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.
Climate Audit 
16 Comments
Very interesting. But the chances of U Mass asserting this against Mann are donut hole. And the practice has been for this sort of thing (actually even equipment) to travel with the PI. You could probably dig around and see what the uni policies are, here.
Of course, I still think that Congress has a right to demand for inspection documents (or code) that is copyright protected. They should just execute a subpoena and stop dancing around. They may be prevented from duplicating or circulating it. But the idea that copyright prevents a legal body from looking at relevant documents seems a real stretch.
And regarding public use. A Congressional committee looking at the efficacy and honesty of climate research (which is federally funded and has major policy implications) would have a pretty easy time of being defined as “public use”. They might even be able to get away with showing the information (for review) to an individual critic, given the public need for resolution on the issue, although this would be dicier. Of course if the appropriate the code and start copying it or selling it or using it for commerce, then they would likely need some immenant domain payment (maybe to UMASS). Also, I don’t know the details of the grant, but often there is some proviso in there about the government being allowed to practice (even patents) IP which is discovered in the research. THis is how defense grants typically read.
It’s not a simple issue, Steve. And Mann is likely making some assertions that are overreaching, but I’d be wary of very good analysis without all the documents and without some topnotch (and there is a lot of nontopnotch) legal consultation.
He’s the one that’s making the assertions. I’m just asking questions, and, as David Appell says, you can never ask too many questions. I explicitly said that I don’t have all the documents and allowed for the possibility that Mann may have acquired legal title to the code through a contract. But the question is fair under the policies and I know enough about torts to ask the question.
In Mann’s shoes, if I were making an assertion to Congress about my title to source code, I would certainly have obtained independent legal advice. My guess is that he didn’t obtain independent legal advice, but instead relied upon NSF, who were not specifically advising Mann and who would not have considered the relationship between Mann and UMass.
Perhaps Mann should look up the copyright doctrine of “Fair Use”.
You guys are missing the point: the issue that I’m discussing here is different from fair use, it’s who actually owns the code and whether the code was appropriated (as oposed to the different issue of whether it was appropriate) – pretty hard to make a pun on appropriated, wasn’t it.
No…we got that part. We are just quite reasonably broadening the discussion. And wrt to “conversion”, it is an interesting triviality but unlikely to be pursued given:
-common practice
-liberal leanings of UMASS
-lack of commercial worth of the code!
So…great, Mann said something legally contestable (maybe even wrong). Who cares. UMASS will go after it if this becomes some huge piece of IP like the laser or vitamin D or some drug or whatever. Otherwise, they could care less what words drip out of Mann’s mouth. Bigger fish to fry.
TCO, I realize all of that. I was thinking of it simply as a legal curiosity – that the tort came into existence only with the letter to congress. It’s more like a question in a law school exam: is there a tort here; if so, who is entitled to what. I know enough tort law to be amused by it. Curiosities like that amuse me – nothing more than that.
I’ not sure that legal minutiae are so irrelevant. Al Capone didn’t get jailed for his real crimes but tax evasion. In one of my own experiences the only satisfaction I was able to obtain against an adversary was to nail his lawyer on a breach of profession rules. I would of course have preferred not to have had the original problem or to have it solved in my favour.
If (and at the moment it is an if) Prof. Mann is not careful to be accurate on the issue of ownership of the code why should Congress think he cares about accuracy when it comes to the data or his conclusions? Being pedantic or sloppy are often personality traits.
We don’t really know whose computer program it is, but aren’t we more concerned with what the answers should be? Assume data collection is done, the data is analyzed, and conclusions are reached. Assume you are in a position to create the applicable laws and contractual terms. You are the U of Mass and the Barton Energy Committee.
Should the data be the sole property of the collector? Should the analysis? Probably. Do they have to be shown to anybody. Probably not. But shouldn’t this result be different if,
A. The conclusions are published?
B. All the work is paid for by someone else? The U of Mass? The taxpayer?
C. The purpose or the clearly foreseeable result of the conclusions are to modify public policy such that it will cause a significant re-allocation of tax dollars or significant personal expense to a large number of specific taxpayers?
D. The conclusions are intended to be relied upon by others?
And who gets to see and audit the data and the analysis? Only qualified peers? Persons other than peers? A Patent clerk? A Physicist named Feynman? Would you permit a rich German business man named Heinrich Schliemann to audit it? How about a legislature? Can a mere taxpayer see it? How about somebody who went to college, never did any science, got a D in biology, but has the unmitigated audacity to write a book called “Earth in the Balance”? How about the evil taxpayer, oil company who stands to lose a lot of money if the conclusions are accepted and acted upon? Or, God forbid, a Canadian?
How should science work?
I think the whole property thing is jab by Mann at the property rights crowd…the US constitution and commen law makes a distinction between real property (a house or a farm) and intellectual property (books, computer code etc) Mann is trying to apply real property property rights on intellectual property. It would not hold up in court…but he could apply intellectual property rights in which case I think a court could allow the code to be viewed by outside interested parties so long as the intellectual property owned by Mann remains intact…ie you don’t give the code away to anyone else.
I have no idea to what extent a congressional commitee has in forceing Mann to give you his code…but by not giving it he sure looks bad.
Joshua, why do you say it’s Mann’s code? (as opposed to UMass code).
Another interesting case of scientific conventional wisdom is the Piltdown Man fraud:
“In fact, as was discovered a long forty years after its first announcement, the Piltdown Man was a hoax, a fraudulent seeding of the Piltdown gravel pits with fragments from a modern human cranium and an orangutan’s jaw…the real story of it all has been somewhat obscured: ‘namely, what could have led so many eminent scientists to embrace such a forgery?'[22] How is it that trained men, the greatest experts of their day, could look at a set of modern human bones–the cranial fragments–and “see” a clear simian signature in them; and “see” in an ape’s jaw the unmistakable signs of humanity? The answers, inevitably, have to do with the scientists’ expectations and their effects on the interpretation of data.”
link: http://black.clarku.edu/~piltdown/map_expose/chain_of_fraud.html
My favorite part of this quote is “trained men, the greatest experts of their day…”
I think the committee has the right to subpoena these materials without eminent domain and to examine them. Reading something is not the same as publishing it. Do you think written notes about a murder would require eminent domain for a court to look at them (because of copyright)?
“Joshua, why do you say it’s Mann’s code? (as opposed to UMass code).”
Becouse I doubt you can get UMAss to lay claim to the code..while Mann does claim it. I think Science in general should require an open source mentality when it comes to computer code used in producing data and generating science…but this in no way means you have the legal upper hand…I have examined how code is dealt with in computer science research and it does not look good for your side. Even code generated using only public funds for public use can easily be claimed by its authors. I don’t in any way agree with this but i think it is important to live in reality. Mann is using a rat fink trick to hide his methodology…but it looks like the law is on his side…replicatablity and the scientific method are not.
examining the law in this regard is a dead end.
This is all very confusing. When UMASS says that “tangible research property including the scientific data and other records of research remain the property of the University” it implies to me that you have to ask the University’s permission if you want to archive data at a journal. Joshua Corning, do you think this is the case?
By the way, does everyone know that Mann has left Virginia and gone to Penn State?
Roger Bell
Unless UMass has either modified their standard terms in Mann’s case, or specifically assigned the code to Mann, there would be an action available for breach of copyright, should Mann use it in an unauthorized fashion.
In most cases, the remedy in torts cases is an attempt to restore the equity which previously existed between the respective parties, prior to the tort applying (although there are some instances where a “punative” measure of damages can be applied).
It is debatable as to whether or not simply making inconsistent assertions as to ownership would amount to a conversion – normally something is required to be done which results in the owner being unable to continue to enjoy the benefits of that ownership (eg. selling a car you have borrowed would be a conversion, but it would not be a conversion to tell someone that the borrowed car is yours and you could sell it, if you wished to – that would be mere puffery).
However, if copyright in the MBH98 code does, indeed, still reside with UMass, and Mann has now gone to Penn State and taken the code with him, using it in later work, UMass could very realistically have actions in both breach of copyright and conversion.
The appropriate legal remedy (for conversion, at least) would probably be restoration of the code to its rightful owner. The rightful owner could also request that any derivative works based on the code be restored. Given the controversy surrounding this code, however, I wonder if UMass would want it.
It raises an interesting point, however. Perhaps Steve should pull out one of his old letters to Mann requesting the code and change the addressee to UMass. The response (if he can get one) might be enlightening – it might clear up the ownership issue once and for all.