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Is rejiggering an algorithm considered Fair Use.

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arirangkid

Junior Member
What is the name of your state (only U.S. law)? New York

Hello everyone. I did a search and couldn't find an answer to my exact problem. I am a physician, I am making an iPhone application that takes clinical care algorithms that have been published in medical journals as "flowcharts" and reworking them into a "calculator" using the iphone. These algorithms are varied (I don't want to go into specific details) but they presumably publish them because this is the standard of medical practice that they would like the medical community adhere to and this is how they promote them.

Here is what I am doing. My goal is the make it much easier for physicians to actually utilize these published flowcharts and in so doing, provide better care that adheres to best practices. To do this, I am collecting a bunch of these algorithms and integrating the into an app for the iPhone. Instead of having to deal with a crazy flowchart, you just click a few buttons and "WahLah!", you have your action plan.

So here are my questions:

1) Is this considered "Fair Use" because I am reworking the algorithms to work more like a calculator, although I do plan on referencing the original sources and will be quoting blocks of text from the various papers. You will not see the actual flowcharts that were published. Also, I do believe that there is an argument that this would provide a significant benefit to the public (patients) because I am making key information more easily accessible to these physicians.

2) How much difference would it make if I put this out as a free application versus a paid app (to cover my expenses).

3) I am hesitant to contact the journal publishers preemptively because I am afraid they will say "no", especially if they haven't even seen the application yet. I think I know what you'll say to this question, but wondering about taking a "ask for forgiveness later approach". I feel like I may have more of a voice if I already had a successful "free" app out there that people were downloading, at which point I could work with them as needed to put out a paid app.

4) Given this situation, I am guessing that I should register with the app store as an LLC versus under my own personal name?

Really appreciate your insight and thoughts. I have been working on this for a while but am afraid that the whole copyright issue is going to throw a huge wrench into my plans.

Thanks,

ATKWhat is the name of your state (only U.S. law)?
 


FlyingRon

Senior Member
Rejiggering isn't a fair use doctrine.

Algorithms aren't protectable by copyright. The representation of them can be.
The argument is whether your embodiment of the algorithm could be considered a derivative work of the flowchart in the article is a point one could make, but I think that is thin.

Obviously if they have a patent on the process you're really out of luck.

Whether you charge or not is largely immaterial. Whether it's beneficial to you or your customer's patients doesn't make much difference either.

Of course if the titles and authors of these algorithms are of sufficient fame, they may have trade/service mark rights to keep you from using their names to market your products.

You are personally liable for your own actions even if you wrap yourself in an LLC.
 
I don't see a problem. Its like: fever of 100°F, then no need to examine this, but examine that....etc.

The flowcharts are made from other knowledge & experience. And from what the OP says its common medical knowledge & experience.

I think the product is useless but that's just me.

"Blood loss?" yes -- go here -- "on body?" no -- go here -- "on head?"yes--go here--"anything protruding from head?" yes --- go here --- "looks like a stick with feathers on end?"yes -- go here -- Result: arrow in head, seek medical attention
 

arirangkid

Junior Member
Thanks for responses so far Flying Ron and Startedone. Also, SD, thanks for your vote of confidence in my app ;). If I didn't clarify, it would be for the physician's use, not the patient. Medicine is getting a lot more complicated and these algorithms are attempts to improve the consistency and quality of care.

So some clarification: The algorithms/flowcharts are actually created by consensus panels convened by medical bodies, like American Joint Committee on Cancer (which may have some "brand" value to it). This expert panel will then create a consensus statement for how something should be worked up by a physician, and then that statement will get published in the journal. From what you are telling me, I feel more comfortable about using the data with appropriate references back to the original work.

Here is a statement on their website about "permission requests":
The AJCC may grant permission for use of copyrighted material from the AJCC Cancer Staging Manual to outside individuals and organizations at its own discretion. No changes to, additions to, or deletions from the copied or reused material should be made without prior written approval of the AJCC. Permission applies only to the material and use specified in correspondence. New requests should be made for subsequent use or for other uses of material.

Flying Ron, you said:
Algorithms aren't protectable by copyright. The representation of them can be.
The argument is whether your embodiment of the algorithm could be considered a derivative work of the flowchart in the article is a point one could make, but I think that is thin.


This makes me feel somewhat better but I am confused by "representation of them". Do you mean the actual graphic image representation of the algorithm (flowchart)? I am not using any images. You could definitely make the argument that I am "deriving" my work from their algorithm or flowchart to create my "calculator" but they themselves are also using medical literature in public domain to create their algorithm. How about using large blocks of text verbatim from the original publication with appropriate attribution?


Whether you charge or not is largely immaterial. Whether it's beneficial to you or your customer's patients doesn't make much difference either.

I thought that judgement of what constitutes "Fair Use" included:
"the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes".


Sorry, not trying to extend my argument but trying to feel out how solid the ground that I am standing on will be.

Thanks again!
 
Last edited:

FlyingRon

Senior Member
The characteristic as to whether it's public or not in the fair use doctrine applies only after you meet one of the other requirements for fair use: educational, review, or parody for example.

I think you got it right. The graphical flow chart itself is protected. Even moving it into some direct translation into computer imagery would be a derivative work. Taking an algorithm:

Ventricular fib? if yes SHOCK
Conversion? if no Shock again
Conversion? if no admin .5mg epi, 50meq Bibar, Shock Again
Conversion? ...

is distinct from a bunch of boxes on a page showing the decisions and actions or a computer program that asks the questions.
 
And if this app is to be used by treating physicians then the question of liability pops to mind. And would any doctor actually buy into the product? Likely not, they will not trust a simple program to guide them through a case before them.

But the OP is certainly free to try.
 

tranquility

Senior Member
Almost all such professional tools have a disclaimer that the professional must use his own judgment. (Just like the tax program we use.)

There are already a lot of tools out there for the medical field on handheld devices.
 

arirangkid

Junior Member
Thanks a million!

Hi everyone,

Left town for a conference and just got back. Spoke to a few more people about my application. Definitely feel like I am on a little more solid footing going forward. Just wanted to thank you all for the feedback that I have received thus far. I think that this is a great service you guys are providing to the community at large!:)

Now I am going to peruse the section of this forum about LLCs to look into the liability issues that were mentioned above.

Happy Holidays!!!

AK
 

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