John Cook and University of Queensland experience at least 97% of the ‘Streisand effect’ in the Washington Post

This just in from the “I told you so” and “what the hell were they thinking?” departments, Eugene Volokh writes in The Volokh Conspiracy at the Washington Post:

Is it copyright infringement to post a lawyer’s cease-and-desist letter?

Shollenberger has indeed published the letter, in the process of responding to it (see also here). Is posting cease-and-desist letters in such a situation indeed copyright infringement? I can’t speak to Australian law on this, but here is my view of American law, which I first blogged about in 2008:

A. Letters are indeed presumptively protected by copyright. Generally speaking, pretty much anything that’s at all original (not necessarily innovative, but just the author’s own writing) and longer than several words is indeed copyrighted the moment it’s written down.

B. But this presumption can be rebutted if the person copying the work shows (among other things) that his use is a “fair use” of the work. Here’s a quick run-through of the four fair use factors, and how they apply to such uses of cease-and-desist letters:

Read it all here to find out what his opinion is on Brandon’s calling their bluff.

So the story of their ridiculous threat letter has hit the big time, legally speaking. As I said at the beginning:

Not only have they just invoked the Streisand effect, they threw some gasoline on it to boot.

Feckless bureaucrats.

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47 Responses to John Cook and University of Queensland experience at least 97% of the ‘Streisand effect’ in the Washington Post

  1. Andrew Rex says:

    I admire that the University of Queensland has an apparent lip service to “open data”.

    “This policy aims to ensure that anyone, anywhere has access to our research results,”

    Source – http://www.uq.edu.au/news/article/2014/02/uq-adopts-open-access-policy-research

    The Policy – http://ppl.app.uq.edu.au/content/4.20.08-open-access-uq-research-outputs#Policy

  2. Aphan says:

    “Access to our research results” is not the same thing as “Access to all the data from which the results were drawn”.

  3. F.A.H. says:

    The climate change refrain, sung to the tune of “Don’t Cry for me Argentina”

    Don’t cry for me Climate Science
    The truth is I never left you
    All through my wild days
    My mad existence
    I kept my promise
    I kept my data.

    And as for fortune and as for fame
    I never invited them in
    Though it seemed to the world
    They were all I desired
    They are illusions
    They’re not the solutions
    They promise to be
    The answer was here all the time
    Ninety seven percent of you love me.

  4. John Eggert says:

    I used to have a video game called Conker’s Bad Fur Day. Very amusing. One of the ‘scenes’ involved a scarecrow, covered with crows, saying “fecking crows”. So I would disagree with you Anthony. The bureaucrats are not feckless. Indeed they are very much fecking bureaucrats. . . If the mods feel the need to snip, or completely delete this, I’ll understand. It is . . . just a bit off colour!

  5. Colorado Wellington says:

    I claim copyright on this comment. I expect the WUWT filter is smart enough to not infringe on my rights and stop it from being published.

  6. ferd berple says:

    From the UofQ:

    http://guides.library.uq.edu.au/open-access
    What is Open Access?
    Open access (OA) refers to unrestricted online access to articles published in scholarly publications. Types of open access publications available online include articles, books and book chapters, conference papers, theses, working papers, data and images.

    http://www.uq.edu.au/news/article/2014/02/uq-adopts-open-access-policy-research
    “There have been several important developments in open access around the world.
    Last year the Obama administration introduced a policy in the United States requiring open access for publications and data arising from research funded by all major US research agencies.
    The European Commission has an open data and open access strategy.
    In the UK, the Wellcome Trust and Research Councils UK have implemented similar requirements for research publications arising from research they fund.
    Professor Lu said more than 175 universities throughout the world had adopted open access policies.
    “Among the Group of Eight universities, UQ and the Australian National University (ANU) have taken the lead on adopting open access policies,” he said.
    The UQ Library will administer the policy and library staff will work with unit publications officers to ensure compliance with open access requirements.”

  7. Adam says:

    The UOQ is publically funded, exists in the public eye, consists of people of pubic interest etc…, wrote a letter threatening another public person etc… it is complete BS to claim any privacy or copyright in this matter. In fact the scream “copyright” in this case is frivilous and hopefully any judge would impose a huge fine for wasting the court’s time. They might as well scream “Jaywalking” or “Murder”. Copyright is completely irrelevent to this letter. The entire idea that a university would get involved in this shows us that this university needs ot be closed down immediately. It is like no other university I have ever worked at.

  8. Eliza says:

    The only solution to this problem is to fire all the higher staff including the vice chancellor and lawyers issuing the threats and persons involved in this fiasco including Cook et al. All climate Departments or affiliates at that University etc should be closed down or defunded immediately. The Premier of Queensland should be advised forthwith.

  9. Janice says:

    Adam says: “The UOQ is publically funded, exists in the public eye, consists of people of pubic interest etc…, ”
    Adam, you missed an “L” in one of your words . . . Well, I would hope . . .

  10. Col Mosby says:

    After slogging thru about 20 of the lawyerly responses posted in the Volokh piece, I’m glad to say I don’t have to do that for a living. But I did come away with the belief that the U of Q has no case worthy of spending money for a lawyer.

    Volokh went thru the essentials, but the clearest response simply pointed out that the reason for copyright protection (to protect an author from another stealing their work and doing economic harm to the victimized) was simply not relevant in this case. Nobody is going to pay to license that cease and desist letter, or publish it for profit, etc.

  11. arthur4563 says:

    Aphan says:
    “Access to our research results” is not the same thing as Access to all the data from which the results were drawn”.
    In the case of experimental research, replication is impossible without access to al the details
    required, which means everything that was done, the data used, the statistics used,etc etc.
    “Access to results” is not what is required. “Results” are meaningless to anyone attempting to
    critique the study, which is what scientific inquiry is often all about.

  12. At some point the analysis of stupid becomes stupid itself. What is the point of copyright? To protect the “rights” of the author, which are primarily pecuniary. (Perhaps there are others such as prestige.) Its purpose is not to protect someone making a threat from hiding the details of their threat.

  13. F. Ross says:

    My legal experience being non-existent here are some observations that may mean nothing at all.
    The university says it owns the copyright but a university does NOT create or type a letter. Some person does. Who actually “owns” the copyright of the cease and desist letter ? The lawyer who dictated it; the legal firm where the lawyer works; the secretary who typed it, or the University of Queensland by whom the legal firm/lawyer/secretary were retained? . Unless this information is specified it seems to me the copyright ownership seems a bit muddy.

  14. F. Ross says:

    When a lawyer himself writes a letter for a client does he (always?) explicitly or implicitly convey copyright to his client?
    If a lawyer writes a letter conveying copyright (to a previous letter) to a client, doesn’t this create the need for an infinite series of follow up letters, each conveying copyright of the previous letter?

  15. cnxtim says:

    Patently obvious the UQ is not trying to defend the views of its most strident CAGW academics, as much as its free-wheeling grant income.

    What a pathetic situation when purportedly ‘higher’ education stoops this low.

  16. jorgekafkazar says:

    There is a certain logic, here. Intellectual property is something unique and valuable created by the putative copyright holder. Speaking hypothetically, if a university or its agents generated some non-replicable data, they might have a valid claim that it is IP: It’s certainly unique, and it’s valuable* as long as not revealed to be faulty. Under those circumstances, it might make perfect sense to keep the data out of the hands of those who simply want to find something wrong with it. It’s like Schroedinger’s Cat: opening the box kills the cat, making it worthless.

    * to the IPCC and others who may wish to employ it for their own devices.

  17. Jimbo says:

    The university needs to better manage and protect its data.

    4.20.06 Research Data Management
    ……. The University is committed to supporting long-term Research Data management to enable continuing access to Research Data……..
    …………….
    5. Ownership, Custodianship and Responsibilities

    5.1 Subject to applicable legislation and regulations and/or any separate agreements or obligations of confidence entered into by the University with third parties, including funding bodies and non-UQ research collaborators, the University asserts custodianship over Research Data for all research covered by the scope of this policy………

    6. Storage of Research Data and Records
    6.1 The University will make commercially reasonable efforts to protect Primary Materials and Research Data against theft, misuse, damage or loss. Researchers must take reasonable steps to keep Primary Materials and Research Data secure. Research Data must be held in appropriate facilities and adequately recorded in a register or index of research metadata to enable access to be managed as required.
    http://ppl.app.uq.edu.au/content/4.20.06-research-data-management

  18. bobl says:

    @Col Mosby
    I said that 3 days ago (does nobody read my posts???) If UQ took Shollenburger to court what damages would the court award, even if UQ won? The letter has no economic value, and any damage to the reputation of UQ caused by its publication comes about due to the words of the UQ legal person herself.

    I would also think that an Australian court would hold that a threat of a legal nature could not be protected by copyright because it denies the right to publish the letter necessary to defend the accusations within. In Australia we have a constitutional right to a fair trial and representation. To attempt to deny the right to duplication or display in order to act-on or defend against this accusation is a gross miscarriage of justice – the copyright could not survive that challenge.

    This was a standard intimidatory legal letter, otherwise known as an empty threat. As a Queensland Citizen I have complained loudly to the Education Minister about this, (and while I was at it, I asked him to investigate why the data was left unprotected on a third party website in clear contravention of government policy and to begin to defund this socialist nonsense)

  19. Tim Hammond says:

    Aphan says:
    “Access to our research results” is not the same thing as Access to all the data from which the results were drawn”.

    How can I attempt to replicate the results – a key part of science – if I only have access to the results?

  20. ozspeaksup says:

    Adam says:
    May 21, 2014 at 7:19 pm

    The UOQ is publically funded, exists in the public eye, consists of people of pubic interest etc…,

    Adam…I got THE best Laugh
    pubic interest indeed:-)
    the phrase circle j**k suits em.

  21. Streetcred says:

    That’s the problem with UQ … they think that their feces don’t stink; they’re so up themselves with so little quality to their endeavors that their malfeasance here would not occur to them. You have never met such a pathetic mob with such a great opinion of themselves.

  22. Adam says:

    @Janice oops! That letter makes an ‘L of a difference.

  23. philjourdan says:

    Brandon has probably destroyed any chance of getting into UQ. But then given their building reputation, I doubt many will want to matriculate there. ;-)

  24. stpaulchuck says:

    this is actually quite simple – if you want to publish a theory or claim in science, then you must show your work that others may come to the same conclusion you did. This would include input data, methods of observations, methods of analysis including formulae used, etc.

    To make this (specious) 97% claim then all research raw data must be released to those desiring to duplicate your results. If not, it’s not science and subject immediately to disdain and opprobrium and labeling as mere propaganda (which this obviously is).

  25. Pete says:

    As has been famously spoken: “Stupid is as stupid does.”

  26. Ed Zuiderwijk says:

    A “cease and desist” letter, when without merit, is an attempt at intimidation. Because the letter is sent by mail its issuence is a felony under the US mail and wire fraud act (depriving the recipient of “honest services”).

  27. Rob says:

    F Ross (9.15 or thereabouts)

    When you employ someone, you can reasonably claim that what they produce for you is “work for hire” and thus you can own the copyright of what you produce. However, when you retain a lawyer (or any other professional) it is not always clear whether what they produce falls under “work for hire”. As a consultant, my contracts explicitly address who owns the outputs, but this has to be spelled out in the contract.

    Ownership of data, results, inventions, ideas etc. really should be dealt with in people’s employment contracts because if it is not, there is confusion over who can do what with their work. For example, academics at universities pretty much always retain copyright (under their employment contracts), since they have to be able to assign this to journals when they get an article published. At most US universities, because the university has a responsibility to protect inventions (as a way to attracting investment in developing the invention into a product), employment contracts specifically state that even though you “own” your research, the university has all the rights about protecting, licensing etc. Finding out who has the right to make a deal is the biggest hurdle in technology transfer. When the “invention” is something which falls under copyright (computer programs for example) there have been some interestingly complicated legal battles.

  28. F. Ross says:

    @Rob says:
    May 22, 2014 at 7:19 am
    “…
    However, when you retain a lawyer (or any other professional) it is not always clear whether what they produce falls under “work for hire”. As a consultant, my contracts explicitly address who owns the outputs, but this has to be spelled out in the contract.
    …”

    Thanks for the partial clarification.

    Probably not, but one still wonders if it would be beneficial to Brandon Shollenberger to contest who owns the copyright to the C&D letter. Just as a sort of harassment to the U of Q if nothing else.

  29. Sun Spot says:

    @Aphan says:May 21, 2014 at 7:08 pm

    Results IS THE DATA. Aphan you are confusing results with an opinion on the data.

  30. RandyM says:

    correct me if I’m wrong, but the whole notion of even bringing a suit or attempting to claim cease and desist in this situation seems completely inapplicable? I haven’t really seen anyone touch on this, but in the event of an NDA/confidentiality agreement only the parties signed on that agreement are liable/responsible for data protection/management/losses. If one of the signed NDA parties discloses or publishes the data (like putting it on a publicly facing domain) then it’s my understanding that only the publishing party would be responsible for damages/losses.

    I suppose I could be incorrect about that, but having signed a few NDAs previously, I didn’t think any party that legally obtained data/IP that has been published could be liable for anything? So shouldn’t UoQ be going after Cook if they want to sue someone for damaging or breaching their IP/confidentiality agreements?

  31. brokenyogi says:

    I read the article and the lawyer comments, and all of their logic seems sound. But they do seem to miss the point. What the University is trying to do, essentially, is enforce a non-disclosure agreement that has not been agreed to by both parties. Copyright law cannot be used to create a unilateral non-disclosure agreement. So the letter has no binding force unless a real non-disclosure agreement had been signed by both parties previous to receiving the letter.

  32. David Schofield says:

    Brokenyogi…

    Correct, unfair contracts terms. The non disclosure term has to be agreed before the letter is opened. This can be implied, but I don’t see how in this case. A contract can only exist with consent and without duress.

  33. Taphonomic says:

    I wondered about the doctrine of “fair use” in this case. A quick consult of Wikipedia indicated that Australia does not have the same concept in copyright. Australia has “fair dealing” which is more restrictive. However, “fair dealing” does allow exceptions to copyright for “review or criticism” and
    “research or study”.

  34. TheMightyQuinn says:

    UQ: This is a university – you can’t question our talking points!

  35. “Access to our research results” is not the same thing as “Access to all the data from which the results were drawn”.

    This is tantamount to an admission that they don’t do science at University of Queensland.

  36. TonyG says:

    Next time my son’s teacher downgrades him for not showing his work in math, I think I should have him tell her that according to today’s universities, it’s no longer required….

  37. bobl says:

    Let me make something clear to those outside Australia. Australia isn’t part of the USA (but sometimes it’s hard to tell) and our law does not reflect the United States constitution – So for example Freedom of Speech is a common law right in Australia rather than a constitutional one. Australia’s constitution deals mostly with matters pertaining to the separation of Australia from the British Empire rather than as a model for her people. As recently demonstrated by the previous government Australian’s free press or freedom of expression could be legislated away in an instant. It’s a problem Australians have long had, and there are many (including me) that believe a “Bill of rights” needs to be added to the constitution. The lack of certain constitutional rights or rather the existence of them in the USA has meant that USA laws act differently to ours and copyright is one such area – the USA is a very latecomer and the constitutional rights of the USAs citizens have molded the exemptions you get. For example in the copyright act we have most of the bad stuff that aids the RIAA and Hollywood, but few of the protections of fair use that exist in the USA. Unless things have changed since I last studied the act, for example it wouldn’t be strictly legal to take a copy to backup something you legally obtained here, similarly fair dealing doesn’t extend to say format shifting although its very likely technology will overthrow that. On the other hand as I read the act copyright here isn’t a right of possession – it’s a right to Reproduce, so trying to unilaterally contract “Conditions” that say what can be done with the content you legally purchase are possibly unenforceable. Many shrink-wrapped copyright statements are probably unenforceable because of that.

    Googles recent copyrighting of an API would be unenforceable here because we have an interoperability exemption for making an interoperable product.

    (End of relevant stuff pertaining to Australian copyright – irrevevant off topic rant begins below)

    Personally I think copyright has done it’s time and it should be dispensed with entirely, patents, registered designs and trade secrets are enough – Open source has shown that it’s entirely possible to monetize goods unprotected by copyright. Hollywood could easily monetise via first showings rights, technological protection measures and merchandising rather than in having a state sanctioned legal monopoly to a market. For example does Google need Copyright to make money from its relatively trivial search engine, does it need to sue Yahoo et al to stay in business? Frankly, Rampant piracy of Windows 3 is what put Microsoft in it’s dominant position today. Where is linux today? How ’bout Unix – where is the viable market?

    The IP Market is in fact an entirely artificial market just like the CO2 market, it takes an entirely intangible and ubiquitous (frankly valueless) commodity (expression) and tries to give it some artificial value through legislated penalties – just like Cap and Trade does. Copyright needs to go as CO2 Trading needs to go.

  38. JimBob says:

    but….. the price of Popcorn!

  39. izen says:

    This is a storm in a teaspoon.
    The definitive finding from the paper is that over 97% of the authors of research investigating climate support the view that the majority of the warming in the last decades is anthropogenic.
    The secondary finding is that people reading the abstracts of papers published by those scientists where able to guess those pro-AGW views better than just ascribing the papers at random to support or reject AGW.

    The ongoing disputes about how much data is available looks more and more like an attempt to evade the definitive gold standard that >97% of publishing scientists endorse the IPCC position.

    Could anyone explain what possible information in the study methods could cast any doubt on that result ?

  40. dbstealey says:

    Izen says:

    The definitive finding from the paper is that over 97% of the authors of research investigating climate support the view that the majority of the warming in the last decades is anthropogenic… The ongoing disputes about how much data is available looks more and more like an attempt to evade the definitive gold standard that >97% of publishing scientists endorse the IPCC position.

    “Gold standard”??

    Izen, you are off the deep end. Your entirely baseless assertion has no supporting scientific evidence at all. That ridiculous “97%” nonsense has been repeatedly debunked. It is religious dogma to you, but rational folks know better. It is crazy talk, nothing more.

  41. Jim Brock says:

    Common sense tells me that UofQ knows that the Lewandowsky work is deeply flawed, or they would be happy to provide the data that backs it up.

  42. Kevin R. says:

    I’ve read that the Cook paper isn’t what is being used to say that there is a consensus but a survey done by the National Academy of Sciences.

    If anyone knows anything about this – what are they referring to? Is it something different or is it the same thing or is it something made up out of whole cloth?

  43. Dodgy Geezer says:

    …But this presumption can be rebutted if the person copying the work shows (among other things) that his use is a “fair use” of the work…

    I don’t think the copyright can be ‘rebutted’. It exists. The point is, what is its legal effect?

    As Will Nitschke says earlier, copyright is primarily concerned with commerce and trading – money. If a letter contains a phrase which becomes financialy valuable – a catch-phrase which can be printed on T-shirts, for example – the original writer can control the commercial use of the phrase. Charging royalties for each shirt printed, for example.

    But there is no commercial process going on here. The original writer is trying to lever copyright to suppress free and fair coment – not to avoid paying a creative person a fair rate for their work. All courts would immediately throw out this copyright claim.

    But of course, that isn’t the point. The point is that you can sue anyone, for almost any reason. I could sue Anthony for damages, claiming I dropped a cup of hot coffee in my lap when I laughed as I read one of his pieces. I would lose, of course. But the threat of being sued is intended to frighten your opponent into withdrawing because of the associated costs and work….

  44. Dodgy Geezer says:

    bobl says:

    Open source has shown that it’s entirely possible to monetize goods unprotected by copyright. ..

    Er… Open Source and other ‘open’ products are HEAVILY protected by copyright. It’s just a different kind of copyright – often referred to as ‘copywrong’. Google ‘Creative Commons’ for a fuller explanation …

  45. I would like an attempt to evade the definitive gold standard that >97% of publishing scientists endorse the IPCC position.

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