Mann’s answer to the Barton Committee included a bizarre tirade about title to his computer code, which made me ruminate about the tort of conversion. It’s hard to imagine that Mann has done something that is probably unprecedented in the entire history of responses to a congressional committee – the answer to the congressional committee itself constituting the act of conversion – but it’s quite possible according to the theory outlined below.
First, let’s look at the legal definition of "conversion", which is a tort against property. I happen to have read some of the common law cases on conversion. I was going to quote some of the cases since they are rather fun, but I couldn’t locate my file, so I contented myself with some google references. Here’s one definition (including a Massachusetts case):
The tortious taking of property is, of itself, a conversion 15 John. R. 431 and any intermeddling with it, or any exercise of dominion over it, subversive of the dominion of the owner, or the nature of the bailment, if it be bailed, is, evidence of a conversion. 1 Nott & McCord, R. 592; 2 Mass. R. 398; 1 Har. & John. 519; 7 John. R. 254; 10 John. R. 172 14 John. R. 128; Cro. Eliz. 219; 2 John. Cas. 411. Vide Trover.
A somewhat more modern phraseology for "subversive of the dominion of the owner" is the phrase "inconsistent with the owner’s rights":
The tort of conversion is committed when a party wrongfully commits a distinct act of dominion over the property of another which is inconsistent with the owner’s rights. Dillard v. Wade, 74 Ark. App. 38, 45 S.W.2d 848 (2001).
The point in the definition is that there are a variety of ways that you can be in possession of someone else’s property in a legal way without converting it: e.g. the person could have loaned it to you; leased it to you etc. However, even if you were in legal possession of someone else’s property, the act of conversion takes place when you assert a right inconsistent with the right of the true owner. So if you’ve borrowed something with permission, but then claim it as your own, it’s the claiming as your own that constitutes the conversion, not the prior possession.
So how does this tie in to Mann’s responses to the Barton Committee?
I pointed out before that the University of Massachusetts, who were the contractor with NSF in the grant generating MBH98, have a policy 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.
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 Univesity of Massachusetts was the contractor with NSF for the grant supporting MBH98, with Bradley being the PI. Under this grant agreement, it appears that NSF does not claim title to the code, but NSF’s contract was not with Mann personally; they are really in no position to opine on Mann’s relationship with U Mass. It is possible, of course, that Mann’s contract with U Mass provided that he retained personal ownership of any source code, as against the university, but I doubt that they would have specifically contracted out of university policies in this respect. So the true owner of the MBH98 source code appears to be the University of Massachusetts. Perhaps the University of Massachusetts sold the source code to Mann or otherwise assigned rights to him on some past occasion and Mann has formal legal title to the source code. I’m not in a position to say. If there has been no actual assignment of these rights to Mann by the University of Massachusetts, this could not be coopered up after-the-fact now.
Even if it was the property of the University of Massachusetts, I presume that Mann was in possession of his version of the code after he left the university with their permission, either explicit or implicit.
Now let’s look at Mann’s responses to the Barton Committee, where Mann asserted that the MBH98 computer programs were his personal property. Mann said:
It also bears emphasis that my computer program is a private piece of intellectual property “⥁nd whether I make my computer programs publicly available or not is decision that is mine alone to make”⥉t is a bedrock principle of American law that the government may not take private property “without [a] public use,”‘? and “without just compensation.”‘?
So, if the University of Massachusetts is the true owner of the source code (an if), Mann’s answer to Barton, in which he asserted that the code was his personal property, was an assertion "inconsistent with the rights of the true owner". The code could not be both Mann’s private property and the property of the University of Massachusetts. Mann’s suggestion that he should be entitled to "just compensation" was probably not a wise assertion, if the property belonged to U Mass.
While the doctrine of conversion originated in physical property, it has been applied to intellectual property and there is little doubt that the source code could be converted.
Conversion, as defined above, is a tort (and a tort is not per se a crime.) A tort gives rise to an action by the true owner – here the University of Massachusetts – who would be entitled to commence proceedings both for the recovery of their property and an acknowledgement of their true title to it. In some cases, conversion can give rise to liability other than the civil liability of a tort.
Many unusual things have occurred in responses to Congress – the case of Rafael Palmeiro is all too familiar to readers of sports pages. If all of the above happened (and I’m not in a position to know all the contractual terms between the parties), then I submit that this would be a quirky case worthy of the legal textbooks: a case where there was probably no prior tort, but where the answer to the congressional committee constituted the act of conversion.
Note: Wikipedia has an interesting online discussion of conversion.