St. Louis, MO
Posted - 02/02/2011 : 4:34 PM
Tim's pot is blacker than Steve's kettle
Given that I'm not a lawyer nor is this legal advice, this is what I have discovered through my research and it reveals some glaring errors M$F made back in 1974. Much of what I'll say in the following isn't "new" but many may not know the background or understand why it's important for rider educators and SMRO activists and riders to know.
Since copyrights only protect original works, is the M$F's RSS or BRC "an original work"?
Yes and No.
The BRC was based on the MRC: RSS which was based on the Motorcycle Rider Course which was based on the Beginning Rider Course and the Motorcycle Task Analysis and "Instructional Objectives for Motorcycle Safety Curriculum". The majority of each version of the curriculum is not "original", yet each should have their own copyright based on Laurence v. Dana 15 F. Cas. 26 (1869).
M$F, however, sees the curriculum as a continuous work from 1974 until today: inside the front cover of the BRC is a statement that implies each version is an "iteration" of the curriculum i.e., there's one curriculum and different versions of it.
To continue our Coke analogy, it's as if M$F is saying the curriculum is the Coke and the various "iterations" the different packaging. In other words, M$F is suggesting it's Coke in the bottle versus in the can with a Harlequin type diamond design versus Coke in the can with vertical squiggle and Coke in the plastic bottle.
That's where the debate has raged: is it now New Coke in the bottle instead of Classic Coke in the BRC bottle? M$F has maintained yes and some simply don't like the packaging. It's a question that we will return to after Christmas since there's new considerations that have serious ramifications.
But all versions of M$F curriculum has been copyrighted and that copyright, as we will see, actually protects the "packaging" rather than the contents.
Interestingly, the first edition of the Beginning Rider Course, published in 1974, says, in the Preface with Charles H. Hartman credited, "The Beginning Rider Course is copyrighted not to restrict its use but only to provide a systematic means to measure its use and enable its improvement."
Not to restrict its use.
I guess that belongs in the "How times have changed" category. But a copyright is a copyright and deserves to be protected. So are M$F's copyrights unassailable?
The first version of M$F curriculum, the Beginning Rider Course, said that "These materials are not intended to be the final answer concerning motorcycle curriculum development..." and went on to say that the Foundation was involved in a multi-year "full fledged, research based curriculum package for motorcycle riders."
In the preface to the Motorcycle Rider Course (copyrighted 1976), it reads, "The Motorcycle Rider Course is the culmination of that research effort. Based on *Motorcycle Task Analysis* [MTA] and *Instructional Objectives for Motorcycle Safety Education* it is structured to meet the motorcycle curriculum specifications developed by the National Public Research Institute under a contract for the National Highway Traffic Safety Administration, U.S. Department of Transportation (p v)."
In short, when the MTA and *Instructional Objectives* were contracted out to a third party, M$F itself was under contract to NHTSA and those works were arguably work product of that contract. Iow, both the MTA and the Instructional Objectives could be said to be work for hire *through* M$F *for* NHTSA. Iow, if copyrights were issued, they should be "owned" by the federal government through NHTSA and not M$F. MTA not being copyrighted, then, is proper. That the "Instructional Objectives" are and by M$F may be questionable.
And particularly questionable if M$F, despite the stated purpose of "Instructional Objectives", tries to enforce copyright protection on anyone using them to create a motorcycle curriculum.
Iow, one error M$F made is stating in the first BRC that the copyright on it wasn't intended to restrict its use. Other errors, if proprietary interest was the aim, was including key wording that allows anyone to use the MTA and "Instructional Objectives" to produce their own curriculum. A third error was in obtaining a copyright on "Instructional Objectives" when it was a work for hire for the government.
So was the content of the Motorcycle Rider Course "original work" in itself?
No. And not even the "packaging" of it was.
The MRC clearly states it was based on the MTA and the Instructional Objectives.
MSF did not use original material to create this curriculum nor the prior version, the Beginning Rider Course, and may have infringed on copyrighted material in both.
This would mean, if all the curriculums are linked, that all subsequent "iterations" duplicate that infringement.
Tim's pot may be blacker than Steve's kettle.
Here's how it went down:
In 1974, MSF contracted with the National Public Services Research Institute of Central Missouri State University to produce a motorcycle task analysis. It was, at least in part, paid for by federal contract with NHTSA - copies of which are still extant.
According to M$F's own statements, NPSRI produced a "several hundred page blueprint for a comprehensive motorcycle safety program focused primarily on human factors." To ensure that the curriculum would be "directly related to the task requirements for safe motorcycle operation," the study completely and accurately and extensively broke down every component of the riding task and was published by M$F under the title, "Motorcycle Task Analysis".
This document was intended to be and was the basis of both the licensing and curriculum standards and programs. The MTA, then, is the fountainhead, the source and mother of all M$F curriculums, and was intended to be the fountainhead of all motorcycle curriculums until supplanted by a new motorcycle task analysis or supplemented by more research, such as the Hurt Report.
In 1974, M$F began to print and distribute the "Motorcycle Task Analysis" with the M$F logo on the cover. As I said, there is no copyright on the work. It wasn't a mistake. A task analysis, by nature, is a listing of facts and procedures and cannot be copyrighted. It also appears that "sweat of the brow" (a legal term that used to be applied in some cases to justify copyrighting what basically amounts to an elaborate list)is no longer valid based on the Supreme Court's decision in Feist Publications, Inc vs. Rural Telephone Services Co., Inc., 499 U.S. 340, 111 S.Ct. 1282, 113 L.Ed.2d. 358 (1991).
To ensure that curriculums would be "directly related to the task requirements for safe motorcycle operation," the MTA contains over 2,500 knowledge and skill descriptions with a corresponding criticality index. Every aspect of the riding task was broken down into knowledge and skill descriptions with a corresponding criticality index broken down into four categories (behavioral frequency, error probability, accident likelihood, accident severity) and one overall criticality index rating. (It's fascinating reading, btw).
BUT in the first paragraph of the introduction it says, "It was prepared for use by those engaged in the development of instructional programs, in design of instructional materials and devices, in development of test programs, and in the establishment of operating practices for anyone whose work requires a knowledge of what it takes to operate a motorcycle safely." Iow, it doesn't say that only M$F can use it to develop a motorcycle curriculum, nor motorcycle licensing tests.
Technically, it is also a work of plagiarism and very possibly copyright infringement.
The introduction states that "the basic sources of information used" were: hundreds of published sources including instructional materials "such as textbooks, lesson plans, and audio visual materials," technical reports, periodicals; Interviews with "specialists in on road operation, off road operation, and motorcycle maintenance"; and Observation of motorcyclists themselves. It does, however, particularly acknowledges the motorcycle task analysis of P.L. McDole and W.G. Berger of the University of Michigan, Ann Arbor (1971).
It is also a derivative work since it's compiling what is already in existence rather than inventing or creating or re-designing the motorcycle task. Iow, insofar as M$F used the MTA as the basis for their curriculum, the content is not original to M$F but using prior existing knowledge. Iow, the Coke doesn't belong to them - nor does the formula - the procedures for safe operation.
However, no works cited or bibliography is attached nor any of the material attributed to the owners. If such a bibliography exists, it was not published. Additionally, some of those sources would've been copyrighted in their own right and those copyrights would still be valid under the 1976 Copyright Law.
As I understand it, simply because MTA did not cite anything or receive copyright permissions for materials doesn't mean anyone who uses them is in the clear. Two wrongs doesn't make a right.
But is there copyright infringement in the MTA, upon which the House of Tim rests?
The issue would become whether it was a case of Fair Use, a very tricky legal principle that may not work out so well for M$F if explored since TOMS could also claim Fair Use of M$F curriculum.
But without a bibliography for the MTA, we don't know if Fair Use provisions were followed or not. By not publishing a bibliography and citing sources, M$F casts suspicion on how much of their Coke formula belonged, by law, to others.
The MTA and M$F curriculum does not seem to be protected under the Academic Use provisions which allows certain forms of copying or use for non-profit educational institutions.
Despite the illusion they have cast for over 30 years, M$F is not an educational or safety foundation. It is a 501 (c) (6) Business Interest organization. Just because they are offering an educational course doesn't necessarily mean they have the same rights as truly educational institutions such as OSU do. In fact, it seems to me M$F doesn't.
According to http://fairuse.stanford.edu/Copyrig...w/chapter7/7 b.html: Academic Use applies only to "non commercial instruction or curriculum based teaching by educators to students at nonprofit educational institutions". Which TEAM Oregon is and M$F isn't since, in their by-laws, it says it's sole function is to profit the motorcycle industry through the means of motorcycle safety education.
Additionally, M$F collects royalties off the course books and charges buyers twice what the books cost to produce. As I understand it, that alone negates any Academic Use protection, but strengthens it for OSU/TEAM Oregon who does not sell their curriculum but offers it free of charge.
Regardless of these issues, M$F based their curriculum on the MTA and Instructional Objectives documents by the statements in their Introductions belong to the public.
But, when it came time to publish the RSS and BRC handbooks, M$F then claimed that the research was their own effort, which is a false representation.
M$F's second publication "Instructional Objectives for Motorcycle Safety Education" also adds nothing to the motorcycling task nor does it add anything "new" or "original" to teaching the motorcycle curriculum but organizes the material available in the un-copyrighted MTA into a more usable form. It may or may not be an "original work" as such, but who the copyright should belong to is questionable.
However, it also says in the Introduction, it "establishes instructional objectives for programs in motorcycle safety education." *Programs* . It doesn't say just M$F curriculum. It would appear then that anyone wishing to design a motorcycle curriculum can use this book without applying for written permission from M$F. Whether they need to cite that they used the material is another issue.
So how much of the content of any version of M$F curriculum reflects the MTA and "Instructional Objectives"?
Almost the entire thing.
Which is as it should be since a curriculum should reflect the motorcycle task. Whether it does so adequately is another issue. We''ll get to that in the future.
Careful examination shows that all the basics of the M$F curriculum is in the MTA. ALL of them. This includes the basics of helmets and gear, hazard awareness, risk perception, strategies such as lane position, space cushions following distance, target fixation, maximum braking, swerving, braking in a curve, avoidance techniques and gives detailed, explicit ways for the rider to predict what motorists will do and treats a key element in the motorcycle task as a process of prediction.
But here's the thing, it wasn't just the MTA that M$F based their curriculum on. Something that many riders assume is M$F's invention Scan Identify Predict Decide Execute was lifted from driver's education.
In brief, no content in the course is M$F's original work. To return to our Coke analogy, it's not Coke vs Pepsi at all it's all Coke, and M$F didn't invent Coke.
I'm wondering, then, if Mr. Vitrano is aware of the history of the curriculum and the dubious legality of the sources it's based upon? Perhaps even Tim isn't since he's driven out anyone who participated in the creation of those first curriculums or knew the earliest histories of the development. There's a downside to the "current plus one or two" shredding policy, Tim. But not everyone follows that documents do exist and defendant lawyers can obtain them.
For the rest of us and particularly any DOT or Attorney General's office - the evidence is abundant: M$F merely put the Coke in containers and TOMS put Coke in a different one.
The only question is only whether those containers are different enough from each other.
Well, actually, there's a much more serious issue that could, I've been told, land M$F in criminal court.