LSU v Elsevier – Paying Twice (or More) for Scholarship?

When discussing the cost of library collection purchases, I sometimes try to make the point that universities are really paying for scholarly work twice–once by paying faculty salaries to research and write, and a second time when the library purchases those writings back from publishers.

After reading the complaint filed in the recent LSU v. Elsevier lawsuit, I wonder if we’re sometimes paying three or maybe four times. The lawsuit, apparently filed back in February but only just yesterday publicly reported, is based on a breach of contract claim. LSU alleges that Elsevier has shut off access to the LSU veterinary school even though Elsevier’s contract with LSU promises access to the whole LSU campus, and specifically includes access to the IP ranges representing the veterinary school.  

LSU v. Elsevier

Krista Cox at ARL has written an excellent backgrounder on the lawsuit. Among the materials she links to is the complaint, which includes as Exhibit B this letter from LSU’s lawyers to Elsevier outlining LSU’s legal arguments.

The basics are that Elsevier had been selling LSU access to the same content through two different contracts – once through a contract with the library that covers the whole campus, and a second time through a contract specifically for the LSU veterinary school to provide access to just that unit. LSU, not wanting to pay twice for the same content, let the veterinary school contract expire. Veterinary school users then relied on access licensed by LSU Libraries, which was provided for under the main library contract with Elsevier that purported to cover the whole campus and that specifically identified IP ranges associated with the veterinary users. In response, Elsevier shut off access to the veterinary school IP ranges and insisted that LSU pay more for access for those users. After some failed negotiation, LSU filed the lawsuit.

In terms of legal issues, this looks like a straightforward breach of contract claim. In fact, I’m surprised that Elsevier’s lawyers let the dispute get to this point. Unless there is significant information not included in the complaint, I find it hard to put together a good defense.  The contract is clear about access to the campus, including the IP range representing the veterinary school. It is also clear that the contract document was the “entire agreement” and not created on the condition that some other deal (e.g., the prior veterinary school-Elsevier contract) remain in place. There isn’t a lot of complicated legal analysis here—Elsevier promised to provide access, and now it is going back on that promise in an attempt to extract more money from LSU.

What this case means for the rest of us

It’s behavior like this that gives Elsevier a negative reputation among those who purchase content from the company. I don’t think many among us expect Elsevier to roll over in negotiations,  but from what I can tell in this case the publisher, in my opinion, was unfair and coercive in its approach. It leveraged its significant market power to try to push LSU into purchasing access again that it has already paid for once before. Elsevier knows that no one else can provide access to all these titles, so what is LSU to do? 

Beyond the aggressive negotiation tactics, what also worries me about this suit is the prospect that, like LSU, others of us work with schools, departments, projects, etc. that have been solicited by publishers such as Elsevier to purchase access that another entity on campus has already legitimately licensed for the whole university. In a large, decentralized organization like a major research university, there is bound to be some duplicative purchasing. If there are duplications and universities recognize and make corrections to eliminate them, will we too be subject to the same negotiation strategy? Would we be bound to continue paying twice? Would access for medical schools, veterinary schools, nursing schools, or law schools, be held hostage as well?

5 thoughts on “LSU v Elsevier – Paying Twice (or More) for Scholarship?”

  1. I know people keep mentioning the 35,000 users, but the contract also has the following in it: “Estimated number of relevant authorized users: 1,135.” Unless LSU completely over-estimated the number of users when the library contract was signed because of an accident, they were planning to make this move, or for other reasons they are no doubt significantly over that number now. I don’t know what that means legally but I think there is an argument for Elsevier that can reasonably made that LSU breached the contract first by not notifying (as required) of a significant increase in “relevant authorized users.”

    I also think Elsiever can make the argument as evidenced by the separate vet school contract, the vet school is a separate organization and thus excluded from the LSU library contract, which says “For the avoidance of doubt, other institutions and organizations that reside at the above locations (including without limitation companies that are owned wholly or in part by, or affiliated with the Subscriber) are not sites unless expressly stated above.” (I.e., being geographically on the same campus doesn’t grant the school access if it is a separate entity according to the contract.)

    There are a lot of things I don’t like about Elsevier but I don’t think this case is as clear cut as many people that work in libraries seem to think it is.

  2. At least in the short run, a lively local document delivery service where vet library sends requests to the main library for Elsevier journals which are downloaded and supplied to the vet library is a solution. That should give them some breathing room to hold Elsevier’s feet to the fire.

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