Earlier this year I wrote about a lawsuit involving the Duke University Press and their dispute with the Social Science History Association over who would control the journal Social Science History. A decision from the trial court in North Carolina has now been issued in the case, so it seems like a good time to update the story.

In my earlier post, I summarized the facts of the dispute this way:

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
I also said that there was probably more to the case than met the eye, and the facts recounted in the District Court decision, which is a summary judgment based on the documents filed by both parties, seem to confirm that.
The District Court’s account of the facts of the dispute really helps explain that unusual language that is at the heart of the case — “Discontinue participation in publishing the journal.”  This is very odd language, and it turns out to come about because of an extraordinary agreement.  Apparently in 1996 the Social Science history Association felt they were unable to support the journal anymore, and Duke University Press agree to take over the financial responsibility.  DUP collected dues for the SSHA, took all the risks of publishing the journal, and returned 50% of the dues income to the SSHA each year.  The unusual language about withdrawal of participation comes from this 1996 agreement, which the SSHA decided it wanted to terminate in 2012, after soliciting new bids for publishing services from other academic publishers.
The other facts I found especially interesting involved the move by the SSHA to pressure Duke Press regarding its interpretation of the agreement, by contacting third parties like HighWire Press, which distributes Duke Press journals online, and demanding that they withhold payment of monies apparently due to DUP because of the conflict.  When the lawsuit was filed, the SSHA alleged that Duke Press had violated the agreement and infringed SSHA’s copyright by publishing an electronic version of the journal.
Apparently the full complaint included seven distinct claims made by the SSHA against Duke Press, and three counterclaims by the Press.  So disentangling the decision is difficult.  But it comes down to two key findings.
First, the court holds that the unusual language about withdrawing from participation must be interpreted in light of the agreement as a whole and the intent of the parties that it expresses.  While acknowledging that the interpretation offered by the Press is possible if the wording is read in isolation, overall the court determines that the ownership of the journal always remained with the SSHA.  So on that central issue — who owns the journal and has the right to determine its future — it is the Association rather than the Press, and the Court finds that the 1996 agreement was terminated as of Jan. 1, 2014.
The Association is therefore free to find another publisher, and I think my speculation that the journal will move to a large commercial press that will return higher profits to the Association will be justified.  I am very confident that we will see a significant hike in the cost of Social Science History.
The other important holding in this decision is that Duke Press was not in breach of contract or committing copyright infringement when it published the journal electronically. The court holds that authorization for such publication, while not explicitly included by the 1996 agreement, “is implied by the plain terms of the agreement and is evidenced by the actions of the parties.”  Specifically, the SSHA knew about electronic publication for years, but only objected to it when its efforts to terminate the agreement led to conflict.  It was the SSHA, the court finds, that breached the agreement by causing third parties to withhold funds due to DUP, and the court orders the SSHA to relinquish all claim to those monies.
This case seems both unusual and unfortunate to me.  It is unusual because the specific circumstances that led to the conflict are unlikely to be repeated; it does not set any precedent that we all must now be cognizant of.  It is unfortunate, first, because it pitted two venerable and respected academic organizations against each other.  And even more disturbing is that this is as an illustration of the baleful effects that can result from the large amounts of money that commercial publishing extracts from the academy, and the temptation to get in on the profits.
 

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