After 5 Years, Heated Controversy Persists In Science Copyright Case

Weissmann v. Freeman battle is revived as Dingell subcommittee decides to launch a new investigation Since the age of two, Heidi Weissmann says, she always wanted to be a doctor. She started college when she was 15, began medical school when she was 19, and by age 30 her supervisor was calling her one of the nation's premier authorities on biliary imaging in nuclear medicine. Yet now, at age 41, Weissmann is unemployed. Since 1987, she has claimed the United States radiological community has blackballed her from continuing her research. This summer, the case took a new turn, when Congress began investigating her charges for the second time. Weissmann's situation involves a five-year legal battle against her former employer, Montefiore Medical Center in Bronx, N.Y., over sex discrimination, and against her former lab chief, Leonard Freeman, a professor of nuclear medicine, over copyright infringement. Her story has compelled House Energy and Commerce Committee chairman John Dingell's (D-Mich.) Oversight and Investigations subcommittee to review her case. The first congressional inquiry occurred three years ago, conducted by a subcommittee of the Government Operations Committee chaired by Rep. Ted Weiss (D-N.Y.). "It is hard to understand or imagine that someone with my credentials and abilities is not able to find a job in academia, private practice, or even industry," Weissmann says, "unless there is something like blackballing that really does take place." Freeman, Weissmann's boss and mentor for 10 years, says that if any blackballing has occurred, he was not its source: "It has always been my fervent desire since this case started that Heidi Weissmann get another job. The last thing in the world that I, my colleagues, or anyone wanted to do was to blackball her." Montefiore, through a statement from its attorneys, says it is "in no way impeding Dr. Weissmann [from future employment]." The legal wrangling began in August 1987, when Weissmann, a specialist in nuclear medicine and radiology working at Montefiore, sued Freeman for copyright infringement regarding a medical paper that she had previously published as sole author. Montefiore is the university hospital for the Albert Einstein College of Medicine (AECOM), the medical college of Yeshiva University. The disputed text was published in 1985 under the title "Hepatobiliary Imaging." The work focuses on IDA (iminodiacetic acid) chole-scintigraphy, a new drug technique pioneered by Weissmann and Freeman. IDA scanning was designed as an alternative to ultrasound for detecting infections like acute cholecystitis, an acute inflammation of the gallbladder. The text was printed as one of two dozen chapters in a copyrighted volume called "Syllabus: A Categorical Course In Nuclear Medicine" put out by the Radiological Society of North America (RSNA). Freeman, in an interview with The Scientist, acknowledged using the material twice. First, in 1986, he asked his secretary to retype Weissmann's monograph and then submit it, with his name only and a different title, to a publication called Proceedings: International Symposium on Isotope Application, published by the Republic of China in Taipei, Taiwan. He did not tell Weissmann he had used the text. A second instance occurred in 1987. Freeman again took the same text, this time photocopied it, removed her name with liquid correction fluid, and substituted his own. He then included the paper in a handout he was using for a postgraduate course at Mount Sinai Hospital in Manhattan. Freeman again did not mention to Weissmann that he had used the text, though she soon found out, and filed suit. The copyright lawsuit was settled in February 1989 with a ruling by the U.S. Second Circuit Court of Appeals in New York. The judges decreed that even though the RSNA piece was technically derived from previous joint work, Weissmann retains total authorship. The court said Freeman was guilty of copyright infringement. No money was awarded. The appellate court had reversed a May 1988 ruling by U.S. District Court Judge Milton Pollack in New York proclaiming that Freeman's deeds constituted "fair use" of a scientific manuscript. Freeman petitioned the U.S. Supreme Court to review the appellate court's findings, but was denied. Sept. 1977 Heidi Weissmann begins her tenure in Leonard Freeman's lab at Albert Einstein College of Medicine (AECOM). 1985 "Hepatobiliary Imaging," solely authored by Weissmann, is published in a copyrighted text for the Radiological Society of North America (RSNA). Dec. 1986 Freeman has secretary retype paper for Republic of China nuclear medicine text. April 1987 Weissmann files sex discrimination complaint with the Equal Employment Opportunity Commission (EEOC) against Montefiore Medical Center and AECOM. Aug. 19, 1987 Weissmann discovers her name removed and replaced by Freeman's on the RSNA text in a postgraduate course handout. Aug. 20, 1987 Weissmann files suit in U.S. District Court alleging copyright infringement. Aug. 21, 1987 In the morning, Weissmann is locked out of her office and escorted out of the building by security guards. In the afternoon, in federal court, Weissmann gets temporary restraining order blocking use of RSNA text in an upcoming seminar. Freeman complies with the order. Oct. 12, 1987 Weissmann receives dismissal letter from Montefiore. Freeman receives promotion letter. Jan. 1988 Weissmann sues Montefiore and Einstein for sex discrimination. May 1988 U.S. District Court Judge Milton Pollack rules Freeman did not violate Weissmann's copyright. Feb. 23, 1989 U.S. Second Circuit Court of Appeals reverses decision and gives paper rights to Weissmann. Oct. 2, 1989 Freeman's appeal denied by U.S. Supreme Court. May 13, 1990 New York Times runs ad by National Coalition for Universities in the Public Interest headlined "Are Montefiore and Albert Einstein Protecting a Plagiarist?" Yeshiva University sues coalition for libel. Sept. 10, 1990 Rep. Ted Weiss's Government Operations Committee subcommittee concludes that Montefiore/Einstein deliberately took the side of Freeman and did not follow their own rules about academic misconduct. Spring/Summer 1992 Dingell subcommittee investigating case. Four months prior to first appearing in court about the copyright infringement, Weissmann had filed a complaint against Montefiore with the Equal Employment Opportunity Commission (EEOC) for sex discrimination. Weissmann's grievance, according to Montefiore's attorneys, is that while less-qualified men moved ahead to the position of chief of nuclear medicine, she was repeatedly denied a promotion. Montefiore's position is that Weiss-mann's lack of cer- tification from the American Board of Radiology, not her sex, had disqualified her for advancement. Weissmann filed a discrimination lawsuit in federal court in January 1988. The suit is still in litigation. Since Montefiore dismissed her in the fall of 1987, Weiss- mann has not worked. The medical center contends Weissmann was let go because she failed to return to work after her sabbatical ended. Weissmann, however, believes she was fired in response to the EEOC complaint and the copyright suit. But now, as five years of litigation have gone by, Weissmann says she has incurred a legal debt of more than $500,000. Freeman received a promotion to vice chairman of his department in 1987, and had most of his legal fees covered by a Montefiore insurance policy, according to his attorney, Guy Fairstein. A number of women's groups have rallied in support of Weissmann. One strong feminist voice is that of Rita J. Kaplan, wife of SAT-prep course developer Stanley H. Kaplan and a close friend of Weissmann's for many years prior to the beginning of the controversy. She has been issuing statements supporting Weissmann's claims since the dispute began. Kaplan's latest statement, put out by her New York-based Rita J. and Stanley H. Kaplan Foundation, dated May 1, says the case is "attracting increasing national attention as a symbol compelling to all women." This letter was also signed by 39 other organizations and individuals. One signer of the Kaplan letter was Eleanor Smeal, president of the Feminist Majority Foundation, which has done its own fighting on Weissmann's behalf. In 1991, the Boston-based women's group gave Weissmann a Feminist of the Year award, along with law professor Anita Hill and National Organization for Women president Molly Yard. The Feminist Majority has also set up the "Dr. Heidi Weissmann Legal Defense Project" to assist Weissmann in her current gender discrimination suit. Some other women's groups based in Washington, D.C., have also shown support for Weissmann. The American Association of University Women Legal Advocacy Fund contributed $1,000 in support of the case. The American Medical Women's Association, along with the Washington Independent Writers, submitted a friend of the court brief on Weissmann's behalf during the copyright trial. The Dingell subcommittee, in Congress' second dissection of the case, will be probing through the evidence, but a committee staffer says it will not retry the copyright case or even discuss the sex discrimination suit. Instead, the staffer says, the actions of both Montefiore and AECOM will be scrutinized and judged on how well they followed National Institutes of Health and Public Health Service (PHS) procedures on misconduct. Both medical institutions receive grants from NIH and PHS, and Dingell's subcommittee has the ability to affect their flow of money. So far, all parties involved say they are cooperating with the investigation. Weiss's Human Resources and Intergovernmental Relations subcommittee also spoke of misconduct and even raised the question of plagiarism in its September 1990 report. Based largely on subcommittee testimony, the report--entitled "Are Scientific Misconduct and Conflicts of Interest Hazardous to Our Health?"-- sketched a negative portrait of both Montefiore and AECOM. Though the report did not conclude that Freeman plagiarized Weissmann, it did state that the two schools "ignored their own misconduct policies when allegations were made against Dr. Freeman." A dissenting opinion written by the seven Republican members of the subcommittee questioned the accuracy of the Weiss report's summary. They concluded, after closely reviewing the actual testimony, that "the facts as presented by the accused parties are incongruous with the factual picture painted in the committee report." Also, although Weissmann says the Weiss subcommittee had been in contact with her for many years, Freeman claims he was never afforded the opportunity to speak to the subcommittee. Though Freeman was found guilty only of copyright infringement, some people contend that his actions do consititute plagiarism. Among notable examples: an ad placed in the New York Times by the National Coalition for Universities in the Public Interest; and the actions of Walter Stewart and Ned Feder, two scientific misconduct investigators at NIH. The coalition's ad--which appeared on the Op-Ed page of the May 13, 1990, Times--was headlined, "Are Montefiore Hospital and the Albert Einstein College of Medicine Protecting a Plagiarist?" Leonard Minsky, the executive director of the Washington, D.C.-based organization, which was founded by product- safety advocate Ralph Nader, says the intention of the ad was to bring greater awareness to Weissmann's plight as well as to the "misconduct" of her former employers. "This [Weissmann v. Freeman] is an important, precedent-setting case," says Minsky, "for establishing the right faculty members have to their intellectual property." He asserts that when Montefiore gave Freeman a promotion and paid his legal expenses, it proved the school doesn't care about upholding ethical academic standards. The ad asks, "Why is the victim being punished and the perpetrator rewarded?" AECOM has sued the coalition for libel over statements in the ad. Minsky is calling the legal action a SLAPP suit. The name SLAPP means "Strategic Lawsuit Against Political Participation," and was coined by two professors at the University of Denver to describe suits filed for the sole purpose of restricting an individual or group's free speech and protest rights. "Our speculation is that the major reason for this meritless suit is so Einstein can explain to their trustees and funders that nothing in these allegations is true," says Minsky. "But if this ever goes to court, and I doubt it will, we will defend our facts and say the only reason they sued us was to silence us." AECOM, in a statement, repudiates the term SLAPP and describes Minsky's ad as "false and defamatory...and we can prove our charges." Washington, D.C., science attorney Harold Green says that charges of plagiarism, in Freeman's case, are inappropriate. "I'm not sure what Freeman did is generally wrong in the scientific community," says Green, cochairman of the National Conference of Lawyers and Scientists. "Suppose Weissmann and Freeman jointly write something with both names on it, and Freeman republishes it under his name alone. It may be legally copyright infringement. But I'm not sure it's plagiarism." Freeman contends that data obtained in a scientific laboratory are always communal, so any paper derived from this work should be jointly owned. "Copyright never occurred to me. I didn't know the piece was copyrighted," he says. "And so the most expeditious and simplest thing to do at that particular point was exactly what I did. This was joint work. Whose name was printed on it didn't matter." A radiologist who worked as a resident alongside Weissmann and Freeman concurs with Freeman's assessment. Letty Lutzker, who is now chief of nuclear medicine at St. Barnabas Medical Center in Livingston, N.J., says: "Technically there was copyright infringement. But in a medical sense, an ethical sense, and a scientific sense, this is simply not stealing somebody's work. And the idea of Lenny [Freeman], and I know him well, stealing somebody's work is so outrageous." Stewart and Feder at NIH, however, do not share the same opinion. "Leonard Freeman is the gold standard of plagiarism," says Stewart. Two researchers at the National Institute of Diabetes, Digestive and Kidney diseases turned scientific misconduct investigators, Stewart and Feder have set up a computer to scan suspect documents and compare them so as to detect words or phrases that are identical. The computer then spits out highlighted boldfaced text to show the physical extent of the similarities. The unit of measurement Stewart and Feder created to gauge the results produced by this "plagiarism-detecting computer" is called a "freeman." Though Stewart and Feder's computer does not detect plagiarism per se, the machine does give a display of verbatim sections. Stewart says the reason Leonard Freeman is the namesake for a unit of plagiarism is that in Weissmann v. Freeman, the infringed work was letter for letter the same. "Freeman is a conceptual starting point. Freeman is a thought experiment," he says. "Who would ever think of stealing an entire manuscript and just erase someone's name and type your own? I would say it's completely improper to do what he did." Freeman characterizes Stewart and Feder's endeavors as an example of "the indignities and embarrassments that I have to suffer through. After living through the era of Joe McCarthy, the things Stewart and Feder are doing is big brotherism at its utmost." Yet with the sex discrimination case still in litigation and the Dingell committee commencing with its investigation, both Weissmann and Freeman express a willingness to end the conflict. "This has been five years of hell," Weissmann says. "It's a very traumatic thing to go through...so much of my life has stopped. I haven't been working, which is a real loss for me. The financial devastation. The challenging of so many of my beliefs. Put all together, the litigation has been traumatic." "What's gone on for the past five years is like living in a nightmare," Freeman says. "I just hope that at some point, we have a light at the end of the tunnel for Freeman as well as for Weissmann."

After 5 Years, Heated Controversy Persists In Science Copyright Case

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