When I first saw the story about the conflict between the Social Science History Association (SSHA) and Duke University Press (DUP), I thought I had best not comment about it. But since then a number of my colleagues have gotten in touch with me and also made comments about the case that miss some essential elements, in my opinion. So I decided I will express my opinion about the dispute thus far, which is that there is probably no good outcome to this case.
Let me start by saying, however, that even though I work for Duke and specialize in copyright issues, I have absolutely no involvement in this case and no “insider” information. As Will Rogers said, “all I know is what I read in the papers.” What I say here is my own opinion based on those reports and nothing more.
The basic facts are easy to restate. The SSHA has informed DUP that it wants to end its long-standing association and look for a different publisher for its flagship journal, Social Science History. The Press, however, asserts that language in their original contract means that the SSHA can stop participating in the journal, but cannot remove it from the control of DUP.
The first point I would make about this dispute is that it involves a specific piece of contract language that is probably unusual. For that reason I think some of the comments about how this case might determine the future for lots of other society journals are exaggerated. My guess is that this case will eventually be resolved through an interpretation of that specific language and thus, even if there is a court decision instead of a settlement, it will not have too much of a ripple effect.
Most of the comments I have seen (from librarians and academics) have assumed that Duke University Press is the bad guy here, trying to wrest control of a scholarly journal out of the hands of scholars. While I do not intend to mount a defense of DUP here, I do want to suggest that there is more to this case than a good v. evil argument about academic freedom. This is a business disagreement, and regardless of which side wins, in my opinion, it will probably not be a good outcome for scholarship.
To understand a lawsuit, it is always a good practice to ask why the plaintiff decided to file the litigation in the first place. A commenter on the Chronicle story linked above suggests that it is hard to understand in this case, since he believes the results could not justify the costs. But surely the SSHA thought it was worthwhile, and a little deeper reflection suggests why. In their statement, the SSHA explains that they wanted to “assess the open market” to find out what Social Science History is “worth.” That should tell us pretty clearly that the SSHA wants to shop the journal around to the big commercial publishers in order to get a big payout to the Association. Other societies have done it before, and it seems clear that the SSHA wants to cash in on its journal. So the reason the lawsuit is worth the expense is that the SSHA has expectations of perhaps hundreds of thousands of dollars in profit if they can sell their “brand name” journal to Wiley or Sage.
By the way, this is why the society would not be satisfied to simply walk away and start up a new journal to compete with a continuing Social Science History published by DUP, as that same commentator suggests. As I said, this is a business dispute, and the key asset at issue is the brand of the journal, its “goodwill” as it is called in economic valuations. Presumably no large commercial press would be willing to pay big money for a new start-up that the SSHA might launch if it lost control over Social Science History. The marketing and the value for a new purchaser depends on that well-established title being on the auction block.
So what will be the result if the SSHA wins this lawsuit or gets control over the title in a settlement? I think the inevitable result will be a sale to a large commercial publisher and subsequently much higher subscription rates for libraries and other subscribers. In previous cases where a society has sold its journal or journals to a big publishers, we have seen prices increase by as much as three or four hundred percent, especially if the journal has had a fairly moderate price to begin with (I have no idea about the current subscription price for Social Science History). Nor do I think that a win by the SSHA would necessarily be a win for academic freedom or for keeping scholarship in the hands of scholars. If the journal is sold to a large publisher, experience suggests that the scholars who make up the society will have less control over it than they did before and that the quality of the journal will decline. But lots of money will potentially flow into the SSHA coffers.
What happens if, on the other hand, Duke University Press wins the case or otherwise retains control over the journal? In my opinion, DUP has taken the stand that it has in large part to defend the value of its journal list against the loss of one of its premier titles. So if they win, at least their journal package will not lose value. But this is still probably not a good outcome, since the journal will be divorced from its roots and from the scholarly community that has made it a valuable brand in the first place. As several people have suggested, DUP might have a hard time finding top scholars in the field who would be willing to edit the journal or review for it if it is severed from its connection to their scholarly society. So while its value for DUP would be preserved initially, I think a decline in quality and in value over time is inevitable.
This is why I find it impossible to root for either side in this dispute (even though I usually root for Duke teams). To me, this case is an object lesson in why scholarship should not be treated as a commodity around which commercial value, and the disputes that accompany such value, accrues. The radical distinction between the “gift economy” in which individual scholars work, giving away their most precious intellectual assets to publishers without remuneration for the sake of the scholarly mission, and the commercial economy in which publishers work, and to which some societies aspire, was never more clear. Whoever wins this case, the scholars who donate their labor as authors, editors and reviewers for this journal will be the long-term losers. And the only way to change that situation is to radically rethink they way scholarship is supported and disseminated. We need new business models, focused on open access and better ways to support the scholarly mission, while all this dispute offers us is a fight over the way the same old traditional pie of subscription money is sliced.