It will take a while to go through the responses of Mann, Bradley and Hughes. I’ve taken a first look at the new source code and will commenting on it in due course. I have no information on responses from NSF and IPCC, other than what I read in the Nature interview with the Chairman of IPCC.
Update (Wed.) : Just to clarify, the new source code referred to above is archived at ftp://holocene.evsc.virginia.edu/pub/MANNETAL98/METHODS/multiproxy.f. Mann’s arguments about title to source code discussed below are presumably an attempt to justify his withholding this source code up to now, rather than for withholding this program from the House Committee (which he has not done). That is not to say that there are not issues pertaining to exactly what he has now disclosed, but that’s another story. On the issue of source code, Mann has taken a remarkably legalistic point of view that it is his personal property, notwithstanding its financing by NSF. I’ll discuss here an interesting legal issue about whether the source code belongs instead to the University of Virginia or University of Massachusetts. I’ll also discuss Mann’s surprisingly technical argument in the context of senior U.S. federal government policy on archiving. If Mann’s legalistic position is correct under present NSF policy, then I suspect that this will surprise many policy-makers and certainly suggest the need for a reiew of NSF policies and procedures, either in the form of more forceful contract negotiation and administration by NSF or a change in legal tools or contractual language available to NSF. Mann’s Statements Mann stated the following::
It also bears emphasis that my computer program is a private piece of intellectual property, as the National Science Foundation and its lawyers recognized….And whether I make my computer programs publicly available or not is decision that is mine alone to make….under long-standing Foundation policy, the computer codes referred to by The Wall Street Journal are considered the intellectual property of researchers and are not subject to disclosure.
As support, Mann quoted the following letter of Dec. 17, 2003 from David Verardo, Director, Paleoclimate Program, Division of Atmospheric Sciences, National Science Foundation to me regarding a request for residuals series, not source code (in my opinion, quite different issues pertain to research data such as residuals).
Dear Mr. McIntyre, I apologize if my last electronic message [see here ] was not clear but let me clarify the US NSF’s view in this current message. Dr. Mann and his other US colleagues are under no obligation to provide you with any additional data beyond the extensive data sets they have already made available. He is not required to provide you with computer programs, codes, etc. His research is published in the peer-reviewed literature which has passed muster with the editors of those journals and other scientists who have reviewed his manuscripts. You are free to your analysis of climate data and he is free to his. The passing of time and evolving new knowledge about Earth’s climate will eventually tell the full story of changing climate. I would expect that you would respect the views of the US NSF on the issue of data access and intellectual property for US investigators as articulated by me to you in my last message under the advisement of the US NSF’s Office of General Counsel. Respectfully, David J. Verardo Director, Paleoclimate Program
Mann obviously liked this line of rhetoric and, in answers to question 5, re-iterated the points:
I have made available all of the research data that I am required to under United States policy as set by the National Science Foundation. In accordance with the rules promulgated by the Foundation and supported by the Foundation’s General Counsel, I maintain the right to decline to release any computer codes, which are my intellectual property.
(Q5A).. our policies are fully in keeping with those established by the National Science Foundation.
A(Q5C): The source of these policies is the National Science Foundation.
A(Q5D): My computer program is a piece of private, intellectual property, as the National Science Foundation and its lawyers recognize. It is a bedrock principle of American law that the government may not take private property “without [a] public use,” and “without just compensation.”
To leave no doubt on his views, Mann went on to quote the following
Even more recently, the National Science Foundation confirmed its view that my computer codes are my private property. A recent issue of the Chronicle of Higher Education states: “According to David Stonner, of the Congressional affairs office at the National Science Foundation, Mr. McIntyre contacted the foundation last year to ask for Mr. Mann’s computer code. Mr. Stonner said the agency had told Mr. McIntyre that the code was the intellectual property of Mr. Mann . . ..” Richard Monastersky, Congressman Demands Complete Records on Climate Research by 3 Scientists Who Support of Global Warming, Chronicle of Higher Education (July 1, 2005), available at: http://chronicle.com/temp/email.php?id=dopjw74bwvqzvd3k9tekp5avlofvb2yu
Stonner is presumably referring to a letter of July 28, 2004 from NSF to me, replying to my letter of June 22, 2004, which was a broader inquiry into data not archived by Thompson, Jacoby, and others ee here ).
On the question of computer source codes, investigators retain principle legal rights to intellectual property developed under NSF award. This policy provide for the development and dissemination of inventions, software and publications that can enhance their usefulness, accessibility and upkeep. Dissemination of such products is at the discretion of the investigator.
I agree that the NSF said that Mann did not have to release his source code. However, this leaves two issues:
1) did the NSF adequately consider all the legal matters involved? I’ll suggest below that they did not.
2) If he NSF has articulated its policies, a) are these policies themselves consistent with more senior guidelines to NSF? b) should these policies be themselves reviewed? If so, who better to consider the matter than a House Committee? c) if the policies have ramifications outside narrow science matters, should the policies be considered in a broader policy conext?
Players that are not considered in the NSF legal opinion are the universities — Virginia and Massachusetts. Mann used this source code both at the University of Virginia and the University of Massachusetts. Most universities, including Virginia and Massachusetts, have policies governing the terms of employment, which clearly reserve title to source code to the university. For example, the University of Virginia policies state:
Each investigator should accurately record all research procedures undertaken, observations made and all results, regardless of whether its value or import is apparent. These records should be maintained for at least five years and all data and notebooks resulting from sponsored research are the property of the University of Virginia.
This policy is set out in additional detail as follows:
The retention of accurately recorded and retrievable results is of the utmost importance in the conduct of research, and it is the responsibility of each investigator to maintain such records in a secure location. Data and notebooks resulting from sponsored research are the property of the University of Virginia. It is the responsibility of the principal investigator to retain all raw data in laboratory notebooks (or other appropriate format) for at least five years after completion of the research project (i.e., publication of a paper describing the work, or termination of the supporting research grant, whichever comes first) unless required to be retained longer by contract, law, regulation, or by some reasonable continuing need to refer to them.
The computer source code used by Mann is obviously an included “record” of “research procedure” and, according to the above term of employment, such code would be the property of the University of Virginia, rather than Mann’s personal property. Although the code has been used by Mann at the University of Virginia, it was originally developed at the University of Massashusetts. At this point, we do not know how much the present edition varies from the original code at the University of Massachusetts. The University of Massachusetts has a highly similar policy stating that “tangible research property including the scientific data and other records of research conducted under the auspices of the university” is the property of the university.
Both the University and the Principal Investigator (PI) have responsibilities and rights concerning access to, use of, and maintenance of original research data. (For the purposes of this policy the term PI refers to the researcher with primary responsibility for directing the project whether or not the research is conducted under a research grant or contract.) Except where precluded by the specific terms of sponsorship or other agreements, tangible research property, including the scientific data and other records of research conducted under the auspices of the University, belongs to the University. The PI is responsible for the maintenance and retention of research data in accord with the policy.
The University of Massachusetts also has the right to take possession of the source code.
5.1 Where necessary to assure needed and appropriate access, the University has the option to take custody of the data in a manner specified by the Vice Chancellor for Research
Accordingly, just because the NSF said that the code is Mann’s property is not the end of the story. The policies of the University of Virginia and the University of Massachusetts certainly indicate to me that the code is most likely the property of one of the two universities — most likely the University of Massachusetts. I must say that it is surprising to me that the NSF was seemingly unaware of standard university of terms of employment and failed to advise me that the code was possibly the property of the university and suggest that I inquire of the university, especially given the number of contracts that the NSF must carry out each year with various universities. I noticed these university policies earlier this year. In April 2005, I sent an email to Ariel Gomez, Vice President of the University of Virginia, (cc: John Casteen, President) requesting the source code under the above policies. . I have received no acknowledgement.
Senior U.S. Federal Policy
Even if NSF has accurately reported on its policies, there is surely a serious policy issue here. The senior policies on data archiving are discussed here and here . I commented briefly on these policies a few months ago here. For example, here is a senior policy statement from the US Global Change Research Program:
The government invests millions of dollars each year in research grants, contracts, and cooperative agreements. In many of these assistance and acquisition agreements the recipient develops data and data products that could be of use for other research and commercial or educational purposes. These data and products may come from various researcher activities including primary data collection, the synthesis or analysis of existing data products, and from calculations and model outputs. At the present, the agencies generally make no requirement on recipients that such data products be made openly available. With the very constrained agency budgets, it is becoming increasingly important that such data and products not be lost but, instead, be used to the greatest extent possible. It is in the interest of good science, as well as in the interest of the public, who fund our science activities, that data and information produced at the public expense, be made available for secondary use in the shortest time period possible. The requirement for making data and information documented and openly available must find its way into the language of our assistance agreements and contracts. The need for such an action has been recommended by the National Academy of Sciences’ National Research Council*
I am sure that these comments would represent the views of senior policy-makers to the extent that they have turned their mind to the matter. The tenor of this policy statement is obviously entirely against legalistic interpretations of title to source code. It also surely provides a clear direction to NSF to implement specific contractual language in their contracts which would prevent the precise situation invovled with MBH98 up to now. It also shows that policy-makers wanted to avoid the possibility of data being lost in moves between universities e.g. Crowley’s loss of the data in Crowley and Lowery ). I am quite sure that policy-makers have long assumed that no paleoclimate scientist whose work was being used for climate policy would be taking narrow technical stands on title to source code. I am sure that they, like me, would have assumed that studies on topics of such importance would have the broadest possible disclosure and closest possible examination. It really doesn’t matter whether NSF has the tools and is not using them or whether NSF lacks the tools. In either case, the situation is surely unacceptable from a public point of view (and as a Canadian whose government is relying on these studies, I think that I have standing to comment on an American policy).
A similar situation applies for IPCC. I believe that it is useful to regard IPCC TAR as a scientific “prospectus”, since the standards of due diligence and disclosure involved in a prospectus should surely be exceeded in an IPCC assessment report (or so we are told). In that spirit, for IPCC to rely on a scientific study, it seems to me that IPCC should likewise ensure that it has adequate tools and procedures to ensure that there is adequate disclosure of data and methods in underlying studies relied upon by IPCC and that there is a policy interest in determining whether this is the case. I can certainly contemplate that circumstances could exist in which IPCC should insist on levels of disclosure exceeding ordinary journal standards or even NSF standards. IPCC impacts go well beyond narrow scientific matters and undoubtedly this is one of the reasons that a House committee with very broad interests has taken an interest in how disclosure is handled by IPCC, NSF and IPCC authors.