requirement. Likewise the many of the algorithms and the science details are open for public use in one way or another or are available in packages to purchase.

    To drive a point home that was already made, you can’t decompose someone elses video into its necessary constituent art parts (some I listed above) to resuse yourself and simplying ‘painting’ over another film would not produce high quality results. In additonal, to add what may seem like a simple thing, a new camera angle, would not be possible with only the raw video. Nor would a professional want to do these things if it were possible, since much stock art and art packages are available.

    And Denise is correct, in my background we did look to what was already done and out in the field and ways to improve on it. As long as you didn’t steal assets or implement your own in precise ways of similarity then you are fine. In life and in that field because the subject matter was the same many similarities existed thought.

    This is why the company had lawyers; for difficult cases / when grey areas arose or unintentional cases came up. I would caution though that before someone claims someone else is stealing or unethical you need to have experience in this area and know that person or company intended on stealing (in the case you are calling them unethical). As well, you have to show more than just similarity in cases like these. Since this is a complicated legal issue, it would be wise to show restraint and give benefit of the doubt until all the details can be weighed fairly.

  158. poachy wrote:

    Landsharks carry candygrams.

    No they don’t, they just tell everybody they do. Right before they bite them in half.

    DeepDesign wrote:

    He’s a man. He’s fat. He’s old. But most of all, he’s angry.
    Angry Old Fat Man?

    You rang?

  159. At 163,

    Hahaha.

  160. One of the medical illustrators responsible for The Inner Life of the Cell made a comment:

    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, which had never before been rendered anywhere in 3D! It is astonishing that among well over a dozen functional kinesins from which an animator might choose, we both chose the same configuration of kinesin, pulling the same protein-studded vesicle, on the same microtubule! Can YOU believe we coincidentally picked the same camera angles and left in the same specific structures in the background, positioned with the same composition? 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.

    (emphasis mine)

  161. As someone else pointed out, I think there is a possibility of a design inference here.

  162. I haven’t seen the Expelled video but from what’s been said here I can’t see that there is any question about independent inspiration and interpretation. I think it’s obvious that they “copied”, reproduced, or reinterpreted the images from the Harvard work.
    The question is, if they didn’t mechanically lift the work, is that copying wrong? Allen MacNeill calls it stealing, but is it?
    Don’t we hear all the time that the altered drawings of embryos in biology texts aren’t actually Haeckel’s embryos? Is every drawing of a tree of life stolen from Darwin? Somebody else mentioned atoms and DNA as other examples of interpretations that are widely copied. Sure, these are probably all public domain at this point, but in principle, I don’t see that there would be a problem.
    As another example, if you use the exact electron micrograph of the bac-flag I presume you have to credit it, but is there any limit on your rights to drawing or modeling the bac-flag based upon that digital image? I doubt it.
    The same thing happens when you cover another artist’s song. He put in all the effort of writing, arranging and producing it, and there is nothing he can do to stop you from hiring a band and recording your own, identical, version. You just have to pay him his legal mechanical or compulsory fee – which you can do after the fact and without having received permission.

  163. 165

    sparc, this from Bolinsky is interesting too:

    It makes me happy, though, that you decided to implicate your friends in print, on your blog [post 64], in what is legally, malignant infringement, since you no had doubt discussed with EXPELLED’s producers, Harvard’s previous legal infringement action against you, the Discovery Institute, where you are a fellow and Southwestern Baptist Theological Seminary, where you teach.

  164. 166
    IntellectualPropertyRights

    With what sparc said, we now have a specific example of what normally occurs in product development.

    Managers or Company’s do have an idea or actual examples of what they want the product to be. Many times they will point to other products and mention all the aspects they would like to mimic (i.e. successful features). This is especially true in highly competitive fields (e.g. film, video games, automobile, computer software). In these environments teams will analyse the problem space, many times coming up with similar ends to current products because the previous products had already well digested the problem space. This happens because while techinically everything has a large number of ways it can be done, only a few really accomplish the goal well. In addition, for fields with art involved designs become popular and subsequent designs try to adopt much of the style while adding to it in some way. Think of automobile design, one co. develops a popular design within a quick interation many other companys cars begin to share many similarities. Or for computer software, many interfaces look alike even though there are a multitude of ways graphical and functional elements may be arranged.

    Specifically in the case of film, there are only a handful of camera angles that do any scene real justice out of thousands that could be arranged during an animation sequence in 3 space. Same could be said for texturing and rendering the scene.

    This is why in product development, products become similar and when it comes to copyright and intellectual property right infringement it takes very precise similarity to flag something as potentially illegal.

  165. I was wondering when Expelled would respond (at bottom of blog post) .

    Russell (117): I was responding to a specific comment made by Andrea at 35. Following the comments here, it is obvious there is more than just scientific journals to the perceived violation of intellectual property by XVIVO.

    After soaking this all in for a day, I think it is obvious that this is part of Expelled’s “baiting” of the Darwinist establishment. Just look at how quickly P-Zed took the bait for the private screening and the conference call. Same with Dawkins. Now XVIVO has taken the bait.

    This is all one big marketing strategy by Expelled, and it has worked spectacularly. (HT to FTK for the link)

  166. I think it is obvious that this is part of Expelled’s “baiting” of the Darwinist establishment

    Please. I can’t imagine anything worse then the thought of legal action that might stop my film coming out at the very last moment. Who would knowinging invite that?
    From the article you link to

    Last week, Stein screened “Expelled” to Missouri lawmakers followed by a press conference promoting three academic freedom bills germinating there.

    This Mr Stein from the film has must claim very strong voodoo indeed! :)

  167. From what I’m reading on richard Dawkins .net it seems this page might be read out in court one day! If so, Hi Mum! Big up to the staines massive! Peckam, bo bo bo. :)

  168. Richard,

    Yes, legal action (under normal circumstances) could be bad, unless the producers knew ahead of time that any litigation wouldn’t be worth the paper it’s printed on.

    I’m not a legal expert, but I fail to see XVIVO’s claim.

  169. JJS,
    It just seems to me David Bolinsky seems angry, and then some, and he does not sound like he’s letting it go…

    I guess we’ll see.

  170. H’mm:

    I see two interesting points, and some issues:

    POINT a:

    EXPELLED sez: “Questions have been raised about the origination of some of the animation used in our movie EXPELLED: No Intelligence Allowed. Claims that we have used any animation in an unauthorized manner are simply false. Premise Media created the animation that illustrates cellular activity used in our film.”

    Point B:

    A med illustrator involved with the XVIVO sez: 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, which had never before been rendered anywhere in 3D . . .

    Now, implications:

    1 –> EXP — per specific words used — is not claiming that the general scene and situation are original, but the animation. Is the use of a similar scene of a natural entity a copyright violation — lawyers, any thoughts? What harm was done, and what duties of care were neglected or violated? [But, too, has anyone done a pixel overlay on the frameworks to see what is similar, what is different? As Chas Johnson did for Dan Rather and the TANG memo . . .]

    2 –> I am intrigued by the use of the EF by the med illustrator: he says that there is a match [to be proven!], i..e. a specification in the context of a large search space; i.e complexity. So he infers design, here design to copy.

    3 –> What does that say about the wider context here when we look at the specified complexity that is biofunctional in the cell,as the subject matter of the videos shows, then?

    4 –> Am I the only one here who sees that something is a bit odd in using the EF when it suits and disputing it on an even more sophisticated case of specified complexity when it does not?

    5 –> Why do I get the feeling that some of this “cutting it close” is deliberate, to stir up precisely this dilemma: claim copying, and you have to use the EF. Refuse to claim it and you let out a major visualisation in the public that reveals the depth of organised complexity at work in the so-called “simple” cell.

    Any thoughts?

    GEM of TKI

  171. . Is the use of a similar scene of a natural entity a copyright violation — lawyers, any thoughts?

    The analogy I’m thinking of is if it’s like you created a character called zicky mouse and he looked just like the disney version, except for the colour of his jacket and shoes. The point I’m getting is that scene left more out then it left in. That’s the impression I’m getting.

    What harm was done

    That is for Judge Judy to decide! :)

    he says that there is a match [to be proven!], i..e. a specification in the context of a large search space; i.e complexity. So he infers design, here design to copy.

    Is there a mathmatical demonstration of the use of the EF to determine that available or just the logical inferernce? What mechanism will the judge use, if it comes to that, to decide. It would be ironic if he used the EF and found them guilty! :) Jokin!

    claim copying, and you have to use the EF.

    Should be good then. I like demonstrations of the EF in everyday courtcases.

    Refuse to claim it and you let out a major visualisation in the public that reveals the depth of organised complexity at work in the so-called “simple” cell.

    I don’t know that anybody has called the cell “simple” for a while now. Where are you getting that from? These “major visualisations” are readliy availble on the video sharing sites. I guess you applaud that?

  172. 174

    Charlie asked,

    if they didn’t mechanically lift the work, is that copying wrong?

    I put some of the Copyright Act in post 142. The copyright holder has “exclusive rights… to prepare derivative works based upon the copyrighted work.” But there is a fuzzy “fair use” limitation. It leads to some questions.

    1. How much of “The Inner Life of the Cell” did the Expelled animators use? I don’t know.

    2. Does a for-profit documentary have fair use because of its similarity to news reporting? Thinking of closing credits of documentaries, I doubt it.

    3. How much will Expelled’s derivative work hurt the “potential market for or value of the copyrighted work”? The animator Bolinsky seems to say the work is of low value. It has scientific errors and is just a start. He seems worried about the effect of Expelled’s use of the work on his company. But section 107 specifies the the effect on the work itself. Section 106(a) gives authors of visual art the right to protect their “honor and reputation.” But section 101 indicates that “The Inner Life of the Cell” isn’t visual art.

    A “work of visual art” is—
    (1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or
    (2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.
    A work of visual art does not include—
    (A)
    (i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;

    (B) any work made for hire; or …

  173. 175

    The following is from “Documentary Filmmakers’ Statement of Best Practices in Fair Use.”

    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:

    * 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?

    * Was the amount and nature of material taken appropriate in light of the nature of the copyrighted work and of the use?

    Among other things, both questions address whether the use will cause excessive economic harm to the copyright owner.

    If the answers to these two questions are affirmative, a court is likely to find a use fair. Because that is true, such a use is unlikely to be challenged in the first place. Documentary films usually satisfy the “transformativeness” standard easily, because copyrighted material is typically used in a context different from that in which it originally appeared. Likewise, documentarians typically quote only short and isolated portions of copyrighted works. Thus, judges generally have honored documentarians’ claims of fair use in the rare instances where they have been challenged in court.

    The answer to the first question seems to be yes. The copyrighted material is educational. It is free to view over the internet. The answer to the second question seems to be yes… if Expelled did not lift the whole animation, anyway.

  174. “Damn the torpedoes” and roll the film! Take the hit in court if necessary. Even in the worst case, whoever really holds copyright can’t just walk away with the farm, it is such a small segment in the film.

  175. 177

    “Fair Use and Documentaries in Court” gives a summary of cases.

    http://www.centerforsocialmedi.....e_studies/

    What does the legal record tell us about fair use in documentaries? Not very much, because there have been so few cases—nine since 1996, and only five plaintiffs in total, since two plaintiffs each brought three of the cases. None of the plaintiffs have been motion picture studios or large archives. In most cases, the defendant won. Where the defendant did not win, the defendant had behaved in ways that documentarians who wrote the Documentary Filmmakers’ Statement of Best Practices in Fair Use would not approve.

    Only two decisions were against users. Here is the one closest to Expelled (but not very close).

    Elvis Presley Enters., Inc. v. Passport Video, 2003 (DECISION AGAINST USER)

    Passport Video’s 16-part video documentary on Elvis Presley’s life used much material from television appearances, music and photographs. For instance, in this clip, the extended performance scene of Elvis Presley is unrelated to the interview voiceover.

    AGAINST USER. The court ruled against the makers, most importantly because most of the uses were non-transformative. The purpose the documentary put the clips to often “serves the same intrinsic entertainment value that is protected by Plaintiff’s copyrights.” In this clip, the extended performance scene of Elvis Presley is unrelated to the interview voiceover.

  176. 178

    Helio says,

    “Damn the torpedoes” and roll the film! Take the hit in court if necessary. Even in the worst case, whoever really holds copyright can’t just walk away with the farm, it is such a small segment in the film.

    How do you know the XVIVO lawyer hasn’t threatened the theater chains? Maybe they aren’t so brave.

  177. I don’t see how a copyright dispute over the film content could bring in the theater chains.

  178. Helio,

    Showing the film makes them a party to the “crime”.

  179. Sparc

    Near as I can tell none of the stuff XVIVO mentions is protected by copyright. Copyrights exclude methods, ideas, processes, styles and a lot of other things that go into a copyrighted work. For instance, styles are protected by design patents. These protect a unique “look & feel”. Software algorithms can be patented with utility patents. You can’t protect styles and algorithms with copyrights. The only thing I can see XVIVO actually claiming is style, processes, and algorithms. If they think they can protect those with a copyright they have another think coming.

  180. But it is not a crime, it is only alleged at this point. And what if theaters don’t show Expelled because of intimidation, and the case goes to court and Expelled wins. Then Expelled could sue the theaters which had a contract to show the film, but caved-in and broke that contract under pressure from people without a case.

    I say again, “roll the film!”

  181. Allen MacNeill tells us that “…immediate legal action will be taken to stop the release of the film.”

    However, over on Dawkins’ blog (I don’t know how to do the link thingie, so take my word for this, check it out, or leave it–as you wish) there is a letter which is allegedly from David Bolinsky (the XVIVO medical illustrator who supposedly filed the suit along with the request for a preemptive injunction [IANAL, so my terminology here may be mistaken] to prevent the showing of Expelled) addressed to William Dembski, inter alia.

    In it, Mr. Bolinsky says, “So go ahead and release your movie. Just keep track of how many tickets you sell. We may just find that data valuable, too.”

    If this is indeed from Mr. Bolinsky, he is now apparently giving permission to release the movie, in spite of his earlier request that it not be released. One might argue that Mr. Bolinsky is using sarcasm in this letter. However, that is not at all clear to me, and it may not be clear to Expelled’s producers, either.

  182. DaveScot wrote:

    The only thing I can see XVIVO actually claiming is style, processes, and algorithms.

    As far as I can tell, the only claim they have would be style. You just can’t steal a computer graphics process or algorithm just by looking at the output. Even a “reverse engineering” of certain motions and materials would result in very different processes to produce and render them. To obtain an algorithm would require espionage.

  183. to Lutepisc: no one has sued anyone or filed for any injunction.

  184. 186

    They’ve got nothing on that video. It doesn’t even look hat much like the Harvard one.

  185. Thanks, Jack.

    It looks like I was (at least!) an hour behind on my post. I just now read DaveScot’s post “Bolinski…Backed Down…” which does a better job of saying “all this is moot.”

  186. If it has not been mentioned already, some here maay wish to check out PZ Myers’ revised views.

  187. Angry Old Fat Man. Now that’s a great name. Haha.

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