Re: [Wikimedia-l] Copyright on Xrays

2012-08-24 Thread Anthony
On Thu, Aug 23, 2012 at 8:44 PM,  birgitte...@yahoo.com wrote:
 On Aug 23, 2012, at 8:05 AM, Anthony wikim...@inbox.org wrote:
 On the other hand, if probably no one will sue is good enough for
 you, then you really don't need to ask the legal question in the first
 place.

 That is not at all what I said, but you are quite good at striking down an 
 argument which I did not make
 and do not support!

It was an argument that I made and which I do support.  I'm not going
to make a detailed legal analysis every time I copy or distribute
something.  If it isn't obviously infringing, and if probably no one
will sue, sometimes that's good enough.  Other times it isn't.  For
example, I've never done a detailed legal analysis of what the limits
are (if any) to quoting people in an email sent to a mailing list.  It
isn't obviously infringing, and probably no one will sue, so that's
good enough.  On the other hand, if I were going to run a business
redistributing mailing list emails, I'd pay for or do some legal
analysis first.

By you I wasn't referring to you in particular, I was referring to
anyone considering the matter.  Sorry if I was confusing by using the
word you.

 Since there is so little left of what I said, I will rephrase: Diagnostic 
 images are not copyrighted and there
 are lots of interchangeable images that are equally not copyrighted.

Right, you've pretty much already said that.  I have no idea how
you're defining diagnostic images such that this is true, though.
And I've pretty much already said that.

 And many others were designed, like the X-ray image, to objectively
 depict reality.

 _

 Yes there are many such images.

 These types of images are called utilitarian images.

 Which is what prompted me to write about how copyright hangs upon aesthetic 
 choices.

So when a photojournalist takes a picture to objectively depict
reality, it's a utilitarian image?

 In hopes that it would help people understand why images lacking aesthetic 
 choices also lack copyright.

I don't make aesthetic choices when I write backend server software.
But my software is copyrighted.

Maybe this wasn't the intent of the legislators when they codified US
copyright law.  I'm personally of the opinion that software probably
should have been protected by patents rather than copyright.  But the
de facto state of the law is almost the opposite of this - that
software is copyrighted, and maybe patented.

 So anyways . . . I know it's the internet and all . . . where men are 
 compelled to put on displays of
 rhetorical prowess as though they were peacocks . . . but please  . . . for 
 the children and all that . . . Can
 we try to avoid picking out the weakest snippets of writing for rhetorical 
 displays and instead focus on the
 heart of the positions to explore the issue in way that allows us to both 
 improve our understandings?

I'd appreciate if you wouldn't make such sexist comments, and if you
wouldn't impute on me such motives.

I think you're abusing the terms art and aesthetic.

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-24 Thread Anthony
On Thu, Aug 23, 2012 at 8:44 PM,  birgitte...@yahoo.com wrote:
 On Aug 23, 2012, at 8:05 AM, Anthony wikim...@inbox.org wrote:
 And many others were designed, like the X-ray image, to objectively
 depict reality.

 _

 Yes there are many such images.

 These types of images are called utilitarian images.

By the way, who calls them this?  I tried to look up the term
utilitarian image and couldn't find much of anything.

I've heard of the term utilitarian object.  But never utilitarian image.

At this point I'm starting to doubt whether or not Meshwerks even applies.

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-24 Thread Anthony
On Fri, Aug 24, 2012 at 9:59 AM, Anthony wikim...@inbox.org wrote:
 At this point I'm starting to doubt whether or not Meshwerks even applies.

Heh, I'm reading Meshwerks (which I believe can be easily
distinguished from X-ray images for many reasons, not the least of
which is that it wasn't about a photograph, but about digital
wire-frame computer models), and I came across this gem:

In addition, the work must possesses at least some minimal degree of
creativity, Feist, 499 U.S. at 345; see also William F. Patry, Patry
on Copyright § 3:27 (both independent creation and a minimal degree
of creativity are required), though this is not to say that to count
as containing a minimal degree of creativity a work must have
aesthetic merit in the minds of judges (arguably not always the most
artistically discerning lot).

There's also this:

But what can be said, at least based on received copyright doctrine,
to distinguish an independent creation from a copy? And how might that
doctrine apply in an age of virtual worlds and digital media that seek
to mimic the real world, but often do so in ways that undoubtedly
qualify as (highly) original?

which pretty much directly counters the claim that an image made to
objectively depict reality is not copyrightable.

Here's another distinguishing feature of Meshwerks, from Meshwerks
itself:  the facts in this case unambiguously show that Meshwerks did
not make any decisions regarding lighting, shading, the background in
front of which a vehicle would be posed, the angle at which to pose
it, or the like -- in short, its models reflect none of the decisions
that can make depictions of things or facts in the world, whether
Oscar Wilde or a Toyota Camry, new expressions subject to copyright
protection

Meshwerks is not applicable case law.  I based my earlier comment
about it on the summary at
https://open.umich.edu/wiki/Casebook#Radiograph_.28X-Ray.29 , which I
have now found is not what the case actually says.  I thought that
there is no copyright protection when the purpose is to faithfully
represent the underlying object was a quote from the case.  It isn't,
and in fact the case doesn't say that at all.

I very much appreciate that people making copyright decisions in the
wikis may be using this list as a tool for making those decisions.
That's why I think it is important to point out flaws in the reasoning
of posts made here, even if I do agree with their ultimate conclusion.

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[Wikimedia-l] Copyright on Xrays

2012-08-24 Thread James Heilman
X rays are never created with the primary purpose of publication in mind.
That would be unethical (especially as X rays can cause harm). They are
created with the primary intent of helping patients. Interesting ones are
than collected after the fact and published by people involved in the
persons care. After all identifying information is removed concerns of
patient confidentiality are no longer an issue (we have both publications
on ethics and the advice of legal counsel here in Canada to support this
concern thus do not need to discuss it further).

James Heilman

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 Today's Topics:

1. Re: Copyright on Xrays (birgitte...@yahoo.com)
2. Re: Copyright on Xrays (birgitte...@yahoo.com)
3. Re: Copyright on Xrays (Anthony)
4. Re: Copyright on Xrays (Anthony)
5. Re: Copyright on Xrays (Anthony)
6. Re: Copyright on Xrays (Anthony)
7. Re: Travel Guide RFC closing in 3,2,... (James Heilman)


 --

 Message: 1
 Date: Thu, 23 Aug 2012 07:20:59 -0500
 From: birgitte...@yahoo.com
 To: Wikimedia Mailing List wikimedia-l@lists.wikimedia.org
 Subject: Re: [Wikimedia-l] Copyright on Xrays
 Message-ID: 67becce0-3a2c-4f4c-88c4-e1d38d0ff...@yahoo.com
 Content-Type: text/plain;   charset=us-ascii





 On Aug 22, 2012, at 9:22 AM, Anthony wikim...@inbox.org wrote:

  On Wed, Aug 22, 2012 at 9:14 AM,  birgitte...@yahoo.com wrote:
  I really doubt non-artistic works are copyrighted as a general rule
 anywhere
 
  I'm not sure what you mean by non-artistic, but if you mean purely
  utilitarian, as that term is interpreted by the court, then this is a
  good point.
 
  I was going to suggest UK, but a quick search suggests that you
  *can't* copyright purely utilitarian works in the UK.
 
  (I wouldn't use the term non-artistic though.  There are plenty of
  works that are copyrighted in the US and all over that I wouldn't
  consider art, and while an argument could be made that such works
  shouldn't be copyrightable, court precedent is clearly adverse to that
  argument.),

 I believe artistic/non-artistic is accurate for images. Technically it is
 artistic, literary, dramatic, or musical works. The rules can change a bit
 as you change mediums, so when we are talking about an image I am talking
 about copyright wrt to images.

 
  Now clearly being able to judge that X is a utilitarian work is the
 more normal problem with
  this argument and why it is seldom used. Diagnostic images are one of
 the few clear-cut
  situations.
 
  How do you distinguish whether or not it is a diagnostic image, and
  what makes it clear-cut?
 
  Even using the term utilitarian rather than artistic I can still
  come up with a large number of examples of things which seem pretty
  clear-cut as utilitarian to me, but yet which receive copyright
  protection.  gzip, for instance.

 I actually expanded on this at the end of my last email. If that doesn't
 clarify, ask again and explain what gzip is.
 
  And even if it is only the US, other countries would not recognize
 copyright on diagnostic
  images created in the US, which gives us at least the NASA situation.
 
  Do you have a citation for this?  Also, is it where the image is
  created, or where it is first published, or something else?
 
 Copyright, internationally, is bilateral agreements. If it is not
 protected in the US, it cannot demand bilateral protection elsewhere.  It
 would be based on the jurisdiction of creation.  Publication has had
 nothing to do with the creation of copyright since the 1970's as far as I
 am aware.  Before 1976, in the US, place of publication was significant for
 determining copyright protection because of the notice requirement. Now
 copyright is automatic at fixation.

 Birgitte SB


 --

 Message: 2
 Date: Thu, 23 Aug 2012 07:34:14 -0500
 From: birgitte...@yahoo.com
 To: Wikimedia Mailing List wikimedia-l@lists.wikimedia.org
 Subject: Re: [Wikimedia-l] Copyright on Xrays
 Message-ID: c73b3cfb-5d65-48a4-95ce-80fb3e516...@yahoo.com
 Content-Type: text/plain;   charset=us-ascii





 On Aug 22, 2012, at 4:41 PM, Anthony wikim...@inbox.org wrote:

  On Wed, Aug 22, 2012 at 4:15 PM, Todd Allen toddmal...@gmail.com
 wrote:
  On Wed, Aug 22, 2012 at 1:54 PM, Anthony wikim...@inbox.org wrote:
  On Wed, Aug 22, 2012 at 2:47 PM, Thomas

Re: [Wikimedia-l] Copyright on Xrays

2012-08-23 Thread Birgitte_sb




On Aug 22, 2012, at 9:31 AM, Anthony wikim...@inbox.org wrote:

 On Wed, Aug 22, 2012 at 10:22 AM, Anthony wikim...@inbox.org wrote:
 On Wed, Aug 22, 2012 at 9:14 AM,  birgitte...@yahoo.com wrote:
 Now clearly being able to judge that X is a utilitarian work is the more 
 normal problem with
 this argument and why it is seldom used. Diagnostic images are one of the 
 few clear-cut
 situations.
 
 How do you distinguish whether or not it is a diagnostic image, and
 what makes it clear-cut?
 
 If you define diagnostic image as an image created solely for the
 purpose of making a diagnosis, then I suppose you've got a clear-cut
 utilitarian work.  On the other hand, this wouldn't include an X-ray
 which was made by someone who knew the X-ray was going to be used in a
 medical book.
 
 

If any such images exist where the technician knew to aim for something more 
than a mere depiction, I would agree that things become more questionable. if 
the technician is actually credited by the textbook I personally would find a 
different image to use, because why bother about it? But just the fact that the 
technician knew something might it be used in a larger work (x-rays don't have 
preview), wouldn't flip the copyright switch all by itself. Presumably the 
textbook in question is for instructing someone on how to interpret a 
diagnostic image. Presumably an actual diagnostic image would be selected for 
inclusion in such a textbook.  Now if a technician, while working to create 
diagnostic images, aimed to create an image that might *also* be displayed in 
an art gallery, then I wouldn't include that image in my general conclusion. 
But the image has to stand on its own; either was never copyrightable wherever 
it might be used, or it has always been copyrighted since the moment it was 
created until the copyright is waived or expires.

To reword what I said before the vast majority of X-ray images in existence are 
diagnostic images. There is no reason at all to purposefully search out X-rays 
that might land in some grey area.  If something makes a particular X-ray 
really stand out from the vast majority, something about that makes an editor 
want to use *that* one instead picking another from the mountain on diagnostic 
images. I would suspect that in such a case the uncopyrightable conclusion 
would be less certain than it is for the vast majority. We are never going to 
be able to actually determine the copyright on every single image uploaded. 
Never. Not even with infinite resources. The unknowable category wrt copyright 
is significant. It is just tiny subset of all works existing, but not so tiny 
that you will fail to come across it now and again. If an image is borderline 
and easily substituted; please refrain from wasting the communities' time and 
energy on it.  Substitute it with an equivalent image with superior provenance. 

Rule of thumb (that I haven't thought about very long and may later disagree 
with): If a specific image truly is uncopyrightable as a utilitarian image, 
then it should be very easy to replace with another equivalent image. If a 
specific image doesn't seem to have any *possible* equivalents, it probably 
isn't a utilitarian image.

Another rule of thumb: Most images, whatever they depict, are also *designed* 
to be pleasing to human aesthetics. That is usually the part that creates the 
copyright, the choices that are made to produce a certain aesthetic. When an 
image is designed without any consideration for aesthetics at all (i.e. an arm 
is placed on a plane and arranged at a certain angle in order to best diagnose 
any possible damage to the elbow joint), then it is a very good candidate to be 
considered a utilitarian image. Consider any stock story with a comic and a 
tragic version, consider all the reinterpretations that have been done of 
Shakespeare's plays. The new derivative is copyrighted on the weight of the 
aesthetic choices. Not idea of boy meets girl. Copyright is about how something 
is expressed.  The harder it is to express the same information with different 
aesthetics, whether it is the phone numbers for businesses in a list or the 
soundness of a joint on an image, the harder it is to attach copyright to any 
particular expression of this information.

Birgitte SB
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Re: [Wikimedia-l] Copyright on Xrays

2012-08-23 Thread Birgitte_sb




On Aug 22, 2012, at 9:22 AM, Anthony wikim...@inbox.org wrote:

 On Wed, Aug 22, 2012 at 9:14 AM,  birgitte...@yahoo.com wrote:
 I really doubt non-artistic works are copyrighted as a general rule anywhere
 
 I'm not sure what you mean by non-artistic, but if you mean purely
 utilitarian, as that term is interpreted by the court, then this is a
 good point.
 
 I was going to suggest UK, but a quick search suggests that you
 *can't* copyright purely utilitarian works in the UK.
 
 (I wouldn't use the term non-artistic though.  There are plenty of
 works that are copyrighted in the US and all over that I wouldn't
 consider art, and while an argument could be made that such works
 shouldn't be copyrightable, court precedent is clearly adverse to that
 argument.),  

I believe artistic/non-artistic is accurate for images. Technically it is 
artistic, literary, dramatic, or musical works. The rules can change a bit as 
you change mediums, so when we are talking about an image I am talking about 
copyright wrt to images.
 
 
 Now clearly being able to judge that X is a utilitarian work is the more 
 normal problem with
 this argument and why it is seldom used. Diagnostic images are one of the 
 few clear-cut
 situations.
 
 How do you distinguish whether or not it is a diagnostic image, and
 what makes it clear-cut?
 
 Even using the term utilitarian rather than artistic I can still
 come up with a large number of examples of things which seem pretty
 clear-cut as utilitarian to me, but yet which receive copyright
 protection.  gzip, for instance.

I actually expanded on this at the end of my last email. If that doesn't 
clarify, ask again and explain what gzip is.
 
 And even if it is only the US, other countries would not recognize copyright 
 on diagnostic
 images created in the US, which gives us at least the NASA situation.
 
 Do you have a citation for this?  Also, is it where the image is
 created, or where it is first published, or something else?
 
Copyright, internationally, is bilateral agreements. If it is not protected in 
the US, it cannot demand bilateral protection elsewhere.  It would be based on 
the jurisdiction of creation.  Publication has had nothing to do with the 
creation of copyright since the 1970's as far as I am aware.  Before 1976, in 
the US, place of publication was significant for determining copyright 
protection because of the notice requirement. Now copyright is automatic at 
fixation.

Birgitte SB
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Re: [Wikimedia-l] Copyright on Xrays

2012-08-23 Thread Birgitte_sb




On Aug 22, 2012, at 4:41 PM, Anthony wikim...@inbox.org wrote:

 On Wed, Aug 22, 2012 at 4:15 PM, Todd Allen toddmal...@gmail.com wrote:
 On Wed, Aug 22, 2012 at 1:54 PM, Anthony wikim...@inbox.org wrote:
 On Wed, Aug 22, 2012 at 2:47 PM, Thomas Dalton thomas.dal...@gmail.com 
 wrote:
 http://commons.wikimedia.org/wiki/File:Upperarm.jpg
 
 http://commons.wikimedia.org/wiki/File:Arm.agr.jpg would probably be a
 better example.
 
 There's a good chance that wouldn't be considered copyrightable under US 
 law.
 
 Even if it is, I think an X-ray would be quite different. In taking a
 photo of a subject's arm, the photographer must consider lighting,
 angle to which the arm is turned, the proper camera settings, how to
 find the exact arm that suits the purposes of the intended photo, etc.
 
 Heh, I'd argue that the photo in question shows that the photographer
 obviously does *not* have to make these considerations.  Looks like a
 random arm in a random position against a plain white wall (hardly
 creative), with auto everything.
 
 I think there would be just enough creativity in that arm shot, but
 it'd be close.
 
 Yeah, I agree it'd be close.  I think it'd come down to the testimony
 of the photographer.  If he claimed oh, I chose a hairy arm because
 X, and I opened my thumb because Y, maybe I'd buy it.  So if you're
 feeling particularly copyright-paranoid, it's best to get explicit
 permission.
 
 An X-ray, on the other hand, is made by a technician according to
 documented procedures. The arm is turned to the proper angle to see
 what the doctor wants to see, not to an angle that's aesthetically or
 artistically pleasing.
 
 I could be wrong, but I'm not sure there's a requirement for aesthetic
 or artistic purpose.  Non-fiction, software, legal contracts, etc.,
 all have been held to be copyrightable.

I think you are overestimating the very minimal amount of creativity that is 
required to here. The aesthetic choice between noting a pause as a period vs. a 
dash vs. a semi-colon has been upheld as copyrightable. There is aesthetics 
within non-fiction and legal documents, whether or not they are primary 
consideration.

 
 The image is taken according to standard and inflexible procedures.
 The technician is not exercising a bit of
 creativity in taking the image. In fact, the tech would likely get in
 trouble if (s)he DID decide to get creative with it.
 
 That, on the other hand, is a very important point.
 
 On the other other hand, it's not true of all X-ray images.  It's
 certainly possible, for instance, to create an X-ray image with the
 explicit purpose of putting it in an encyclopedia, or a journal, or
 even a book of artwork.
 
 Where it gets into grey area would be if the person created the X-ray
 image knowing that it would be used in a book, but that it would also
 be used for diagnostic purposes.
 
 Either way, it's a question of fact what instructions were given to
 the X-ray tech, as well as whether or not the tech followed them.
 

I disagree here, the intention of the creator has no more to do with copyright 
than effort expended. It all hangs on whether the work as executed contains 
some newly created creative expression of the information. Whether it resulted 
from purposeful or subconscious choices do not matter. 

 On Wed, Aug 22, 2012 at 5:25 PM, Thomas Dalton thomas.dal...@gmail.com 
 wrote:
 On 22 August 2012 20:50, Anthony wikim...@inbox.org wrote:
 It possibly has a very thin copyright.
 
 Copyright doesn't have thickness. Either it is copyrightable or it isn't.
 
 Incorrect.  In some works, some aspects are copyrighted, and some
 aspects are not.
 
+1

Birgitte SB
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Re: [Wikimedia-l] Copyright on Xrays

2012-08-23 Thread Anthony
On Thu, Aug 23, 2012 at 8:20 AM,  birgitte...@yahoo.com wrote:
 I believe artistic/non-artistic is accurate for images. Technically it is 
 artistic, literary, dramatic,
 or musical works.

Well, I think that's an abuse of the term artistic.  The job of a
photojournalist, for instance, is to capture what is true, not what is
aesthetically pleasing.

I understand that it's an abuse of the term artistic which is, to
some extent codified into law.  But I still don't think it's the right
term.

 Even using the term utilitarian rather than artistic I can still
 come up with a large number of examples of things which seem pretty
 clear-cut as utilitarian to me, but yet which receive copyright
 protection.  gzip, for instance.

 I actually expanded on this at the end of my last email. If that doesn't 
 clarify, ask again and
 explain what gzip is.

gzip is command line compression software.  As you've limited your
comment to images, it doesn't apply.

 And even if it is only the US, other countries would not recognize 
 copyright on diagnostic
 images created in the US, which gives us at least the NASA situation.

 Do you have a citation for this?  Also, is it where the image is
 created, or where it is first published, or something else?

 Copyright, internationally, is bilateral agreements. If it is not protected 
 in the US, it cannot
 demand bilateral protection elsewhere.  It would be based on the jurisdiction 
 of creation.
 Publication has had nothing to do with the creation of copyright since the 
 1970's as far as I
 am aware.  Before 1976, in the US, place of publication was significant for 
 determining
 copyright protection because of the notice requirement. Now copyright is 
 automatic at fixation.

Are you sure, or are you guessing?

What about all that country of origin stuff in the Berne Convention?
 That certainly suggests to me that the location of first publication
matters.

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-23 Thread Anthony
On Wed, Aug 22, 2012 at 2:49 PM,  birgitte...@yahoo.com wrote:
 To reword what I said before the vast majority of X-ray images in existence 
 are diagnostic
 images. There is no reason at all to purposefully search out X-rays that 
 might land in some
 grey area.

One problem with that is that the X-ray images that you are most
likely to find are the most likely to have been created with the
intention of being distributed.

On the other hand, if probably no one will sue is good enough for
you, then you really don't need to ask the legal question in the first
place.

 Another rule of thumb: Most images, whatever they depict, are also *designed* 
 to be pleasing
 to human aesthetics.

I don't understand that.  What are you using the term human
aesthetics to mean?

And even if you're true about most, that still leaves a great number
which were not.  Many images were in fact designed to be aesthetically
displeasing.

And many others were designed, like the X-ray image, to objectively
depict reality.

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-23 Thread Anthony
On Thu, Aug 23, 2012 at 9:05 AM, Anthony wikim...@inbox.org wrote:
 And many others were designed, like the X-ray image, to objectively
 depict reality.

In fact, in theory, almost all the images in an encyclopedia should be
of this type (I say almost because there will also be images which
are there for the purposes of talking about the image itself).

Unfortunately this is only the theory, and not the practice, and we
get pictures winning picture of the year which are altered from
reality in order to be more aesthetically pleasing.

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-23 Thread Birgitte_sb




On Aug 23, 2012, at 8:05 AM, Anthony wikim...@inbox.org wrote:

 On Wed, Aug 22, 2012 at 2:49 PM,  birgitte...@yahoo.com wrote:
 To reword what I said before the vast majority of X-ray images in existence 
 are diagnostic
 images. There is no reason at all to purposefully search out X-rays that 
 might land in some
 grey area.
 
 One problem with that is that the X-ray images that you are most
 likely to find are the most likely to have been created with the
 intention of being distributed.
 

I don't understand why intention to distribute would be relevant.


 On the other hand, if probably no one will sue is good enough for
 you, then you really don't need to ask the legal question in the first
 place.

That is not at all what I said, but you are quite good at striking down an 
argument which I did not make and do not support!

Since there is so little left of what I said, I will rephrase: Diagnostic 
images are not copyrighted and there are lots of interchangeable images that 
are equally not copyrighted. If one of these interchangeable images credits 
someone as a creator, and you are worried they probably will sue, then use 
another interchangeable image. Unless, of course, one purposefully wishes to be 
a jerk about their understanding of copyright.  And while I am sure someone 
will, I wound prefer not to put any more effort in considering the situation. 
(So please don't misquote me on this issue!)

 
 Another rule of thumb: Most images, whatever they depict, are also 
 *designed* to be pleasing
 to human aesthetics.
 
 I don't understand that.  What are you using the term human
 aesthetics to mean?

I meant when creating a common photo no consideration is given to composition 
of the infrared wavelengths. However, whether the photographer is very aware of 
it or not, aesthetic choices are being made as the overall composition is 
selected. It is really outside this topic, but I think the aesthetics which 
happen please/disturb us are often evolutionary. I tend to always be connecting 
things in my thinking, I didn't mean to have it spill over and muddy things 
here.  Don't read too much into and pretend I just wrote aesthetics.  I doubt 
any one but me would be reading that sentence and wondering whether non-humans 
would find most pictures to be pleasing. Sorry for confusing the issue.

 And even if you're truer about most, that still leaves a great number
 which were not.  Many images were in fact designed to be aesthetically
 displeasing.

I also wrote a sentence about copyrightable images being designed for 
aesthetic effect. While I think the statement you quoted works as *a rule of 
thumb*, I purposefully did not limit the statement that followed to only 
*pleasing* aesthetic effects.


 
 And many others were designed, like the X-ray image, to objectively
 depict reality.
 
 _

Yes there are many such images.

These types of images are called utilitarian images. 

Which is what prompted me to write about how copyright hangs upon aesthetic 
choices. In hopes that it would help people understand why images lacking 
aesthetic choices also lack copyright. I was very aware there are many such 
images. I labeled my statement a rule of thumb not a universal rule. 

I know this all sounds like I am very annoyed.  I am really just slightly 
annoyed ;)

Look copyright is really tough. Really.  And most people, probably everyone to 
some degree, misunderstands copyright. I honestly am happy to see you smack 
down some of my statements, like you did about all the international agreements 
working as bi-lateral treaties. I learned that Berne is different today, and 
frankly I think that is awesome. I ran out of low hanging fruit wrt to 
copyright a long time ago. I really appreciate the opportunity this thread has 
offered me to gain a nuance to my understanding.  Seriously.  

But I don't appreciate the rhetorical twists that, instead of clarifying the 
discussion, muddy things by making our that a sentence or two that wrote 
support a position that I never took. Not that it bothers me personally. But it 
confuses the discussion immensely for people who may have been struggling to 
follow it in the beginning. A long time ago, when I knew *nothing* of 
copyright, this list is where I managed to gather most of the low hanging 
fruit. Eventually I had to search for understanding elsewhere, but I know 
people making copyright decisions in the wikis may be using this list as a tool 
for making those decisions. At one time, I was such a person.

So anyways . . . I know it's the internet and all . . . where men are compelled 
to put on displays of rhetorical prowess as though they were peacocks . . . but 
please  . . . for the children and all that . . . Can we try to avoid picking 
out the weakest snippets of writing for rhetorical displays and instead focus 
on the heart of the positions to explore the issue in way that allows us to 
both improve our understandings?

At least about 

Re: [Wikimedia-l] Copyright on Xrays

2012-08-22 Thread Anthony
On Tue, Aug 21, 2012 at 4:17 PM, Todd Allen toddmal...@gmail.com wrote:
 On Tue, Aug 21, 2012 at 1:19 PM, geni geni...@gmail.com wrote:
 On 21 August 2012 19:44,  birgitte...@yahoo.com wrote:

 Utilitarian work = uncopyrightable


 Only under a fairly limited number of legal systems.

 --
 geni

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 Including the US, where WMF is based.

 --
 Freedom is the right to say that 2+2=4. From this all else follows.

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I think we're looking at this from the perspective of contributors,
not from the perspective of the WMF.  WMF has it's own special legal
protections anyway, like OCILLA.

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[Wikimedia-l] Copyright on Xrays

2012-08-22 Thread James Heilman
There are two things if the images are not copyrightable:

1) If users add images from lets say a textbook. Will someone on commons
simply delete them and thus it would be a waste of time.

2) Do we exposure either ourselves or the WMF to legal problems. And if so
is this important enough to warrant.

-- 
James Heilman
MD, CCFP-EM, Wikipedian

The Wikipedia Open Textbook of Medicine
www.opentextbookofmedicine.com
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Re: [Wikimedia-l] Copyright on Xrays

2012-08-22 Thread Birgitte_sb




On Aug 21, 2012, at 3:17 PM, Todd Allen toddmal...@gmail.com wrote:

 On Tue, Aug 21, 2012 at 1:19 PM, geni geni...@gmail.com wrote:
 On 21 August 2012 19:44,  birgitte...@yahoo.com wrote:
 
 Utilitarian work = uncopyrightable
 
 
 Only under a fairly limited number of legal systems.
 
 

[[ciatation needed]]

I really doubt non-artistic works are copyrighted as a general rule anywhere (. 
. . but I have been wrong before).

Now clearly being able to judge that X is a utilitarian work is the more normal 
problem with this argument and why it is seldom used. Diagnostic images are one 
of the few clear-cut situations.

And even if it is only the US, other countries would not recognize copyright on 
diagnostic images created in the US, which gives us at least the NASA situation.

Birgitte SB
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Re: [Wikimedia-l] Copyright on Xrays

2012-08-22 Thread Birgitte_sb




On Aug 22, 2012, at 8:02 AM, James Heilman jmh...@gmail.com wrote:

 There are two things if the images are not copyrightable:
 
 1) If users add images from lets say a textbook. Will someone on commons
 simply delete them and thus it would be a waste of time.
 
 2) Do we exposure either ourselves or the WMF to legal problems. And if so
 is this important enough to warrant.
 
 -

If they are not copyrightable, they will qualify a free content.  However, I 
would imagine we could obtain better quality images than those from textbooks. 
There may legal ramifications that have nothing to do with copyright, but 
(assuming all identifiable information is removed) I cannot think of any 
myself. Using images that are in anyway identifiable without permission of the 
person, is of course  bad in numerous ways.  Besides the various privacy laws, 
it would be in violation of the Nuremberg Code.  And any editors who may be 
connected, or wish to be connected in the future, to academic research will not 
want to be associated with such a thing even though it does exactly apply to 
Wikipedia.

Birgitte SB
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Re: [Wikimedia-l] Copyright on Xrays

2012-08-22 Thread Anthony
On Wed, Aug 22, 2012 at 9:14 AM,  birgitte...@yahoo.com wrote:
 I really doubt non-artistic works are copyrighted as a general rule anywhere

I'm not sure what you mean by non-artistic, but if you mean purely
utilitarian, as that term is interpreted by the court, then this is a
good point.

I was going to suggest UK, but a quick search suggests that you
*can't* copyright purely utilitarian works in the UK.

(I wouldn't use the term non-artistic though.  There are plenty of
works that are copyrighted in the US and all over that I wouldn't
consider art, and while an argument could be made that such works
shouldn't be copyrightable, court precedent is clearly adverse to that
argument.)

 Now clearly being able to judge that X is a utilitarian work is the more 
 normal problem with
 this argument and why it is seldom used. Diagnostic images are one of the few 
 clear-cut
 situations.

How do you distinguish whether or not it is a diagnostic image, and
what makes it clear-cut?

Even using the term utilitarian rather than artistic I can still
come up with a large number of examples of things which seem pretty
clear-cut as utilitarian to me, but yet which receive copyright
protection.  gzip, for instance.

 And even if it is only the US, other countries would not recognize copyright 
 on diagnostic
 images created in the US, which gives us at least the NASA situation.

Do you have a citation for this?  Also, is it where the image is
created, or where it is first published, or something else?

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-22 Thread Anthony
On Wed, Aug 22, 2012 at 10:22 AM, Anthony wikim...@inbox.org wrote:
 On Wed, Aug 22, 2012 at 9:14 AM,  birgitte...@yahoo.com wrote:
 Now clearly being able to judge that X is a utilitarian work is the more 
 normal problem with
 this argument and why it is seldom used. Diagnostic images are one of the 
 few clear-cut
 situations.

 How do you distinguish whether or not it is a diagnostic image, and
 what makes it clear-cut?

If you define diagnostic image as an image created solely for the
purpose of making a diagnosis, then I suppose you've got a clear-cut
utilitarian work.  On the other hand, this wouldn't include an X-ray
which was made by someone who knew the X-ray was going to be used in a
medical book.

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-22 Thread geni
On 22 August 2012 14:14,  birgitte...@yahoo.com wrote:




 On Aug 21, 2012, at 3:17 PM, Todd Allen toddmal...@gmail.com wrote:

 On Tue, Aug 21, 2012 at 1:19 PM, geni geni...@gmail.com wrote:
 On 21 August 2012 19:44,  birgitte...@yahoo.com wrote:

 Utilitarian work = uncopyrightable


 Only under a fairly limited number of legal systems.



 [[ciatation needed]]

Short answer is that the term Utilitarian work doesn't appear in
French, British or US copyright law and no one else had a worthwhile
empire during the relevant time period.


 I really doubt non-artistic works are copyrighted as a general rule anywhere 
 (. . . but I have been wrong before).

Well EU database copyright would be an a counter example but thats
rather an oddball area.

In the case of the US we can consider the constitutional basis of
copyright To promote the Progress of Science and useful Arts, by
securing for limited Times to Authors and Inventors the exclusive
Right to their respective Writings and Discoveries. So there is no
reason why a scientific work with no artistic element wouldn't be
protected by copyright.


 Now clearly being able to judge that X is a utilitarian work is the more 
 normal problem with this argument and why it is seldom used.

No the argument isn't use because the term has no meaning. I think
perhaps you are referring to the concept of useful article however
I'm not aware of any photograph ever being considered a pure useful
article.

Diagnostic images are one of the few clear-cut situations.

They aren't per Duchamp and the found art movement.


-- 
geni

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-22 Thread Thomas Dalton
On 21 August 2012 19:44,  birgitte...@yahoo.com wrote:
 In most cases ( Covering the significant majority of all x-rays existing, but 
 not ruling out the possibility of rare uses of X-ray photography as an 
 artistic medium) .  . .

 7 None of the above

 Utilitarian work = uncopyrightable

http://commons.wikimedia.org/wiki/File:Upperarm.jpg

That photo, according to the licenses on that page, has copyright. Do
you disagree?

If you agree that that has copyright, why would essentially the same
photo taken using a different frequency of electromagnetic radiation
not have copyright? What is the difference?

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-22 Thread Anthony
On Wed, Aug 22, 2012 at 2:37 PM, geni geni...@gmail.com wrote:
 In the case of the US we can consider the constitutional basis of
 copyright To promote the Progress of Science and useful Arts, by
 securing for limited Times to Authors and Inventors the exclusive
 Right to their respective Writings and Discoveries. So there is no
 reason why a scientific work with no artistic element wouldn't be
 protected by copyright.

The reason is that they are protected by patent.  See
http://en.wikipedia.org/wiki/Idea%E2%80%93expression_divide

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-22 Thread Anthony
On Wed, Aug 22, 2012 at 2:47 PM, Thomas Dalton thomas.dal...@gmail.com wrote:
 http://commons.wikimedia.org/wiki/File:Upperarm.jpg

 That photo, according to the licenses on that page, has copyright. Do
 you disagree?

It possibly has a very thin copyright.  And even that very thin
copyright would be unlikely to hold up under a fair use analysis.

It's hard to say for sure though, without knowing the details of how
the image was made.

If you're particularly paranoid about copyright, it would be best to
ask the putative author for permission.

 If you agree that that has copyright, why would essentially the same
 photo taken using a different frequency of electromagnetic radiation
 not have copyright? What is the difference?

I doubt it would be essentially the same.  It would probably be tighter.

Also, there would not be any lighting considerations that aren't taken
care of by the machine.

I'm not sure if there are F-stops and apertures and stuff to worry about.

I'm really not sure what there is which would hold up to an analysis
under the merger doctrine.

On the other hand, I'm not willing to say that it definitely
*wouldn't* be able to attract copyright.  If you're particularly
paranoid about copyright, it would be best to ask the putative author
for permission.

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-22 Thread Anthony
On Wed, Aug 22, 2012 at 2:47 PM, Thomas Dalton thomas.dal...@gmail.com wrote:
 http://commons.wikimedia.org/wiki/File:Upperarm.jpg

http://commons.wikimedia.org/wiki/File:Arm.agr.jpg would probably be a
better example.

There's a good chance that wouldn't be considered copyrightable under US law.

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-22 Thread Todd Allen
On Wed, Aug 22, 2012 at 1:54 PM, Anthony wikim...@inbox.org wrote:
 On Wed, Aug 22, 2012 at 2:47 PM, Thomas Dalton thomas.dal...@gmail.com 
 wrote:
 http://commons.wikimedia.org/wiki/File:Upperarm.jpg

 http://commons.wikimedia.org/wiki/File:Arm.agr.jpg would probably be a
 better example.

 There's a good chance that wouldn't be considered copyrightable under US law.


Even if it is, I think an X-ray would be quite different. In taking a
photo of a subject's arm, the photographer must consider lighting,
angle to which the arm is turned, the proper camera settings, how to
find the exact arm that suits the purposes of the intended photo, etc.
I think there would be just enough creativity in that arm shot, but
it'd be close.

An X-ray, on the other hand, is made by a technician according to
documented procedures. The arm is turned to the proper angle to see
what the doctor wants to see, not to an angle that's aesthetically or
artistically pleasing. The image is taken according to standard and
inflexible procedures. The technician is not exercising a bit of
creativity in taking the image. In fact, the tech would likely get in
trouble if (s)he DID decide to get creative with it.

I wouldn't see how medical X-rays would be any more creative or
copyrightable than blood test results.

-- 
Freedom is the right to say that 2+2=4. From this all else follows.

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-22 Thread Thomas Dalton
On 22 August 2012 20:50, Anthony wikim...@inbox.org wrote:
 It possibly has a very thin copyright.

Copyright doesn't have thickness. Either it is copyrightable or it isn't.

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-22 Thread Anthony
On Wed, Aug 22, 2012 at 4:15 PM, Todd Allen toddmal...@gmail.com wrote:
 On Wed, Aug 22, 2012 at 1:54 PM, Anthony wikim...@inbox.org wrote:
 On Wed, Aug 22, 2012 at 2:47 PM, Thomas Dalton thomas.dal...@gmail.com 
 wrote:
 http://commons.wikimedia.org/wiki/File:Upperarm.jpg

 http://commons.wikimedia.org/wiki/File:Arm.agr.jpg would probably be a
 better example.

 There's a good chance that wouldn't be considered copyrightable under US law.

 Even if it is, I think an X-ray would be quite different. In taking a
 photo of a subject's arm, the photographer must consider lighting,
 angle to which the arm is turned, the proper camera settings, how to
 find the exact arm that suits the purposes of the intended photo, etc.

Heh, I'd argue that the photo in question shows that the photographer
obviously does *not* have to make these considerations.  Looks like a
random arm in a random position against a plain white wall (hardly
creative), with auto everything.

 I think there would be just enough creativity in that arm shot, but
 it'd be close.

Yeah, I agree it'd be close.  I think it'd come down to the testimony
of the photographer.  If he claimed oh, I chose a hairy arm because
X, and I opened my thumb because Y, maybe I'd buy it.  So if you're
feeling particularly copyright-paranoid, it's best to get explicit
permission.

 An X-ray, on the other hand, is made by a technician according to
 documented procedures. The arm is turned to the proper angle to see
 what the doctor wants to see, not to an angle that's aesthetically or
 artistically pleasing.

I could be wrong, but I'm not sure there's a requirement for aesthetic
or artistic purpose.  Non-fiction, software, legal contracts, etc.,
all have been held to be copyrightable.

 The image is taken according to standard and inflexible procedures.
 The technician is not exercising a bit of
 creativity in taking the image. In fact, the tech would likely get in
 trouble if (s)he DID decide to get creative with it.

That, on the other hand, is a very important point.

On the other other hand, it's not true of all X-ray images.  It's
certainly possible, for instance, to create an X-ray image with the
explicit purpose of putting it in an encyclopedia, or a journal, or
even a book of artwork.

Where it gets into grey area would be if the person created the X-ray
image knowing that it would be used in a book, but that it would also
be used for diagnostic purposes.

Either way, it's a question of fact what instructions were given to
the X-ray tech, as well as whether or not the tech followed them.

On Wed, Aug 22, 2012 at 5:25 PM, Thomas Dalton thomas.dal...@gmail.com wrote:
 On 22 August 2012 20:50, Anthony wikim...@inbox.org wrote:
 It possibly has a very thin copyright.

 Copyright doesn't have thickness. Either it is copyrightable or it isn't.

Incorrect.  In some works, some aspects are copyrighted, and some
aspects are not.

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-22 Thread Anthony
On Wed, Aug 22, 2012 at 5:41 PM, Anthony wikim...@inbox.org wrote:
 On Wed, Aug 22, 2012 at 5:25 PM, Thomas Dalton thomas.dal...@gmail.com 
 wrote:
 On 22 August 2012 20:50, Anthony wikim...@inbox.org wrote:
 It possibly has a very thin copyright.

 Copyright doesn't have thickness. Either it is copyrightable or it isn't.

 Incorrect.  In some works, some aspects are copyrighted, and some
 aspects are not.

As for the term thin as it refers to copyright, see the seminal case
of Feist.  This inevitably means that the copyright in a factual
compilation is thin.

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-21 Thread Birgitte_sb




On Aug 20, 2012, at 6:08 AM, James Heilman jmh...@gmail.com wrote:

 A question about copyright, who owns the copyright on Xrays and are they
 even copyrightable? I have uploaded a few of them and no one seems to know
 the answer. I guess the options would be:
 
 1) They are in the public domain
 https://open.umich.edu/wiki/Casebook#Radiograph_.28X-Ray.29 and
 http://en.wikipedia.org/wiki/Copyright_law_of_the_United_Kingdom#Works_eligible_for_protection
 
 2) The X ray tech who took the image
 3) The person / institution who paid to have the image taken
 a) The HMO or patient if in the USA
 b) The government if in many parts of the world
 4) The doctor who ordered the image
 5) The doctor who read the image
 6) The hospital / shareholders of the hospital who owns the equipment
 7) All of the above / some of the above / none of the above
 
 Would be good to have a legal position on this.
 -- 
 

In most cases ( Covering the significant majority of all x-rays existing, but 
not ruling out the possibility of rare uses of X-ray photography as an artistic 
medium) .  . .

7 None of the above

Utilitarian work = uncopyrightable 

BirgitteSB
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Re: [Wikimedia-l] Copyright on Xrays

2012-08-21 Thread geni
On 21 August 2012 19:44,  birgitte...@yahoo.com wrote:

 Utilitarian work = uncopyrightable


Only under a fairly limited number of legal systems.

-- 
geni

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[Wikimedia-l] Copyright on Xrays

2012-08-20 Thread James Heilman
A question about copyright, who owns the copyright on Xrays and are they
even copyrightable? I have uploaded a few of them and no one seems to know
the answer. I guess the options would be:

1) They are in the public domain
https://open.umich.edu/wiki/Casebook#Radiograph_.28X-Ray.29 and
http://en.wikipedia.org/wiki/Copyright_law_of_the_United_Kingdom#Works_eligible_for_protection

2) The X ray tech who took the image
3) The person / institution who paid to have the image taken
 a) The HMO or patient if in the USA
 b) The government if in many parts of the world
4) The doctor who ordered the image
5) The doctor who read the image
6) The hospital / shareholders of the hospital who owns the equipment
7) All of the above / some of the above / none of the above

Would be good to have a legal position on this.
-- 
James Heilman
MD, CCFP-EM, Wikipedian

The Wikipedia Open Textbook of Medicine
www.opentextbookofmedicine.com
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Re: [Wikimedia-l] Copyright on Xrays

2012-08-20 Thread Thomas Morton
  2) The X ray tech who took the image

 3) The person / institution who paid to have the image taken
  a) The HMO or patient if in the USA
  b) The government if in many parts of the world
 4) The doctor who ordered the image
 5) The doctor who read the image
 6) The hospital / shareholders of the hospital who owns the equipment
 7) All of the above / some of the above / none of the above


I'd suggest; 7.

The person who took the image, by the skilled use of X-Ray equipment
probably holds copyright.

But the image may be covered by data protection laws, and the employees
contract may also deal with things such as these.

And finally the individual being imaged as personality/privacy rights.

So; copyright with the tech, but that is only the tip of the iceberg :)

Tom
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Re: [Wikimedia-l] Copyright on Xrays

2012-08-20 Thread Thomas Dalton
On 20 August 2012 12:08, James Heilman jmh...@gmail.com wrote:
 A question about copyright, who owns the copyright on Xrays and are they
 even copyrightable? I have uploaded a few of them and no one seems to know
 the answer. I guess the options would be:

Why is it any different to any other work created during employment?
The employer owns the copyright in almost all those cases. The client
(patient, HMO, whatever) only owns it is there is a specific
contractual agreement to that effect, and I can't see why there would
be. It's the same as when pay a professional photographer to take nice
photos of you - they own the copyright unless you explicitly buy it
off them.

In countries with public healthcase, the employer may be a public body
and there may be different rules (are x-rays taken by NHS
radiographers under Crown Copyright?). There may also be special rules
in some countries regarding medical records, although I wouldn't
expect them to remove the copyright (just give a statutory license for
certain uses).

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-20 Thread David Gerard
I'm sure that collectively we can bloviate with the best of 'em on the
topic - but do we have any case law whatsoever anywhere on the topic
that might give real-world pointers?


- d.

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-20 Thread Anthony
On Mon, Aug 20, 2012 at 7:47 AM, David Gerard dger...@gmail.com wrote:
 I'm sure that collectively we can bloviate with the best of 'em on the
 topic - but do we have any case law whatsoever anywhere on the topic
 that might give real-world pointers?

It's a question of fact, not a question of law.

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-20 Thread David Gerard
On 20 August 2012 12:50, Anthony wikim...@inbox.org wrote:
 On Mon, Aug 20, 2012 at 7:47 AM, David Gerard dger...@gmail.com wrote:

 I'm sure that collectively we can bloviate with the best of 'em on the
 topic - but do we have any case law whatsoever anywhere on the topic
 that might give real-world pointers?

 It's a question of fact, not a question of law.


Then any real-world examples of the question arising.


- d.

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-20 Thread Tomasz Ganicz
2012/8/20 David Gerard dger...@gmail.com:
 On 20 August 2012 12:50, Anthony wikim...@inbox.org wrote:
 On Mon, Aug 20, 2012 at 7:47 AM, David Gerard dger...@gmail.com wrote:

 I'm sure that collectively we can bloviate with the best of 'em on the
 topic - but do we have any case law whatsoever anywhere on the topic
 that might give real-world pointers?

 It's a question of fact, not a question of law.


 Then any real-world examples of the question arising.


The case I was writting was a set of human tissue pictures taken by a
members of research group working in university clinic in my city.

This is just an example:

http://commons.wikimedia.org/wiki/File:Adenocarcinoma_highly_differentiated_%28rectum%29_H%26E_magn_400x.jpg

I had discussion about it with our (Wikimedia Polska) lawer and the
legal department of the clinic. First of all the research group had
agreement from all his patients to publish this pictures in anonymous
way (i.e. not revealing to whom belongs the photographed tissues).
Then - they claimed, that although their work might be copyrightable,
they resigne from any copyright claims and finally their decission was
approved by clinic authorities (i.e. clinic had also resign from any
copyright claims no matter if they are applicable or not).

-- 
Tomek Polimerek Ganicz
http://pl.wikimedia.org/wiki/User:Polimerek
http://www.ganicz.pl/poli/
http://www.cbmm.lodz.pl/work.php?id=29title=tomasz-ganicz

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[Wikimedia-l] Copyright on Xrays

2012-08-20 Thread James Heilman
@ Tomasz: Per a) if the picture is taken automatically by machine in
routine way (in case of X-ray, NMR and some other techinques this is
usually atomatic
and routine) - they are not copyrightable, as this is not any creative
work. This is my understanding. X rays are taken in the exact same
way each time. X ray techs are specifically not to use creative
license even though their job requires skill.

@ David: Yes we do have US case law. It was in the previous link but
here is a direct link to it
http://www.ca10.uscourts.gov/opinions/06/06-4222.pdf

X rays once the persons name / identifiers are removed do not contain
identifiable information. Per the legal team here patient
confidentiality is thus not a concern at this point. It is like taking
pictures of someones cerebral spinal fluid as I have done here
http://en.wikipedia.org/wiki/File:CSF.JPG I did not get this person
permission.

-- 
James Heilman
MD, CCFP-EM, Wikipedian

The Wikipedia Open Textbook of Medicine
www.opentextbookofmedicine.com

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-20 Thread Max Harmony
2012/8/20 Anthony wikim...@inbox.org:
 Under US law (I know very little about the law of other countries):

 Unless the patient somehow contributed creatively to the image (broke
 his bones in a certain creative pattern), it's certainly not the HMO
 or patient.  If the X-ray tech is an employee, then it's certainly not
 the X-ray tech.
But the copyright of a work for hire goes to the employer. The X-ray
tech would get the copyright, but they're employed by the hospital.
The hospital, in turn, is employed by the patient. As such, I would
think the patient does own the copyright. Is a similar logic not
applied to, say, wedding photos, in which an photographer is employed
by a company which is in turn employed by the couple?

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-20 Thread Tomasz Ganicz
2012/8/20 Max Harmony m...@sdf.lonestar.org:
 2012/8/20 Anthony wikim...@inbox.org:
 Under US law (I know very little about the law of other countries):

 Unless the patient somehow contributed creatively to the image (broke
 his bones in a certain creative pattern), it's certainly not the HMO
 or patient.  If the X-ray tech is an employee, then it's certainly not
 the X-ray tech.
 But the copyright of a work for hire goes to the employer. The X-ray
 tech would get the copyright, but they're employed by the hospital.
 The hospital, in turn, is employed by the patient. As such, I would
 think the patient does own the copyright. Is a similar logic not
 applied to, say, wedding photos, in which an photographer is employed
 by a company which is in turn employed by the couple?


No. Patient is a customer of the hospital, not the employer of the
hospital :-) We are talking about legal issue, so we should stick to
legal definitions of words (not the moral ones).

In case of weeding photos all depends on what is written in the
agreement between a couple and the photographer/agency. The agreement
might and might not contain the clause of copyright transfer. If it
does not - from legal POV pictures can be used only for personal needs
- even publishing them on facebook is questionable in that case..

-- 
Tomek Polimerek Ganicz
http://pl.wikimedia.org/wiki/User:Polimerek
http://www.ganicz.pl/poli/
http://www.cbmm.lodz.pl/work.php?id=29title=tomasz-ganicz

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-20 Thread Anthony
On Mon, Aug 20, 2012 at 8:03 AM, James Heilman jmh...@gmail.com wrote:
 @ Tomasz: Per a) if the picture is taken automatically by machine in
 routine way (in case of X-ray, NMR and some other techinques this is
 usually atomatic
 and routine) - they are not copyrightable, as this is not any creative
 work. This is my understanding. X rays are taken in the exact same
 way each time. X ray techs are specifically not to use creative
 license even though their job requires skill.

 @ David: Yes we do have US case law. It was in the previous link but
 here is a direct link to it
 http://www.ca10.uscourts.gov/opinions/06/06-4222.pdf

There are two distinguishing cases which cite that ruling, however.
In one of them it specifically points out that whether or not a work
is creative is a question of fact (I didn't bother to read the other).
 If X ray techs are specifically not to use creative license even
though their job requires skill then this would be evidence in
support of one set of facts.

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-20 Thread Cynthia Ashley-Nelson
In the US, the Health Insurance Portability and Accountability Act of 1996
(HIPAA) governs release of medical information, which includes any medium,
including spoken, written, or electronically stored. This includes videos,
photographs, and x-rays. The only person legally entitled to release this
information is the patient or individual holding medical power of attorney.
You can find more information here: http://www.hhs.gov/ocr/privacy/


On Mon, Aug 20, 2012 at 5:38 AM, Dan Rosenthal swatjes...@gmail.com wrote:

 As I'm running out the door, two things to point out factually:

 1) people who work in U.S. hospitals are very often independent
 contractors, especially physicians.
 2) much medical diagnostic imaging is done on an outpatient basis at an
 independent imager. Even if the imager has copyright, there's no way to
 know whether there is a standing assignment agreement or not.

 Additionally to confuse things, HIPAA mandates access to (but not
 necessarily copyright in, though I haven't really looked at it) medical
 records, as well as disclosure and protection requirements.

 Dan Rosenthal


 On Mon, Aug 20, 2012 at 3:33 PM, Anthony wikim...@inbox.org wrote:

  On Mon, Aug 20, 2012 at 8:20 AM, Max Harmony m...@sdf.lonestar.org
  wrote:
   2012/8/20 Anthony wikim...@inbox.org:
   Under US law (I know very little about the law of other countries):
  
   Unless the patient somehow contributed creatively to the image (broke
   his bones in a certain creative pattern), it's certainly not the HMO
   or patient.  If the X-ray tech is an employee, then it's certainly not
   the X-ray tech.
   But the copyright of a work for hire goes to the employer. The X-ray
   tech would get the copyright, but they're employed by the hospital.
   The hospital, in turn, is employed by the patient. As such, I would
   think the patient does own the copyright.
 
  If the X-ray tech is an employee (and the work is created within the
  scope of his employment, which I am assuming), then, under US law, the
  tech never gets the copyright.  The employer is the author.  The
  tech is completely out of the loop.
 
  As for the hospital being employed by the patient, not in the sense
  of work for hire law.
 
  For the patient to get the copyright, they would need to enter into a
  work for hire agreement, the details of which are long and which you
  can easily find online.
 
   Is a similar logic not
   applied to, say, wedding photos, in which an photographer is employed
   by a company which is in turn employed by the couple?
 
  Wedding photos are more complicated.  I could see an argument, under
  some factual circumstances, that the couple  (and/or the decorator,
  etc) might own copyright as a joint author.  Or they may have employed
  the photographer directly.  Or they may have commissioned the work
  under a work for hire agreement.  Or they might have purchased the
  copyright in a copyright transfer.  Or they might just not own the
  copyright in the work at all.
 
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-- 

Best regards,

Cindy Ashley-Nelson
Yes. *Her again.*
http://en.wikipedia.org/wiki/User:Cindamuse
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Re: [Wikimedia-l] Copyright on Xrays

2012-08-20 Thread Nathan
On Mon, Aug 20, 2012 at 1:27 PM, Cynthia Ashley-Nelson
cindam...@gmail.comwrote:

 In the US, the Health Insurance Portability and Accountability Act of 1996
 (HIPAA) governs release of medical information, which includes any medium,
 including spoken, written, or electronically stored. This includes videos,
 photographs, and x-rays. The only person legally entitled to release this
 information is the patient or individual holding medical power of attorney.
 You can find more information here: http://www.hhs.gov/ocr/privacy/


In the interests of clarity, the above applies only to information which is
individually identifying. If it has been de-identified, which is presumably
not that difficult for x-ray images, then distribution is permitted for
other purposes without the patients' authorization.

~Nathan
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Re: [Wikimedia-l] Copyright on Xrays

2012-08-20 Thread Thomas Dalton
On 20 August 2012 18:27, Cynthia Ashley-Nelson cindam...@gmail.com wrote:
 In the US, the Health Insurance Portability and Accountability Act of 1996
 (HIPAA) governs release of medical information, which includes any medium,
 including spoken, written, or electronically stored. This includes videos,
 photographs, and x-rays. The only person legally entitled to release this
 information is the patient or individual holding medical power of attorney.
 You can find more information here: http://www.hhs.gov/ocr/privacy/

Privacy law is generally separate from copyright law.

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-20 Thread Sage Ross
On Mon, Aug 20, 2012 at 3:17 PM, geni geni...@gmail.com wrote:
 On 20 August 2012 12:52, David Gerard dger...@gmail.com wrote:
 On 20 August 2012 12:50, Anthony wikim...@inbox.org wrote:
 On Mon, Aug 20, 2012 at 7:47 AM, David Gerard dger...@gmail.com wrote:

 I'm sure that collectively we can bloviate with the best of 'em on the
 topic - but do we have any case law whatsoever anywhere on the topic
 that might give real-world pointers?

 It's a question of fact, not a question of law.


 Then any real-world examples of the question arising.



 I doubt it. Most X-rays aren't worth enough to be worth suing over and
 the handful that are mostly derive for the scientific community who
 tend not to sue people over the issue of copyright.


From what I've seen, copyright doesn't even enter into the
institutional perspective here. The framework is all about controlling
the flow of patient information.

My partner (a doctor doing residency at the main hospital system in
Pittsburgh) would have to go through the Institutional Review Board
system to publish medical images, even ones nominally free of
identifying information. She'd be able to have them published for
certain purposes (case studies and other things that are about medical
practice, but are not research per se) without patient permission. For
research and other purposes, she would need permission of the patients
even for nominally non-identifying medical info. But there aren't any
additional hurdles regarding assignment of copyright to the
publishers.

On the other hand, medical technicians and doctors who create
ultrasound images for pregnant women distribute them to the women (and
even intentionally frame some as portraits, with at least a little
bit of creativity involved) to do with as they please.

I'd say, whatever the copyright status, she'd risk her job by
distributing something like X-rays without going through the IRB
system. And if she got IRB permission, asserting PD status or copyleft
status or whatever wouldn't likely be a problem.

-Sage

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-20 Thread Nathan
On Mon, Aug 20, 2012 at 3:37 PM, Sage Ross ragesoss+wikipe...@gmail.comwrote:

 I'd say, whatever the copyright status, she'd risk her job by
 distributing something like X-rays without going through the IRB
 system. And if she got IRB permission, asserting PD status or copyleft
 status or whatever wouldn't likely be a problem.

 -Sage



It's relevant for Wikipedia, at least. I don't think the projects take a
view on whether someone is risking their job or following institutional
policies. It's also worth noting that your description is of the process
for publishing medical data (as a general category) at an academic medical
institution, the sort that has an IRB. A large proportion of imaging
nation-wide is done at private, for profit imaging centers. Such centers
may not often engage in research, but that wouldn't prevent them from using
their images in other ways (say, uploading them to Commons or providing
them to medical image repositories).

Nathan
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Re: [Wikimedia-l] Copyright on Xrays

2012-08-20 Thread Sage Ross
On Mon, Aug 20, 2012 at 4:04 PM, Nathan nawr...@gmail.com wrote:

 It's relevant for Wikipedia, at least. I don't think the projects take a
 view on whether someone is risking their job or following institutional
 policies.

Right. But it's worth mentioning... especially if the projects did
take the view that the images were public domain.

 It's also worth noting that your description is of the process
 for publishing medical data (as a general category) at an academic medical
 institution, the sort that has an IRB.

Yep. But it might actually be relatively easy to get good sets of
medical images by working through those kinds of systems, and that
could work regardless of the copyright status of the images.

-Sage

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-20 Thread Etienne Beaule
My opinion on X-rays.  If done in private property, it is subject to
personality rights, and if in a public area, then it can be copyrighted by
the the person who took the X-ray.  Ebe123


On 2012-08-20 5:17 PM, Sage Ross ragesoss+wikipe...@gmail.com wrote:

 On Mon, Aug 20, 2012 at 4:04 PM, Nathan nawr...@gmail.com wrote:
 
 It's relevant for Wikipedia, at least. I don't think the projects take a
 view on whether someone is risking their job or following institutional
 policies.
 
 Right. But it's worth mentioning... especially if the projects did
 take the view that the images were public domain.
 
 It's also worth noting that your description is of the process
 for publishing medical data (as a general category) at an academic medical
 institution, the sort that has an IRB.
 
 Yep. But it might actually be relatively easy to get good sets of
 medical images by working through those kinds of systems, and that
 could work regardless of the copyright status of the images.
 
 -Sage
 
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Re: [Wikimedia-l] Copyright on Xrays

2012-08-20 Thread Michael Peel
OK, so the moderation of this mailing list appears to be broken (surely such 
emails should at least be held for approval by a moderator?). But please see my 
previous email (which I sent after hitting the 'reply' button)…

Thanks,
Mike

On 20 Aug 2012, at 21:19, wikimedia-l-ow...@lists.wikimedia.org wrote:

 Due to a large amount of spam, emails from non-members of this list
 are now automatically rejected. If you have a valuable contribution to
 the list but would rather not subscribe to it, please send an email to
 wikimedia-l-ow...@lists.wikimedia.org and we will forward your post to
 the list. Please be aware that all messages to this list are archived
 and viewable for the public. If you have a confidential communication
 to make, please rather email i...@wikimedia.org
 
 Thank you.
 
 
 From: Michael Peel em...@mikepeel.net
 Subject: Re: [Wikimedia-l] Copyright on Xrays
 Date: 20 August 2012 21:36:07 BST
 To: Wikimedia Mailing List wikimedia-l@lists.wikimedia.org
 Cc: Kat Walsh k...@wikimedia.org, Jeffery Nichols jnich...@wikimedia.ca
 
 
 This sounds like a question to ask on Wikimedia Commons, rather than on this 
 mailing list - particularly since the Commons community is the one that needs 
 to monitor and maintain such a legal position! Also asking the question at 
 the talk page of http://meta.wikimedia.org/wiki/Legal_and_Community_Advocacy 
 might be a good idea.
 
 Thanks,
 Mike
 
 On 20 Aug 2012, at 12:08, James Heilman jmh...@gmail.com wrote:
 
 A question about copyright, who owns the copyright on Xrays and are they
 even copyrightable? I have uploaded a few of them and no one seems to know
 the answer. I guess the options would be:
 
 1) They are in the public domain
 https://open.umich.edu/wiki/Casebook#Radiograph_.28X-Ray.29 and
 http://en.wikipedia.org/wiki/Copyright_law_of_the_United_Kingdom#Works_eligible_for_protection
 
 2) The X ray tech who took the image
 3) The person / institution who paid to have the image taken
 a) The HMO or patient if in the USA
 b) The government if in many parts of the world
 4) The doctor who ordered the image
 5) The doctor who read the image
 6) The hospital / shareholders of the hospital who owns the equipment
 7) All of the above / some of the above / none of the above
 
 Would be good to have a legal position on this.
 -- 
 James Heilman
 MD, CCFP-EM, Wikipedian
 
 The Wikipedia Open Textbook of Medicine
 www.opentextbookofmedicine.com
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Re: [Wikimedia-l] Copyright on Xrays

2012-08-20 Thread James Heilman
The WMF legal team has said they would provide an opinion on this
question some time next week. The law is ambiguous and I guess the
real question is how much is the foundation willing to put their neck
out.

-- 
James Heilman
MD, CCFP-EM, Wikipedian

The Wikipedia Open Textbook of Medicine
www.opentextbookofmedicine.com

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-20 Thread Ray Saintonge

On 08/20/12 12:17 PM, geni wrote:

On 20 August 2012 12:52, David Gerard dger...@gmail.com wrote:

On 20 August 2012 12:50, Anthony wikim...@inbox.org wrote:

On Mon, Aug 20, 2012 at 7:47 AM, David Gerard dger...@gmail.com wrote:



I'm sure that collectively we can bloviate with the best of 'em on the
topic - but do we have any case law whatsoever anywhere on the topic
that might give real-world pointers?



It's a question of fact, not a question of law.

Then any real-world examples of the question arising.

I doubt it. Most X-rays aren't worth enough to be worth suing over and
the handful that are mostly derive for the scientific community who
tend not to sue people over the issue of copyright.

This certainly sums it up. Personality rights are a separate issue, and 
in most cases it should be easy to separate them except maybe conjoined 
twins and people who have swallowed a charm bracelet with their name 
clearly exposed. Breach of contractual rights and employment contracts 
are also a separate matter. It's actually easier to deal with these 
because something is spelled out. Our concern is more with situations 
where nothing is expressed before the problem comes up.


My basic view is that the X-ray is copyrightable with the ownership of 
the copyright vesting in the person who invested most of the 
originality. If that person is bold enough to be the *first* person to 
put that image in fixed form there will be a presumption that he has a 
right to do so. Who is going to challenge him? A DMCA takedown order 
won't work, because it must reference the work that was infringed as 
well as the infringement. To get any more than provable damages the 
copyright must also be registered.


It may give comfort to owners to know that copyright in a work is 
automatic without registration, but the down side of this is a huge 
assortment of material is copyright where the true owner has neither 
the knowledge or desire for this kind of protection.


Ray

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-20 Thread Ray Saintonge

On 08/20/12 2:01 PM, Michael Peel wrote:

OK, so the moderation of this mailing list appears to be broken (surely such 
emails should at least be held for approval by a moderator?). But please see my 
previous email (which I sent after hitting the 'reply' button)…

Thanks,
Mike


It seems like a perfectly valid topic for this list.

Ray

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-20 Thread George Herbert
Was this long thread launched by an actual on-wiki (or off-wiki)
Wikipedia or other WMF project issue with medical imaging images?

...

Pardon if it would be obvious should I actually check AN or some such,
but I've been busy all weekend and today.


-george

On Mon, Aug 20, 2012 at 5:39 PM, Ray Saintonge sainto...@telus.net wrote:
 On 08/20/12 12:17 PM, geni wrote:

 On 20 August 2012 12:52, David Gerard dger...@gmail.com wrote:

 On 20 August 2012 12:50, Anthony wikim...@inbox.org wrote:

 On Mon, Aug 20, 2012 at 7:47 AM, David Gerard dger...@gmail.com wrote:


 I'm sure that collectively we can bloviate with the best of 'em on the
 topic - but do we have any case law whatsoever anywhere on the topic
 that might give real-world pointers?


 It's a question of fact, not a question of law.

 Then any real-world examples of the question arising.

 I doubt it. Most X-rays aren't worth enough to be worth suing over and
 the handful that are mostly derive for the scientific community who
 tend not to sue people over the issue of copyright.

 This certainly sums it up. Personality rights are a separate issue, and in
 most cases it should be easy to separate them except maybe conjoined twins
 and people who have swallowed a charm bracelet with their name clearly
 exposed. Breach of contractual rights and employment contracts are also a
 separate matter. It's actually easier to deal with these because something
 is spelled out. Our concern is more with situations where nothing is
 expressed before the problem comes up.

 My basic view is that the X-ray is copyrightable with the ownership of the
 copyright vesting in the person who invested most of the originality. If
 that person is bold enough to be the *first* person to put that image in
 fixed form there will be a presumption that he has a right to do so. Who is
 going to challenge him? A DMCA takedown order won't work, because it must
 reference the work that was infringed as well as the infringement. To get
 any more than provable damages the copyright must also be registered.

 It may give comfort to owners to know that copyright in a work is automatic
 without registration, but the down side of this is a huge assortment of
 material is copyright where the true owner has neither the knowledge or
 desire for this kind of protection.

 Ray


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-- 
-george william herbert
george.herb...@gmail.com

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-20 Thread Ray Saintonge

On 08/20/12 10:27 AM, Cynthia Ashley-Nelson wrote:

In the US, the Health Insurance Portability and Accountability Act of 1996
(HIPAA) governs release of medical information, which includes any medium,
including spoken, written, or electronically stored. This includes videos,
photographs, and x-rays. The only person legally entitled to release this
information is the patient or individual holding medical power of attorney.
You can find more information here: http://www.hhs.gov/ocr/privacy/


On Mon, Aug 20, 2012 at 5:38 AM, Dan Rosenthal swatjes...@gmail.com wrote:


As I'm running out the door, two things to point out factually:

1) people who work in U.S. hospitals are very often independent
contractors, especially physicians.
2) much medical diagnostic imaging is done on an outpatient basis at an
independent imager. Even if the imager has copyright, there's no way to
know whether there is a standing assignment agreement or not.

Additionally to confuse things, HIPAA mandates access to (but not
necessarily copyright in, though I haven't really looked at it) medical
records, as well as disclosure and protection requirements.

Dan Rosenthal



This US law won't apply if the X-rays are taken at a facility outside og 
the United States.


Ray

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Re: [Wikimedia-l] Copyright on Xrays

2012-08-20 Thread Matthew Bowker
Hi, all.

I believe Mike was commenting on the fact that his message was bounced back 
(because of an email funky) and not the topic itself.  In fact, I've been 
caught by that exact same filter myself.

Sorry if I've read your message wrong.

Matthew Bowker
User:Matthewrbowker

On Aug 20, 2012, at 6:48 PM, Ray Saintonge sainto...@telus.net wrote:

 On 08/20/12 2:01 PM, Michael Peel wrote:
 OK, so the moderation of this mailing list appears to be broken (surely such 
 emails should at least be held for approval by a moderator?). But please see 
 my previous email (which I sent after hitting the 'reply' button)…
 
 Thanks,
 Mike
 
 It seems like a perfectly valid topic for this list.
 
 Ray
 
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