Libel and Discourse in the Digital Age

Libel, like copyright, is one of the central legal frameworks for governing online activities. It sets the bounds for what can and cannot be said about people in the new media area.  Like copyright law, libel law is a legal framework designed in a pre-digital era, that is somewhat strained in this new digital media age.

I write this with some trepidation. This blog posts touches on gender issues on Twitter, and that is a heated and, at least on Twitter, mostly broken discussion.

Any discussion on sensitive issues online, especially on Twitter, can devolve into a core of reasonable people trying to have reasonable discussions that are surrounded by a much larger group of people (or at least a large number of twitter accounts) who say completely ridiculous and incendiary things. Jimmy Wales response to a GamerGate email regarding the policies for Wikipedia’s GamerGate article is required reading here.

The wonderful thing about Twitter is that it facilitates open to the public conversations about anything at all. These conversations usually involve only people who are genuinely interested in particular topic, which means that the Twitter conversation is usually representative of the topic as it exists in the real world. But a given hashtag is useful and productive, only to the degree that people all agree on what the topic under discussion is, and also fundamentally agree on what is the appropriate means to have that conversation.

Many times, both of those constraints fail, and this is when you get a single hashtag, like #GamerGate being used in at multiple conflicting ways. One way is to have a discussion about “Ethics in Game Journalism”, the second is to launch a coordinated attack on female game journalists and other feminists, and the third is the feminist community using the hashtag to refer to those attacks. In the sense that all three things are happening at once using the same hashtag on Twitter, all of them are equally valid and equally invalid uses of the hashtag. But all three discussions regularly lament that the other two discussions are trying to “redefine” what “GamerGate” “is”. The letter from Jimmy Wales helped me realize that there is an inherent difference between a movement and a hashtag. Before reading that I was deeply confused on how think about “GamerGate” a word whose definition changes dramatically depending on who you listen to.

Generally I think the power of Twitter lies in its capacity to have public conversations that serve only as “signals”, with larger discussions on topics left to more forums that are better suited for comprehensive discussion, like blogs. Twitter is ill-designed to handle contentious issues, in part because Tweets are necessarily atomic in nature. It is too easy to take a single tweet, and then lambast that single tweet as the entirety of someones position. This is not strictly a straw-man tactic because it actually takes a little work to get Twitter to contextualize any discussion. Twitter presents tweets as atoms, and not threads on a topic.

On Twitter, there is a lot of “What I said was X, but what I meant was Y”. As an informaticist, I would call Twitter something like a “Communication Platform with Low Semantic Fidelity”. Which is not an insult to the platform… this is both a “feature” and a “bug”, depending.

So it is with great irony that I found myself having a discussion about libel, on the very platform that makes the issues around libel so complex.

For those who have been living under a rock on Twitter lately there has been a drama unfolding regarding the role Vivek Wadhwa plays regarding women’s gender issues in technology. The play continues to unfold, but here is the outline of the opening scenes:

  • Wadwha makes a statement onstage referring to “floozies”. (have not been able to find video of this)
  • Mary Trigani writes a post entitled Captains and Floozies criticizing Wadwha’s comment.
  • Wadwha comments on the blog post.
  • Trigani reposts the Wadwha’s comment with the title Vivek Wadwha explains
  • Amelia Green Hall, writes QUIET, LADIES. @WADHWA IS SPEAKING NOW which sternly criticized the role that Wadhwa plays and how he plays it.
  • This blog post caused enough of a stir that Amelia was subsequently interviewed by Meredith Haggerty on NPR’s TLDR series. This podcast (which is still available here) is essentially a retelling of Amelia’s blog post in audio form, with no dissenting voice from Wadhwa or elsewhere.
  • Wadwha reacts on twitter saying that the podcast is “libel and slander
  • NPR removes the podcast from their page, although as per normal it will be remembered forever on the Internet somewhere…
  • Twitter presumes that the post was removed because of Wadhwa’s “threats”
  • Wadhwa insists that he wants the post itself restored, but merely wants to have the opportunity to blog in the same space.
  • Apparently, his interactions with NPR makes him believe that he will be able to publish a retort on the NPR site.
  • For whatever reason, Wadhwa’s defense is not published on NPR, so he manages for it to be published on Venture Beat instead.

Which brings us to current. (I will try and update the timeline if things change)

Obviously it’s interesting stuff in it’s own right, but I am mostly interested in the issues around libel. Specifically, I am interested to understand if it was in fact libel, and I am interested to know if the fact that Wadhwa labeling it as libel was a “threat”.

Lets deal with the first issue. Was it libel? Well it turns out that this is not a clear legal question, especially for Wadhwa. You see in the US, the legal test for libel typically has three components (IANAL and I am quoting Wikipedia, so you would be foolish to take this a legal advice).

  • statement was false,
  • caused harm,
  • and was made without adequate research into the truthfulness of the statement.

(from wikipedia)

Unless, you are a public figure, and then libel also includes “Proving Malice”. Again quoting wikipedia:

For a celebrity or a public official, the person must prove the first three steps and that the statement was made with the intent to do harm or with reckless disregard for the truth, which is usually specifically referred to as “proving malice”

Listening to the podcast there are several statements that stand out specifically as false:

  • ..”Has he really been this spokesman for women in tech for years while he is believing that women can’t be nerds because thats because thats like super misogynist”..
  • (on the website of for Wadhwa’s book) “I can get to a photo grid of women it doesn’t list their names..” (Wadhwa points out that such a list lives here)
  • “Wadwha was barely acknowledging the women he was working with”
  • Wadwha was “Gaslighting minimizing marginalizing people who disagree with (him)”
  • The story implies that Wadwha titled his response to Trigani’s post “Vivek Wadwha explains” when in fact Trigani had made that title.
  • The DM’s that Wadwha sent were “non-censual”.

If you listen the to podcast, and you read Wadwha’s rebuttal, it is pretty easy to see understand how Wadwha at least would view these statements as false, harmful, and inadequately researched. Wadwha is painted as pretender, a person who who is taking the role of “real” expertise. The implication here is that there is something essential to the experience of being a women in technology that is required to acquire legitimate expertise about women in tech. At the same time, there is the implication that the experiences of women in tech so vastly distinct that no one person could possibly make useful statements about them as a class.

This is an interesting issue with civil rights in general. There was a time when the racial civil rights movement choose to exclude white supporters from leadership positions. This makes sense when you are dealing with a pervasive attitude that presumes that a particular class is fundamentally incapable of self-representing and/or leadership.

But there is a difference between requesting that someone bow out of a leadership role, in order to further the aims of a social justice movement, and attacking the qualifications and intentions of that same person in the most public way possible (i.e. on the radio and Internet at the same time).

On the other hand, if there is a person claiming leadership in a social movement, while saying or doing things that hamper that movement, it is a natural reaction to eventually (after back channel discussions have failed) to out that person in public.

So which is it? Is this a necessary exposer in defense of an important social movement, or it is petty dramatics within a movement that should be above such theatrics?

What the hell do I know? Although I am at least a little interested in anything that qualifies as social justice, I am hardly an expert in this area. I don’t know any of the parties involved and I have no familiarity with the book and research body in question.

What I am interested is how libel works in the Internet age. What is fascinating specifically to me is the degree to which Wadwha is being criticized for calling the podcast “libel”. It is fairly clear to me that IF the contents of the podcast are misrepresentations, then Wadwha is just being publicly attacked. The whole podcast was about him, not about “men speaking for women generally”, but just about him and what he was specifically doing wrong. The podcast implied that he was a lecherous, misogynist, manipulative plagiarist. IF those things are not true about him… then does he have the right to say “This thing that is happening is slander and libel” without inappropriately using that language to squelch criticism.

According to Wadwha, he has made no legal threat, he did not ask for the article to be taken down and, in fact, he has asked for it to be restored. That does not generally sound like the acts of someone who is seeking to muzzle critics.

What I find fascinating, is the apparent consensus that merely labeling the podcast as libel IS itself a legal threat.

Here are some reactions from two lawyers who work for the EFF (an organization I admire and donate to)

And then here..

Lastly this is one specific quote from someone who has been on the other side of this.

However, I did find this gem from @DanielleMorrill, who was obviously researching this earlier than I was. She found places where Wikipedia policies cover these issues…

For my part, I cannot help to empathize with Wadwha. My family has had some pretty nasty run ins with people willing to publish false things about us. If someone in traditional media decides to smear you, its nearly impossible to undo the damage. At least Wadwha had the opportunity to tell his side of the story, an opportunity my family never got. 

Apparently, the consensus on the Internet, and what I would advise people do on this, is to just say. “Hey that stuff you wrote/said about me is not true, and its pretty hurtful and you really should have researched that better” instead of actually coming out and saying “Thats Libel”. Its pretty clear that Wadwha tried to take a position of “You have libeled me, but I am not planning on suing you, I just want to achieve balance”, and from what I can tell, that has blown up in his face, and possibly made things worse for him. 

I have certainly learned several things from this incident that will make me slightly less likely to put my foot in my mouth: Specifically…

  • I should be careful not to speak over other people on panels. I am frequently the most vocal and opinionated person on a panel. Audiences frequently ask questions specifically to/for me, and moderators will frequently favor me because I can be entertaining. But apparently when Wadwha does the same thing he is percieved as “taking the air out of the room” etc etc. I would never want my fellow panelists to feel they don’t have a voice b/c of me. I will have to work on that.
  • Apparently there is a whole contingent of women who have been so completely harassed by DM’s that saying something like “A non-consensual DM” actually makes sense to them. I had no idea that Twitter harassment had reached that level for women. I mean you have be brave or crazy to let someone know you are a female user on Reddit (which is sad), but I thought Twitter was a “safe place”. I was wrong.
  • When someone labels themselves as rude or mean or otherwise thinks that it is a good idea explicitly admit in their twitter profile that they are difficult to deal with… believe them. They are not kidding. Its one of these things. Lookup the Far Side cartoon that says: How Nature says “Do not touch”. Its just like that.
  • I need to be careful to explicitly not speak “for” the people I personally advocate for (which in my case is usually patients) b/c this can be disempowering. I need to find ways to advocate without being presumptuous, which is harder than it sounds.

Thanks for reading, I may well update this post based on reactions from Twitter and elsewhere.








How to change the world over the weekend

I love hackathons.

I love winning them. I love competing in them. I love winning them.  I love judging them. I also love not losing them.

This weekend, I am acting as a mentor to the first Health 2.0 hackathon in Houston Texas. As far as I know (which is not that far, really) this is the first hackathon in Houston to be focused exclusively on healthcare. Serving as a mentor rather than having the opportunity to directly win might seem counter intuitive, given how competitive I am. But I have had complaints about being a “professional” Health IT expert entering these contests, and as one of the organizers of the event, I do not want to be seen as unfair. This was a hard decision to me because in most cases, if I have to choose between winning and being unfair, I choose winning.. but my Houston Health 2.0 co-conspirators prevailed upon me this time…

I do well in hackathons because I know how to avoid the number one pitfall in healthcare hackathons: It is too tempting to make toys.

To really rock a Healthcare Hackathon you have to have a real strategy to build something that will make a difference, but something that you can still prototype in two days. Here are general thought strategies that have worked for me:

  • Have you carefull searched the web for someone implementing your first-blush idea? The android iphone app stores? Your idea is probably not original?
  • Rather than focus on original “ideas” to find “original problems”, clinician partners on your team are critical for this perspective!
  • Seek problems where there is no money to made solving them. Problems that already have money already have attention, it is hard to do original work in those spaces!
  • Only a few doctors are enlightened enough to pay attention to the hacking approach. How can we multiply the impact of a very few doctors?
  • Most patients are not e-patients, they are reactive and unwilling or unable to change their own healthcare behaviors. How can we minimize what each patient must do, but still have an impact?
  • Are there patient pain points so strong that we can rely on at least a few highly motivated beta testers?
  • How can we leverage the cloud, even with HIPAA limitations?
  • How can we crowd-source effectively, ensuring that every participant is evenly and instantly rewarded for contributions? How can we make crowdsourcing fun?
  • How can we leverage pre-existing Open Source code or APIs? Stand on the shoulders of giants… Hello! Obvious!!
  • How can I flesh out my team at a hackathon by pitching to clinical, educational, design, art or video collaborators?
  • If a programming task is hard for me, can I find a geek that can do in a few minutes what it would take a whole week for me to learn?
  • Getting a good idea is easy. Getting a good idea that is small enough for me to finish in two days is hard. How do I trim all the fat?

Here are some ideas that I will be pitching to participants to this weekends hacking contest. If I can find geeks with the required programming skill-sets and the team to ensure that they have the clinical and design backup that they need, I think these are all doable in two days.

Big Data on medical students:

Medical students are the only ones who understand the problems in medical school. I have designed a hack that will allow us to use big data on them directly to discover and fix the issues with our process for making doctors. I think this will require a team who can code in cross-platform Java… but a web-platform programmer could be tolerated in a pinch. SQLlite experience is a plus.

Better medical wikis

Only Wikipedia has the critical mass to sustain itself, so the only way to make a medical Wikipedia is to do it inside Wikipedia. But how do we ensure that the medical parts of Wikipedia are accurate enough for clinicians and experts, but simple enough for the average patient to find them useful. I think I have found a way to use the Wikipedia API’s to dramatically improve the quality of Wikipedia articles on health issues, but I will need a team who knows how to either build a chrome or firefox module…. are perhaps super fancy JavaScript bookmarklet

Cross the channels at health conferences

Every healthcare conference has a back channel, and in my experience at healthcare conferences, many of the real experts are in the crowd tweeting. Conversely the people who line up to ask questions at a microphone are unvetted, a tragic portion of those who ask questions are actually pitching their own projects, or exercising an obsession, or asking a stupid question (and yes… there is such a thing as a stupid question… or at least there are many morons who feel comfortable wasting my time with questions). I am pretty sure it will require something like Node or Pythons Twisted, but I think we can use Twitter to hack health conference Q&A for the better….

The calculus of pain

In healthcare we have policies that help to ensure that “drug seekers” are unable to access excessive amounts of opioid pain killers. Assuming we define “denying a patient pain medications as a positive”, then these policies are “high sensitivity”  (has few false negatives). Said another way, they have been shown to reduce the number of deaths from medication overdoses in those states that apply them. But good policies are also “high specificity” (has few false positives). In this case, a “false positive” is to deny a patient who has legitimate untreatable-without-opioid pain access to effective pain control. The debate is mostly rhetoric here, with law-enforcement and organizations who represent pain patients both resorting to rhetoric  because there is no way to accurately measure false positives. But what if we could create a dynamic visualization that estimated false positives from the data that we do have? Essentially, we could create a “calculus of pain” diagram that both sides could ‘agree’ on, but use differently. As you might expect, this ‘rhetoric negation GUI’ will require extensive D3/javascript expertise.

Simple games for fitness

I am interested in creating tools that use Geocoding and QR codes together to motivate health. I need IOS and/or Android developers for this one.

Twitter plus epatients

Lastly I am interested in the ways that e-patients tend to favor twitter and I might be interested in developing an e-patient specific twitter tool. Need to code in a web-friendly language.

Quantified Self device hacking tools

The QS community very clearly needs a specific tool that I have gotten alot of requests for. You must know either hardware interfacing (usually C or C++ for usb drivers etc) or web authentication (OAuth et al)

Do something awesome using Natural Language Interfaces.

One of the API sponsors for this hackathon is Ask Ziggy which is essentially a “Siri as an API” for app developers. Its a clever idea and there are lots of possible uses here… no specific technical requirements other than to us this API.

Do something awesome with DocGraph

This is of course, our own data set.. and you can read about it at the main DocGraph site.

Do these sound vague enough?

I hope these are pretty vague ideas. I intentionally am leaving out the critical “how” part of each idea!

I hope this list is enough to spark some interest and get developers to attend this conference. I will not be the only one pitching ideas, and teams attending with pre-baked ideas typically do well at these kinds of events. Still if you want to use my ideas, and hear me explain how to do them and why they will work then you need to meet my specific criteria. First, you must be willing to develop  in the open, and under Open Source licenses. I am giving you a hackathon winning idea for no money. (and I am fairly certain, given that I have judged more health 2.0 contests than anyone else) Even if you do not win the contest, these ideas are so good that I will probably be able to make you fairly famous in the Health IT and Health 2.0 communities.

By working on my ideas you kind of hedge against losing at all. If you are able to pull of the projects, then I will give you credit publically for your awesomeness, which is valuable to anyone looking to make a name. For this valuable insurance service,  I need to be able to start from where you left off if you decide to abandon the project after the hackathon… That means github and the FOSS license of your choice (I like the AGPL)

You also -must- have the skillset that I require for a given project for me to give you the details on a project. I cannot have my best ideas just “out there” for people to run off with!! I am pretty sure that I have at least one project for every kind of developer that I can think of listed above. If I could do all of these ideas myself with my programming skill set.. guess what… I would have already done them or I would save them so that I could win some other hackathon! Each of these projects leverages a very specific hack of some kind. Either hacking hardware interfaces, user expectations, software design, data levers or something like. After I describe the “how” of each project there will be an “aha/wow” moment, when you think “We didn’t I think to do that?” (Note I felt this way after seeing IFTTT for the first time). If I am handing you a “wow” world-changing hack then I have to know that you will make us both look awesome when you pull off the hack. Don’t worry if you do not have a specific skillset I define here. I have lots of other ideas based on what you are good at! This especially applies to designers and other artistic types and to clinicians!! All of these projects could use clinical/design help!!

If you have not signed up yet, then I would get over to the signup page now. So far, every Houston Health 2.0 event has sold out so far, and we expect this one too as well. I have some pretty awesome project proposals but I can tell you now that these will just be a few of the awesome ideas that we are bringing to the table for this Hackathon. Most importantly, if you already have a project in mind, then you will be able to find a team to help you hack on your project! All you need is alot of motivation, a little skill and a willingness to collaborate. Or even just one of those three would do…

Looking forward to seeing you there!!






Practical collaborative document writing for patient communities


I have a lot of experience with collaborative document writing, and now, in my role with Cautious Patient Foundation, I have been providing technical help to several patient communities. I helped write the security standards for the NWHIN Direct project and I am currently working with the e-patient/QS community to create a document detailing Doctor friendly Quants and Quant friendly Doctors.

My advice is pretty simple:

  • Use a forum, either a facebook thread or a mailing list to determine who the primary authors should be, and what the general content of the document should be.
  • If you have several authors, use Google Docs or a Wiki for initial document creation. If you are writing alone, use whatever you want as your initial author tool.
  • Once you and your co-authors feel OK about the resulting document, copy it over to, and allow your entire community to comment on it. (For Geeks: Co-ment is the successor to the stet project which was used to coordinate comments on the GPLv3.) There is a free version of co-ment but the service is cheap and probably worth it. It allows a community to comment on specific parts of a document, and it will automatically generate a “heat-map” of the more controversial parts of the document.  These are the areas that you will need to spend time with, ensuring that you have blessing of your community.
  • When the comments stop coming in, the document is done.
  • Keep your document as short and concise as possible. All of us operating in the various patient communities are short on time, and by keeping what you are asking us to read short, you are respecting that.

The insight here is that while a wiki makes it easy to update and maintain documents, they are not always the right tool for building consensus in a community. What you want is to have your documents reflect the will of your community at large, rather than the will of the most obsessive wiki-editor in your community.

Hope this helps.


Unethical Blue Button Contest

This contest is deeply problematic.

The blue button initiative was a good initiative because it allowed greater access. It made that possible by ensuring that access to patient data did not have to wait for the VA/DOD/Whatever to create a download that conformed to the still-forming XML standards that make true interoperability possible.

But now the VA is promoting the Blue Button format as something that should be integrated into other EHR systems. That is unacceptable.

Meaningful use requries that doctors allow patients access to their health record summaries using CCR or CCD. Both of those standards can easily be translated to printable reports that are very readable. Meaningful use -also- requires that patients be provided a summary in a printed form. The simplest way to do this is just to have onsite printing of the CCR or CCD reports.

Blue Button data format is not as readable as a summary printout, and is not as parseable as XML. It is the worst compromise between human and computer readability. No clinician should ever make a clinical decision based on the content of a Blue Button download. The data is simply not rich enough to transfer into another health record or PHR. Essentially that makes the blue-button data format standard an FYI-only use case.

The innovation of Blue Button is to not let standards compliance get in the way of access. For this reason the DOD and the VA use of the Blue Button format should be applauded! The Blue Button initiative was fully give-me-my-damn-data compliant! But promoting it as an alternative process to a process that supports fundamental data reuse and is -already- required by meaningful use is unethical.

I formally request that the VA withdraw this contest, or make it clear that a CCR/CCD/printable report download meets the requirements of the contest.

Either you are promoting the notion of patient access, which is wonderful, or you are promoting shitty health data standards, which is unethical.

Cross posted on the VA challenge forums here.

Here is the example of the file format in question.


Contract to create VistA shepherd goes to newbie

I just learned, (from a modern healthcare article, of course) that the contract has been awarded to Tiag.

At first blush, this news was not concerning. I am only peripherally involved in the VistA community, and there are lots of solid VistA-related contracting companies that I do not know of. It was a little surprising I must admit, I was expecting this to go to Perot Systems (now Dell), or DSS, both of which have deep VistA pedigree. My second guess would have been a big contractor like IBM or CSC.

But I have done a little analysis and now I am pretty concerned about this.

First I used Google to do a site search for the term “VistA” on the Tiag website. The syntax for that is “site: VistA

Results.. nothing..


Ok, but even though there website does not list anything about VistA, maybe the leadership is invested in the VistA community. Its pretty easy to sort participation in VistA community, it all happens across the Hardhats mailing list. So I did a search on the hardhats mailing list for the proper names of each of the people listed under the Leadership Bios on the hardhats mailing list. Here is a sample for Tiag CEO Dalita Harmon. Nothing.


Ok, the Tiag leadership is not participating in the VistA development community, but perhaps they have “underling involvement”. I search on the hardhats mailing list for anything coming from returns nothing. (it might return a thread I started about them now….)


Maybe they prefer to participate in person, attending WorldVistA meetings? Nope.


Maybe the organization is just deeply skilled in health IT. It looks like they have some military health IT experience, which is not at all the same as VA health IT. The resume of the Tiag CEO shows that she is not a computer scientist, or a self-taught developer. This is pretty important, because Tiag is registered as a small business. The CEO will probably be making significant decisions about this project, and she is not a software developer. Moreover her resume speaks to industry-hopping with “leadership experience” as the result. Given that background, there is a very real danger that she might be confident without being competent regarding VistA.


Perhaps, they have experience with Open Source? Nope.


How about experience with MUMPS? Nope.


Are these google searches working at all? Perhaps Google has not indexed Nope, a search for the CEOs name returns lots of pages. Including this one, which details the history and philosophy of the company, from that page:

one of our core differences is going against the industry standard of treating people like commodities.  tiag hires the best talent out there and treats them like talent

This is kind of troubling, because VistA, in my experience is one of the most complex and difficult technical arenas in health IT. The system is amazing, but making VistA go is a dark art, and experience really matters here. From what I can tell, they have no VistA experience to speak of. This, and the generally buzz-word compliant and beautiful tone of the website lead to a dangerous potential conclusion: This is an organization that has expertise in writing beautiful proposals, rather than any kind of industry experience. What if this is yet another “beltway bandit” with a limited, “across the fence” understanding of the VistA community inside the VA and no concept of the VistA community outside the VA.


At this point, I am going to put out the soft feelers to the VistA community, for indications that my research is wrong. But at first blush, it appears that the VA has chosen VistA-outsiders for this role. There a several ways that this analysis could be wrong, for instance, if they had just hired George Timson, or perhaps partnered with someone like Open Health Tools, and they have not yet updated their website. So these concerns could be simply irrelevant.  So first, I hope I am wrong in this analysis. Second, I can only hope that choosing a VistA-outsider was intentional on the part of the VA.

-if- it was intentional, it might not be a bad thing.

It appears, at first blush, that these guys are all going to be VistA newbies. The first thing they need to understand is that they are in fact newbies. I know a lot about Health IT, but knowing VistA… thats something else. Understanding what VistA appears to be, and understanding it at the level of a CAC or VistA programmer… thats something else entirely. It also appears that they are newbies to Open Source generally. I would have loved to see some Linux Foundation/Apache Foundation/Mozilla Foundation type credentials. I do not see that here either.

While I was initially investigating VistA, I wrote the WorldVistA wiki page “What is VistA really?“. Its a chronicle of a health IT outsider becoming a VistA insider (remember I said “insider” not “expert”). Nothing written in that article would come as a surprise to a VistA insider, but if you read it… and you are surprised by anything there, then that is a pretty good indicator that you are a VistA newbie.

Being a VistA newbie is fine, as long as you understand that you are a VistA newbie.

If this “Open Source VistA” thing is going to work, then the people leading that effort are going to have to be deeply aware of what “Open Source” and “VistA” really mean, -or- they are going to have to have a lot of humility.

In Open Source, reputation and leadership are the same thing. If Tiag is as unknown to the rest of the VistA community as they are to me, they have a long way to go. This does not mean they will do a bad job, Harris Corp was pretty inexperienced with Open Source, but they ended up doing a pretty good job on CONNECT. In the end, they earned a good reputation. I was pretty freaked out when that contract went to Open Source novices, but it turned out O.K. in the end.

Of course, Harris had a stellar technical team. They really understood what they were getting into from a technology standpoint. Does Tiag? One of the critical issues around an Open Source VistA process is that normal version control does not work on VistA. This has to do with the quasi-versioning capability of the KIDS system. Updates in VistA often come in the form of KIDS packages that inject code directly into the VistA database. That code, living in the database, and not on the filesystem, makes tracking VistA with traditional version control impossible. Can you imagine trying to create an Open Source governance structure without the presumption of an underlying version control system in place? The governance of most projects translates to “the process by which we decide who gets access to subversion/git/whatever”. This is just one example of how VistA context is going to be critical for any kind of workable governance. My proposals for VistA governance, are some of the oldest and complete writing on the subject. They date from 2008, which is something like 21 years ago in Internet years (which are, as everyone knows, roughly compatible with dog-years). So I am something of an “expert” on the subject of VistA governance.

There are three working definitions of ‘expert':

  1. The student: Person who understands the problem well, and might recognize the solution.
  2. The amateur in experts clothing: Person who advertises that they know the solution, but in fact does not understand the problem at all.
  3. The real expert: Person who has solves the problem.

I am, at least, solidly in the first category.

If “What is VistA really?” serves as a good introduction to VistA, this post will serve as a good introduction to Open Source values. What matters in Open Source is “being right” and being right comes from evidence. The evidence in this case (a bunch of Google searches) suggests that Tiag is inexperienced and over their heads on this one. The difference between Open Source developers and other developers is that we talk openly about these types of issues, and criticism, when backed by evidence, needs rebutting. Participating in community discussion and responding to community criticism is what “participating” in Open Source community means. We have lots of heated arguments, and its never personal. Its always about what the right thing is for the sake of the project in question. If Tiag thinks this post is critical, they are in for a whirlwind.

At this point I am pretty nervous. The future of VistA depends greatly on Tiag not screwing this up, and I see no evidence that they have any experience in Open Source, licensing, governance or VistA and its unique development process. There are thousand ways to make a train-wreck here and only a few ways to do this right.

I will try an update this article with more information regarding Tiag’s qualifications.

I really hope Tiag has what it takes.


Health Foo Camp

I am happy to announce that I have been invited to the first ever Health Foo Camp. There is not even a web-page for this yet, but it has been previously announced on the RWJF blog

FOO stands for Friends of O’Reilly. It is an invitation event that puts some of the top geeks and thinkers in the same room. This is the first health-focused FOO camp.

This is a pretty big deal for me. The moment I first heard of Foo Camp, I realized that going to one was on my bucket list.

This was similar to the first time I realized that Regina Holliday sometimes auctions off her art. I realized that being wealthy enough to win an auction of one of her art work was my new definition of being rich… I also secretly covet one of her custom jackets.

Anyways, when something like this happens I begin to realize that maybe I am making the difference I want to with my life. It looks like people are finally taking this whole Open Source Health Software thing as seriously as I do. Its a pretty awesome feeling and after sharing a celebratory dinner with my wife, and soaking up the good news for a few days, I thought my readers might like to share in my sense of satisfaction. At least I think I have readers….


A patient by any other name

Recently two communities have been discussing a pretty basic question. What should we call the artist formerly known as “patient”?

The two communities are the e-patient community and the “patients” in the patient safety movement, specifically those that met at the last IHI meeting.

But why would we want to call patients anything other than “patients”?
The word patient has some negative connotations. Indeed, the Websters dictionary entry has exactly two definitions of the word patient as a noun.

1 a : an individual awaiting or under medical care and treatment
b : the recipient of any of various personal services
2 : one that is acted upon

It does indeed seem that a historical definition of the word directly implies passiveness. The second definition is particularly problematic, but even the notion that a patient is one that “waits” for care in the first definition is contrary to the participatory and proactive ideals of both of these groups.

But we should not pretend. “Patients” are in fact very often passive.
If we define the leaders of these communities as “fully engaged patients” then what is typical in “patients” is not merely “not fully engaged” but “not at all engaged”.  Paternalism in medicine is not just a problem in the attitudes of doctors, but for many “patients” as well. In fact the word “patient”, with its passive context,  is probably the right meaning for most people.

So both of these communities have been talking about two problems here at once, and conflating them frequently.

First we have a problem that patients are frequently passive and even when they are engaged they are not effective because they are not typically well-equipped. This problem can be summarized as “Lack of patient engagement”.

But then we also have the problem of how to describe a person who is successfully taking a proactive, engaged and effective role in their own healthcare.

I think it is a mistake to conflate these problems. If we are going to be asking doctors to change their behaviors and/or perspectives we need to be clear whether we are asking them to change the way they relate to a typical patient, even when that patient may be entirely passive, or whether we are asking doctors to recognize that “patients” in our communities are moving beyond the passive role and expect to be treated differently. When we discuss whether we should keep the old name, “patients” or create a new name, we need to be clear if we are talking about something new for everyone, or just those that embrace a new ethos and responsibility. Are we debating a name for “everyone” or a name for “us”?

Given that distinction, we can more clearly discuss the various terms that we are suggesting. Here are some of the alternative words that have come up in our groups:

The term consumers emphasizes that as “patients” we are having an economic transaction. All patients, both passive and proactive are obviously consumers. The notion here is that by referring to market forces and discussing things in business terms, that we might bring competition into play. The fundamental problem with this notion of bringing a market to bear in healthcare is that fair markets only exist when there is information parity. Consumer reports, for instance, serves to provide information parity in the automobile market, as does Kelly Blue Book. Both the relative performance, and the current average price of any automobile are generally known both the buyer and seller of automobiles. But when we talk about patients as consumers, they have dramatically reduced information regarding both the price and the quality of the services that a doctor provides. Do not get me wrong, I think these problems are solvable and as a result the “consumerism” movement within healthcare has value, but it would be silly to simply pretend that by calling a patient a consumer we can ensure that they are actually playing this role in economic terms. So the notion that patients -are- consumers is pretty weak, but the notion that they -should be- consumers is a great idea. The consumers union has important healthcare efforts that should be supported and embraced.

The second term is client. The benefit of this term is that it emphasizes that the person under care is providing payment for care and should be treated with respect as a result. The term client has very different meanings in different professional relationships. We certainly would not equate the relationships  lawyers, prostitutes, hair dressers and mental professional with their “clients”. The word is quite flexible. This can be both a strength and a weakness. Moreover, it is often not strictly true. At least one definition of client is “someone who pays for goods or services” and often the “patient” is not actually the one paying for care. Sometimes parents or children pay, sometimes society or the government pays and at least usually, a third party is actually “payed” by the patient for care, and that third party then pays the clinician. One could argue that many of the woes in our healthcare system are the result from treating insurance companies as the clients to the detriment of both the patients and the doctors.

The term patient 2.0, like health 2.0 refers to the iterative improvement that we have seen in technology. Health 2.0 itself was a controversial term when it was created, both described as being both the application of web 2.0 technologies to healthcare (the Holt definition) and the fundamental rethinking of healthcare itself (the Shreeve definition). Since those debates, both definitions have held up well. If we accept a “Shreeve” style definition of Patient 2.0, then we label our efforts as a natural successor and a fundamental improvement at the same time. Unfortunately many will hear a “Holt” style definition and assume that Patient 2.0 means patients who like to use software, which misses the point entirely.

This problem is shared with the term e-patient. To the initiated the “e” in e-patient stands for “empowered” or perhaps several “e” words like “empowered”/”engaged”/”enabled”/”educated”. But reporters and other bloggers constantly refer to the parallel of “e-mail”, assuming that the “e” means “electronic”. Again the notion that an e-patient is a patient who e-mails misses the point entirely. However, e-patient does have very strong brand, mostly due to its very popular blog and the wonderful white-paper. It is one of the most recognized terms in our larger movement. Empatient has been suggested as a dis-ambiguous improvement on e-patient, one that is not subject to confusion. It also is a play on words with impatient, (which I find delightful, because I am a word-geek).

Patient expert has been suggested as an acknowledgment that patient’s can often be very informed about their disease and conditions. But this term is also controversial; if a patient truly had the required health expertise, then there would often be no need for a doctor. Doctors, as experts, might resent this term, because it makes an implication that is clearly false… that both the doctor and the patients are experts in healthcare. Of course one could argue that the right term should be expert patient. Rather than suggesting that a patient “has healthcare expertise” which might be insulting, this arrangement implies that a person has become an expert, at being a patient. Hopefully this would not be as insulting to doctors and probably be a more accurate description. Of course the problem here is that people might be told “expert patient” and presume that it means “patient expert”.In this same vein a notion of a licensed patient, has been proposed, but it unclear what specifically licensed might mean.

Patient advocate is a term that is well-suited towards those with deep experience being patients, who are engaged with helping others who are being overwhelmed by just becoming patients. This has some overlap with the ‘advocate’ relationship that a lawyer might have.  Patient activist is a good term for those who attempt to speak for larger groups of patients at once.  The problem with these terms is that it very accurately describes certain individuals in our communities, but fails to capture the ethos that we would hope to instill in everyone who receives healthcare.

In the quantified self movement, which overlaps with the n=1 movement, they often refer to themselves as #quants. This movement is focused on collecting data on oneself in order to achieve a deeper understanding of ones own health and wellness.

A clear trend with these terms is that they often represent terms that are 100% appropriate for a specific subset of our overall movement. We need to have people who specifically attempt to be engaged and proactive patients using software, and patients 2.0 is a great term for that. When we are trying to get healthcare to respond to consumer forces, calling patients consumers is appropriate. Sometimes the “e” in e-patient might really refer to a person who want to be fully engaged… by e-mailing his or her doctor. In a shameless plug I argue that the term cautious patient, coined by Dr. Oliver and the subject of my work at the Cautious Patient Foundation is the right term to use when you are discussing patients who are A. fully engaged  B. educated about patient safety and therefore C. able to take steps, as patients, to avoid medical errors.

But all of these alternatives should be compared with efforts to rehabilitate the original term “patient”.

Over time, the meanings of words in any language changes. Perhaps it is simply time to redefine this word. In many cases, this work has already begun. One of my personal favorites is e-patient dave’s catchphrase “Patient is not a third person word” (not sure if he coined this, or merely popularized it… either way, when I say it, I am quoting Dave.)

Perhaps we just need to re-embody the word patient with a new meaning, one that is more compatible with our movement. One way to do that might be to temporarily use a term like true patient, pure patient or real patient ( perhaps a way to take advantage of the fact that this can be an adverb/adjective as well?)

I want to be clear that I have no specific preferences on what term(s) are most appropriate.  I would not have added something to this post if I thought it was ridiculous, and I am trying to summarize and evaluate positions that I have heard others take on these issues. If I have missed something or been to critical to an idea that you favor, leave me a comment and I will update this post if you are convincing.



Update 12/21/2010:

e-patient dave had the following to say in response:

Hey Fred – when I was in college in the Nixon years, my more radical friends often debated the power of language especially during a revolution. I’m no radical compared to them, nor to some of the more intense people I know in the patient movement, but I agree there’s something to it. Revolutions (race, gender, whatever) involve unshackling, and a lot of shackling lives in language.

I’ve always thought there are two changes in a social revolution: the underlying reality and the language we use to discuss life. There’s a period of intense discomfort during which the reality is shifting and the language no longer fits – just like a bad shoe. People start to see themselves (and others) in the new reality, and they say “That old language isn’t me, no sir!” Others say “It *is* me – I’m the NEW [whatever].” Some take over the old words, even the pejoratives, and take ownership in the new world, as some blacks have done with “nigger.” They assert that that signifies real power – “The Man no longer gets to say. We get to say. The language of your dominance no longer applies.”

I don’t mean to sound like an expert on this because I was no expert, just an observer. My point here is that we in the movement ought to be thinking about where we sit, collectively, on the timeline of transition. Many of us are awakening to our power, just as blacks and women did during their revolutions. Perhaps we should track both issues independently: the reality, and what we call – AND what others hear when they hear our words. Because a social revolution’s not complete until the old meaning’s obsolete.

The only point I would disagree with about this is the notion that Dave is “just an observer” on this issue. Some of the things I have heard him say, esp the ‘third person’ thing, have clearly raised my own awareness about how I discuss patients.

Facebook Places powers the first social election game

Today, Farrin Anne ‘Crane’ Gustafson, the manager of the social media strategy for the Clayton Trotter (my father) congressional campaign became the first person in history to use Facebook Places to check-in to a new kind of application: a social election game. She earned the “At the Voting” badge by checking-in using Facebook Places as she early voted today on the first social election game that I have been frantically coding for the last few weeks. The game concept is simple: it rewards real-world political activity with points and badges. There have been a lot of discussion about how Foursquare et al. might be used politically. This is especially true of Gowalla, which has been targeting politicians.  There are also people who have talked of using a facebook game to energize supporters. But as far as I know, my application is unprecedented for the following reasons:

  1. The application is the first to allow its users to specifically earn badges for checking-in at polling stations during voting. This is much different then using the application to mark political rallies etc etc. Obviously, you do not have to vote to get the badge, you do not even need to be of voting age, or registered to vote in the state. All you have to do add the application on facebook, check-in at a polling station during voting (even after hours) and you get credit for the badge. Of course -most- of the people who do this will be registered voters who want to essentially participate in -perfect- exit polling.
  2. The application is built directly into facebook. That means that a users “check-ins” are something they can share directly with their facebook friends. There is no longer any need for a third-party application, or the need to limit the reach of the application to the very very few users of the geo-game like foursquare. This is an app for everyone on the largest single social network.
  3. You can check your friends in when you vote, and that counts too. So one iphone+facebook application can support several different users.
  4. The game does not just support check-ins. You can sign up for vote reminders, get credit for volunteering, and most importantly, use the application to provide a structured endorsement on your wall.
  5. Because it is powered by the facebook social network, you get full credit when your friends score. When your friends show up at the polling station or sign up for a vote reminder, you get credit too. You “win” by cooperating to get the candidate elected. Because there is a powerful proxy for detecting real votes (polling station check-ins), it will be easy to tell who the “vote influencers” were.
  6. The design of the application allows for a deep integration with the ability for the crowd to communicate back to the candidate. If my father is elected, he will be able to use the application to mine the facebook social grid and engage with his constituents in a fundamentally new way.

I believe that all of these elements together (and not just GEO apps or just political games) are the foundations for a new class of facebook game: For now I am calling them social election games. I believe they are the future of politics.

Up until now political power in the United States came from essentially two places: sources of money and sources of fanatical single-issue voters. Democrats cater to different type of unions. Republicans appeal to evangelical Christians. Democrats appeal to environmentalists. Republicans appeal to big business. Each small group would either deliver either a small cache of extremely loyal voters, or expensive advertising, or both. People who were able to directly influence candidates and politicians were either donors, or the leaders of these extreme groups. In short, the people with political influence in this country have become those with agendas that are generally out of sync with anything remotely mainstream. I made it clear, in my endorsement of my father, that I do not agree with all of his extreme views. I support him primarily because I know he will be more careful with defense spending than his opponent has been, and that is a very important issue to me.

I feel out of sync with my fathers extremely conservative positions and I feel (slightly more) out of sync with his opponents extremely liberal policies. They have done well as candidates because they have appealed to the extremes. I know of no reasonable person who agrees with either candidate on all of their political stances. (I am aware, and intend, the implication that if I know you and you agree with my dad 100% that I think you are unreasonable; and that my father, in the sense that he obviously agrees with himself entirely,  is also unreasonable. Given the Tea party energy, me saying that my father is unreasonably conservative, will do nothing but help him. I endorsed my father because he was -more- reasonable than his opponent, not because he was reasonable. Frankly, who thinks of their own parent as ‘reasonable’ in any case… I mean really…)

American politics as a whole suffers from the Myth of Polarization. We have turned politics into a kind of entertainment, something like pro-wrestling. Listen to any televised political commentator and tell me they do not sound like they are going to break out at any moment with “aaaarrree you ready to ruuuuuuuumble?” and then present the surprise cage fight…

Why do we have this kind of environment? Because that kind of low-brow drama gets people to vote. But what if we had a different way to get people to vote?  What if we could have simple, polite conversations with our friends about who the next sheriff or Congressman should be? I think if those conversations were easy, if they were simple and if voting itself were a fun process, then we might see a trend back to center. A trend away from blood-sport politics. In this world, the wielders of influence would not be the arch-bishop, but the local priest, with 300 facebook friends who actually trusted him as a human being. Instead of caring about who the chief of police voted for, you would care about which candidate the policeman who lives down the street from you (with 354 facebook friends) endorsed. Instead of caring about who the national teachers unions endorsed for president, you would care more about your kids third-grade teacher (54 followers on Twitter). Instead of caring about some insane radio talk show host, you might care about the opinion of an intelligent college kid from South Dakota with a podcast followed by 300 people.

In this hopeful/hypothetical world, real-world trust relationships, enabled by virtual social networks, will become the new political currency. I want people like my father and his opponent to care much more about someone who has 1000 followers on facebook or twitter, and has shown that 730 of those followers take their endorsement seriously, than the person who can pay for a political ad for them for $100k.

The whole point of social media is that it is -not- a broadcast medium. It is an engagement medium. No matter who wins the election in the San Antonio ‘Alamo’ district in 2010, this application is a template for something much much bigger. The irony is that now that I have proven that it is possible, others will try to mine this for a profit. I will have none of that. After the election, I plan to Open Source the code. I plan to start a project to enable a whole slew of social election applications for different groups and for different interests. This open source project, (which is looking for a project manager) will keep the goal of bringing reasonableness back to politics as a central design goal.

P.S. Polls indicate that the election between my Clayton Trotter (my father) and Charlie Gonzalez will be very very close. I honestly think this application might tip the scales in my fathers favor.  How cool is that?

(Update 11-22-2010) P.P.S Sadly, my father lost to Congressman Gonzalez… oh well..

Happily it does look like this game might be on to something. It was featured on some of the top tech blogs:

Pretty cool!!

Prior Art for the BillingNetwork Patent Troll

I am saddened that the supreme court decided not to address the software patent problem with Bilski. They had an opportunity to abolish or at least reign-in software patents, which are an inherently bad idea. Instead they undid what little progress had been made in the Bilski precedent.

I think others have already more eloquently covered how the Open Source community lost in the final Bilski ruling.

Patents are damaging to Open Source healthcare information technology, and by proxy healthcare itself.  I believe it is time to tell you a story that I have been sitting on for more than 5 years, that serves as an excellent case in point. IANAL So understand that this is told from the perspective of a software developer, who, out of necessity has become familiar with patent, trademark and copyright law. As legal advise, this blog post is worth exactly what you are paying for it.

What must I, as an Open Source software developer, do to avoid being sued for patent infringement? The only semblance of protection against being sued is to make my defense so rock-solid that someone who might consider suing me would be worried that I could successfully counter-sue for anti-competitive business practices. So what are the defenses against patent infringement? I pulled these from my own experience, and articles like two most common defenses against patent infringement.

  • Non-infringement: My code does not implement your patented method
  • Your Patent expired: The time on your patent has already run out before I started making money from my selling or supporting my software
  • I have patents too: and if I am infringing yours, then you are infringing mine.
  • Have shallow pockets: I am relatively poor, that this lawsuit is pointless, you will never get any “real” money from me or anyone else I associate with.
  • Invalid Patent: Your patent is invalid because
    • Prior Art existed: sufficient descriptions, or actual code already implemented or described your patented method before your patent was granted (this one works for me, the developer because I am able to search through sources of prior art myself)
    • Your patent was obvious: although no specific prior art existed that identically replicated your patented technique, your method was obvious based on what was published
    • Your patent process was flawed: You did something that you should not have during the patent process. (not helpful to me as a software developer since it focuses on a particular given patent)
    • Not patentable: Your patent covers something that is not suitable for patenting (also not helpful to me as a developer)

Obviously non-infringement is the best option, but here is the trick: If I do a search for patents that apply to my area of expertise, and I am later to found to infringe on a patent that I read, I might be liable for “willful infringement” which carries stiff penalties. So generally I cannot search for what is actually patented. This makes it somewhat difficult to avoid infringement. You only know when you are infringing because someone contacts you and says “you are infringing”.  This what Open Source developers refer to as the patent minefield problem. The only way to avoid the minefield is to merely replicate software techniques that for which you can find implementations that are more than twenty years old. Finding prior art is not enough, because you cannot know the dates of particular patents without searching for them. So basically, Open Source projects can safely implement any software technique that was in common use twenty years ago. That kind of sucks, because you cannot even improve them, because those improvements might be patented, you can only re-implement them. So the only way for an Open Source developer, like myself, to entirely avoid patent litigation is to stop innovating.

I hope that my readers, irrespective of their perspective on software patents, are already uncomfortable. This is not what the patent system was intended to accomplish. Just because my chosen method of profiting from my innovations is not the same as proprietary/patenting software companies, does not make my work less innovative or valuable in any way. But there is no way for me to make my “innovation process” safe from patent infringement lawsuits.

What options do I as an Open Source developer have? Basically, if I am actually doing something new and different, and I want to release it as Open Source, I just have to release the code and then pray that it is either A. Not a patented technique at all or that B. If it is patented, I can defend myself.

So it is really important to note that there is nothing, absolutely zero, that I could have done -in advance- to avoid implementing someone else’s patented technology.

The Shakedown

Several years ago, FreeB, an Open Source billing engine that I wrote was attacked by a patent troll. When I get the time I will publish the letters I got to chilling effects but for now I will just include snippets. First, I should clear up some confusion. I was contacted by BillingNetwork because I was the owner of the domain name. I was developing FreeB, the medical billing module that Freemed would briefly use, but Jeff Buchbinder was the lead developer of the Freemed project and I was merely a contributor. So I really had two hats, one as a Freemed user and contributor, and one as the primary developer of the billing module, FreeB, that any EHR could (and did) use to enable medical billing.

BillingNetwork is what I would consider a Patent Troll. My definition of that term is any company that makes vastly more money by suing from its patents, than it does from actually selling any product that implements the patented technology. Making good software, that does well in a competitive market is not easy. Most of the software that I have written will never be subject to market forces. Usually this is because the people who hire me to extend or create Open Source healthcare software do so without having a completely reliable business strategy. They just realize that a lack of software is impairing their entrepreneurial aspirations and hire me to fix that problem. Some of my software projects have been tremendously successful in the market, but most of them do not get off the ground from a business perspective, this is true of every software development company or individual that I know. When a software project finally is useful in the market it is usually because there we were several earlier iterations of the idea that were abandoned. Going to market with half-baked software inevitably dooms a software company to market irrelevance.

Patent Trolls, even ones who “market” their own products are usually totally irrelevant in the marketplace. They have not put in the work needed to make their patented idea into a “workable” innovation. The irony is that making software “workable” often means that you have to completely abandon your original design. What actually works in the software market is often dramatically different than any starting software designs. When a Patent Troll patents a software design, without having the ability or often even the intention to turn the design into a working product, they very often patent a very poor design. These patents are markedly different from patents from large companies, like IBM, Microsoft or Google, that create software patents as a side effect, and as side business, from making process of creating fully working products.

BillingNetwork just settled with Athenahealth, a company which has about 1000 times more market relevance than BillingNetwork ever will. Their patented design, as you will see below, is not a particularly good design. They qualify as a Patent Troll in my book.

Here is the relevant text from the letter that Billing Network sent me more than 5 years ago:

We are not charging you with infringement of the patent, but are bringing the patent to your attention so that you may consider entering into a .license agreement with BNC.

(The underlines are mine.) This is really interesting. Billing Network was offering to license me this patent without ever implying that I actually infringed the technology. If Billing Network was actually an “innovator” it was in the field of patent trolling. They would not only contact web-based EHR/PM vendors with letter like this, but they would also send letter to the customers of web-based EHR vendors! Even in these letters they would not actually say that the software actually infringed, only that it might be. If someone owns a patent, and they say to another company “hey you are infringing my patent” then they have to back that up in court. If the patent holder says it publicly while knowing (or should have known) that the claim of infringement was not true, they might be guilty of libel and slander against their target. But if the patent owner says you “might” be infringing, then they have no obligations, and if they say that directly to the users of software, rather than the developers who might be able to actually evaluate that claim, then they can earn “licensing” money from the FUD they create around their patent, and what it covers, without ever having to go to court and prove anything. This is important, because it allows BillingNetwork and other Patent Trolls to use a patent like a shotgun generally against any company in a given field (in this case web-based EHR that does medical billing), rather than merely those companies which actually infringe the patented methods!!

Even if you are against software patents, like I am, you have to marvel at the evil genius at work here!!

At this point I made the mistake of actually calling them and emailing them, as they requested, and explaining that I could not license the patent because that does not work for Open Source. At this time I foolishly assumed that contacting them was better than reading the patent to see if the patented technology was anything like what I had worked on. But this was foolish, once they have said “hey take a look at this patent you might be infringing” there was probably no way that I could have been held as a willing infringer by merely reading the patent.

In my communication to them, I included the link project pages for FreeB and Freemed which of course allowed for full download of the sourcecode in question. The letter that I got back was so contorted and confusing that I realized that I needed legal help, and so I contacted the FSF and EFF and they put me in touch with the Public Patent Foundation. Who helped me out from then on. They wrote a “please go away letter” for me, and after some back and forth, that was the end of it. Perhaps Billing Network sorted out that I although my billing software was in wide use, I was not making money on it. But for the present text I think it is important to show how belligerent they got, without ever actually implying that I infringed anything.

From the second letter:

We are eager to avoid a possible conflict and to resolve any legal issues amicably.
If you are interested in entering into license negotiations, we will have our intellectual property counsel forward proposed terms for a non-exclusive license. While we take our patent rights seriously, we are interested in resolving this matter quickly and believe that you will find our licensing terms to be quite reasonable.
As we indicated in our last letter, we are not charging you with infringement, but are merely offering you a non-exclusive license for the above identified patent.

From the third letter, after I foolishly talked to them:

We have reviewed your email to Dr. Krumholz, and it appears that your FreeB billing system may be covered by the ‘229 patent. Accordingly, you need a license from BNC under the ‘229 patent to continue using the system.

Note the powerful “Accordingly”, you ‘may’ infringe therefore you ‘need’ to get a license. Legal marketing at its best!!

The last letter is the part of the response to the PubPat letter… Specifically this is the part where we said that FreeMED and FreeB do not infringe on the patent in question.

Your letter indicates that you do not believe that the FreeMED system includes several elements of the claims of the ‘229 patent. However, you have included no documentation to support this assertion. We are reluctant to rely upon unsupported assertions by the attorney representing a potential licensee for obvious reasons. Accordingly, we request that you provide us with any documentation that supports your assertion.

Finally, we restate that we believe that a license agreement would be in the best interests of both parties…

(again underlines mine). Remember, I had provided them with a link to the sourcecode in question during our initial discussion. This is a critical issue. BillingNetwork viewed me providing full access to the sourcecode as “no documentation”. In short, from Patent Troll’s perspective, they needed to be given a guided tour of sourcecode that they already had access to, in order to accept our assertion that we were not infringing on their patent. Think about this from a business expense perspective, it is not enough for me to have read the BillingNetwork patent, and be sure that my software works differently, I have to determine which parts of my code -prove– my non-infringement, and then give the Patent Troll a guided tour.

Next we will actually talk about whether I infringed the patent. But for now lets take a stock of where we are:

  • Jeff and I (and Open Source software developers generally) have no way to protect selves from this type attack. We could not review the patents the danger of becoming “willful infringers” (the patent minefield problem).
  • The patent troll attacked us with the expectation that it was cheaper for us to pay to license the patent rather than even figure out if we infringed the patent. So they are not making money from their “innovation”, but rather the simple fact of having a patent for one design of the tens of thousands of designs that might work. Their patented design, is like an “idea tax” on the process of implementing any of the other designs.
  • Thankfully Pubpat stepped forward to help us, but if they had not, we would have been on the hook for hiring lawyers to defend us. Without PubPat, I had no good choices: Go out of business hiring lawyers, or defend myself poorly. Did I mention that Pubpat is an organization that you should be supporting?
  • The Patent Troll viewed it as our responsibility to prove that our openly published code did not infringe rather than their responsibility to look at the code and prove that it did infringe. This is the “guide tour” problem.

This is why this a “Troll”. The whole word picture here is that of a troll who charges a “toll” for a bridge. A bridge the Troll did not build. This is why software patents, no matter what you think of them, stifle Open Source innovation. So far we have not discussed if the patent is valid or if we actually infringed, but the expenses that I incurred and the time that I spent dealing with this prevented me from doing… that’s right folks… actually improving my software. Practically speaking this halted my development activity for probably three months in total, at different times.

Now what if I could show, conclusively, that either A: we did not infringe the patent, or B: to the degree that we did “infringe” we did so based on obvious prior art? That is what I will attempt to show next. But at this point I want you to see that even without considering actual infringement, BillingNetwork has a method to shake down any user of my Open Source project using carefully crafted FUD, and that they attempted to do this entirely independently of whether my code infringed or not. Because they have a patent on one design for the type of software that I develop, they have a free ticket to go after my entire market place, without regard for the actual content of the patent in question… This has nothing to do with “protecting” an innovation that BillingNetwork had, its all about using patents to legally extort the free market. I cannot help but quote that Wikipedia article on Extortion:

Refraining from doing harm is sometimes euphemistically called protection

How awesome is that quote?

Did we infringe BillingNetwork Patent 6374229?

note: I would recommend that if you develop healthcare software, Open Source or otherwise, you stop reading now. By reading this, you might become a willful infringer of the Billing Network patent. Although I do not think I give enough detail here to make you a willing infringer, the link to the patent certainly would. Be careful.

That question has two answers. One for my project, FreeB,  and one for Jeff’s project Freemed. But first lets look at the patent in question.

There are seven claims made in the patent:

Claims 2-5 are actually refinements of the first claim, that begins:

An integrated internet facilitated billing, data processing, and communication system comprising:a database server and a home page of a website

The sixth and seventh claims begin:

An integrated internet facilitated billing, data processing, and communication system comprising:a database server and a direct access server electronically interconnected between said database server and a plurality of direct access subscribers each of which gain secure thin client access into said direct access server via a modem and an internet service provider (ISP)

An internet based computer system for billing, data processing and communication for and between subscribers and said system, one type of subscriber being of the browser-based type and another type of subscriber being of the direct access type, said system comprising:

So the version of FreeB in question did not infringe. Why? There was no database, and there was no web interface. The first version of FreeB, and the only one originally written by me (the second version was originally built by the ClearHealth team) and the only one that existed during this letter writing, was designed as nothing more than a data pipe. You connected one end of the pipe into an EHR, and out the other side came properly formatted medical bills in paper and EDI formats. It was a software module and had no direct user interface at all, you configured it by editing text files. It remembered nothing from one run to the next. It was not a great design, but it certainly did not infringe the first five claims here. The claims are all mixes of “browser” and “database” requirements, and FreeB did none of that.

Of course, you could combine FreeB with another system, that could theoretically infringe the patent. In fact you could argue that FreeMED, which was an early attempt at creating a web-based EHR that could do billing might have infringed. But there is no way that FreeB itself, in the version that BillingNetwork said “accordingly” needed a patent license, could have infringed the patent. The sourcecode that was available to BillingNetwork as well as the developer documentation on FreeB available at the time made this perfectly clear. BillingNetworks implication that that FreeB “might” infringe their patent was based only on the fact that FreeB was software in the same field of endeavor (medical billing) as their patented technology.

But what about FreeMED or the combination of FreeMED and FreeB?

There is nothing in the patented claims that even early versions of FreeMED could not be made to do with mere configuration. Many of the things claimed in the patent were done in FreeMED out of the box, but then most of the things written in the patent are done by every web-based medical billing system on the planet. Of course, this is true of FreeMED today, as well as the far more popular ClearHealth and OpenEMR projects, as well as probably half a dozen lesser known web-based Open Source EHR projects that either support billing today or want to in the future.

But FreeMED is unique. As far as I know, it is the oldest Open Source web-based EHR/PM system. In fact, it is so old, that if it did infringe on the BillingNetwork patent, it has been infringing even before the patent was issued.

The date for filing of patent #6374229 is Oct 20, 1999

But FreeMED was already a working codebase at that time. I inherited the domain name from other owners (sorry it is down right now… still working through a server migration…) but thankfully at the history of the site, and therefore the project itself can be found at the Internet Archive. Let me take you on a quick tour. The oldest version of that has a snapshot is Nov 25, 1999 at that time, there was already a demo running. More importantly we find that the site itself has downloads of the FreeMED project starting as early as 05/27/1999 the latest of these is from 23-Jul-1999.

These links actually allow you to download FreeMED as it existed, at that time, three months before the Billing Network Patent was filed. But most importantly, are two files in that download. The CHANGELOG and TODO files. No matter how I might disagree with some of Jeff’s software design decisions, I have to admit that the man was a stickler for standard Open Source project conventions and that is paying off.

From the changelog take a look at the entry “19990709 –” which states in part:

a added structures for payment records (for checks, etc) to the admin
module. stupid db reinit — you go squish now.
a added prelim payment records module — working on addition function
a added billing function from main menu with billing_functions module.
n these functions are not ready for prime-time yet. please do not wail
on them then complain that they don’t work 😉 -jeff

Even more relevant is the following section from the TODO file

19990708 ——————————————————-
* implement payments and billing databases, with structures
* insurance payments related dbs and tie-ins, possibly with API

This is an indication of where Jeff was going with the billing system. All of this either documented or actually coded at least three months before the BillingNetwork patent was filled.

I submit that by running a version of FreeMED that contained only what was coded or planned as of 10-1999, and mere configuration of Apache and the FreeMED configuration file, using the versions available in 1999 (i.e. redhat 6.0) you can easily implement every aspect of the BillingNetwork claims, or designs that are largely equivalent (like using php’s direct mysql connection rather than ODBC), all using mere configuration changes. Moreover, you could find using other php projects (like postnuke) that were popular at the time, examples of all the configuration changes needed to make the modes of operation described in the claims work.

I would submit that anything that Jeff was reading at the time, (i.e. the php CMS that he would use for other purposes for instance) would serve as a basis for what should be considered obvious art at the time. Essentially the BillingNetwork patent covers a particular configuration for a web-based billing system. Not even the most intelligent configuration given the software that was available at the time. Jeff’s default configuration was actually a better design than the configuration required to fully emulate the Billing Network patent. This goes back to the habit of Patent Trolls in patenting half-baked technology. No one could run a medical billing practice management service by merely correctly implementing the patent, it would not actually work. But broken technology does not stop a Patent Troll from profiting from a patent, and Billing Network is a perfect example of this.

If my readers demand it (leave comments) I will be happy to give a blow by blow of the simple configuration changes that would have allowed the FreeMED “stack” to emulate exactly the design put forward in the patent. But anyone who understands the basics of the php/apache/mysql/linux stack know that 98% percent of what the patents cover are automatically provided in the stack itself. This was already true in 1999, which was php version 3. Moreover I can list about ten ways that such a configuration is not actually the “right way to do it” but then again, no one in the patent office cares about what actually constitutes best practices or does not when they hand out a patent like this. Sadly amateur design is not what is in question… just “originality” as compared not with what people were doing publicly in the open source community at the time, but with regards to what has already been patented. I think now the patent office is a little better about seeking sources of prior art form the Open Source community, but not by much.

So does FreeMED serve as Prior Art that invalidates the BillingNetwork patent? I think so, but it does not really matter. What is important is that this gives a very specific path for Open Source projects to be immune from attack by this particular Patent Troll. It means that all of the plans that FreeMed made are a safe harbor. As long as we do it in the way that FreeMED was  there is no way that the BillingNetwork “protection” can impact you.

Defensive Patents

Several people in our community have started to consider defensive patents. There seem to be two approaches to this issue. Patent Pools and more recently Defensive Patent Licensing.

Both of these rely on some basic assumptions. If Open Source projects will apply for and get patents for the designs that they use, then they will be able to for the patent office to acknowledge that the methods they use are “innovative”. You might have the patent office reject parts of your patent because they were “obvious”. Showing that your merely implement your own patented method or something that is “obvious”, is one of the few novel defenses against someone who is is attacking with patents but does not have any real business of their own. The pooling method is also a good idea for defense against big businesses with patents. When several projects have patents, and are willing to pool them against people who sue for patent infringement. The “sue you back” tactic would only work against companies with software patents who are actually in business. But “sue you back” does help to defend the community against one kind of patent attack. But “sue you back” is ineffective against patent trolls, who very often have no business at all, so they do not “infringe” on any ideas that might be an Open Source Patent Pool, because they are not “doing” anything at all. This is the reason why I think “We use our own patented designs or obvious designs” might be a good avenue to pursue.

It is deeply frustrating that the Open Source community would need to patent ideas in order to ensure that they could be freely available without charge to users and developers. However, at this point I am simply at a lose as to how to proceed. I am considering pursuing defensive patent strategies like this, and I know that other are too.

Patents frustrate Open Source developers

Hope this helps people to understand why we resent software patents in Open Source. At every turn in this story, my time was taken up, not defending a legitimate claim of patent infringement, but simply jumping through the hoops that some group who had a “related” patent thought I owed them. As far as I can tell, from a non-lawyers understanding of patent law combined with a working knowledge of building web applications, I was utterly, extremely, completely, excessively, non-trivially and enthusiastically -not- infringing the Billing Network patent. But Billing Network made it abundantly clear, even after we told them that I was not infringing, that I should still pay them a toll, because that what a Troll will always say to anyone who wants it to go away. I guess it could be worse; they could have been threatening to go after my knee-caps with a baseball bat.

Joking aside…

If original, innovative Open Source health information software is in the best interests of society, then software patents, as currently implemented  are a serious problem.


Update 12-01-10: It turns out that someone decided to go toe to toe with BillingNetwork and apparently won. HorizonMIS announced dismissal of a Patent Infringement suit brought against it by BillingNetwork. Bob Bortz called this to my attention and offered to share his experiences with others attacked by BillingNetwork, you should be able to get a hold of him through the contact information at the bottom of the press release.

You might be a cyborg….

People often do not get why I am so convinced that only GPL Software should be used in Medicine. I can understand why. Without understanding the nature of Healthcare, people assume that I am being religious about the issue. This is the furthest thing from the truth.

It has been a while since I have blogged over at In fact you can see that I still have some site maintenance to do. But recently more attention has been given to the issue of Open Source and Software Freedom in medicine.

The Software Freedom Law Center has just released a paper called Killed by Code: Software Transparency in Implantable Medical Devices

Awesome title. Even more awesome paper.

The form of the argument is so simple:

  1. Hey you are putting hardware AND software in my body? yep.
  2. I cannot look at the software? nope.
  3. And the software is hackable? yep.
  4. Well that kinda sucks.

Feels kinda icky don’t it?

One thing I love about people with pacemakers or other implantable medical devices, is that they know they are cyborgs. Most people living in modern countries are cyborgs, but unlike people with pacemakers, they do not see it that way, because they carry their electronics, rather than implanting them. Makes no difference. In fact lets play a variant of “You might be a redneck“: I call it “You might be a cyborg..”;

  • If you leave your cell phone at home, and you -must- to leave work to go home and get it, you might be a cyborg.
  • If you will sleep through the morning unless a machine wakes you up, you might be a cyborg.
  • If your spouse is jealous of your cell phone, tablet, laptop, server or workstation, you might be a cyborg
  • If not wearing a watch makes you uneasy, you might be a cyborg
  • If you view any relationship you have with an online service as an addiction, you might be a cyborg
  • If you try to avoid walking more than 100ft in favor of a segway, bicycle, golf cart, or automobile, you might be a cyborg
  • If you try to avoid walking more than 100ft in favor of a lawn mower, you might be a cyborg and a redneck

Our relationship with technology is becoming more and more personal, and the operating system to your mobile phone, the software your medical devices uses and the EHR system that your doctor uses to track your health information make software freedom ethical issues into personal freedom ethical issues.

Today, its people with pacemakers, but tomorrow, there will things that people consider normal to do with their own bodies that will either use software that the user controls, or software that some random company controls.

Thanks to the Software Freedom Law Center, for helping to make this issue more personal.