"The Kept University," by Eyal Press and Jennifer Washburn (March Atlantic), contained several significant inaccuracies about me and my work. Since I was not contacted by either the authors or a fact checker, I would like to correct these errors here.
I and my colleagues did not, as the authors imply, try to extend the life of the patent on the anti-cancer drug cisplatin by double patenting. The patent applications filed on the drug, which was discovered by my laboratory at Michigan State University, covered both the pharmaceutical composition of matter and the method of use. The patent office initially allowed only method-of-use claims. Research Corporation, and later Research Corporation Technologies, acting on behalf of the university, kept a running battle going with the patent office for many years. Finally, in 1996, the patent office agreed to allow these claims, and they were issued as the second patent. We do not consider this "filing twice on the same invention," nor did the U.S. Patent and Trademark Office.
The four companies filing with the Food and Drug Administration for permission to produce cisplatin as a generic drug are not suing Michigan State University, as the authors state. They are being sued by Research Corporation Technologies to prohibit such production and sales. This is fully within the scope and responsibilities of RCT to protect the patent under a 1950 agreement with MSU (similar to those with hundreds of other universities and research institutions). Press and Washburn have also taken a comment by me out of context. I did indeed tell the Chronicle of Higher Education that the university acted in a less than academic manner, but this was in reference to a totally different matter. In 1995, with large amounts of royalties accruing, MSU decided it wanted a bigger piece of the pie and sued Research Corporation Technologies to break the 1950 agreement. It was this act that led me (and other academics) to believe that MSU was wrong, and led to my statement about "selfish, money-hungry university personnel."
Eyal Press and Jennifer Washburn seriously misrepresent the agreement between UCLA Extension and OnlineLearning.net for the distribution of online courses. They fail to account for important changes made to the agreement when online education was added to the original terms, and they are wrong when they claim that OnlineLearning.net has acquired the copyright to Extension's online courses.
The original agreement -- signed in June of 1994 by Extension and The Home Education Network, the predecessor to OnlineLearning.net -- envisioned principally the audio and visual recording of Extension courses for distribution as secondary products that would augment Extension's regular course revenues through a royalty stream to be shared with participating instructors.
In late 1995 The Home Education Network proposed to shift its focus from distributing course recordings to distributing courses online (and in the process becoming OnlineLearning.net). Although the rapid development of the Internet and computer technology made such a shift understandable, Extension did not initially agree that the terms of the 1994 agreement covered online courses. A brief dispute with The Home Education Network ensued, leading to an amendment of the agreement in 1996 that incorporated online courses, but did so on the assumption that the agreement's terms would be further modified to provide the appropriate operating basis for online distribution. The negotiation of these modifications, which proved more complicated than either party anticipated, was completed in early 1999, and after review by the campus academic senate a second amendment was signed that recast the original agreement terms to reflect the shift from recordings to online.
At the heart of this amendment is the unequivocal statement that the regents (of the University of California) or the instructors, as appropriate, shall be the owner of all right, title, and interest, including, without limitation to copyright, in and to all content, class materials, and curricula for online courses distributed by OnlineLearning.net. No assignment of these rights is granted to OnlineLearning.net, nor has the company asserted any claim to such an assignment in connection with its responsibilities under the agreement.
David C. Menninger
At the root of the debate over academic-industrial partnerships is the question of intellectual property -- how to protect it without stifling the free and open exchange of ideas so crucial to academia. The problem hit home when, in reading your excellent article "The Kept University," I noticed a quotation lifted verbatim from an article I wrote in 1997 about the same topic. Michael McCarthy, an editor at Lancet, was quoted in your magazine as saying he "often can't find anyone who doesn't have a financial interest" when medical researchers submit their study results for publication. He said the same thing in my newspaper two years ago, and it remains true today.
Should I be upset that the authors, despite writing about intellectual property, failed to acknowledge where they got the quotation? Should I celebrate this minor act of plagiarism as being in keeping with the spirit of free and open exchange of information? I guess I'll celebrate.
We apologize to Barnett Rosenberg for not speaking to him directly concerning his comment about "money-hungry university personnel" -- which, as he states, referred to an earlier lawsuit filed by Michigan State University against Research Corporation Technologies, its licensing agency, over royalties. Also, we acknowledge our error concerning the cisplatin lawsuit, which should have stated that RCT (acting on behalf of MSU) and Bristol-Meyers Squibb (the manufacturer) sued four drug companies for attempting to market generic versions of the drug.
Dr. Rosenberg's contention that RCT (and MSU) never sought "double patenting" on cisplatin, however, is contradicted by an October, 1999, U.S. district court ruling in New Jersey, which invalidated the second patent for "obviousness-type double patenting." It is true that the original cisplatin patent, issued in 1979, discussed both composition and "method of use." But according to Leydig, Voit & Mayer, a firm representing one of the generic-drug manufacturers, RCTand MSU did not actively pursue a second "composition-type" claim until six years later, and it was not until 1995 that the claim was amended to address cisplatin's light sensitivity, which was the basis of the second patent. Interestingly, shortly after the second patent was issued, MSU quietly settled its earlier royalty dispute with RCT.
David Menninger claims that we were "wrong" to assert that OnlineLearning.net acquired the copyright to courses in its 1994 agreement with UCLA's Extension school. Yet the agreement, far from being limited to audio and visual recording, explicitly grants the company "the sole, exclusive and irrevocable right under copyright and otherwise to make, produce and copyright by any means or 'Technology'" courses at the Extension school. The 1999 amendment does contain a clause assuring instructors that they control copyright, but only under condition that OnlineLearning.net retains "exclusive right to distribute UNEX's Classes By On-Line Means." In other words, professors are told that they retain the rights -- but not when it comes to marketing and distributing their courses online, which is the crux of the issue.
We appreciate -- and agree with -- Tom Paulson's nonproprietary philosophy on the sharing of quotations in the public domain, but we apologize for not citing his article as the source of Michael McCarthy's quotation.
For the record (or the CD, as the case may be): In "The Soundtracking of America" (March Atlantic), J. Bottum quotes at some length from an essay I wrote in The New York Times last June. Unfortunately, this excerpt leaves out the final words of the anecdote and of my essay -- a crucial omission that allows Bottum (wittingly or not) to misrepresent a conversation I had with my son as an "induction of a child into the complex trivialities of popular culture" -- trivialities that for Bottum represent "the meaninglessness of the knowledge the boy and the father share, the way it doesn't fit anywhere or do anything."
I was not inducting my son into anything -- he came to the Beatles' White Album and Anthology himself and surprised me with his interest in and knowledge of them. The "Lucky him" that Bottum characterizes as a "father's earnest irony about a son's memorizing his father's music" was, as the full quotation might have suggested ("Lucky him, growing up in a world without Answers"), precisely the opposite: a father's earnest gratitude for his son's not memorizing his father's music -- for his not according "a piece of popular music recorded twenty-three years before he was born" the same reverence that many members of his father's generation did. In fact, the entire essay was an attempt to capture and question the fetishism that my generation continues to attach to the trivialities of popular music -- again, precisely the opposite of Bottum's characterization of it.
Having stripped the anecdote of its context and my essay of its point, Bottum deplores the contextlessness of my conversation with my son as "disconcerting" and the pointlessness of our communication as "disturbing." I might agree -- if that's what had happened and that's what I'd written.
The claim that Beethoven's "thunder echoed in a landscape of generally accepted ideas about God and man and nature" and that the purpose of his music was to "express and ... perpetuate [a] shared sense of coherence" is preposterous. Beethoven's era was one of immense cultural and political upheaval, and his compositions revolutionized musical form. The same can be said of many of the composers Bottum seems to think were composing a yea-saying soundtrack for a stable "public metaphysics." This leads to a larger question: Where and when did this "shared sense of coherence" actually exist? I wonder if it is not a vague term for something that never existed. Bottum's butchering of Nietzsche is even less forgivable. He writes that "Nietzsche wanted to end inhibition" and that "music hasn't melted us down into Nietzsche's unconstrained beasts." This is egregiously false: either Bottum has never read Nietzsche or he has learned about him through the distortions of his philosophy by fascist hacks. In fact Nietzsche's argument in The Birth of Tragedy is that the Dionysian excesses of music can strengthen civilization by keeping us aware of our human limitations and channeling our irrational drives. Nietzsche's is one of the most powerful accounts of the cultural function of music, as even his opponents recognize, and deserves a better treatment than Bottum's caricature.
Geoffrey A. Shullenberger
It is a cruel irony that one month after you featured the London trial of David Irving, who, it seems beyond doubt, is a Holocaust denier, you published Professor J. Arch Getty's review of The Black Book of Communism ("The Future Did Not Work," March Atlantic). Getty does not review the book so much as conduct a polemic, mainly against the preface to The Black Book rather than against the work itself. He relentlessly tries to mitigate the murderous tendencies of Communist totalitarianism. And in order to do so he has to negate and distort the history and historiography of the countries in question. A scholar who has to make his case by falsehood and by denigrating the works of his colleagues and teachers -- for example, by saying that nothing but crimes of the Soviet Union appeared in Soviet studies before 1980, or that the famine in Ukraine and elsewhere in the USSR was merely a "blunder" -- cannot be relied on. It is distressing and even shameful to see you allowing polemic to masquerade as analysis on so crucial a subject.
Since J. Arch Getty has devoted a substantial part of his career to the revisionist history of the Soviet Union, which includes strenuous attempts to revise downward the number of its victims, it is hardly surprising that the volumes he reviewed found little favor with him.
Although Getty has recently upped his estimates of the victims of Soviet mass murders, he still feels a residual compulsion to mitigate or dissolve the guilt of that regime -- now in the name of balance and objectivity. He also remains unwilling to entertain the possibility that the ideas and ideology of Marx and Lenin had something to do with Soviet (and other Communist) political violence.
Getty is disturbed by the moral equation of Nazism and communism to which the French authors incline. It seems to escape him that whatever the precise comparative body counts and whatever institutional differences there were between the two systems, it is still possible to reach the conclusion that each was unequivocally evil in its own distinctive way.
Getty seeks to take the moral sting out of the Soviet Communist repression by suggesting that it was unplanned, haphazard, stupid, incompetent, and ineffective, and not carried out by a "coldly efficient machine." But the system was efficient enough to eliminate its designated enemies. The definition and classification of the enemy had many irrational aspects, but once the decision was made to label particular groups or individuals as the enemy, they rarely escaped retribution.
Getty complains of an excess of Western writings about Soviet repression: "Soviet specialists provided us with a full menu of Communist atrocities," he writes with apparent irritation. But Solzhenitsyn (whom he mentions as an example) is not a Western "Soviet specialist," and without him and other Soviet (and other Communist) exiles and defectors, the Western literature on the crimes of communism would be very slight indeed.
The figures I used are taken from the archives of the Soviet gulag. They were published six years ago by me and others, and have been confirmed by Khrushchev's and Gorbachev's politburos (in secret) and by Yeltsin's administration and the Russian Memorial Society (in public).
My critics are most concerned that my review mitigates the evils of Stalinist repression. This was certainly not my intention, but not for the reasons they suspect. I sought to draw distinctions between Nazi and Stalinist terror as a matter of historical fact. The moral aspect is not the only lens through which we can try to understand these events. A terror of 800,000 summary executions is as immoral as one of six million. Communist terror was no less evil than fascist terror. But they were not the same.
The Atlantic Monthly; June 2000; Letters - 00.06; Volume 285, No. 6; page 6-11.
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