On Friday, 20 March 2009, AntiPolygraph.org received a communication from a lawyer for NCS Pearson, Inc. demanding the removal of a post from our message board that purports to list the first 75 questions of the 567-question Minnesota Multiphasic Personality Test 2 (MMPI-2). (A seemingly knowledgable poster on the message board maintains that the questions are not from the MMPI-2, but from the older MMPI.)

Many government agencies in the United States use the MMPI-2 to screen applicants for employment, so it is of considerable public interest. The post, made some three years ago, initiated one of the longest discussions on our message board–one that remains active with over 260 posts to date.

Here is the full text of the takedown request received by e-mail from Pearson’s lawyer (download MS Word attachment):

March 20, 2009 Sent Via EMAIL and POST AntiPolygraph.org

c/o G.W. Maschke

Van Trigtstraat 53

2597 VX The Hague

The Netherlands Email: info@antipolygraph.org Re: Unauthorized use and Reproduction of the Minnesota Multiphasic

Personality Inventory-2 (MMPI-2) Dear Mr. Maschke: I represent NCS Pearson, Inc. (Pearson), the exclusive licensee

or publisher of the Minnesota Multiphasic Personality Inventory-2

(MMPI-2), which is a secure Assessment restricted to purchase by

qualified individuals. The copyright owner of the MMPI-2 is the Regents

of the University of Minnesota and NCS Pearson, Inc. is the exclusive

licensee for distribution of the MMPI-2 in the United States and the

Netherlands. Unauthorized Reproduction As you are aware, both Dutch and U.S. Copyright Law give the

copyright owner the exclusive rights to reproduce and control the

distribution of its work. According to our information, you are

distributing and infringing version of the MMPI-2 on an unsecured

website, thereby allowing the materials to be downloaded to unqualified

individuals without our permission. Copies of the screen shots are

provided for your information. The websites in question are located at: In a posting by Thugcop at the below URL:

https://antipolygraph.org/cgi-bin/forums/YaBB.pl?num=1109032158/11 In another posting by Thugcop at the below URL:

https://antipolygraph.org/cgi-bin/forums/YaBB.pl?action=print;num=110903

2158 Screen shots of the pages are attached Both United States and Dutch Copyright Law give the copyright

owner (or their designee) the exclusive rights to reproduce and/or

license of its copyrighted property. The MMPI-2 and its normative data

and scoring algorithms are protected works under both United States

Copyright law and Canadian Copyright law. Both laws provide protections

for such works of authorship with severe penalties for violations. As

the United States (1989) and Netherlands (1912) are signatory members of

the Berne Convention, as a citizen of the Netherlands you are obligated

under The Berne Convention to recognize the copyright of American works

in the same way the United States recognizes the copyright of its own

nationals. Only licensed parties are allowed to reproduce any

copyrighted portions of it, whether in computer software or otherwise. My client requests that you remove the above postings which contain its

proprietary material. We appreciate your cooperation in this matter as

it respects the rights of others which is the position I would hope

antipolygraph.org would subscribe. If you have any questions, please contact the undersigned

attorney directly. Sincerely,

/Carl W. Covert, Jr./ Attachments Carl W. Covert, Jr.

Contract Attorney – Legal Department

NCS Pearson, Inc.

19500 Bulverde Road

San Antonio, TX 78259-3701

Tel (210) 339-5195

Fax(210) 339-5059

carl.covert@pearson.com Please consider the environment before printing this e-mail

AntiPolygraph.org respects intellectual property rights, and in January 2008, we promptly removed at Pearson’s request a series of posts in the referenced message thread that purported to list all questions in the MMPI-2. However, Pearson’s demand that the initial post, with a limited number of questions that give one a sense of what the MMPI-2 is all about, seems geared not so much at protecting legitimate copyright interests, but rather at stifling public understanding and discussion of the MMPI-2.

This is AntiPolygraph.org’s reply to Pearson’s takedown request, sent by e-mail on 21 March 2009:

Dear Mr. Colvert: I believe the posting of such a limited selection of questions from the MMPI-2 for discussion purposes is permissible under the Fair Use clause of the United States Copyright Act of 1976 (17 U.S.C. § 107). For a recent example of such fair use by a professional association of American lawyers, see the November, 2006 Newsletter of the Albany County, New York Bar Association, which similarly lists (at p. 6) selected questions from the MMPI-2: http://www.albanycountybar.com/Nov.%20NL%2006.pdf Under the circumstances, I cannot consent to removing the post in question from the AntiPolygraph.org message board. Sincerely, George W. Maschke, Ph.D.

AntiPolygraph.org

Voice Mail/Fax: 1-206-666-2570

PGP Public Key: 0x74DE6533

AOL Messenger: GeorgeMaschke

Skype (Internet Phone/Text Chat): georgemaschke

Gizmo (secured with Zfone): georgemaschke

What do you think? Is Pearson’s request reasonable? Or is it misusing copyright law to chill public speech?

Update 1: On 23 March, AntiPolygraph.org’s webhosting provider (CanadianWebhosting.com) received a communication from its bandwidth provider (Peer1.com) that unless the post that is the subject of the DMCA takedown notice was removed, the entire server (which hosts other Canadian Webhosting customers, too) would be taken offline. We have reluctantly agreed to temporarily remove the post in question and have replaced it with a brief notice explaining the situation.

Peer1.com seems to be under the impression that once a DMCA takedown notice is received, the material mentioned in the notice must be removed for a period of 14 days, after which, if the complainant does not provide notification that it has sought a court order, the material may be restored. However, it is our understanding that the material may be placed back on-line (PDF) promptly upon the service provider’s receipt of a counter-claim (which we have already sent), that is, there is no need to wait 14 days.

It’s also worth noting that Pearson, the copyright holder of the MMPI-2, filed a takedown notice for the very same post in 2007. We promptly filed a counter-notice, Pearson took no further action, and we thought the matter resolved.

Update 2: See discussion of this situation on Slashdot.org.