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.

 

9 Responses to More than meets the eye

  1. David Lewis says:

    To address the questions of price and market, From Ulrich’s the costs for Social Science History are as follows:

    Print — USD 192.00 subscription per year to institutions (effective 2014)
    Online — USD 160.00 subscription per year to institutions (effective 2014)
    Print and Online — USD 200.00 combined subscription per year to institutions (effective 2014)

    At my library we have access through the following aggregations:

    from 10/01/1976 to 12/31/1999 in JSTOR Arts & Sciences VII Archive Collection
    from 03/01/1997 to 1 year ago in Academic Search Premier (EBSCO) and SocINDEX with Full Text
    from 01/01/1998 to 04/30/2000 in ProQuest Central
    from Winter 1999 to present in Project MUSE – Premium Collection
    from 2000 to 2011 in HighWire Press

    In support of Kevin’s argument we can see that Social Science History has moved in and out of various aggregator’s collections — ProQuest to EBSCO and JSTOR to MUSE. So the association seems to be looking for the best deal with the aggregators and is willing to move to get it.

    The interesting question to me would be since I guessing most libraries are now purchasing only the electronic version and likely doing so through one of the aggregators (in our case MUSE for the authoritative current, how much price leverage will the association or a new publisher have. I’m thinking now so much, but…

  2. There’s another possibility. Perhaps the SSHA has been enlightened by the noble work of open-access advocates and has decided to retake control of the journal and convert it to full open-access, for the good of the world.

    • Kevin Smith, J.D. says:

      I would like to believe that is true, Jeffrey. Exactly that step was taken recently by Cultural Anthropology, and it is, I believe, a move in the right direction. But some statements from the SSHA itself make me doubt that that is what is happening here.

  3. Jon Butler says:

    I am surprised by the focus of the blog on alleged “business” issues when the blog misstates major facts of journal publication by scholarly associations.

    The most surprising factual error is the assertion that scholarly journals are “sold” to publishers. This is not true, or seldom true. The journal or its scholarly association contracts with a press to “publish” the journal for a given period of time with a given financial arrangement. The journal is seldom “sold” but remains the property of the scholarly association.

    The blog also neglects the specific history of the journal in question here, Social Science History. It existed prior to its publishing contract with Duke UP and originally was published by a non-profit center at the University of Pittsburgh. Duke UP is using a peculiar phrase in a renewal contract to claim that at some point the Social Science History Association effectively surrendered its property in Social Science History to Duke UP, and Duke UP also seems to be saying that the 5-year publishing contract with the SSHA has become, in effect, a contract for life with Duke UP or until the time when Duke UP is no longer interested in publishing Social Science History. It is nonsensical to think that the SSHA would have surrendered the title, Social Science History, to Duke UP or anyone WITHOUT a sale, for which a price would have been established in a sale agreement, just as sit is nonsensical to think that a 5-year contract has become a near lifetime contract.

    Finally, the blog focuses in the end only on journal subscription costs for libraries and not to the context that sustains journals published by scholarly associations like the SSHA. The SSHA names the editors and editorial board of Social Science History and always has, as when my long time late friend Eric Monkkonen edited the journal in the late ’80s and early 90s. The journal flourishes in good part because of the SSHA’s organizational activities, especially its yearly meetings and the many networks of scholars in various fields that the SSHA has stimulated and helps sustain and which may be supported in turn by revenues that Social Science History generates, if any. Indeed, “the scholars who donate their labor as authors, editors and reviewers for this journal” that the blogger claims so much to support are the very ones who have so frequently been nourished by the SSHA, Duke UP serving as the SSHA’s contracted printer and subscription manager but not the journal’s owner and not the SSHA’s sponsor. Indeed, the SSHA furnishes precisely the kind of non-profit support for “scholarly mission” that the blogger should admire.

    True, some scholarly journals are created and published by presses. But that’s not the case with Social Science History, never has been, and is the reason that so many people who know about the attempt of Duke UP to effectively claim ownership of the journal, leaving the SSHA without the journal it started and has managed since 1976, find the action by the Press so unnerving and wrong, especially in a “university press.”

  4. Michael Pye says:

    Jon Butler writes:
    “It is nonsensical to think that the SSHA would have surrendered the title, Social Science History, to Duke UP or anyone WITHOUT a sale, for which a price would have been established in a sale agreement, just as sit is nonsensical to think that a 5-year contract has become a near lifetime contract.”
    It may seem nonsensical, but unfortunately this is just what has been happening all the time in recent years, as publishers race to assemble packages of journals for sale to the libraries electronically, while the scholars don’t realise what’s being done to them. The agreements seem innocuous until suddenly a question of control arises (e.g. who appoints and sacks the editors), and then it’s too late. In this case the phrase “participating in the journal” was fatal and should never have been signed in the case of a journal once belonging to a scholarly body.

    • Jon Butler says:

      With due respect, the argument assumes the legitimacy of using the phrase “participating in a journal” to justify the equivalent of silently selling an academic association’s journal to the press that the association had hired to print its journal without explicit statements to that effect. Duke UP might want its journals to publish articles about Jarndyce v. Jarndyce, but one could have hoped that the Press wasn’t using Dickens’ case as a model for its own litigation.

  5. Michael Pye says:

    To Jon Butler. I’m not sure if I quite understood your point. The problem undoubtedly is/will be that “participating in a journal” is not self-evidently the same as owning it. Having let that phrase go through as indicating the normal state of affairs, it may be inferred by others (unfortunately) that “ownership” was not asserted.

    • Jon Butler says:

      You may be right that “‘participating in a journal’ is not self-evidently the same as owning it.” But the effect is the same, since Duke UP insists that the phrase means that the SSHA agreed that the Press surrendered the right to seek a new publisher without Duke UP’s permission and if this doesn’t happen, the SSHA would need to abandon the title of the journal to Duke UP without having been compensated for doing so.

      What’s shocking about this is Duke UP’s exceptionally “sharp” legal maneuvering that smacks more of Dickens’s Jarndyce v Jarndyce than of a reputable scholarly publisher. Based on this, what adviser could suggest that a student publish a book with Duke UP given the Press’s insistence on turning an obscure phrase in a contract into claims that effectively removed the author’s interests in what he or she had written? And the reference to Jarndyce v Jarndyce is more than relevant because, like that case, in which legal proceedings exhausted the inheritance, the Press is forcing exceptional legal expenses on a small, non-profit scholarly association to defend its rights in a journal that it founded.