Letter from Jim Park to set me straight.
And my humble reply.
Don,
Thanks for your note. We try to stay out of these "Forum" debates because, frankly, we don't have the time or inclination to debate issues with people who in many cases are so grossly uninformed that educating them would be a full time job. However, I am always more than happy to talk with, answer questions, or debate anyone who wants to write me personally or pick up the phone and call - this includes"atc". That is not to say that I always have the answers, I don't, and when I don't I will do what I can to get an answer or point the individual in the right direction.
In regards to the copyright issue, The Appraisal Foundation is very confident in the strength of our copyright, in part because it has been successfully defended. The poster's reasoning that USPAP is analogous to "standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)" doesn't even pass the common sense test.
On the AQB authority issue, I thought you would find the attached letter interesting. Feel free to post this letter on the Forum. Thanks for your "level headedness" on many of the issues I see bantered about on these Forums.
Respectfully,
Jim
James R. Park
Director of Research and Technical Issues
The Appraisal Foundation
202.624.3044
In December of last year the Appraisal Subcommittee sought a legal opinion from the legal staff of the Federal financial institution regulatory agencies regarding the authority of the AQB. Specifically, they inquired as to whether or not the recent actions of the AQB (instructor certification/USPAP course content requirements etc.) were consistent with the authority granted the Board by Congress. The legal opinion was developed by the Legal Advisory Group (LAG), which is composed of attorneys from each of the financial institution regulatory agencies.
I am pleased to report that it is their opinion that the AQB is acting within the authority granted to it by the Congress. Attached is a well-researched opinion letter on the issue.
David S. Bunton
Executive Vice President
The Appraisal Foundation
My reply:
Don Clark,
I think we need to back up a few steps and take a look at how we got here.
My original argument was that the ASB did not have the authority to regulate the use of USPAP solely upon the basis of copyright.
You posted that the Appraisal Foundation has every authority to require that the uniform standards of professional appraisal practice be taught only by foundation certified instructors. I have absolutely no argument with that reasoning and I agree that USPAP should be taught by tested qualified instructors. But this only could apply in a certification/license sense.
You then went on to state that anyone owning a copyright to property, had a right to decide who can use it, how they can use it, and to place requirements on that use and charge for its use.
So what you are saying, for example let’s use telephone directories in place of USPAP, T phone directories are copyrighted, therefore the owners of the directory copyright can control one on how, who, or when to use it.
Hardly.
The paragraph above is the only portion of your post that I questioned. In my reply concerning © there was listed some items that are not protected by © in general. At the bottom of the first category I wrote FIT USPAP in here.
When it was pasted into the post it appeared that I was associating it with the last category. That was not my intention. The intent was to place it in between what is not protected and what works are protected. It should be noted also that these are general categories.
I did not state or imply that the ASB had no right of copyright. I merely said that once a work is published (that is, making available to the public) the owner of the copyright has limited say on how the work is used. Actually the copyright holders have very little say.
I posted portions of the 1976 © act in to my post. This was to clarify my position on your statement of controlling usage. I shall reiterate the major points:
A) Publication is defined as “the distribution of copies of a work to the public by sale or other transfer of ownership or by rental lease or lending.”
Do you disagree that the USPAP is a publication?
B) That in the legislative history of the 1976 copyright act, a discussion of the definition of publication can be found as follows, “the legislative reports defined ‘to the public’ as distribution to persons under no explicit or implicit restrictions with respect to disclosure of its contents.
Slap me if I’m wrong, but explicit and implicit restrictions pretty much cover any type of “rules” regarding its use.
C) A copyright is created upon authorship. Prior to publication the Appraisal Foundation had explicit copyright to the USPAP as a tangible form of expression. They had total control because the public had no access, which by the way renders it quite useless as a “standards” reference.
And lastly the publication of the copyrighted subject is “offered to the public”, is defined
as, “being a time when the general public can buy copies of the USPAP and read them, make copies of portions for their own use, to refer to the U. S. P. A. P. as a reference of work for the appraisal industry is not within the control of the appraisal foundation. Apart from setting the time of publication, the offering of a work for sale greatly diminishes the copyright holders control over its use.
And I believe that the term USE was not well enough defined by either you are I.
I now believe your assertion of use was confined to education, regulation and guidelines specific to the ASB and no others.
I perceive the much broader view of use in which the appraisal foundation cannot possibly regulate. Anyone on the planet can, own the book, read the book, use it as a textbook for education to any student or class of students, use it to illustrate real property appraisal technique, be used in reference to illustrate well-written standards, poorly written standards and it can be used as reference in litigation without any permission needed from the appraisal foundation or for that matter any person.
What can not be done is to use the work in a manner that diminishes its original content. You can not, for instance, edit out Standard Rule 3 and then give away copies of “Clark’s USPAP” (revised).
I will restate here, I have no qualms about USPAP. This post is about what I conceive as the truth and if I am wrong, please let me know.
Pertaining to Mr. Parks’ letter: The letter did not shed any light upon this debate.
But we can let the first paragraph speak and set the tone of the letter;
“We try to stay out of these "Forum" debates because, frankly, we don't have the time or inclination to debate issues with people who in many cases are so grossly uninformed that educating them would be a full time job.”
I have two questions though:
1. The “grossly uninformed” people, was that Don or myself?
2. Are you working part time Mr. Park?
Sincerely, Terry Russell
[email protected]