On 11/25/2013 4:17 PM, Dan Riley wrote:
>
hel...@astro.multiCLOTHESvax.de (Phillip Helbig---undress to reply) writes:
>> In article <
bf22l4...@mid.individual.net>, Homo Lykos
>> <
ly...@bluewin.ch> writes:
>>> Is it not enough to publish on your own website to establish priority?
>>
>> In a legal sense, probably. In a legal sense, Jay could deposit a
>> manuscript with an attorney.
>
> Establishing priority requires some kind of verifiable timestamp.
> Publication on a website controlled by the author is generally not
> regarded as sufficiently verifiable, since the author has the ability
> to change the contents of the document without changing the timestamp.
>
> Publication on arXiv would probably qualify, since it has clear
> policies on archiving documents, and it is run by librarians who could
> (presumably) testify as to whether or not those policies are followed.
> viXra's policies and procedures are much less clear, so I would be
> wary of relying on viXra to establish priority.
>
...
...
I will give you my professional legal opinion on this question, as a
practicing intellectual property attorney for the past almost 20 years.
This is what I do for a living.
I agree that the independent, non-manipulable timestamp is critical. In
this regard, I have little doubt that if a priority and / or plagiarism
dispute were to arise in the scientific community and reach the court
system in the US, that a viXra publication would carry an equal legal
weight as an arXiv publication. They are both independently
timestamped, the author cannot change the timestamp later on, and so
they both provide equally weighted objective evidence of time sequence.
Whether scientists regard a paper on arXiv more highly than a paper on
viXra is legally irrelevant. The legal question is only an evidentiary
question of objective temporal sequencing in a non-manipulable archive.
In fact, the deposit of a copyright registration on a given date with
the US Copyright Office would equally suffice. The legal issue is
objective dating, and nothing more. To suggest otherwise would be like
saying if I have a beautiful $10,000 grandfather clock that is keeping
time and you have a $5 watch with Donald Duck printed in its face, but
both have equal timekeeping reliability, time A precedes time B if the
grandfather clock says so, but if the cheap watch says so, then we may
ignore the watch and are free to conclude at a later date at time B
actually preceded time A. I know relativity does funky things with
time, but thought that time sequencing established by the watch may be
disregarded because it is cheap is nonsense. Any scientist who steps
back objectively will see this.
Also, in all areas of Intellectual Property law, legal priorities are
established by FILING dates and first use dates, NOT by acceptance
dates. So as to the issue of priority, it does not matter when, or even
if, a good journal accepts and prints a paper. Getting a filing, which
in this case means an objective timestamp, is all that matters to
establish legal priority.
That is why I am comfortable posting on viXra from the narrow standpoint
of establishing a push-comes-to-shove priority. As to whether a viXra
publication taints a paper from gaining recognition as an important
rather than a fringe paper, that is a political question, not a legal
one. If I was advising a legal client who tried to post on arXiv and
arXiv refused, and if the client said that establishing a priority that
would win the day if a legal dispute ever arose is very important to
them, then I would advise them that if they were willing to suffer the
political slings and arrows that would be hurled at them and had
confidence in their paper, they should absolutely post to viXra and can
feel safe on the legal question of establishing priority. In posting to
viXra, I am taking my own advice, because priority is important to me,
and I have confidence that my papers will in the end prevail over the
herd mentality and prejudices of an unfortunately-large swath of today's
scientific community.
Indeed, as an objective archive, one could make a good case that in a
court of law, viXra would stand up as a BETTER archive than arXiV,
precisely because viXra does not discriminate while arXiv does
discriminate and engages in many practices which are arbitrary and would
be ripped to shreds in a court of law if someone ever mounted a test
case. In fact, if I was legal counsel for arXiv, I would advise them
that they are taking a serious risk in the way they presently do
business. Consider the following hypothetical. Any resemblance to real
people and real situations is wholly coincidental
Author A writes a paper which solves the Mass Gap Problem, or any of the
Clay Institute problems problem which have a $1 million prize. Or
author A writes any paper which is important and can win awards or gain
valued recognition. We know that with stakes of that sort, humans will
be humans and some humans will misbehave. So, some faceless bureaucrat
at arXiv (or maybe the grand poobah pulling the strings) denies them a
timestamped post. Then author B comes along and writes a similar paper,
which is either i) independently discovered, but objectively later than
author A's paper or ii) plagiarized from A. But because some faceless
bureaucrat at arXiv decides that author B is someone they know and like,
they post that paper. If B now claims that he or she has priority based
on this, A can sue the pants off of arXiv for manipulating priorities,
rigging the game, fraud, arbitrary and capricious practice, and all
sorts of things. The claim that the scientific community can establish
its own definitions of objective time priority based on preferred
authors or institutions or other arbitrary arXiv practices would be
mowed down flat if it ever went to trial, and arXiv and anyone who
backed such practices would walk away with egg all over their faces.
Relativity does not go so far as to allow arXiv to put B before A when A
was in fact before B.
I have said before that if arXiv was smart, it would at least set up an
open timestamp section accessible to all. Then people would be free to
decide if they want to read anything in the open sections at arXiv, and
arXiv would not run the risk of being seen to have a process that can be
used to manipulate priorities. As it stands, they have set themselves
up for a fall if a scenario like the one outlined above ever comes to
pass. That would be my legal advice to them, if I was their attorney.
Right, now, viXra has defaulted into that open timestamp section of
arXiv, and that is because arXiv has left this opening.
One final point, which is a statement of personal intent, not a legal
opinion. I grew up in the New York area. Many of you may remember or
may be aware of the quarterback Joe Namath of the New York Jets. Back
in the 1960s the American Football League (AFL) was new and the National
Football League (NFL) had all the better teams. Leading up to the 1969
Super Bowl, Nameth predicted that his team from the AFL would win the
Super Bowl. In previous Super Bowls, the NFL teams had always trounced
the AFL teams. The AFL was sneered at as a distinctly inferior league,
sort of like viXra versus arXiv. And Nameth received lots of flak for
having the audacity to say out loud that an AFL team could possibly beat
an NFL team. But guess what: Nameth's team did win, handily, and
football was never again the same. Soon, the two leagues merged, and it
was Nameth who had turned the tide. As soon as a truly important
scientific paper comes from viXra and is recognized as such, that will
be a game-changer, and the balance of power between viXra and arXiv will
shift dramatically. Again, while any resemblance to real people and
real situations is wholly coincidental, I personally intend to make that
exactly that, happen. I will accept any help and support in doing so,
public or private.
Cheers,
Jay