DSM 5 Censorship Fails: Support From Professionals and Patients Saves Free Speech: Allen Frances

DSM 5 Censorship Fails: Support From Professionals and Patients Saves Free Speech by Allen Frances

Post #127 Shortlink: http://wp.me/pKrrB-1ER

Psychology Today

DSM5 in Distress
The DSM’s impact on mental health practice and research.
by Allen Frances, M.D. (Chair, DSM-IV Task Force and currently professor emeritus at Duke.)

DSM 5 Censorship Fails
Support From Professionals and Patients Saves Free Speech

Allen Frances, M.D. | January 12, 2012

Last week I described the plight of Suzy Chapman, a well respected UK patient advocate forced to change the domain name of her website by the heavy handed tactics of the publishing arm of the American Psychiatric Association. The spurious legal excuse was commercial protection of the ‘DSM 5’ trademark; the probable intent was to stifle one of the internet’s best sources of DSM and ICD information. This bullying could not have come at a worse time – just as final decisions are being made on highly controversial DSM 5 proposals and with the third and final draft due for release this spring. This is precisely when a ragged and reckless DSM 5 can most benefit from the widest and most open discussion.

Though APA’s trademark claims were patently absurd, Ms Chapman did not have the necessary resources for a protracted fight against a well staffed legal department. Visits plummeted drastically to her new web address (reaching a nadir of just one hit per day) and the site faced months of slow recovery. But the good news is that APA’s clumsy attempt at censorship has backfired, free speech will prevail, and the site is now more popular than ever.

Suzy Chapman writes:

“I want to thank the many psychiatrists, allied mental health professionals, and science writers who have spoken out in opposition to what they see as arrogant censorship on the part of the American Psychiatric Association. Their outpouring of concern has generated considerable interest on websites, blogs and social media platforms. This has increased the traffic on my site by many hundreds of visitors per day. The support of professionals and patient groups illustrates the power of the internet to resist suppression of patient advocacy and to promote free speech.”

“The purpose of my site is to raise public and stakeholder awareness of the forthcoming revisions of both DSM-5 and ICD-11. I endeavor to provide timely and accurate information about DSM-5, including: internet commentaries on proposals; flag ups of journal papers and editorials; news releases and other media statements; and updates on changes to the DSM-5 timeline. I also cover progress on ICD-11, including activities of the Revision Steering Group; documents, presentations and videos; and updates on the ICD-11 timeline. I report on developments with the forthcoming US ICD-10-CM and proceedings of a US federal Advisory Committee to HHS in relation to coding issues. Finally, I follow the advocacy campaigns and initiatives relating to DSM and ICD classificatory issues. My objective is to help stakeholders understand the issues so that they may provide the most useful feedback to the revision process.”

“Despite all the controversies, despite the calls for independent review, despite all the delays and limitations of its field trials, DSM-5 hurtles forward towards publication in May 2013. During this final, decisive year of DSM 5 decision making, I shall continue to publish information, updates and commentaries to promote the widest possible dialogue around the drafting of this most important publication. My new site, ‘Dx Revision Watch – Monitoring the development of DSM-5, ICD-11, ICD-10-CM’ can be found at: https://dxrevisionwatch.wordpress.com/

“This experience has taught me that the APA trademark claims were not only misguided, but probably legally indefensible. ‘Nominative fair use’ is permitted those who are publishing criticism within texts if use of the trademark is relevant to the subject of discussion or necessary to identify the product, service, or company. Courts have found that non-misleading use of trademarks in the domain names of critical websites (like walmartsucks.com) is to be considered ‘fair use’ by non-commercial users – so long as there is no intent to misrepresent or confuse visitors to the site and when it is clear that the site owner is not claiming endorsement by, or affiliation to, the holder of the mark.”

“Everything I have read suggests that my clearly non-commercial use of my previous subdomain name (dsm5watch.wordpress.com) – with its prominent disclaimer and no intent to mislead – falls well within the concept of ‘fair use’. This then raises the obvious question – what grounds did APA have for serving me with demands and threats of possible legal action? Several people have independently sent me materials on ‘SLAPP’ lawsuits (strategic lawsuit against public participation). These are threats of legal action intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense – so that they will abandon their criticism or opposition.”

“If you are interested in learning more about ‘SLAPP’ lawsuits, there is a good summary at
http://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation

“The Electronic Frontier Foundation is also a very useful resource for legal advice on trademark law for blog and website owners. See http://www.eff.org/issues/bloggers/legal/liability/IP

“The surprisingly spirited and unanimous internet reaction provoked by the APA’s actions will probably discourage it from future pursuit of other ‘fair use’ site owners. I certainly hope so. But if other site owners are issued inappropriate ‘cease and desist’ claims, I do hope they have the resources to seek legal advice before complying.”

“I am very grateful for all the support received in the past week and the many emails thanking me for the work I do. It is gratifying to hear that not only do patients, caregivers and patient organizations rely on my carefully researched and presented content, but that so many professionals are also following my site and find it useful. This experience has been stressful, but I can now say confidently that APA’s actions have definitely backfired –  the many hundreds of additional viewers discovering the site each day will expand its audience and its usefulness.”

All of us owe great thanks to Ms Chapman and to the internet community whose ringing endorsement has allowed her not only to maintain, but also to enlarge, her readership. Ms Chapman will continue to provide the field with the most current and most accurate reporting on DSM 5 during its endgame. I strongly recommend her website as the best clearinghouse for information on DSM 5.

I join Ms Chapman in hoping that this embarrassing episode will discourage APA from all future efforts at abusive censorship – whether they are related to trademark, copyright, or confidentiality agreements. The field must remain vigilant in its efforts to contain APA commercialism and persistent in trying to penetrate APA’s secrecy and inbred decision making. APA must finally come to realize that DSM 5 is an open public trust, not a private business enterprise.


 

Related material:

DSM 5 A Public Trust Or An APA Cash Cow? Commercialism And Censorship Trump Concern For Quality, Allen Frances, M.D., Psychology Today, January 03, 2012

Further media coverage of the APA cease and desist v DSM-5 Watch website issue collated here:  Post #123

Article on “cease and desist” issue: Pity the poor American Psychiatric Association, Parts 1 and 2 by Gary Greenberg

 

Legal information and resources for bloggers and site owners:

1] Wipedia article: Cease and desist
http://en.wikipedia.org/wiki/Cease_and_desist

2] Wipedia article: Strategic lawsuit against public participation (SLAPP)
http://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation

3] Electronic Frontier Foundation (EFF)
http://en.wikipedia.org/wiki/Electronic_Frontier_Foundation
http://www.eff.org/

EFF Bloggers’ Rights
https://www.eff.org/bloggers

EFF Legal Guide for Bloggers
https://www.eff.org/issues/bloggers/legal

4] Chilling Effects
http://en.wikipedia.org/wiki/Chilling_Effects_(group)

http://chillingeffects.org/

Chilling Effects FAQ on Trademark Law
http://www.chillingeffects.org/trademark/faq.cgi#QID251

Chilling Effects on Protest, Parody and Criticism Sites
http://www.chillingeffects.org/protest/

5] U.S. Trademark Law, Rules of Practice & Federal Statutes , U.S. Patent & Trademark Office, November 2011 http://www.uspto.gov/trademarks/law/tmlaw.pdf

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Pity the poor American Psychiatric Association, Parts 1 and 2: Gary Greenberg

Pity the poor American Psychiatric Association, Parts 1 and 2: Gary Greenberg

Post #124 Shortlink: http://wp.me/pKrrB-1Ca

On January 03, I reported that the Licensing and Permissions department of American Psychiatric Publishing, A Division of American Psychiatric Association, served me with two “cease and desist” letters, just before Christmas, claiming use of the registered trademark DSM 5 within my site’s subdomain name was improper, in violation of United States Trademark Law, and that my unauthorized actions may subject me to contributory infringement liability including increased damages for wilful infringement.

I was requested to immediately cease and desist any and all use of the DSM 5 mark and that the DSM 5 mark is removed from the domain name http://dsm5watch.wordpress.com/.

Whether American Psychiatric Publishing might be considered to have a case against me or whether the use of the DSM 5 mark within my subdomain name might be found by a court to be legitimate under “fair use” – given that my site is non commercial, carries a clear disclaimer, with no intent to confuse, mislead or misrepresent my relationship with the APA or its publishing arm – I elected to change the site’s URL the following day.

The second letter demanded that I cease and desist immediately any and all use of the “DSM 5 mark” in the domain names of three additional internet platforms.

I do not own any of these three platforms or have any responsibility for them.

Evidently American Psychiatric Publishing’s Licensing and Permissions department omitted to establish ownership before issuing me with “cease and desist” demands and threats of legal action, on behalf of the American Psychiatric Association. I have received no apology nor explanation for their error. (I am not in a position to disclose the content of the second “cease and desist” letter since it relates to matters concerning a third party.)

Allen Frances, MD, professor emeritus at Duke, chaired the Task Force that had oversight of the development of DSM-IV and has been a fierce critic of the revision process towards the forthcoming edition of the Diagnostic and Statistical Manual of Mental Disorders, DSM-5. On Tuesday, Frances publicly supported my position in a commentary published on his DSM5 in Distress blog, hosted at Psychology Today.

Other blogging psychiatrists, allied mental health professionals and the author, Gary Greenberg, are supporting Frances in what they see as a heavy-handed, arrogant, bizarre and politically damaging move on the part of American Psychiatric Publishing’s Licensing and Permissions department in exercising trademark rights and making threats of legal action against a non commercial, responsible UK patient advocate who provides information and publishes commentary around the revision of two internationally used classification systems.

Commentaries from bloggers are being collated in this post:

Media coverage: American Psychiatric Association (APA) ”cease and desist” v DSM-5 Watch website; Legal information and resources for bloggers and site owners

Today, Gary Greenberg, author of Manufacturing Depression, and Inside the Battle to Define Mental Illness, Wired, December 27, 2010, has published a two part article on his website.

Read Part 1 here:

Pity the poor American Psychiatric Association, Part 1

Read Part Two, here, or published below, with the author’s permission:

Pity the American Psychiatric Association, Part 2

Gary Greenberg Blog

http://www.garygreenbergonline.com/

January 5th, 2012

In the last installment, we found out that the APA is trying to thread a camel through the eye of a needle. In their own view, they have to revise the DSM. To do this, they have to address the reification problem – i.e., that many of us, civilians and clinicians alike, have taken the DSM too seriously and treated the disorders it lists as actual diseases rather than fictive placeholders. To address it, they have to admit that it is a problem, and that they don’t have a solution. They have to fix the plane while it is airborne, but they don’t have the tools or the knowhow to do so, and the more it becomes clear that the plane is in trouble, and the more the mechanics are swearing and banging belowdecks, the more likely it is that the passengers will find out and start asking for a quick landing and a voucher on another airline.

So it is very important to try to keep the passengers in the dark as long as possible. Or, to put it another way, the APA has a product to protect, and the best way to do that, from a corporation’s point of view, is to control the narrative, as the pundits say, about the DSM.

Now, even before the recent events, which I’ll get to in a second, I knew this, because last year I wrote an article about the DSM revision for Wired about the argument between Allen Frances and Michael First, the major players in the DSM-IV revision, and Darrel Regier and David Kupfer, their counterparts on DSM-5. The article was no great shakes, just your usual lunchbucket magazine piece, fair and balanced and bland and forgettable as a soy hot dog with French’s mustard on it. I think Frances came out a little better, but that’s because I think he’s closer to the truth of the matter, and, as one of his colleagues has reminded me about a million times, he’s retired, so he can afford to speak truth to power. And the APA sounded at least reasonable in its willingness to acknowledge that the DSM is more provisional than it is generally made out to be.

Anyway, the forgettable magazine piece is in the process of becoming a book which will probably also be forgettable. And so I went back to my transcripts of conversations with the APA/DSM folks and of course found out all the questions I’d failed to ask and the points I’d failed to get clarified. So I emailed the APA pr apparatchicks and asked them to enlighten me. When exactly did the APA stop taking money from the drug companies for their educational programs, and how exactly was the embargo worded? And did I understand Regier correctly about a highly technical point that I won’t bore you with.

Here’s what I got back for a response.

Dear Gary,

We have received several requests from you for access to APA experts and positions on issues related to the DSM for the book you’re writing. I wanted you to know that we will not be working with you on this project. Last year we gave you free access to several of our officers and DSM experts for the article you wrote for Wired. In spite of the fact that we went to considerable lengths to work with you, the article you produced was deeply negative and biased toward the APA. Because of this track record, we are not interested in working with you further as we have no reason to expect that we would be treated any more fairly in your book than we were in the Wired article.

Now, why the APA would want to hand me such first-rate evidence of its own paranoia – and spare me having to listen to their talking points, not to mention preemptively decline to have a crack at responding to my book– is beyond me. It’s as incomprehensible as the letter itself, or at least the part where they complain that I was “biased toward” them. But I gather they think that they will make it harder for me to write my book, that maybe if they don’t cooperate I won’t do it. It is in any event evidence of an awfully thin skin, and of a bunker mentality. More disturbingly, it is evidence that they don’t really take their public trust too seriously. Especially when you contrast this to the National institutes of Mental Health, and its director Tom Insel, of whose work I’ve been much more directly critical, and who took the time to read it, and who still bent over backwards to get me an hour of face time that was cordial and fascinating. It’s enough to make you a fan of the government.

So to the recent events. Suzy Chapman is a patient advocate from the UK. Her website was an excellent compendium of information, archival material, reports, and, yes, criticism of the DSM-5. I have been using it in my research and admiring her tenacity and her fairmindedness. She has opinions but they are way in the background and neither shrill nor strident.

Chapman called her website DSM-5 and ICD Watch: Monitoring the Development of DSM-5, ICD-11 and ICD-10-CM. (The ICD’s are diagnostic systems run by the World Health Organization, and they are also under revision), and her subdomain name was

http://dsm5watch.wordpress.com

She also put in a disclaimer, made it clear that she had nothing to do with APA, that she wasn’t dispensing medical, legal, or technical advice. But that didn’t stop the APA from going after her. Not long after they got their DSM-5 trademark approved, and right before Christmas, they sent her this nice holiday card, which she’s kindly allowed me to post here, with her redactions.

Name: Redacted
Email: Redacted
Message: December 22, 2011

Suzy Chapman

http://dsm5watch.wordpress.com/

RE: DSM 5 Trademark Violation

Dear Ms. Chapman:
It has come to our attention that the website http://dsm5watch.wordpress.com/ is infringing upon the American Psychiatric Association’s trademark DSM 5 (serial number 85161695) and is in violation of federal law by using it as a domain name.

According to our records, the American Psychiatric Association has not authorized this use of the DSM 5 trademark. Consequently, this use of the DSM 5 mark is improper and is in violation of United States Trademark Law. Your unauthorized actions may subject you to contributory infringement liability including increased damages for willful infringement. We request that you immediately cease and desist any and all use of the DSM 5 mark. Furthermore, we request that the DSM 5 mark is removed from the domain name http://dsm5watch.wordpress.com/ . The American Psychiatric Association has a good-faith belief that the above-identified website’s use of the DSM 5 name and marks is not authorized by the American Psychiatric Association, its agents, or the law. I declare under penalty of perjury that the foregoing is true and correct and that I am authorized to act on behalf of the American Psychiatric Association.

Please confirm, within the next ten (10) days of the date of this letter, that you will stop using our trademark in http://dsm5watch.wordpress.com/ , and provide documentation confirming that you have. Any further use will be considered an infringement.

Thank you for your prompt cooperation in resolving this issue.

Very truly yours,

[Redacted]
Licensing and Permissions Manager American Psychiatric Publishing, A Division of American Psychiatric Association
1000 Wilson Boulevard Suite 1825 Arlington, VA 22209
E-mail: Redacted

Chapman, not in a position to fight, complied almost immediately. Her website is now available at

https://dxrevisionwatch.wordpress.com/

where you can also read about this kerfuffle in more detail.

Why the APA would make themselves into a Goliath is not clear to me. The DSM offers Paranoid Personality Disorder, but this episode makes me wish Frances hadn’t shied away from his proposal for a Self-Defeating Personality Disorder. Because it is not clear to me how they win this one. Not that I really care, at least not about the APA’s fortunes, but are they trying to prove Frances right about his recent, somewhat incendiary, claim that the APA no longer deserves the DSM franchise?

I did ask one of the APA’s trustees about this. He wrote:

As for whether the intellectual property angle was driving them to crush the lady in Great Britain or their wanting to crush her because she was being critical, I think when the history is finally known, it will be the former. Maybe we can think of someone using “DSM-5″ who is friendly and note the reaction.

I do like this idea of conducting an experiment. And he may well be correct, that this is the APA worrying about its intellectual property rather than just trying to make Suzy Chapman miserable or squash dissent. Will they go after the sites that have popped up predictably in the wake of publicity of their enforcement action, like www.dsm5sucks.com and the twitter account @dsm5nonsense (whose owner dares the APA to come after them)? But in the meantime, this only proves two points:

First, this organization is at least terribly tone deaf. Going after Suzy Chapman is sort of like Lowe’s yanking its ads from a tv show depicting Muslims as normal people – a hugely blunderous action taken to please a tiny constituency, which can’t possibly earn them anything but scorn and opprobrium. Either they don’t know how they come off or they don’t care. Either way, it’s pretty disturbingly arrogant behavior for an organization that has so much to say about how public money is spent.

Second, the APA is a corporation that, like any other, will do anything to protect itself from harm, real or imagined. And it spends a lot of time imagining dangers. That’s probably because it knows its primary product – the DSM, which accounts for ten percent of its income and a great deal of its clout – is faulty, and it knows that it doesn’t quite know how to fix it without risking making it much much worse.

[Ends]

Legal information and resources for bloggers and site owners:

1] Wipedia article: Cease and desist
http://en.wikipedia.org/wiki/Cease_and_desist

2] Wipedia article: Strategic lawsuit against public participation (SLAPP)
http://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation

3] Electronic Frontier Foundation (EFF)
http://en.wikipedia.org/wiki/Electronic_Frontier_Foundation
http://www.eff.org/

EFF Bloggers’ Rights
https://www.eff.org/bloggers

EFF Legal Guide for Bloggers
https://www.eff.org/issues/bloggers/legal

4] Chilling Effects
http://en.wikipedia.org/wiki/Chilling_Effects_(group)
http://chillingeffects.org/

5] U.S. Trademark Law, Rules of Practice & Federal Statutes, U.S. Patent & Trademark Office, November 2011 http://www.uspto.gov/trademarks/law/tmlaw.pdf

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