2 July, Celani
2 July, Krivit
3 July Krivit
3 July, Celani
3 July, Storms
9 July, Storms
9 July, Krivit
9 July, Storms
9 July, Krivit
10 July, Storms
10 July, Krivit
11 July, Celani
12 July, Collis
13 July, Collis
13 July, Krivit
14 July, Krivit
18 July, Collis
18 July, Krivit

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Date: Wed, 02 Jul 2008 12:20:33 +0200
Subject: Discussion about ISCMNS
From: Francesco Celani <emailt>
To: <krivit-email >, Akito Takahashi <-email >,
<billcollis-email >, <chino37-email >, <chubb-email >,
<chubbscott-email >, <dufourj-email >,
Francesco Celani <-email >, <jpbiberian-email >,
Li Xing Zhong <-email >, <lpgforsley-email >,
<scott.chubb-email >, <storms2-email >,
William <mr.collis-email >

Dear Steve

Thank you for your message dated 26 May addressed to the ISCMNS Executive Committee and others. We note your complaints:

1) [that ISCMNS tries to] collect, copyright and control as much digital information about CMNS as possible
2) [that ISCMNS] hordes others' intellectual property and interferes with its dissemination
3) [that ISCMNS putting a] "copyright" notice on the ISCMNS DVD-ROM containing the work of Hal Fox is "ludicrous" and "wrong"

The Executive Committee is currently investigating these issues and invites you to submit a more detailed case substantiating your point of view.

Thanks for your collaboration.
Yours sincerely,
Francesco Celani
Chairman, ISCMNS Executive Committee

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Date: Wed, 02 Jul 2008 11:29:48 -0800
To: Francesco Celani <francesco.ce...t>
From: Steven Krivit <skri...>
Subject: Re: Discussion about ISCMNS

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July 3, 2008

Dear Francesco,

I greatly appreciate your letter of 2 July. I am pleased that you are giving the matter your attention, and I hope that we can make some progress.

My attempts to communicate and collaborate with Bill Collis, chief executive of ISCMNS, failed some time ago. My experience with him so far is that he does not understand copyright law and he has, with great aggression and hostility, harassed me privately and publicly and brought harm to my reputation in his attempts to assert rights that he does not have.

I believe that the foundation of this dispute is that Bill wants to profit from sales of the ISCMNS version of Hal Fox's Archive and I want to place it in the public domain and give it away philanthropically.

I believe Bill thought that he had exclusive legal rights over the ISCMNS version of the Fox Archive though, by the evidence given to me, he was mistaken.

I believe that Bill thought that New Energy Times violated ISCMNS' copyright regarding the Archive.

According to U.S. copyright law, copyright is automatically granted to the creator of a work, regardless of whether the creator states it, regardless of whether the creator files a federal application. However, modifying someone else's work is a different matter, which I will get to in a moment.

In general, other people or organizations cannot use copyrighted work without permission from the work's creators or copyright holders. There are exceptions to this; they fall under what is called the Fair Use doctrine. Under certain conditions, use of another's copyrighted work without permission does not necessarily constitute copyright infringement. The U.S. Government has a synopsis of the factors to consider.

They include:

• The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
• The nature of the copyrighted work
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole
• The effect of the use on the potential market for or value of the copyrighted work

Copyright law further states that a person cannot take another person's creative work and republish it either on its own or in a compilation, either unmodified or improved, without the explicit permission of the original creator of the work. This is referred to as "derivative rights." Several readily available references clarify this.

"The creator of [a] derivative work must have created the derivative work with the authority of the copyright proprietor since the copyright proprietor of the underlying work has the exclusive right to make derivative works."[Hoffman]

"[Derivative works are] based on or derived from another copyrighted work. [They are] the exclusive provenance of the owner of the original work. This is true even though the making of these new works is a highly creative process. If you [use the content] of somebody else's work, you need that author's permission." [Templeton]

[Other references: Hoffman, Spatt]

In the case of the Fox Archive, this means that ISCMNS did not receive permission from Hal Fox to republish and/or improve his Archive. New Energy Times did not receive permission from ISCMNS to use its improved version of Fox's Archive. However, New Energy Times did receive permission from Fox to republish a version of his Archive; an exact version was not specified in our agreement with Fox.

Here is the background, as I understand it:

On April 25, I asked Hal Fox for permission to publish his archives.

>From: Steve Krivit <steve-email>
>Sent: Apr 25, 2008 12:13 PM
>To: "eemf-earthlink.net" <eemf@earthlink.net>
>
>Dear Hal,

> Bill Collis has done some fantastic work to put your FIC archives onto
>DVD-ROM. I would like to now make your archives available to the entire
>world and publish them on our Web site. May I have your permission to do so?

>Thanks,
>Steve

A day later, Fox responded.

Date: Sat, 26 Apr 2008 09:01:38 -0400 (EDT)
From: Hal Fox <eemf@earthlink.net>
To: Steve Krivit <steve-email>

Dear Steve Krivit,

I am honored. You have my permission to make my received information available to others as you see appropriate. I am honored that you would desire to do this.

Best regards, Hal Fox, Ed. J. of New Energy

I was not under the impression that Bill Collis performed a significant amount of work to convert the files to HTML. His explanation for it on the DVD-ROM implies that the work was somewhat "automatic" and that it required only the installation of a modern software program and printing each document to PDF.

Despite the fact that Collis has put the word "copyright" on the ISCMNS DVD-ROM, it was clear to me that his use of that term was invalid. The reason I knew this was that he had 24 issues of New Energy Times on it, and I did not grant ISCMNS any form of copyright.

I did not, at the time, realize that Bill was making a claim for significant improvements on the Archive or that he was claiming derivative rights.

The idea of "derivative rights" came into the discussions after Bill sought help from Marianne Macy, who offered her help on May 19.

"I appreciate the important issues you've raised here and the point about the proper form of inclusive and open communication," Macy wrote. "I think you've raised serious considerations, and I will take some time to make these inquiries about the practice of ethical issues from professional journalists working at top media outlets such as the Washington Post, the New York Times, the New Yorker, and mentors from TIME magazine and Newsweek who have written award winning books. The field can only grow in line with the excellent standards you suggest we maintain. Also in the spirit of full disclosure you will note I have opened this discussion to other journalists at work covering CMNS."

The other journalists Macy "opened the discussion" to were Jed Rothwell and Christy Frazier.

So why did I not use Hal's original version? Because I could not, and still cannot, find a copy of it. Hal has no more left.

In the case that Bill had established a derivative agreement with Hal, then I clearly would have been in the wrong - though the ISCMNS version of the home page of the Archive fails to show any copyright, not by Fox or by ISCMNS. The DVD-ROM does say, however, "released by kind permission of Hal Fox." Neither Fox or Collis have any records of such permission, though I'm certain Fox would have given Collis permission just as he did me.

However, even if Collis did receive permission from Fox, "permission to release a copy" is different from granting a derivative copyright.

As I wrote to Bill on May 19, "If Hal did previously grant and transfer such rights to ISCMNS, then I extend my apologies to you. ... and I will discuss with Hal why he failed to inform me of any pre-existing agreement when I requested, and he granted, permission for me to make his archive available to others as I see appropriate."

On May 24, after I explicitly asked Hal whether he had granted any form of copyright to ISCMNS, he stated that he had not. On May 25, I showed Bill and the Executive Committee Fox's message. Collis still failed to provide any evidence of such agreement.

The copy of the ISCMNS DVD-ROM I have includes the following:

A. Papers from the "Asti" series of conferences. These are conferences which Bill personally founded, organized and managed. (Content size: 194 mb)

B. Photographs that Bill took at several ICCF conferences. (Content size: 64 MB)

C. Hal Fox's Fusion Information Center Archive files. These represent published work created and owned by Hal that spans a decade. Bill also made improvements to the file formatting of the archive to make it more readable. (Content size: 214 MB)

D. Fifty-two PowerPoint slide presentations from researchers who gave presentations at ICCF-11. Also, photographs that I and others took at ICCF-11.

E. Fifty-nine papers and presentations from researchers who gave presentations at ICCF-12.

F. A copy of the LENR-CANR Web site created by Ed Storms and Jed Rothwell representing work performed by each of them over two decades. (Content size: 382 MB)

G. Twenty-four issues of New Energy Times created by me and my organization representing work performed by me over four years. (Content size: 12 MB)

H. A few other miscellaneous files and items.

Bill sells this DVD-ROM on http://www.iscmns.org site if someone is willing to become a member of ISCMNS, for EUR 26 (about $40). Bill appears to make little or no effort to let the general public know of its existence.

Bill later brought to my attention his claim of "derivative rights" in his improved version of Fox's archive.

On May 23, in response to Bill's assertions of derivative rights, I wrote, "If this is the case, I am willing to concede that ISCMNS may have such a legal right, then I do sincerely apologize for my misunderstanding."

As the record below shows, Bill had no such permission from Hal Fox, according to Fox. Therefore, Bill would have had no such right to assert control of and copyright in his improved version of Hal’s creative work. As Bill now knows, just because he improved someone else's work does not give him the right to claim ownership of it.

Therefore, Bill did not have a right or legitimate reason to make his menacing and hostile private and public allegations to and about me. His various allegations of copyright violations and hostile insinuations are without merit. It is not I who owes an apology.

New Energy Times took the Fox Archive offline on May 30 in order to resolve this confusion about copyright issues. We are content with our standing on this matter, our efforts to work diplomatically to resolve issues, and the importance of making the Archive available on New Energy Times.

Here are some facts:

1. On June 18, Bill posted the following comment on the CMNS list: "I am surprised that you make the appeal below for the archive without specifying your purpose."

As Bill knows, he complained to me about our publishing the ISCMNS version of the Fox Archive soon after we put it online on May 10. In response, I attempted to find an original, unimproved version to publish. I wrote to Bill about this twice.

Here is the text from the first e-mail I sent him, on June 13, copied to Ed Storms:

"Would it be possible for you to send me a copy of the original Hal Fox CDROM so I can make my own version of his archive? Hal says he doesn't have any more copies."

Here is the text from my second request to Bill on June 30, copied to Ed Storms:

"if you have a copy of Hal's original CD that you could send me so I can make my own version, I would really appreciate that. Hal says he does not have any more copies. You are the only one I know who has a copy of the original CD."

Because Bill already knew my purpose, his expression of "surprise" was disingenuous.

2. On June 18, Bill posted the following comment on the CMNS list:

"ISCMNS obtained Hal Fox's permission to redistribute this archive back in 2006."

On May 24, Hal Fox sent me an e-mail in response to my inquiry about any publishing agreement ISCMNS might have had with him:

"Much thanks for what you are doing," Fox wrote. "If I gave any special privileges to ISCMNS, I have no recollection of doing so. You may want to share this e-mail with them and ask them for copies of any agreement that they have signed by me."

As you know, I forwarded Fox's message to Bill and the ISCMNS Executive Committee (Scott Chubb, Francesco Celani, Jacques Dufour, Xing Zhong Li, Edmund Storms, Jean Paul Biberian) on May 25. Bill failed to produce any such agreement.

Perhaps Bill's statement on June 18, that he had received "permission to redistribute," and Fox's message regarding no "special privileges" are both correct, despite Bill's failure to produce written evidence.

Despite his failure to produce written evidence, if I assume the best of faith, Fox did give Bill "permission to redistribute," as Bill states. But "permission to redistribute" is not the same as granting copyright. Again, we probably are dealing with Bill's misunderstandings about copyright. His failure to produce any evidence of any kind of agreement with Fox suggests that Bill’s claim about any sort of derivative right is illegitimate.

3. On May 21, Bill wrote in an e-mail to me and several others,

"it is irrelevant to this discussion whether or not Hal Fox gave you or me or anybody else rights to FIC data."

By now it should be clear, particularly with the legal references I have cited, that it is entirely relevant.

4. On May 21, Bill wrote in an e-mail to me and several others,

"What I find unacceptable is that you continue to publish on your website material recreated by ISCMNS without permission [from me] even when [I] informed [you] of the violation. This is deliberate, willful infringement of copyright and cannot be excused by ignorance nor even by reckless disregard."

There is no "violation," or "deliberate, willful infringement." More important, there is no ignorance or reckless disregard for others here on my part.

5. On May 23, Bill wrote in an e-mail to me and several others:

"ISCMNS makes a meager income selling its data just as LENR-CANR has done. Krivit knows this because he once bought a disk himself and has published part of our DVD on the web knowing this undermines the financial position of the Society."

These statements are misleading and somewhat false. As far as I know, ISCMNS, aside from conferences which it explicitly hosts, does not create its own data.

Based on my personal experience with Bill's reproduction of 24 issues of New Energy Times on the ISCMNS DVD-ROM, ISCMNS repackages other people's data and sells it without their knowledge and without explicit permission to allow its sale.

The ISCMNS DVD-ROM is mostly republication of other people's creative content (New Energy Times, LENR-CANR, ICCF conferences papers and presentations, Fox Archive). Perhaps ISCMNS might want to re-evaluate its policy of claiming copyright in other people's work without first obtaining agreements with them. I'm certain that Bill and the Executive Committee would not want to be accused of "deliberate, willful infringement of copyright [that] cannot be excused by ignorance nor even by reckless disregard," as Bill stated with regard to me.

LENR-CANR does not create most of its own data; nor does it, contrary to what Bill wrote, have anything for sale, according to Edmund Storms.

Bill stated on May 23 that I purchased the ISCMNS DVD-ROM. He stated in a June 16 e-mail that I received a free copy of the ISCMNS DVD-ROM in Catania. I note that Bill's own statements are inconsistent, but he did give me a complementary copy of it. I think Bill made this kind gesture based on the fact that he was republishing my own content as part of the ISCMNS DVD-ROM.

I am also curious to learn how the placement into the public domain of someone else's content - Hal Fox's Archive - "undermines the financial position of the Society." If this is true, I have very serious concerns about the Society.

I never intended to harm the financial position of the Society, and as Bill knows, my organization has even provided ISCMNS with grants on several occasions.

The strange thing is that I didn't even know that the Fox Archive was on the ISCMNS DVD-ROM until Bill told me. This gets to the heart of why I wanted to publish it in New Energy Times. An unknown, let alone inaccessible, resource is a useless resource.

6. On May 23, Bill wrote in an e-mail to me and several others:

"The whole basis of ISCMNS' success has been a delicate balancing act between disseminating information and satisfying the legitimate aspirations of the creators of that intellectual property. The correctness of ISCMNS policy is that we have created the largest single digital collection of CMNS data in the world in just 4 years."

The first sentence seems to be largely inconsistent with the stated mission of ISCMNS, and the mission does not mention anything about intellectual property:

"ISCMNS achieves it mission by organizing scientific meetings, facilitating communication and collaboration between scientists, publishing and distributing results."

The second sentence from Bill's May 23 e-mail raises all kinds of questions. Is it the policy of ISCMNS to seek and take control of the digital intellectual property of the field? Has ISCMNS established legitimate claims to this property?

For example, the ISCMNS DVD-ROM contains a copy of the LENR-CANR library, the last four years of New Energy Times, Hal Fox's Archive and papers from ICCF conferences published in conference proceedings. I wonder, For which of these has ISCMNS established a copyright agreement?

7. On June 12, Bill sent an e-mail to Brian Josephson and others but not to me. However, Jed Rothwell forwarded it to me. In this e-mail, Bill criticized me for waiting 28 days to publish the Arata video. Bill asked the question about me, "Is it appropriate for a journalist to seek to monopolize sources of information?"

I have invested considerable time in building relationships with the Japanese researchers; through those efforts, I obtained this news exclusive. I will have placed the video in the public domain within a matter of days, I will let the public know about it, and we will not claim any copyright in it.

When I began to seek a copy of the original Fox Archive CD-ROM, Bill started slinging mud at me and attempting to block me from obtaining and publishing it. I find it hypocritical of him to disparage me for monopolizing information.

8. On June 18, Bill posted the following comment on the CMNS list:

"After considerable investment, ISCMNS resolved these [formatting] problems."

In an earlier e-mail, Bill explained that the "investment" was his own time and perhaps the purchase of a software package. If there was a significant out-of-pocket investment, he has failed to state this and misrepresented the facts.

As Bill now should know, without an explicit copyright agreement with Hal Fox to create a derivative work, Bill has no legal ground to stand on, whether to make such a derivative work or to keep it from others.

However, on moral ground, Bill’s expecting back pay for his volunteer work will be seen as petty by me and nearly every other person in this field who, at various times, has donated their efforts and their personal resources and savings on behalf of this field.

Bill's volunteer effort and any justification based on it fails to elicit any sympathy from me in light of his attempts to hoard, profit from, and block the use of the Fox Archive by others and to assert false ownership claims to it.

9. On June 18, Bill posted the following comment on the CMNS list:

"I note this is actually the second time you have broken off negotiations when I ask for a copy of your accounts and constitution."

Because Bill brought it up, I will say that the reason I broke off discussions with him is that I found his attitude hostile and his business practices incompatible with those of my organization.

For Bill's information, the IRS requires 501(c)(3) organizations such as ours, New Energy Institute, to make our 1023 and 990 forms available for public inspection; he or anyone is welcome to inspect them. The IRS does not, however, require us to provide copies to Bill or anyone else; nor does it require us to provide anyone with a copy of our accounts.

Bill asked other hostile and invasive questions in his June 18 e-mail:

"Tell us whether or not the New Energy Institute is accountable and how? Can we expect the same standard of ethics from you that NEI pretends from others? If you feel there has been any lapse of those ethics, perhaps you could try making a public apology?"

Under the circumstances, I do not feel obliged to respond to Bill's other hostile questions. Furthermore, these questions seem to be part of a slander campaign on his part – that is, his May 26 e-mail to me and several other people:

"Any attempt to uselessly duplicate the intellectual property [sic] of another public charity might be interpreted that you were not acting in the public interest. It could lead to negative publicity and / or loss of funding for NEI."

By all appearances:

• Bill has asserted an illegitimate claim to work that is not his to copyright.
• Bill has made groundless demands to assert such nonexistent copyright.
• Bill has acted on his implied threat in his May 26 e-mail and created said negative publicity on the CMNS list.

The Archive is now back online. I should note that my staff also has made further improvements; to the formatting and layout, though we will not interfere with anyone who wants to copy this from us or use it to help the field.

I have an eight-year track record in this field and have earned the respect of the community and the media. The July 10 issue of New Energy Times lists one factual error from a previous article. This correction is one of only a few such inaccuracies we have published; this attests to our excellent track record and our public accountability for what we publish.

I think Bill would be better off putting his attention toward doing more of the good work that he does with organizing conferences and the Society rather than trying to take from others what is not his and needlessly and recklessly attacking me and my organization.

Steven B. Krivit
Editor, New Energy Times
Executive Director, New Energy Institute Inc.
NEW ENERGY TIMES
Original reporting on leading-edge energy research and technologies
369-B Third Street, Suite 556
San Rafael, California, USA 94901
www.newenergytimes.com
Office Phone: (310) 470-8189

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