Re: [asa] Expelled Explained

From: Rich Blinne <>
Date: Sat Apr 12 2008 - 16:56:29 EDT

> On Apr 11, 2008, at 4:55 PM, David Opderbeck wrote:
>> I teach copyrights in law school and used to litigate them for a
>> living.
>> It is highly unlikely that the frame comparison in Meyers' blog, by
>> itself, would constitute copyright infringement.
>> In order to judge a claim for copyright infringement of an
>> audiovisual work, it's necessary to compare the entire work -- not
>> a single frame, a few frames, or even a single sequence. The first
>> step is to define the various elements of the copyrighted work --
>> such as pictures, lighting, camera angles, scripting, music, etc.
>> The second step is to identify which of those elements are
>> copyrightable and which are not. Facts are not copyrightable, nor
>> are "stock" scenes, nor are things that are in the public domain.
>> The third step is to compare what remains both quantitatively and
>> qualitatively for "substantial similarity." This is called
>> "abstraction-filtration-comparison."
>> After this analysis is completed, any defenses, including fair use,
>> must be assessed. Fair use is assessed based on a multi-factor
>> test, including the nature of the use, the nature of the
>> copyrighted work, the amount and substantiality of the portion
>> used, and the effect on the market for the copyrighted work.
>> A key question here is how many different ways there are in which
>> to portray the molecular process that is the subject of the
>> animations. No one can monopolize the idea of animating a
>> particular molecular process; copyright protects only original
>> expression, not ideas. There's absolutely nothing unethical or
>> illegal about copying an idea, or even about copying aspects of the
>> expression of an idea that can't be communicated otherwise.
>> Perhaps the entire sequence at issue is much longer than seems to
>> be the case, and perhaps there are many ways of illustrating it, in
>> which case maybe there's a viable infringement claim; but at this
>> point, this all seems like dubious culture war nonsense.
>> BTW -- search the archives and you'll see that I said exactly the
>> same thing when the Discovery Institute stupidly accused Judge
>> Jones of "plagiarism" for adopting part of the ACLU's proposed
>> findings of fact in the Kitzmiller case. Nonsense.

It seems that Bill Dembski used the unmodified (video they changed the
sound) original last year at a presentation at OU. See here:

The original can be seen here:

and presented by David Bolinsky (more about him later) at TED:

Bill Dembski admitted a connection between him and the production
company on UcD as follows:

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

Blogger SA Smith contacted Harvard and XVIVO about a possible
violation back in 2007 concerning the alleged Dembski violation. Now
we have this alleged violation. Both videos actually simplified the
kenesin progression from a stochastic one to a linear one. See

David Bolinsky, the medical illustrator for XVIVO, put it this way:

> XVIVO created The Inner Life of the Cell for Harvard, through
> fourteen months of painstaking examination of how a myriad of
> systems, functional structures and proteins in a cell, could be
> depicted in a sweeping panoramic style of animation, reminiscent of
> cinema, that fundamentally raised the bar on the visualization of
> molecular and cellular biology for undergraduate students. In
> depicting what we did, other than merely maintaining the intent of
> the syllabus, we needed to edit like mad. A cell has billions of
> molecules, millions of active functional proteins and tens of
> thousands of structural elements separating, sequestering and
> joining compartments and systems into a functional whole. An initial
> foundational decision process of our creative vision, consisted of
> editing out 95% of the contents of our cell in order to gain, for
> our virtual camera, a vista to visualize what elements we left in.
> The decisions we made blended aesthetics with science. They were not
> made lightly, nor were they made without extensive consultation with
> researchers at Harvard, and an extensive body of literature,
> including protein data libraries and new findings by Harvard
> researchers.
> Given the vast number of structures to be removed, and given the
> structures remaining "on camera", whose positioning and
> relationships, both aesthetic and functional, needed to remain true
> to the function and beauty of molecular biology, it is
> inconceivable, mathematically, that the animator hired by EXPELLED's
> producers, independently and randomly came up with the same
> identical actin filament mesh XVIVO depicted in one scene, which had
> never before been rendered anywhere in 3D! It is astonishing that
> among well over a dozen functional kinesins from which an animator
> might choose, we both chose the same configuration of kinesin,
> pulling the same protein-studded vesicle, on the same microtubule!
> Can YOU believe we coincidentally picked the same camera angles and
> left in the same specific structures in the background, positioned
> with the same composition? Equally astonishing is the "Intellgent
> Design" treatment of these and other proteins surfaces, which XVIVO
> derived using procedural iso-surface skinning of the PDB cloud data
> of our proteins' atom placement. There are an infinite number of
> possble "correct" solutions to that problem.
> Coincidence? Given their "access to the same literature" we had,
> where Graham Johnson at Scripps so brilliantly worked out the real
> motion of kinesins, I am simply blown away that the "Intelligent
> Design" animators slavishly made the hands of their kenesins move
> exactly as we did, even though we intentionally left out the
> stochastic Brownian motion which actually characterizes the tractive
> force and periodic pedicle placement of these tiny motivators. We
> simply did not have the time or budget to render these, and a dozen
> other details, to the level of insanity we would like to have done!
> This was, after all, an underfunded proof-of-concept piece. The
> cellular biology that serves as "filler" material, between scenes
> copied from Inner Life, is riddled with biological errors. Imagine
> "Intelligent Design's" depiction of protein synthesis without
> ribosomes!

So, my questions to you are:

1. Are the connections between Dembski and the producers something
that can be part of discovery of the lawsuit on the part of XVIVO? How
about the illustrator hired by Premise?
2. How exposed is Dembski personally by his removal of the copyright
notices at his lecture?
3. If there is a connection does a pattern of copying make it relevant
even when the parties are different?
4. How far does Bolinsky's argument satisfy "abstraction-filtration-
comparison" and the other legal concepts mentioned above?


Rich Blinne, Member ASA

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Received on Sat Apr 12 16:58:20 2008

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