The Foundations Authority

[Don Clark]

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Text removed at request of the poster
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[Terry Russell]

Don,

That is an excellent post and quite well- written. I agree with your statements.
I have a bit of trouble with the copyright analyses though, This is what I found out:

The 1976 Copyright Act states: "Publication" is the distribution of copies of a work "to the public" for sale or other transfer of ownership...........it then goes on to state...................That: in defining "to the public" as distribution under no explicit or implicit restrictions with respect to the disclosure of its contents.

That given, I do not believe the ASB has any control over how USPAP is
used. They gave that up when it was first published. But as the big-gun
quasi-authority in the area where USPAP is accepted their interpretation
carries a lot of weight.
Do not misunderstand, I believe USPAP is a guideline that is not perfect
but it is a relatively good tool and also necessary to this industry.
Again it is, in the vast multitude and clamor of intepretation, that
it's true purpose is lost. this is a post, terry

 

[Anonymous]

Don,

One would think that since Congress acted to create the ASB & AQB, or by indirect method the foundation, that in essence the AQB has been authorized by congress to create and maintain qualification levels of an appraiser.

Personally, and Don you can probably tell by my previous posts, I really dont care what peice of paper one have on a wall or what classes one has attended, they do not make one a better appraiser. I have been told by an SRA with an MBA that if in the subject's sales contract there is a sales concession, you have to adjust all of the comparables by the amount of the subject's sales concession. It was quite fun to prove him wrong since he told a bank VP that I didnt know what I was talking about, after all, he has all this advanced education.

Does anyone think that degree or designation made him a better appraiser? I think instead of making more education a requirement to enter the feild, I think more education should be required to stay in the field. Such as double the current CE requirements with half of it being on USPAP and any state law updates. I also think that CE should be tested in order to pass and keep your license.

 

[Don Clark]

atc, or whatever your real name is, as with most of your post, including the "use papa", they are gibberish, make no sense, and lack syntax. However, i will, just once, try and answer what you have said. That is probably a mistake, but I will try. Why would anyone get a copyright? Would it not be to protect their ownership rights in what they have published? If it becomes "public" property once published, why would they go to all that trouble?

You are very wrong, and a good study of basic law, or pergaps a query of the copyright office of the US Government can set you straight. I doubt you would believe me.

Bill,

I agree, education, diplomas, classess etc do not necessarily make one a better appraiser. However, the lack thereof makes one at least worse than the person who achieves higher education, training, takes CE classes to learn, not just because they are required to. As to the SRA who was also an MBA. His misconception has to do with the appraisal process, Fannie Mae or some other requirements. It was his opinion. It was not USPAP related. However, it is because of wide spread misconceptions concerning USPAP that the foundation has decided to engage in instructor certification and training to make sure that everone who teaches USPAP has a certain level of knowledge to be able to teach USPAP.

The hardest part of teaching USPAP has always been in overcoming misconceptions, and sad to say, what students have been told by other instructors. I have a simple solution. I carry a copy of the current USPAP to every class, not just a USPAP class, along with the Q & A booklets. If I disagree with a student as to a USPAP issue or they disagree with me, I challenge them to show me, in USPAP where I am incorrect, or where they are correct. I agree that if i am wrog I will buy them lunch, admit I am wrong, and eat the appropriate page out of USPAP. So far, I have not bought a single lunch. I have had students admit they were in error.

Don

 

[Terry Russell]

Don,
Sorry to offend you with my glibberish. But unlike yours they are original works. I just read an excellent paraphrase of your post “the foundation industry” by John Ross in the AI Valuation pub. (pub. stands for publication.) an issue that came a week ago or so.

I write my posts to try and spark a little life out of some that are still hiding.
All I am trying to say is get off your fat duff and move. Say no.
Stop your snivel he did, they did, and golly I don’t like it.
If you can’t understand my posts why then don’t you ask.


Copyright , first of all, you do not GET a copyright it is created upon authorship. With me so far?
this is straight from the book. Read em and weep and eat some pages.

WHAT IS NOT PROTECTED BY COPYRIGHT?
Several categories of material are generally not eligible for federal copyright protection. These include among others:
• Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)
• Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents
• Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration
• Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)



Fit USPAP in here. (The Gray Area)



WHAT WORKS ARE PROTECTED?
Copyright protects "original works of authorship" that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories:
• (1) literary works;
• (2) musical works, including any accompanying words
• (3) dramatic works, including any accompanying music
• (4) pantomimes and choreographic works
• (5) pictorial, graphic, and sculptural works
• (6) motion pictures and other audiovisual works
• (7) sound recordings
• (8) architectural works

Copyright is secured automatically when the work is created, and a work is "created" when it is fixed in a copy or phonorecord for the first time. "Copies" are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm.

The 1976 Copyright Act defines publication as follows:
"Publication" is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.
A further discussion of the definition of "publication" can be found in the legislative history of the 1976 Copyright Act. The legislative reports define "to the public" as distribution to persons under no explicit or implicit restrictions with respect to disclosure of the contents. The reports state that the definition makes it clear that the sale of phonorecords constitutes publication of the underlying work, for example, the musical, dramatic, or literary work embodied in a phonorecord. The reports also state that it is clear that any form of dissemination in which the material object does not change hands, for example, performances or displays on television, is not a publication no matter how many people are exposed to the work. However, when copies or phonorecords are offered for sale or lease to a group of wholesalers, broadcasters, or motion picture theaters, publication does take place if the purpose is further distribution, public performance, or public display.
Publication is an important concept in the copyright law for several reasons:
• Works that are published in the United States are subject to mandatory deposit with the Library of Congress. See discussion on "Mandatory Deposit for Works Published in the United States."
• Publication of a work can affect the limitations on the exclusive rights of the copyright owner that are set forth in sections 107 through 121 of the law.

Whoops!

 

[Don Clark]

Just so you will know, i am sending your "explaination" to the Appraisal Foundation. Maybe they will have a better shot at explaining the law to you.

Don

 

[bradellis]

atc,

Congress did not form or authorize The Appraisal Foundation or its boards. That was done, well before FIRREA, by the leading appraisal organizations.

Brad Ellis, IFA, RAA

 

[Terry Russell]

SEE FOLLOWING POST.

 

[Terry Russell]

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]

 

[Terry Russell]

To any one who was following this topic discussion:

In defense of the following statement posted by Don Clark 6-27.

atc, or whatever your real name is, as with most of your post, including the "use papa", they are gibberish, make no sense, and lack syntax. However, i will, just once, try and answer what you have said. That is probably a mistake, but I will try. Why would anyone get a copyright? Would it not be to protect their ownership rights in what they have published? If it becomes "public" property once published, why would they go to all that trouble?

You are very wrong, and a good study of basic law, or pergaps a query of the copyright office of the US Government can set you straight. I doubt you would believe me.


6-30-2002 Discussion was moved underground for some reason. Anyway what I posted is right here.

Don,

The section below is from the USCO Section 107. It is the end of this discussion as far as I am concerned.

Included is a note sent to Jim Park.

I stated in some of my previous post that I am not an "experienced appraiser" but I have a good background in Real Estate, History and Law. I respect the opinion of others, but if I am challenged on a fact or an issue, I will pursue the truth to no end.
You charged me with posting gibberish remarks that made no sense. This is not true. You mentioned Use Papa as a ridiculous post, it is not. It is different than most because I am trying to get people to see in a different way. UsePapa by the way is a compiliation of advice from a former ASC board member and a current state regulator. They told me how to engage a client.
1. You establish (with the client) that the appraiser will not deviate from USPAP.
2. You make the client prepay 50%, then the balance in exchange for the report.
3. You do not for any reason bend to client pressures. Never!
4. You realize for yourself what impact that could make on the profession as a whole.
I could go on and on about the changes that could be made, the major point is it must be done on an idividual basis.
Then and only then, will these crimes cease. That was the content of USE PAPA.
The ASB and ASC must find it amusing that the many of the appraisers crying for reform, don't have the guts to control their own actions.
Please note I said many, not all.

with best regards, Terry

IF YOU CARE TO DEFEND YOUR ORIGINAL STATEMENT, PLEASE DO.

§ 107. Limitations on exclusive rights: Fair use38
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use

by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as

criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or

research, is not an infringement of copyright. In determining whether the use made of a work in any particular

case is a fair use the factors to be considered shall include-

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for

nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon

consideration of all the above factors. End of Section 107/partial

--------------------------------------------------------------------------------


Mr. Park, jUNE 30TH, 2002

The following is my reply to Don Clark's misconceptions of my posts on the appraisers forum.
I am not sure why you were contacted by Don. Your letter provided no input to the actual question.
In my first post to Don I thanked him for a well-written post, but I questioned his declarations that the ASB had absolute control over the usage of the publication USPAP.
Mr. Clark does not respond to criticism well and apparently could not defend his own statements.
I shall state here also that the derougatory remarks directed towards me were unfounded and undoubtedly based upon the conjecture produced by the collaboration of Park & Clark.
Your statement that the copyright of USPAP was succesfully defended means zip without further support.
In addition, the note from Mr. Barton had absolutely no bearing on the topic that I initiated, which was Don Clark's misstatement of fact. If he does teach USPAP I sincerely hope he does not pass on his misperception of what copyright and publication entail.
The content of Mr. Clark's reply and your letter provide support to my argument. Thank you,

Terry Russell