Category Archives: Scholarly Publishing

Getting into print the hard way

I hope I will be forgiven some self-promotion if I point out that my first book (that’s a little like saying my “first” marriage – so far it is the only one, and no other is anticipated, but one should never say never) has just been published. It is a handbook of intellectual property designed specifically to address the needs and concerns of researchers and teachers, and it was published on December 10 by the Association of College and Research Libraries. It is available for purchase on the ALA Store site here. There is also a PDF made available under a Creative Commons Attribution/Non-commercial license on the ACRL site.  I also expect to have a PDF in the DukeSpace institutional repository soon.

As a last piece of book promotion, I will note the blog post about the book on the Author’s Alliance web site, which was largely written by me.

All that aside, the real purpose of this post is to tell the story of publishing this book, because I think it is instructive for thinking about scholarly communication today. If I had to start with a moral for the whole story, it is that I should have started with the librarians, because they are a group — the ACRL was wonderful to work with — that can publish in the way most consistent with academic values and needs.

The story begins when I was contacted in 2009 by an editor for the University of Chicago Press, who suggested that I should write a handbook on IP for scholars.  I was immediately interested, and, at the editor’s request, wrote first a proposal and then drafts of the first two chapters.  Those chapters were sent out for review and we received both helpful suggestions and a recommendation to continue to develop the book from three reviewers.  With that step complete, the U of C Press and I signed a contract in late 2010, and I set out on a long and difficult journey to finish and publish the book.

The writing process took me considerably longer than I expected; no surprise there, of course.  When I apologized to my editor I was assured that it was OK; they would be interested in the project, they said, whenever it was complete.  During this time, however, I got the first indications that this would not be a smooth relationship.  I sent in chapters as I finished them, as the editor encouraged me to do, but did not get any of the promised feedback as I progressed.  For a couple of years I was essentially writing in a vacuum.

I finished writing in March 2013 and, in May of that year, finally sent the Press the completed draft of the manuscript, which they sent out for review.  The Press’ policy is that they must have two reviews of the full manuscript that recommend publication before they refer the book to their board for a final thumbs up.  So I began to wait.  After six months I checked in and was told that the Press had sent the manuscript to three reviewers.  One had sent in a report with a recommendation to publish.  One had reviewed just two chapters of the book, asserting that they were only qualified to comment on a portion of the subject matter.  The editor had not yet heard from the third reviewer, and without two full review that recommended publication, they could not move ahead.  The editor told me that the third reviewer would be reminded and that the Press would also look for an alternate reader.

Five months after this, having still heard nothing, I inquired again.  My e-mail went unanswered.  A second e-mail did elicit a response, which was that they were still waiting for that third reviewer.  There was no sign they had ever sought that additional reader.

At this point I was pretty frustrated.  Five people had read at least part of the manuscript, and all had recommended publication.  All of them had also made really helpful suggestions for improving the text which I tried to adopt. But the U. of C. Press was still passively waiting for that one final reader so they could comply to the letter with their self-created rules.  What bothered me most was the apparent lack of effort and commitment I was getting from the Press.  After talking with several academic authors about my situation, I decided to withdraw the book from the U of C Press.

When I told my editor about this decision, the first reaction was to try to talk me out of it and ask me to have patience.  The second reaction was to remind me of our contract and to suggest that I had no alternative but to wait it out with the U. of C.  In response, I suggested two concessions from them that would make the waiting easier.  First, I asked (for the first time, I am embarrassed to admit) for some form of open access to a version or a part of the book.  Second, I asked to be paid half of the advance we had agreed on as a sign of the Press’ commitment to the project.  I was told, however, that the first request was impossible because they needed to protect potential sales for the book, and that the second was contrary to their policy.  In regard to the latter issue, I was pointed to specific language in my contract about when the advance would be paid.  So I looked.  It turns out that the contract language was actually different from what the editor told me it was.  It stated pretty clearly that I would be paid the advance when I sent in the manuscript, not, as I had been told, only when and if the board approved final publication.  I have no idea why the contract language was what it was, or if it was really different from what the editor thought it should be.  I had not changed or negotiated that part of the agreement back when it was signed.  Maybe the Press just figured that no one will read their contracts, so they could claim whatever they wanted about them.

Anyway, I brought this discrepancy to the attention of my editor.  That was the last contact I ever had with that person.  A few days later I got an e-mail from the Director of the Press, apologizing to me for the treatment I had received and confirming that the Press had breached our contract by not paying the advance in a timely fashion.  I was told that I would be released from the contract AND that the Press would still pay the advance I was owed.  Over the next few weeks, we signed a formal letter releasing me to publish the book elsewhere and I received a check for the long-delayed advance.

On the plus side of this relationship, I did get quite a lot of very helpful feedback for my manuscript from the readers (although, of course, I am solely responsible for whatever errors remain).  Also, when faced with the clear evidence that they had not lived up to their side of the bargain, the Press did the right thing (maybe just to get rid of me!).  But on the negative side, I got almost no help from the editor in actually developing the manuscript, the “management” of peer-review was lackadaisical, and I wasted over a year after the book was finished waiting for the Press to get its act together before I asserted my freedom to start looking for another publisher.

After this experience, I spoke to one other commercial publisher, and this time made the expectation of an open access copy a condition from the beginning.  That led to a very short conversation.  So finally I did what I should have done from the start — work with the ACRL.  That experience was smooth, collaborative, and focused on the best way to make my work serve the needs of the audience it was intended for.  The ACRL arranged for excellent and expeditious copy-editing and indexing.  They agreed to immediate open access for the entire book. When there was a problem with the first print run of the book, the ACRL took immediate responsibility and re-printed the whole run.  The process took less than six months from signing a contract to publication.

From this experience I take away three lessons, which I think are worth sharing.  First, the claims about how much effort publishers put into a new book, and the help they provide to authors, are at least sometimes exaggerated.  I was working with a prestigious university press on a book they had solicited in the first place, and yet did not get nearly the kind of assistance or interest that I sometimes hear promised.  Second, it is extremely important to read, negotiate and save a copy of the publication contract.  That my book is now in print is largely due, I believe, to the fact that I could go back to the actual language of our agreement in order to convince the U. of C. to release me to find another publisher.  And finally, as I said at the beginning, libraries and library organizations, in my experience, understand the needs and goals of scholarly authors better than commercial presses.  As the future of academic publishing unfolds, I strongly hope that more and more of it will be in the hands, or under the oversight, of libraries.

 

 

Cancelling Wiley?

Because they were spaced almost a full year apart, I really did not connect the dots when two Canadian universities announced that they were cancelling their “Big Deals” with John Wiley & Sons publisher.  The Times Higher Education reported on the decision at the University of Montreal back in January 2014, while the announcement made by Brock University came only a few weeks ago.  I would not have considered this a trend worth commenting on had it not been for conversations I had last week at the Fall CNI Membership meeting.  During that meeting, two different deans of large university libraries told me, unbidden and in separate conversations, they they were also considering ending their deal with Wiley.  I was struck by the coincidence, which caused me to remember these two announcements from Canada and to begin to ponder the situation.

Two different questions occurred to me when I thought about these four significant cancellations or potential cancellations, all directed at a single publisher.  First, why was Wiley the focus of this dissatisfaction?  Second, what is the next step?

As for what the complaints are about Wiley, the answer is pretty much what it always is — money.  The THE article and the Brock University report both tell us that exchange rates have made the annual “higher than the inflation rate” price increases for these packages even harder to bear than usual.  They also point to another problem.  Pricing is based on the large number of titles included in these package deals, but many of those titles are not very useful.  The Brock post notes that the Wiley package has a significantly higher cost per use than does their Elsevier package, which presumably reflects the fact that many of the titles the University is paying for in the package simply do not get used.  The same reality is probably behind the fact noted by THE that Montreal would subscribe to less than 25% of the titles that had been included in the package it was cancelling.  It would be interesting to find out, a year on, how much those other titles have been missed.

In my conversations with the two library deans, much the same thing was said about Wiley — demanding a large price increase, being inflexible in negotiation, and selling “a lot of junk that I don’t need” in the package.  Libraries are beginning to discover that they do not need to put up with those tactics.  Publishers often tell us that they are publishing so many more articles, which justifies their price increases, and they tell us how selective their flagship journals are.  But when we look at these big deals, it is clear that selectivity is not an across-the-board approach; many articles that are not very useful just slide down the hierarchy to get published in journals whose main purpose is to pad out a “big” deal.

To me the more important question is “what now?”  Unfortunately, many times when a library makes this kind of decision there is actually little money saved, since the funds simply go into re-subscribing to a smaller, selected list of titles from the same publisher.  But presumably some of these cancellations result in dollars saved.  And when they don’t, I propose that libraries ought to reexamine their approach.  When you have cancelled a dross-laden package, think twice before reinvesting all of that money in as many individual subscriptions from the same publisher as possible; make a careful decision about where the division between useful titles and unnecessary ones really lies.  Because here is the thing — money that can be saved and reinvested in open access projects will give us a higher return on our investment, because those projects will provide greater access.

It seems clear that, over time, libraries will need to move more and more of their spending away from the consumption side of scholarly production and do much more to support the creation and dissemination of knowledge directly.  Commercial publishers hope to capture those dollars as well, but one of the real benefits of supporting open access can and should be more freedom from businesses addicted to 30% profits.  I would like to challenge libraries to consider, when they have to cancel, using the money to support non-profit or lower profit open access projects.  Work with a society to provide subvention for a scholarly journal to become OA.  Work with your university press to support OA monographs.  Finally, even if not compelled by immediate budget realities, think about making some strategic cancellations in order to take these kinds of steps.  We know that open access is our future, and it is vital that we take control of that future before others take it from us.

I don’t know if Wiley is the worst offender amongst the large commercial publishers, or whether there is a real trend toward cancelling Wiley packages.  But I know the future of scholarship lies elsewhere than with these large legacy corporations.  The process of weaning ourselves from them will be slow and drawn-out.  But especially when the cancellations are going to happen anyway, we should have the idea of using the funds to advance the transition to open access foremost in our minds.

For a similar, but likely better informed, perspective on the idea of cutting subscriptions to support open access, please read Cameron Neylon’s post on “Letting it go — Cancelling subscriptions, funding transitions,”which ties the idea in his title to the discussion going on in the Netherlands about Elsevier’s big deal.

Public access and protectionism

By now many folks have commented on the announcement from Nature Publishing Group early this week about public access to all of its content and most have sussed out the fairly obvious fact that this is not open access, in spite of the rah-rah headline in the Chronicle of Higher Education, nor even public access as it is defined by many national or funder mandates.  Just to review quickly the major points about why this announcement actually gives the scholarly community so much less than is implied by either of those terms, consider these limitations:

  1. A putative reader can only get to an article if they are sent a link by a subscriber, or the link is present in a news article written by one of the 100 news organizations that NPG has chosen to “honor.”
  2. Articles can only be read inside NPG’s proprietary reader
  3. No printing or downloading is possible, so a non-subscriber hoping to use one of these articles to further her own research better have a darn good memory!
  4. No machine processing will be possible; no text or data mining.

In short, all of the inconveniences of print journals are preserved; what NPG is facilitating here is essentially a replica of loaning a colleague your copy of the printed magazine.  Or, at best, the old-fashioned system whereby authors were given paper “off-prints” to send to colleagues.  Although, honestly, off-prints had more utility for furthering research than this “now you see it, now you don’t” system has.

If this is not open or public access, what is it?  I like the term “beggar access,” which Ross Mounce applied to NPG’s scheme in a recent blog post, since it makes clear that any potential reader must ask for and receive the link from a subscriber.  Some suggest that this is a small step forward, but I am not convinced.  There is nothing public or open about this “ask a subscriber” model; all it really does is prevent scholars from downloading PDFs from their subscription access to NPG journals and emailing them to colleagues who lack a subscription.  In short, it looks like another stage in the ongoing comedy of fear and incomprehension about the way digital scholarship works on the part of a major publisher.  But Mounce’s post suggests that the move is more than that; he points out ways in which it may be designed to prop up digital business that Nature and its parent Macmillan have invested in — specifically ReadCube and AltMetric.com.  The byzantine scheme announced by Nature will drive readers to ReadCube and will generate data for AltMetrics.com, helping ReadCube compete with, for example, Elsevier and their proprietary reading and sharing tool, Mendeley.

That is, this looks like another move in the efforts by the large commercial publishers to buy up and co-opt the potential of open access. On their lips, open access does not mean greater potential for research and the advancement of science; it means a new market to exploit.  If administrators, researchers and librarians allow that to happen, they will have only themselves to blame.

My colleague Haley Walton, who recently attended OpenCon 2014, told me about a presentation made by Audrey Watters that included the idea of “openwashing,” which Watters defines like this:

Openwashing: n., having an appearance of open-source and open-licensing for marketing purposes, while continuing proprietary practices.

This is exactly what is happening in this announcement from NPG; old business models and awkward exploitation of new markets are being dressed up and presented as a commitment to access to scholarship, but the ruse is pretty transparent.  It may quack like a duck, or be quacked about, but this plan is really a turkey.

If NPG really was committed to better access for scientific research, there is a simple step they could take — put an end to the six-month embargo they impose on author self-archiving.  Much of their competition allows immediate self-archiving of an author’s final manuscript version of articles, but Nature does not.  Instead, they require a six-month embargo on such distribution.  So this new move does only very little to ameliorate the situation; the public still cannot see Nature-published research until it is old news.

Speaking of news, at Duke we have a relationship between the office of Scholarly Communications and that of News & Communications whereby we are notified of upcoming articles about research done at Duke.  In many cases, we are able to work with authors to get a version of the article in question into our repository and provide an open link that can be included in the article when it is released, or added shortly after release.  Our researchers find that putting such links in news stories leads to much better coverage of their discoveries and increased impact on their disciplines.  We always do this in accordance with the specific journal policies — we do not want to place our authors in a difficult position — which means that we cannot include Nature-published articles in this program.  To be frank, articles published in Nature remain highly valued by promotion and tenure committees, but relatively obscure in terms of their ability to advance science.  NPG seems to understand this problem, which is why they have selected a small number of news outlets to be allowed to use these tightly-restricted, read-only links.  They want to avoid increasing irrelevance, but they cannot quite bring themselves to take the necessary risk.  The best way they could advance science would be to eliminate the six-month embargo.

It is interesting to consider what might happen if Nature embraced a more comprehensive opportunity to learn what researchers think about open access by tying their “get a link from a subscriber” offer with an announcement that they were lifting the six-month embargo on self-archiving.  That would demonstrate a real commitment to better access for science, and it would set up a nice experiment.  Is the “version of record” really as important to researchers as some claim?  Important enough to tolerate the straightjacket created by NPG’s proprietary links?  Or will researchers and authors prefer self-archiving, even though an earlier version of the article must be used? This is not an obvious choice, and NPG might actually win its point, if it were willing to try; they might discover that their scheme is more attractive to authors than self-archiving.  NPG would have little to lose if they did this, and they would gain much more credit for facilitating real openness.  But the only way to know what the real preference among academic authors is would be for Nature Publishing to drop its embargo requirement and let authors choose.  When they make that announcement, I will believe that their commitment to finding new ways to promote research and learning is real.

Going all in on GSU

On Friday the publishers who are suing Georgia State University for allegedly infringing copyright by scanning short excerpts from academic books to provide students with access through electronic reserves and learning management systems filed a petition for a rehearing by the entire Eleventh Circuit Court of Appeals.  As most will recall, the panel of the Eleventh Circuit essentially did what the publishers wanted — reversal of the lower court judgment — but the appeals panel denied those plaintiffs most of the principles by which they hope to radically reshape copyright law.  The publishers clearly understand that, whatever they can gain from additional lower court proceedings on remand, they will not get what they wanted when they brought the lawsuit.  The panel ruled that the first fair use factor favors an educational, non-profit use even if the use is not transformative, that an item-by-item analysis is appropriate, and that it matters in the fair use analysis whether or not a license for digital excerpts is available.  The publishers have decided they cannot live with these conclusions, so they have asked that those specific issues be reconsidered by the entire Eleventh Circuit court.  Their “petition for en banc rehearing” lays out their arguments.

GSU also has filed a petition for rehearing.  They are seeking some corrections to inaccurate statements about what list of alleged infringements was considered by the lower court, as well as a ruling that the risk of market harm from electronic reserves is a question of fact that the lower court should be instructed to consider.  That risk, GSU argues, should be proved; it is not something the appeals panel should have presumed.

It is important to understand there is little chance that these petitions will be granted.  When a case is appealed from the lower court to a Circuit Court of Appeals, we call that an “appeal as of right.”  That is, that first appeal must be heard by an appellate panel.  But thereafter, all subsequent appeals are discretionary; the court does not have to actually take the case, it has the option to deny the petition.  Most people are familiar with the idea that the Supreme Court actually reviews only a tiny percentage of the cases for which it receives a petition for a hearing.  Besides asking for Supreme Court review, the other option, after losing (or feeling like you lost) an appeal in front of a Circuit panel, is to ask that the entire group of judges in that Circuit reconsider the case.  Like Supreme Court petitions, these petitions for en banc rehearing are rarely granted.  In fact, the Federal Rules of Civil Procedure explicitly say that petitions for rehearing are “not favored and ordinarily will not be granted”  (FRCP 35(a)).  For more information about these post-appeal options, interested readers should see this article from the law firm Reed Smith.

So does the petition from the publishers stand a chance?  There are two reasons a petition for rehearing might be granted: when there is a split within the courts of the Circuit or when a “question of extraordinary importance” is involved.  In their petition, the publishers rely on the latter claim, but it is not very convincing.  They try to drum up controversy by suggesting that the panel ruling contradicts some Supreme Court precedents, but, again, the effort is weak.  The petition relies on the 1980′s decision in Harper and Row v. Nation Magazine, which the Supremes themselves have seriously modified in later rulings.  So when the publishers object that the panel ignored Harper‘s emphasis on the importance of the fourth factor, they are deliberately ignoring language from the later Campbell v. Acuff-Rose case.

The other source that the publisher petition puts a lot of weight on is the “special concurrence” by Judge Roger Vinson.  Essentially, Judge Vinson dissented on every major point in the majority opinion, but concurred in the result.  Taken together, the two opinions indicate that a lot of negotiation took place in the 11 months it took to produce the ruling.  It suggests, in fact, that the other two panel judges — Tjoflat and Marcus — were actually more sympathetic to fair use than is expressed in the majority opinion.  But what is important about the heavy reliance on Judge Vinson in the petition for rehearing is the fact that Judge Vinson is not a regular member of the Eleventh Circuit.  He is a senior judge at the District Court level (in Florida) who was on the Appeals Court panel to fill a vacant seat (called “sitting by designation”).  That means that he presumably will have no role in deciding whether or not to grant the petition, or in any actual rehearing, in the unlikely event the petition is granted.  So the publishers have found a friend in Judge Vinson, but he is not a friend who can help them all that much.

This petition for rehearing is thus a long shot, and it reveals the stark opposition of these three publishers to fair use as it has traditionally been interpreted throughout the long history of U.S. copyright law.  Let’s look at the three principles the publishers say that they want and that the appeals panel got wrong.

The first point from the panel decision that the publishers say is wrong involves the idea of “media-neutrality.”  This is a huge red-herring that the publishes have been waving around to distract the various courts from the weakness of their case, and they lead off with it in the rehearing petition. Judge Vinson was convinced by this argument that if courts do not treat electronic reserves the same way print course packs were treated in the “copyshop” cases from the 1990s, they are violating a principle of media-neutrality.  The majority opinion, on the other hand, tried to define the limited role that media neutrality has in copyright law, a definition the new petition claims was an error.  There are a couple of important points that are getting overlooked in this discussion.

For one thing, there are many ways in which copyright is not media neutral.  Many exceptions, for example, refer to specific media and specific technologies.  There is a provision just related to royalties on digital audio recording machines, for example.  The TEACH Act refers to transmission over a digital network, and is inapplicable to other types of distance learning.  Broadcast television is treated differently than cable, and terrestrial radio differently than Internet radio.  Since the law is therefore often media-specific, it was not irrational for the panel majority to try to define what media neutrality does, and does not, mean.  The publishers want it to mean something very specific in order to benefit their case, but the panel looked at a principle-based definition that took account of how the copyright law as a whole really works, and rejected the publishers’ ad hoc claim.

The reason for pushing this broad and self-serving definition of media-neutrality, of course, is to convince courts that the “course pack” cases are good analogies for electronic reserves.  Since those cases found against fair use, the publishers’ argument goes, the principle of media neutrality demands that fair use also be rejected for electronic reserves.  But, in fact, neither the lower court nor the appellate panel has rejected the course pack cases because of a perceived difference between electronic and print fair use.  This is just sand being thrown in the face of the courts to confuse them (it worked with Judge Vinson).  The course pack cases are distinguishable instead on first factor grounds that have nothing to do with the media involved; those cases involved a commercial intermediary making and selling the course packs, which is an entirely different situation than is reflected in the GSU case.

The second claim the publishers make in their petition attempts to undermine the first fair use factor more directly by asserting that it should not favor non-profit educational uses unless they are transformative.  Although the publishers assert that this is the meaning of the Supreme Court’s ruling in Campbell v. Acuff-Rose Music, that is simply not true.  Although that case laid great weight on transformation for many fair use decisions, it explicitly stated that not all fair use must be transformative, and cited “multiple copies for classroom use” as the paradigmatic case of a non-transformative use that is likely still fair.  They get this phrase directly from section 107, of course.  So the publishers are asking for a pretty radical reconfiguration of the copyright law here, that would directly defy the Supreme Court and the text of the law.  It would be pretty audacious of the Eleventh Circuit to accept this argument, but the publishers are clearly going all in with their fight against fair use.  It seems they are reasoning that if they can persuade the Eleventh Circuit into accepting this radical new view of copyright, they could at least get a shot at Supreme Court review by provoking a split in the circuits where none has previously existed.

Finally, the most troubling claim the publishers make is in their argument that the fourth fair use factor’s emphasis on market harm, including “potential” markets, gives them the right to decline to offer a license for digital excerpts without tipping the fourth factor toward favoring fair use.  The appellate panel correctly noted that this argument would demolish fair use, since it would allow a rights holder to say “we could have licensed this use if we wanted to, so allowing fair use damages the potential market we have chosen not to enter.”

In one sense, I would like to see a discussion of this idea of potential markets.  It should be seen as a gateway to consider the incentive purpose of copyright law.  How would it create additional incentive for creation to permit publishers to refuse to license uses of academic works?  These markets are not an end in themselves, but a vehicle to produce such incentives.  Establishing a right to refuse to license does not serve this purpose at all.  It is a selfish and antisocial argument put forward by the publishers to protect the artificial scarcity that they believe they must create in order to make money.  In short, the publishers want the right to limit access to knowledge because they do not have the vision needed to run successful businesses in a changing environment.

What do we lose if that argument is accepted?  Only our most cherished democratic value, the freedom of expression.  Fair use has always been considered a “safety valve” for free expression that prevents a rights holder from suppressing speech he or she doesn’t like by asserting copyright.  If we were to accept this potential market argument, a rights holder would be a step closer to preventing scholarly commentary by denying a license for the quotations used in, for example, a review (as Stephen James Joyce famously tried to do regarding his grandfather’s work).  That might seem extremely unlikely on a larger scale, but we should remember that publishers often require their authors to obtain permission for the use of quotations beyond an artificially imposed word limit.  Combined with this idea that denial of a license should not improve the fair use argument, the conditions for such suppression would be ideal.

The truly shocking thing about this petition is how openly Oxford University Press, Cambridge University Press and Sage Publishing are now attacking free speech and the dissemination of knowledge.  These are not “academic” presses anymore; their profit motive and shorted-sighted focus on protecting old business models has led them to assume an anti-academic stance that the scholarly community should not tolerate.  They are demanding nothing less than a right to suppress and inhibit the spread of knowledge, simply by refusing to offer a license, whenever the believe that doing so is to their commercial advantage.  I have often been asked if I think scholars, libraries, and others should boycott these publishers because of the lawsuit, and I have always said that we should wait and see where the cases goes.  To me, it has now gone in an intolerable direction, one that threatens core principles of academic discourse.  Everyone must make their own decision, of course, but I am now willing to say that I will neither publish with these three plaintiff publishers nor buy their products.  They have declared war on teaching and the dissemination of scholarship, and I will not help them buy the ammunition.

Are fair use and open access incompatible?

There has been a spirited discussion on a list to which I subscribe about the plight of this graduate student who is trying to publish an article that critiques a previously published work.  I’ll go into details below, but I want to start by noting that during that discussion, my colleague Laura Quilter from the University of Massachusetts, Amherst captured the nub of the problem with this phrase: “the incompatibility of fair use with the policies of open content publishers.”  Laura’s phrase is carefully worded; the problem we need to unpack here is about the policies of open content publishers, and the solution is to help them understand that fair use and open licensing are NOT incompatible.

Briefly, the situation is this.  An author has written a paper that critiques previous work, specifically about the existence, or not, of “striped nanoparticles.”  In order to assess and refute evidence cited in some earlier papers, the author wants to reproduce some figures from those earlier publications and compare them to imagery from his own research.  He has encountered two obstacles that we should consider.  First, his article was rejected by some traditional publications because it was not groundbreaking; it merely reinterpreted and critiqued previously published evidence.  Then, when it was accepted by PLoS One, he encountered a copyright difficulty.  PLoS requires permission for all material not created by the author(s) of papers they publish.  One of the publishers of those previous papers — Wiley — was willing to give permission for reuse but not for publication under the Creative Commons Attribution (CC BY) license that PLoS One uses.  Wiley apparently told the author that “We are happy to grant permission to reproduce our content in your article, but are unable to change its copyright status.”

It is easy to see the problem that PLoS faces here.  Once the article is published under a CC license, it seems that there is little control over downstream uses.  Even if the initial use of the Wiley content is fair use — and of course it probably is — how can we ensure that all the downstream uses are fair use, especially since the license permits more types of reuse than fair use does?  Isn’t this why fair use and open licensing are incompatible?

But this may be an overly simplistic view of the situation.  Indeed, I think this researcher is caught up in a net of simplified views of copyright and scholarly publication that creates an untenable and unnecessary dilemma.  If we start by looking at where each player in this controversy has gone wrong, we may get to a potential solution.

Let’s start with Wiley.  Are they in the wrong here in any way?  I think they are.  It is nice that they are willing to grant permission in a general way, but they are probably wrong, or disingenuous, to say that they are “unable” to change the copyright status of the material.  Under normal agreements, Wiley now owns the copyright in the previously published figures, so they are perfectly able to permit their incorporation into a CC licensed article.  They can “change the copyright status” (if that is really what is involved) if they want to; they simply do not want to.  The author believes this is a deliberate move to stifle his criticism, although it is equally possible that it is just normal publishing myopia about copyright.

There is also some blame here for the system of scholarly publishing.  The roadblock encountered with traditional publishers — that they do not want articles that are “derivative” from prior work — is common; most scientists have encountered it.  In order to generate high impact factors, journals want new, exciting and sexy discoveries, not ongoing discussions that pick apart and evaluate previously announced discoveries.  We have found striped nanoparticles!  Don’t dispute the discovery, just move on to the next big announcement.

This attitude, of course, is antithetical to how science works.  All knowledge, in fact, is incremental, building on what has gone before and subject to correction, addition and even rejection by later research.  The standard of review applied by the big and famous scientific journals, which is based on commercial rather than scholarly needs, actually cuts against the progress of science.  On the other hand, the review standard applied by PLoS One — which is focused on scientific validity rather than making a big splash, and under which the article in question was apparently accepted — better serves the scientific enterprise.

But this does not let PLoS off the hook in this particular situation.  It is their policies, which draw a too-sharp line between copyright protection and open content, that have created a problem that need not exist.

First, we should recognize that the use the author wants to make of previously published figures is almost certainly fair use.  He is drawing small excerpts from several published articles in order to compare and critique as part of his own scholarly argument.  This is what fair use exists to allow.  It is nice that Wiley and others will grant permission for the use, but their OK is not needed here.

Second, the claim that you cannot include material used as fair use in a CC-licensed article is bogus.  In fact, it happens all the time.  I simply do not believe that no one who publishes in PLoS journals ever quotes from the text of a prior publication; the ubiquitous academic quotation, of course, is the most common form of fair use, and I am sure PLoS publishes CC-licensed articles that rely on that form of fair use every day.  The irony of this situation is that it points out that PLoS is applying a standard to imagery that it clearly does not apply to text.  But that differential treatment is not called for by the law or by CC licenses; fair use is equally possible for figures, illustrations and text from prior work, and the CC licenses do not exclude reliance on such fair uses.

Next, we can look at the CC licenses themselves to see how downstream uses can be handled.  If we read the text of the Creative Commons license “deed” carefully, we find these lines:

Licensors should clearly mark any material not subject to the license. This includes other CC-licensed material, or material used under an exception or limitation to copyright.

Obviously, the CC licenses themselves expect that not everything that is part of a licensed work will be equally subject to the license; they realize that authors will — indeed must — rely on fair use as one of those exceptions and limitations to copyright.  How should licensors mark such material?  The most usual way is a footnote, of course.  But a caption to the figure that indicates the source of the different pieces and even says that copyrights may be held by the respective publishers would work as well.

Finally, let’s acknowledge that there is nothing new or unusual in the procedure recommended above. Traditional publishers have done things this way for years.  When Wiley publishes an article or a textbook that asserts that they, Wiley, own the copyright, they are not asserting that they own copyright over the text of every quotation or the images used by permission as illustrations.  Such incorporated material remains in the hands of the original rights holder, even after it is included in the new work under fair use or a grant of permission.  The copyright in the new work applies to what is new, and downstream users are expected to understand this.  Likewise, the partial waiver of copyright accomplished by a CC license applies to what is new in the licensed work, not to material that is legally drawn from earlier works.

So I think there is a way forward here, which is for PLoS to agree to publish the article with all of the borrowings under fair use or by permission clearly marked, just as they would do if those borrowings were all in the form of textual quotations.  And I think we can learn two lessons from this situation:

  1. The standard of review applied by open content publishers is more supportive of the true values of science than that used by traditional publishers.  Over reliance on impact factor hurts scholarship in many ways, but one of them is by pushing publishers to focus on the next big thing instead of the ongoing scientific conversation that is the core of scholarship.  The movement toward open access has given us a chance to reverse that unfortunate emphasis.
  2. Open content licenses should not be seen as all-or-nothing affairs, which must either apply to every word and image in a work or not be used at all.  To take this stance is to introduce rigidity that has never been a part of our copyright system or of traditional publishing.  It would be a shame if excessive enthusiasm for openness were allowed to actually undermine the value of research by making the scientific conversation, with all its reliance on what has gone before, more difficult.

Who owns that journal? — an update

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.

Signing My Rights Away (a guest post by Jennifer Ahern-Dodson)

NOTE — Authorship can be a tricky thing, impacted by contractual agreements and even by shifting media.  In this guest post by Jennifer Ahern-Dodson of Duke’s Thompson Writing Program we get an additional perspective on the issues, one that is unusual but might just become more common over time  It illustrates nicely, I think, the link between authorship credit, publication agreements and a concern for managing one’s online identity.  A big “thank you” to Jennifer for sharing her story:

Signing My Rights Away

Jennifer Ahern-Dodson

I stared at my name on the computer screen, listed in an index as a co-author for a chapter in a book that I don’t remember writing. How could I be published in a book and not know about it? I had Googled my name on the web (what public digital humanist Jesse Stommel calls the Googlesume), as part of my research developing a personal website through the Domain of One’s Own project, which emphasizes student and faculty control of their own web domains and identities. Who am I online? I started this project to find out.

I was taken aback by some of what I found because it felt so personal—my father’s obituary, a donation I had made to a non-profit, former home addresses. All of that is public information, so I shouldn’t have been surprised, but then about four screens in I found my name listed in the table of contents for a book I’d never heard of. Because the listed co-author and I had collaborated on projects before, including national presentations and a journal publication, I wondered if I had just forgotten something we’d written together.

I emailed her immediately and included a screenshot of the index page. Subject line: “Did we write this?”

She wrote back a few minutes later.

WHAT??!!!  We have a book chapter that we didn’t even know about???!!!!!  How is this possible?  Ahahahahahahahaha!!!!!

It’s a line for our CV! But, wait, what is this publication? Do we even want to list it? Would we list it as a new publication? Is it even our work? How did this happen?

This indeed was a mystery. At the time this was all unfolding, I was participating in a multidisciplinary faculty writing retreat. Once I shared the story with fellow writers, they enthusiastically joined in the brainstorming and generated a wide range of theories including plagiarism, erroneous attribution, a reprint, and an Internet scam (see Figure below). I mapped the possibilities for this curious little chapter called “Service Learning Increases Science Literacy,” listed on page 143 of the book National Service: Opposing Viewpoints (2011)[1].

 

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I needed to do more research and so requested the book through Interlibrary Loan and purchased it online as well.

And then there was the story of the editor. Who was she? Did she really exist? Was she a robot editor—just a name added to the front of a book jacket? I started wondering, now that so much of our work is digitized, are robots reading—and culling through—our work more than people? A quick search on Google revealed she was the editor for over 300 books, mostly for young adults. Follow up searches on LinkedIn and Google+ revealed profiles that seemed authentic.

The book arrives.

About a week later, the book arrived through Inter-library Loan. While still standing at the library service desk, I quickly flipped to page 143.

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What I discovered is a reprint (with a new title) of an article my author and I had published in the Journal of College Science Teaching.[2] It was republished with permission through the journal, conveyed through Copyright Clearance Center. The table of contents included a range of authors and works, including an
excerpt from a speech by George W. Bush.

It all looked legitimate. But how could I be published and not know about it?

In an email conversation with Kevin Smith, my university’s scholarly communication director and copyright specialist, I learned that typically in publication agreements, authors transfer copyright to the organization that publishes the journal. From then on, the organization has nearly total control. It can do what it wants with the article (like republish it or modify it), and for most other uses I might want to make (like including it on my website), I’d have to ask their permission.

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I also learned that republication is not uncommon. Although this book is marketed as “new,” it is in fact really just repackaged material from other sources that libraries likely already have. In this case, our article for a
college teaching journal was repackaged for an audience of high school teachers as part of an opposing viewpoints series, essentially marketing the same content to a different audience.

In a slightly different repackaging model, MIT Press has started re-publishing scholarly articles from its journals in a thematically curated eBook series called Batches.

These two models made visible for me the ways that copyright, institutional claims, and the Internet fuel change at a pace so rapid it seems almost impossible for authors to keep up.

Where to go from here

Although the ending to this mystery is not as thrilling as I thought it would be (someone plagiarized our work! Someone recorded and transcribed a talk! The book is a scam!), what I uncovered was this whole phenomenon of book republishing. Our chapter was legitimately repackaged in a mass marketed book with copyright secured, which allowed our work to be shared with a broader audience (which I see as a good thing). Yet, the process distanced me from my work in a way I was not expecting. In my naïve, yet I suspect widely held view of academic authorship, I assumed the contract I had signed was simply a formality, more of a commitment by the journal to publish the article and an agreement by my co-author and me to do so. I only skimmed the contract, distracted perhaps by the satisfaction of getting published and the opportunity to circulate my ideas more broadly.

As I submerged myself into the murky depths of republishing, I started to think about my own responsibility as both a writer and a teacher of undergraduate writers, to educate myself on authors’ rights. Could I negotiate publishing agreements to retain copyright? Or, at the very least, could I secure flexibility to re-use my work? As it turns out, yes. The Scholarly Publishing and Academic Resources Coalition has created an Author Addendum to help authors manage their copyright and negotiate with publishers rather than relinquishing intellectual property.

Although it is not uncommon for publishers to ask authors to sign over their legal rights to their work, at least one publisher—Nature Publishing, which includes the journals Scientific American and Nature—goes even farther. It requires authors not only to waive their legal rights but also their “moral rights.” Under this agreement, work could conceivably be republished without attribution to the original author. There was a story about this a couple of months ago, see http://chronicle.com/article/Nature-Publishing-Group/145637/.

In my case, I clearly did not do due diligence as an author when I read and signed the agreement for the science literacy article, and neither the journal nor the book editor or publisher was under any legal obligation to notify me that my work was republished or retitled. I wonder, however, what would happen if we applied the concept of academic hospitality to our publishing relationships. Could a simple email notification when/if our work gets republished be a kind of professional courtesy we can expect? Or, should we as authors get more comfortable with less control over our work and choose to share our ideas more liberally in public domains in addition to academic journals, which have limited readership and at times draconian author agreements? Do institutions have any role to play in educating their faculty and graduate students about signing agreements?

In my quest to create a domain of my own, to “reclaim the web” and be an agent in crafting my own author identity online, I discovered that, in fact, I had given up control of some of my own work. Now, I’m aware of the need to balance going public with my work—both online and in print—with a thoughtful and informed understanding of my rights and responsibilities as an academic author.

[1] Gerdes, Louise, Ed. Greenhaven Press.

[2] Reynolds, J. and Ahern-Dodson, J. “Promoting science literacy through Research Service-Learning, an emerging pedagogy with significant benefits for students, faculty, universities, and communities.” Journal of College Science Teaching 39.6 (2010).

 

Attention, intention and value

How should we understand the value of academic publications?  That was the question addressed at the ALA Annual Conference last month during the SPARC/ACRL Forum.  The forum is the highlight of each ALA conference for me because it always features a timely topic and really smart speakers; this year was no exception.

One useful part of this conversation was a distinction drawn between different types of value that can be assigned to academic publications.  There is, for example, the value of risk capital, where a publication is valued because someone has been willing to invest a significant amount of money, or time, in its production.  Seeing the value of academic publications in this light really depends on clinging to the scarcity model that was a technological necessity during the age of print, but which is increasingly irrelevant.  Nevertheless, some of the irrational opposition we see these days towards open access publications seems to be based on a myopic approach that can only recognize this risk value; because online publication can be done more inexpensively, at both production and consumption, and therefore does not involve the risk of a large capital investment, it cannot be as good.  Because the economic barrier to entry has been lowered, there is a kind of “they’ll let anyone in here” elitism in this reaction.

Another kind of value that was discussed is the cultural value that is supposedly infused into publications by peer-review.  In essence, peer-review is used as a way to create a different, artificial type of scarcity — amongst all the material available in the digital age, peer-review separates and distinguishes some as having a higher cultural value.

Of course, there is another way to approach this kind of winnowing valuable material from the booming, buzzing confusion; one could look at how specific scholarship has been received by readers.  That is, one could look at the value created by attention.  We are especially familiar with attention value in the age of digital consumerism because we pay attention to Amazon sales figures, we seek recommendations through “purchased together” notes, and we look at consumer reviews before booking a hotel, or a cruise, or a restaurant.  Some will argue that these parallels show that we cannot trust attention value; it is only good for inconsequential decisions, the argument goes. But figuring out how to use attention as a means to make sound evaluations of scholarship — better evaluations than we are currently relying on — is the focus of the movement we call “alt-metrics.”

Before we discuss attention value in more detail, however, we need to acknowledge another unfortunate reminder that the cultural value created by peer-review may be even more suspect and unreliable. Last week we saw a troubling incident that provokes fundamental doubts about peer-review and how we value scholarly publications when Sage Publishing announced the retraction of sixty articles due to a “peer-review ring.”  Apparently a named author used fake e-mail identities, and maybe some cronies, in order to review his own articles and to cite them, thus creating an artificial and false sense of the value of these articles.  Sage has not made public the details, so it is hard to know exactly what happened, but as this article points out, the academic world needs to know — deserves to know — how this happened.  The fundamental problem that this incident raises is the suggestion that an author was able to select his own peer-reviewers and to direct the peer-review requests to e-mails he himself had created, so that the reviewers were all straw men.  Although all the articles were from one journal, the real problem here is that the system for peer-review apparently simply is not what we have been told it is, and does not, in fact, justify the value we are encouraged to place on it.

Sage journals are not inexpensive.  In fact, the recent study of “big deal” journal pricing by Theodore Bergstrom and colleagues (subscription required), notes that Sage journal prices, when calculated per citation (an effort to get at value instead of just looking at price), are ten times higher than those for journals produced by non-profits, and substantially higher even than Elsevier prices.  A colleague recently referred to Sage journals in my hearing as “insanely expensive.” So it is a legitimate question to ask if we are getting value for all that money.  One way high journal prices are often justified, now that printing and shipping costs are mostly off the table, is based on the expertise required at publishing houses to manage the peer-review system.  But this scandal at the Journal of Vibration and Control raises the real possibility that Sage actually uses a kind of DIY system for peer-review that is easily gamed and involves little intervention from the publisher.  How else could this have happened?  So we are clearly justified is thinking that the value peer-review creates for consumers and readers is suspect, and that attention value is quite likely to be a better measure.

Attention can be measured in many ways.  The traditional impact factor is one attempt to analyze attention, although it only looks at the journal level, measures only a very narrow type of attention, and tells us nothing about specific articles.  Other kinds of metrics, those we call “alt-metrics” but ought to simply call metrics, are able to give us a more granular, and hence more accurate, way to evaluate the value of academic articles.  Of course, the traditional publication system inhibits the use of these metrics, keeping many statistics proprietary and preventing cross-platform measurements.  Given the Sage scandal, it is easy to see why such publishers might be afraid of article-level measures of attention.  The simple fact is that the ability to evaluate the quality of academic publications in a trustworthy and meaningful way depends on open access, and it relies on various forms of metrics — views, downloads, citations, etc. — that assess attention.

But the most important message, in my opinion, that came out of the SPARC/ACRL forum is that in an open access environment we can do better than just measuring attention.  Attention measures are far better than what we have had in the past and what we are still offered by toll publishers. But in an open environment we can strive to measure intention as well as attention.  That is, we can look at why an article is getting attention and how it is being used.  We can potentially distinguish productive uses and substantive evaluations from negative or empty comments.  The goal, in an open access environment, is open and continuous review that comes from both colleagues and peers.  This was an exciting prospect when it was raised by Kristen Ratan of PLoS during the forum, where she suggested that we should develop metrics similar to the author-to-author comments possible on PubMed Commons that can map how users think about the scholarly works they encounter.  But, after the Sage Publishing debacle last week, it is easier to see that efforts to move towards an environment where such open and continuous review is possible are not just desirable, they are vital and very urgent.

Why I joined the Authors Alliance

A new organization for authors, called the Authors Alliance, is launching today (May 21) with a reception in San Francisco at the headquarters of the Internet Archive.  I cannot attend, but a couple of weeks ago I responded to an invitation and became a founding member of the Alliance; I also made a small financial contribution to help the group get off the ground.  This seemed like an obvious move to me.  Why shouldn’t academic authors, as well as the multitude of others who write for reasons not directly linked to commercial sales, have an organization that represents their interests?  Surely the idea of (mostly) academic authors organizing to further their own interests is not controversial.

But after I joined the Authors Alliance, a colleague sent me a link to an amazing, apparently distraught blog post on the website of the Authors Guild that seems to be warning AG members about the dangers posed by the Authors Alliance.  Although the author of the post, a successful author of biographies named T.J. Stiles, affects a tone of calm, his misinformation and efforts to sound contemptuous make it very clear that the Alliance is perceived as a threat by the AG.  Which, of course, is an additional argument for signing up.

Throughout his post, Stiles talks about the Alliance as an organization for people who want to “give away” their work.  He sarcastically suggests that,

If you think, in our digital age, that the biggest problem facing authors is how hard it is to give your work away for free, it’s for you. If you think you’ve got too much power over people who copy and distribute your work without your permission, by all means sign up.

This, of course, is a profound misunderstanding of the situation of academic authors.  Under the current system, academic authors are almost always required to give away their work for free to publishers, who then sell it at a profit.  Stiles, who worked for years for Oxford University Press, ought to know this.  The “power over people who copy and distribute your work” is all held by these publishers, who become the copyright holders once academic authors sign transfer agreements as a condition of publication.  One reason for joining the Authors Alliance is precisely so that academic authors can retain more control and give away less.

In his desperation to say bad things about this new organization, which has yet to take any positions or actions as a group, Stiles is even willing to contradict himself.  He refers to the Alliance as “an astroturf organization. It was not organized by authors, nor is it governed by them. The four directors are Berkeley academics.”  But in other places he acknowledges the obvious fact that academics are authors; they are just supported by a different financial model than that to which the Authors Guild myopically clings.  Make no mistake; the Authors Alliance is organized and governed by authors in order to represent the interests of authors.

Stiles goes on to assert some of the putative stances the Alliance might take, although he acknowledges that it is too early to know for sure.  Instead, he just extrapolates based on gross exaggerations of some of the academic arguments made by Alliance board members, especially Professor Pam Samuelson.  For example, based on arguments for a digital first sale right, he makes the absurd claim that the Alliance would want a world where “anyone could become a publisher of your book,” based on the idea that resale would always involve copying.  Stiles carefully ignores the fact that all such discussions, to my knowledge at least, advocate for a “forward and delete” regime that would replicate the physical first sale right that has been part of U.S. copyright law for over a century.  Likewise Stiles claims that members of the Alliance board have advocated for “allowing potentially unlimited copying for educational uses.”  If so, I have never heard them.  What I have heard, and advocate for, is a fair use right — again part of our law for more than 170 years — that works for education in those cases where it does not threaten the commercial sales of the works.  That, in fact, is exactly what Judge Chin evoked when he ruled against the AG in their lawsuits against the Google Books project.

Stiles’ essay is an exercise in fear-mongering and, when he begins to cite the salaries paid to some of its academic founders, a rather petulant envy.  Since he has spent a lot of space offering fictionalized reasons that one might join the Authors Alliance, let me close by citing two that were specifically important to me when I decided to join.

First, it has the potential to be far more representative of authors as a whole than the Authors Guild is.  It is the AG that is really a niche organization, representing, according to public documents, about 8,000 members.  There are, of course, vastly more authors than that in the U.S; indeed, there is a larger number of potential academic authors than that total just within a 30-mile radius of where I sit as I write this, because of the four large universities in the Research Triangle.  The Authors Guild sees itself as representing a single type of author — those who wish to sell their books through commercial outlets and who have had success doing so.  This is a very small percentage of authors.  The remaining group are not bad authors, or all amateurs, as Stiles implies; they are just authors who making their living based on different business models.

Which brings me to my second reason for joining the Authors Alliance; it can represent a much more diverse perspective on the business and technology of authorship.  The truth is that the Authors Guild is apparently irredeemably wedded to a single business model, which is itself tied to the technology of print.  That business model depends, even in its digital forms, on making the book (or article) a scarce object and then limiting its readership to those who pay to obtain a (costly) copy.  This model only developed with the printing press, and as other options “come online” its relevance is fading.  Limiting readership, while necessary to the print-based approach to authorship, is not something that actually appeals to many authors.  Most people, I would think, write so that lots of people will read their work.  If other ways can be found to reimburse their effort while still supporting a wide readership, that is all to the good.

Of course, for most of our history writers have been supported in other ways.  Shakespeare and Dante were supported by patrons.  Many authors today are supported by a similar kind of patronage, from foundations, agencies or, indeed, universities.  Stiles himself, as the winner of the 2010 Pulitzer Prize for Biography, which carries a cash award with it, is not unfamiliar with a certain kind of patronage support.  So when he says that one should not join the Authors Alliance if “you earn a living as a writer, or hope to” he is being incredibly myopic.  And when he goes on to cite the salaries of some of the academic authors who are founding the Alliance he exposes his hypocrisy and envy.  These academic founders of the Alliance DO make their livings as writers, and their substantial salaries are testimony to their skill at it.  Authorship is a requirement of the jobs that pay them those salaries, and they are repeatedly evaluated on the basis of their writings, as well as other factors, in order to be sure they are providing value for money.

The point is that there are many ways in which writers are supported in their endeavors, and even more various are the reasons that people become writers.  The Authors Guild is focused on a single reason and a single business model, and it is sinking into irrelevance because of that limited vision.  Stiles’ essay reflects the desperation of the AG as much as its quixotic campaign of lawsuits does.  So why join the Authors Alliance?  Because academic authors need a representative body that can look beyond a single model to embrace new technologies and business models that are both new and, sometimes, old.  Because we need a representative group that has the vision and flexibility to be relevant and influential well into the 21st century.

Superrights for textbooks?

This past week there have been a lot of angry blog posts about the new “Connected Casebook” plan from Aspen Publishers (Wolters Kluwer Legal Education) that would attempt to deprive students of their rights under the First Sale doctrine in U.S. law to resell the books that they buy.  Aspen publishes case books — the textbooks made up largely of court decisions that are fundamental to the teaching in U.S. law schools.  With this new program they are “offering” students allegedly perpetual access to an online version of the book with digital tools, but attempting to require that the print version of the book be returned after the class is over, even if it is marked up and annotated.  The idea, of course, is to undercut the secondary market for print textbooks so that each student will have to pay $200+ for a new book package.

Many folks have already critically examined the plan, so I will just offer some links to those earlier posts — from law professors Josh Blackman and James Grimmelmann, from the Electronic Freedom Foundation and from the Washington Post.  It is worth noting that Professor Grimmelmann began a petition that includes a pledge from law professors not to assign Aspen casebooks.

Since these blog posts were posted, Wolters Kluwer has responded with a letter in which they clarify their intentions, stating that the Connected Casebook program will be an option for students, but that they will still be able to elect to buy a traditional print textbook in which they will have the right of first sale, meaning that they can resell the book once the class is over.

In spite of this plethora of words about the issue, I have several comments I want to make.

First, just a reminder that these attempts to undermine the right of first sale are an effort from publishers to gain a sort of “super” property right.  No other property owner expects to be able to sell their product and still be able to prevent the purchaser from making a resale.  To see the absurdity of this, imagine if Ford tried to shut down the market for used cars by including such a restriction in a purchase contract; it would be a quick way to go out of business.  If Aspen really cannot survive in a market where resale is an option — this has been the case in the U.S. for its entire history, as well as in the rest of the world for a long time — it is probably time for them to shut off the lights and go home.

At least I suppose we should be grateful that Aspen says this will be only an option, not the sole way in which textbooks can be obtained.  They are saying that the digital bells and whistles that they will offer with the Connected Casebook program are carrots intended to lure students into surrendering their first sale rights, not sticks that will coerce them.  In that light, it is interesting to consider if it will work.  Studies suggest that the included digital links and things associated with many textbooks do not get used very much.  I wonder if the price will be the same for the traditional textbook, with a resale option included, and the “Connected” casebook, which has outlining tools and allegedly lifetime access to the digital edition, but requires the renunciation of first sale rights?  As Professor Grimmelmann points out, “we know from sad experience that gerbils have better life expectancy than DRM platforms,” so lifetime access is really not very likely.  In any case, case books become outdated really quickly, and the large secondary market (that Aspen wants to curtail) indicates that students are not very interested in lifetime access.

Perhaps this new program should be a teaching moment for law professors.  Licensing and contract law are relevant to nearly every legal subject, after all, so any class in which an Aspen Casebook is assigned might begin with an opportunity for students to reflect on the decision they are asked to make and to explain their ultimate choice.  The interplay of price, features, expectations and rights would make for interesting reflections, and students could begin to try to decide if the restriction requiring return of the book is actually enforceable.

Enforceability does seem like a issue here.  The basic idea is to have students buy a package — print book and digital access — then use the license for the latter to curtail rights in the former.  But our courts have looked very unfavorably on licenses that attempt to curtail first sale, in cases as old as Bobbs-Merril v. Straus (1908) and as recent as Kirtsaeng v. Wiley (2012).  It is true that the Ninth Circuit recently did enforce a license restriction on first sale imposed on software CD-ROMs, but in that case (which seems dubious given the two Supreme Court precedents mentioned above) at least the license was for the same, singular product.  I am pretty confident that courts would be more skeptical of the Aspen license, which attempts to negate a long standing public right in a format that is not traditionally governed by licensing terms at all through the licensing of a different format.  A court challenge to this would be very interesting and would raise the issue, as the EFF notes, of what the boundaries of a sale really are.  Certainly if the scheme were ever imposed as the only option for obtaining these textbooks, it would cry out for an action on the part of law students seeking declaratory judgment on the issue of enforceability.

The biggest takeaway from this controversy should be a reminder of the opportunity to create open educational resources that can avoid all of these silly and desperate efforts from publishers to maintain control even after the sale of a book.  No field is more amenable to open textbooks than law, after all, where the large majority of the content, the cases themselves, are in the public domain.  The licensing problems for online casebooks are greatly reduced, and there are consequently already some excellent examples of open online law texts, including Grimmelmann on Internet law and Herbert Hovenkamp (himself the author of an Aspen casebook) on Innovation and Competition Policy.  I would love to see many of the over 300 law professors who have signed Grimmelmann’s petition commit to creating open online case books in their own fields of expertise.  If that happened, the problem would go away very quickly, and the cost of a legal education would be significantly reduced.

We need to remember that this model for textbook “sales” is likely to spread.  The various strategies that publishers have used to try to undermine the secondary market for textbooks are various and ongoing, as the recent Kirtsaeng v. Wiley case illustrates.  Although it is never put this way, this is part of an overall sense from academic publishers that they are entitled to a larger share of the money that students spend on education.  These strategies would always have the effect of making education more expensive, so we need to remain vigilant for the next such effort and resist it on behalf of the students we serve.