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Dr. Root-Bernstein: Reply to Aimee Cluo (21 August 2011) (1602 查看)

November 09, 2012 08:20AM
21 August 2011


Dear Aimee Cluo,

Actions, as always, speak louder than words. You claim to be just a student trying to learn, yet you accept nothing I say as valid and ignore the counter-examples that I give to your points. You claim to have no ties to anyone involved in this controversy, yet you always attack my points and never make any criticisms of Dr. Fang’s position. You have never asked Dr. Fang to reveal his definitions of plagiarism or copyright infringement. You have never used his blog posts to evaluate whether he might be using a double standard in pretending that there is no problem with the material he has borrowed from me. You never examine my case against Dr. Fang and as HIM to respond to problematic issues. So please do not continue to insult my intelligence by pretending to be just an objective and naïve observer. You aren’t.

That said, I will attempt once more to address some of your key points, invalid as I believe them to be, because other people may learn something useful from our dialogue, even if you don’t.

No, I do not agree that plagiarism and copyright infringement are absolutely distinct. I already gave you multiple examples of instances where they are not. Until you can demonstrate to me that my examples are invalid (which is impossible, because they involve real cases), I will continue to maintain that plagiarism and copyright infringement can, and often are, overlapping concepts administratively, legally and ethically.

Secondly, you, yourself, have played a not quite legitimate game in quoting US copyright law because you do not indicate which sentences are from the law and which are your commentaries upon them. Did you really think no one would notice? Do you really think this is an honest approach to debate and learning? I don’t!

As to fair use, you fail to understand (or perhaps don’t want to understand; or perhaps hope to confuse everyone about) several important points. Fair use does not grant a person such as Dr. Fang the right to use someone else’s work just because he has a non-profit educational corporation. The passages you cite from US copyright law say that these factors will be taken into account by the courts in deciding whether fair use is applicable to mitigating copyright infringement. The law also says very explicitly that one person may not profit from the sale of another person’s copyrighted works. Both parts of the law must be applied to any given case. Let me give you three examples (which you will probably refuse to understand once again – but I will try!).

Fair use permits me, at my expense, to make copies of a scientific article and distribute it to a class so that we can have an educational discussion about it. In this case, I do not profit from the distribution of the work and, in the case of academic articles, it is very unlikely that I impair the profit of the journal that published the article because the students could not afford a subscription to the journal anyway.

Fair use does NOT permit me to make copies of a scientific textbook chapter and hand them out to the class so that we can have an educational discussion about it because in this case, I am directly interfering with the ability of textbook publisher to sell copies of the book to these students, who are the primary consumer of the textbook. Even though I personally do not profit, I have harmed the ability of the textbook publisher to profit and many legal cases have decided that this is clearly copyright infringement not covered by fair use.

I also cannot as a professor at a non-profit educational institution, under fair use, make copies of a scientific article and SELL them to students so that we can have an educational discussion because in that case I PROFIT from the work of another individual without compensating them.

These distinctions concerning how fair use is actually realized IN RELATION TO COPYRIGHT PROTECTION OF PROFIT in individual cases is relevant because Dr. Fang is PAID a salary by his non-profit corporation and SELLS his essays and books in order to obtain the money to be paid. Whether or not Dr. Fang’s corporation makes money or not, he does. I know of no legal case involving copyright infringement where courts have ruled that it is permissible for an individual within a non-profit corporation to profit by the sale of someone else’s work. If you can find such a case, please bring it to my attention!

So does Dr.Fang have the right to use my work under fair use clauses of US and international copyright law? In my opinion, no. He sells his work and is paid to do so. And given that Dr. Fang and one of his supporters have agreed that a substantial portion (as much as 50 to 60%) of his essay is derived from my article (see accompanying letter to Dr. Fang), I believe the problem of just how much of someone else’s work one may borrow, with or without attribution, is still germane to our discussion.

Finally, let me address an issue you raised in an earlier letter that is also germane at this point. Why don’t I just accuse Dr. Fang of copyright infringement and let the lawyers decide? Good question. The answer is simply that I am not interested in profiting by this controversy. My goal is educational, as I have said from the outset. I do believe that the ethical issue of what constitutes plagiarism and/or copyright infringement – and more broadly, high academic standards, whether of scholarship or popularization – is an international issue of great importance that deserves discussion by as many people as possible. Dr. Fang, if he really cares about preventing fraud, should be happy to participate in these discussions, helping to educate everyone about the standards that should be used in determining fraudulent activities. After all, the more people know about what fraud is, how to recognize it, and how to prevent it, the better off we all are. Isn’t this what Dr. Fang has been claiming all these years? So why is Dr. Fang refusing to participate in this debate? And why are you not taking him to task for his absence from it?

Quoting Aimee Cluo <aimeecluo@gmail.com>:

> Dear Professor Root-Bernstein:
>
>
> When you wrote your last email to me with "copy anything I write and claim
> it as their own", in which you mentioned two essential elements, and I
> suppose that means you have finally agreed with me on the following:
>
>
> (1) There are two necessary conditions in the definition of "Plagiarize",
> i.e., (a) to use another person's idea or a part of their work, and (b) to
> pretend or claim as his own.
>
> (2) Plagiarism and copyright infringement are two fundamentally different
> concepts
>
>
> There are at least several conceptual mistakes you have made in your open
> letters that are now widely published in China by your authorized
> people. Chinese
> lawyer [ref1] and professors [ref2] are now commenting on the errors you
> made in your open letters and your emails that have been published by your
> allies.
>
>
> **
>
> Now what concerns me is that you also have misunderstanding about the nature
> and the difference between dramatic or artistic work and scientific
> publication in the context of copyright law.
>
> * *
>
> I wish to provide with you the following. You can find the references I am
> providing for you to check the accuracy.
>
>
>
> * I. § 107. Limitations on exclusive rights: Fair Use** *
>
> Notwithstanding the provisions of sections
> 106<[www.copyright.gov]
> 106A, <[www.copyright.gov]; 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.
>
> *
> *
>
> * II. What Works Are Not Protected by Copyright Law? *
>
> Copyright protects original works of authorship including literary,
> dramatic, musical, and artistic works, such as poetry, novels, movies,
> songs, computer software, and architecture.
>
> Copyright does not protect facts, ideas, systems, or methods of operation,
> although it may protect the way these things are expressed.
>
> In no case does copyright protection for an original work of authorship
> extend to any idea, facts, 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.
>
> * III. Interpretations of The Four Factors of Fair Use by
> legal professionals*
>
> 1. The purpose and character of the use, including whether such use is of a
> commercial nature or is for nonprofit educational purposes;
> *
> *This factor generally weighs in favor of fair use for nonprofit educational
> uses as opposed to commercial uses.
>
> 2. The nature of the copyrighted work;
>
> This factor generally weighs in favor of fair use if the work to be used is
> factual in nature (scholarly, technical, scientific) rather than works
> involving more creative expression such as plays, poems, fictional works,
> photographs, paintings and such
>
> 3. The amount and substantiality of the portion used in relation to the
> copyrighted work as a whole;
>
> The copyright statute itself does not give numbers or percentages. There is
> no number of words, lines, or notes that the US copyright law has
> specified. The
> analysis of the amount copied factor is different depending on the first
> factor (purpose of the copy) and second factor (nature of the original).
>
> 4. The effect upon the potential market for or value of the copyrighted
> work.
>
> This factor considers the extent of harm the copies actually have on the
> artist's or author's market.*
> *
>
> * IV. Why Scientific Work Is Treated Differently by Copyright Law?
> *
>
> To a large extent, scientific publishing is a closed system. Researchers
> write for other researchers. The overwhelming majority of the articles in
> scientific journals are published by the staff of research and educational
> institutions, as part of their ordinary obligations to their employer.
>
>
> Scientific publishing is a publicly funded system for the dissemination of
> scientific information, in which publishers play the role of intermediary,
> and authors normally have no royalty interests. This area of publishing has
> a very special function which distinguishes it from traditional publishing
> activities, in the following ways:
>
>
> While the number of works published is enormous, each article, report, etc.
> has a very low frequency of use. Even in highly prestigious scientific
> journals, each article is read by a very small number of people.
>
> The literature on most subjects quickly becomes outdated. Fifty per cent of
> the demand for literature on technical and science subjects concerns works
> that are less than two years old.
>
>
> Generating income is not the primary objective of scientific publishing.
> Authors do not normally receive remuneration when their scientific articles
> are published. On the contrary, in some instances they must pay a fee to
> have their work published.
>
>
> The reporting of research activity is an integral part of researchers' or
> teachers' obligations towards the institutions that employ them. Employers
> normally have no interest in collecting royalties for the publishing
> activities of their researchers. Their main interest is to have an efficient
> system for the exchange of information.
>
>
> Any commercial interests that may be related to scientific publications
> concern the commercialization of products and processes, rather than the
> sale of periodicals or research reports.
>
> *
> *
>
> * V. An Example*
>
>
> Christopher Gan provided the following:
>
>
> However, we notified Dr. Fang that the PNAS policy allows for free
> educational use if the work is cited, and that citations should be included
> in *all* publications, domestic and international, based on this policy.
> "....**
>
>
> PNAS policy for educational use is a good example of the fair use.
>
> Please check the copyright law for educational purpose, and for the purpose
> of knowledge dissemination, etc..
>
> *
> *
>
> * VI. A final Suggestion*
>
>
> To find the relevant and correct concepts of plagiarism and copyright
> infringement first before you discuss any details of facts and evidences. I
> have not discussed with you any facts and evidences yet which I suspect you
> might have also made mistakes.
>
>
>
> Sincerely,
>
> Aimee Cluo
>
>
>
> References
>
> [tieba.baidu.com]
>
> [learning.sohu.com]
>
> [www.copyright.gov]
> [www.copyright.gov]
> [www.bitlaw.com]
>
> [publishing.wsu.edu])
> [webcache.googleusercontent.com]
>
> Ole Bronmo (Deputy Director): Copyright Legislation, Fair Use and the
> Efficient Dissemination of Scientific Knowledge
>
>
>
> On Wed, Aug 10, 2011 at 5:20 PM, <rootbern@msu.edu> wrote:
>
>> Dear Aimee Cluo,
>>
>> Now we are getting down to business!
>>
>> Please explain to me how Dr. Fang's use of my work is "fair"? Under fair
>> use, he has the right to photocopy, translate, or summarize my article for
>> his personal use; I know of no case in which it is considered legitimate
>> "fair use" to reproduce a copyrighted work, translate it, or summarize it
>> for the use of other people, which is precisely what Dr. Fang has done with
>> my work by posting it on his website and reproducing the essay in his books.
>> In addition, it is my understanding that Dr. Fang makes his living from his
>> website and books and therefore that he is not using my material for a
>> non-profit or educational purpose, but for profit.
>>
>> Second, while it is true that various organizations such as the National
>> Academy, have provided their own versions of what constitute scientific
>> fraud, none of these directives replace or override copyright law. In any
>> case, I have not charged Dr. Fang with scientific fraud; I have charged him
>> with plagiarism and copyright infringement. I don't see how the National
>> Academy guidelines are relevant.
>>
>> Third, there are, in fact, guidelines, at least in the publishing industry,
>> about how many words may be used. I have written many book reviews and have
>> been warned many times by editors not to quote more than a certain amount of
>> a text. This is also something that editors in the US check when one
>> publishes a popular article in a magazine; and it is something that editors
>> check when editing scholarly books. Whether it is law or not, it is common
>> practice. In any case, I'm tired of the issue of 200 words -- everyone who
>> has addressed this issue has failed to address the rest of the paragraph
>> which is about limiting the percentage of material utilized. Since all but
>> a handful of examples of Dr. Fang's essay are directly from my article, I am
>> charging that Dr. Fang's article is essentially 90% (or somewhere around
>> that percentage) my work.
>>
>> Finally, I am not a constitutional lawyer, but I sincerely doubt that your
>> reading of the clause in the constitution can possibly be correct or it
>> would be impossible for any academic to ever copyright (or to enforce
>> copyright) on any of his or her work. Please think carefully about what you
>> are arguing here, because the logical conclusion is that you do not believe
>> in copyrighting anything that might be of educational value or which might
>> be used for the pubic good. That would mean anyone could copy anything I
>> write and claim it as their own without any legal or moral protections. Is
>> this really what you want to argue?
>>
>> Sincerely,
>>
>> Bob Root-Bernstein
>>
>>
>>
>>
>>
>> Quoting Aimee Cluo <aimeecluo@gmail.com>:
>>
>> > Dear Professor Root-Bernstein:
>> >
>> > I believe LCDR Feng was trying to give you an hint that under certain
>> > conditions, one may copy a copyrighted work without the permission from
>> the
>> > copyright owner, such as works for research and educational purposes. One
>> of
>> > these limitations on the rights granted to the copyright holder is called
>> > "fair use" (US Copyright law section 107) (
>> > [www.copyright.gov]). A more restricted
>> version
>> > called "fair dealing" generally applies outside the United States.
>> >
>> > There are three other important legal points which you may know already:
>> >
>> > (1) Scientific research papers are very different from plays, movies,
>> etc.,
>> > under US copyright law. The National Acadmy of Science and National
>> Academy
>> > of Engineering have formed a "Committee on Science, Engineering, and
>> Public
>> > Policy", and has published a guide that provides an overview of
>> professional
>> > standards in research in 2009. You can find clear definitions of
>> plagiarism,
>> > research misconduct, etc. For example, this policy guide says:
>> >
>> > "Someone can make fair use of copyrighted material for nonprofit uses,
>> such
>> > as research or education, but they cannot use the material in a way that
>> > would reduce its market value".
>> >
>> >
>> > (2) In one of your letters you said: “One may copy only up to about 200
>> > words". This is not correct. There is no number of words, lines, or notes
>> > that the US copyright law has specified. Important questions a court may
>> ask
>> > you would be:
>> >
>> > *Is it a for profit competitor or not? **Does this use hurt or help the
>> > original author's ability to sell it? *
>> >
>> > (3) The U.S. Constitution's copyright clause (US Constitution, Article 1
>> > section 8) allows a work to be copied in the public interest to "promote
>> the
>> > Progress of Science and useful Arts" without the permission of the
>> > copyright holder. Since the primary purpose of copyright is to foster the
>> > dissemination of knowledge rather than to protect the property rights of
>> the
>> > creator.
>> >
>> >
>> > Sincerely,
>> >
>> > Aimee Cluo
>> >
>> >
>> >
>> > On Wed, Aug 10, 2011 at 10:46 AM, <rootbern@msu.edu> wrote:
>> >
>> >> Dear LCDR Feng,
>> >>
>> >> Thank you for your comments. I do realize how different Chinese and
>> >> English are, which is one reason that I am trying to treat this
>> controversy
>> >> as an educational one. Copyright laws written in one country are
>> obviously
>> >> going to be difficult to apply in another when languages differ so
>> >> fundamentally. So one of the questions we must answer is how to evaluate
>> the
>> >> extent of the material that one can use from a copyrighted writing in
>> one
>> >> language when it is translated into another. That is why I also
>> suggested
>> >> that a percentage basis might make sense. But perhaps there are problems
>> >> with percentages, too. If you have any positive suggestions, I look
>> forward
>> >> to hearing them.
>> >>
>> >> As for the advice, it derives from many conversations with many people
>> over
>> >> many years and observing what happens to people who act in one way or
>> the
>> >> other. I do not know that anyone has written it down previously, so I
>> can't
>> >> cite you a reference other than experience. If you are implying that my
>> >> advice is copyrighted by someone else somewhere (which seems to be the
>> point
>> >> of your letter), rather than implying that I am fraudulently presenting
>> my
>> >> ideas as original to myself, I'd ask you to find me a copyrighted
>> written
>> >> source that presents my advice in just the way I did. Otherwise, I'll
>> treat
>> >> your message as a joke, which is what I hope you intended.
>> >>
>> >> SIncerely, Bob Root-Bernstein
>> >>
>> >>
>> >>
>> >> Quoting Xuesheng Feng <fengx2002@gmail.com>:
>> >>
>> >> > Dear Dr. Robert Root-Bernstein,
>> >> >
>> >> > I just read your recent open letters to Dr. Shi-Min Fang online and
>> >> > want to drop a line to express my opinion.
>> >> >
>> >> > In the letters, you state “One may copy only up to about 200 words,
>> >> > which must be placed in quotation marks and attributed to the original
>> >> > author……” Are you just ignorant? Chinese and English are totally
>> >> > different: one English word can represent several Chinese words or
>> >> > vice versa. Online blog is more likely to be chat than any types of
>> >> > formal paper. It would be ridiculous or very idiot to list reference.
>> >> >
>> >> > By the way, where did you get these advices or ideas - "it never hurts
>> >> > you to credit everyone who might have contributed to your own ideas;
>> >> > it always hurts you to leave anyone out. It never hurts to obtain
>> >> > copyright permission, even if you may not need it; but it always hurts
>> >> > to try to get away without obtaining that permission". They are very
>> >> > educational and should get credit/permission with your argument.
>> >> >
>> >> > Thanks and looking forward to hearing from you soon.
>> >> >
>> >> > LCDR FENG
>> >> >
>> >>
>> >>
>> >>
>> >> Robert Root-Bernstein, Ph. D.
>> >> Professor of Physiology
>> >> 2174 Biomedical and Physical Sciences Building
>> >> Michigan State University
>> >> East Lansing, MI 48824 USA
>> >> rootbern@msu.edu
>> >> office phone: 517-884-5039
>> >> webpage: [www.msu.edu]
>> >> blog page: [www.psychologytoday.com]
>> >>
>> >
>>
>>
>>
>> Robert Root-Bernstein, Ph. D.
>> Professor of Physiology
>> 2174 Biomedical and Physical Sciences Building
>> Michigan State University
>> East Lansing, MI 48824 USA
>> rootbern@msu.edu
>> office phone: 517-884-5039
>> webpage: [www.msu.edu]
>> blog page: [www.psychologytoday.com]
>>
>

Robert Root-Bernstein, Ph. D.
Professor of Physiology
2174 Biomedical and Physical Sciences Building
Michigan State University
East Lansing, MI 48824 USA
rootbern@msu.edu
office phone: 517-884-5039
webpage: [www.msu.edu]
blog page: [www.psychologytoday.com]
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Dr. Root-Bernstein: Reply to Aimee Cluo (21 August 2011) (1602 查看)

亦明 November 09, 2012 08:20AM



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