Tag Archives: ResearchGate

Giving the Authors a Voice in Litigation?  An ACS v. ResearchGate Update

You might recall me writing about ACS v. ResearchGate, a lawsuit filed last fall in the United States by ACS and Elsevier against ResearchGate. It followed a similar lawsuit filed a year earlier in Germany.  In both the German and U.S. versions of this lawsuit, the basic complaint is that ResearchGate infringed the publishers’ copyrights by hosting and publicly distributing scholarly articles for which the publishers claim to own exclusive rights.

Nothing had happened in the U.S. case for months, but yesterday ResearchGate made several filings.  ResearchGate has apparently retained Durie Tangri (the same law firm that represented Google in the Google Books lawsuit) and has invested in making some opening arguments that I think are pretty smart.

Authors rights: the argument I’ve been waiting for

The most interesting ResearchGate filing isn’t its factual answer to the complaint, but rather the motion that ResearchGate made accompanying its answer. That motion, with the inconspicuous title of “Motion for Notice Under 17 U.S.C. § 501(b)” asks the court to open the door for something big: communicating about the litigation with the actual authors of the articles posted to ResearchGate. Imagine that!

ResearchGate begins its argument by pointing out the unusual nature of the case, and why it is so important to clearly sort out who owns rights (authors versus publishers) in the articles underlying the lawsuit:

A typical copyright infringement lawsuit about copyrighted material appearing online involves a content creator suing a website owner when an unauthorized third party has posted the creator’s work to the website without the creator’s permission. But here, [the publishers] are suing . . . ResearchGate for allowing scientists to share their own work. . . . Under Plaintiffs’ infringement theories, if ResearchGate is infringing Plaintiffs’ copyrights in the articles at issue here, so are those articles’ authors. Accordingly, a finding that the appearance of those articles on the ResearchGate site was infringing would necessarily mean that the people who conducted the research and wrote the articles did not have the right to share them.

The motion goes on to argue that many authors of these articles (almost all of which were co-authored) still hold a valid copyright interest in them that would allow those authors to legally post the articles to ResearchGate. Even assuming that the publishers obtained valid transfers of exclusive rights from the corresponding authors, ResearchGate argues that there is no evidence that the publishers also obtained a valid transfer of exclusive rights from co-authors of the papers. Thus, those co-authors are free to make what uses they want with their papers, including posting to ResearchGate.

Given that these authors may hold rights, ResearchGate argues that § 501(b) of the Copyright Act allows (and may even require) the court to order notification of those authors as third parties who have a “claim or interest” in the copyrighted works at issue. Section 501(b) provides that the court:

  • may require written notice of the action with a copy of the complaint provided to “any person shown . . . to have or claim an interest in the copyright,” and
  • shall require that such notice be served upon any person whose “interest is likely to be affected by a decision in the case,”

In addition to notification, the statute also provides for a way to actually bring third-parties into the lawsuit. It says that the court “may require the joinder, and shall permit the intervention of any person having or claiming an interest in the copyright” (emphasis mine).

ResearchGate is, for now, just asking the court to order the plaintiffs to notify other potential copyright owners about the lawsuit. Specifically, ResearchGate is asking the court to “order Plaintiff’s “to serve ‘written notice of the action with a copy of the complaint upon’ each co-author of each journal article at issue in the lawsuit who is not a corresponding author. . . .” I don’t know exactly how many authors that is (as I’ve said previously, there are over 3,000 articles), but it’s probably a lot.

Procedure, procedure, procedure

You may think I’m getting all worked up over a little bit of civil procedure. Maybe. But I think it is important because over and over again we’ve seen large-scale copyright infringement suits fought between the large organizations (e.g., Authors Guild v. Google, Authors Guild v. HathiTrust, Elsevier v. SciHub, Cambridge University Press v. Becker (Ga. State)) without much input at all from the actual authors of the works that form the basis of those lawsuits. When those authors have been allowed to have a say, such as in the Google Books class action certification process, their input has meaningfully altered the outcome.

For the ResearchGate litigation, it seems like a good start to at least require the Plaintiffs to notify authors that their work is being used as the basis for a copyright infringement lawsuit. I would hope, once authors are notified, that the court would also allow those same authors to intervene, as the statute allows, to have their own say in how their works are shared with the world.


ACS v. ResearchGate – 3,143 articles and a few lessons about their authors  

In October, Elsevier and ACS filed a new US copyright infringement lawsuit against ResearchGate [complaint]. Like the German ResearchGate lawsuit I wrote about last year, the basic premise of the suit is the same. This is how Elsevier and ACS describe ResearchGate’s activities in the American lawsuit:

In egregious violation of copyright law, ResearchGate provides anyone connected to the Internet with a free trove of infringing digital copies of peer-reviewed published journal articles [PJAs]. ResearchGate has consciously designed and actively maintains the RG Website as a hub for obtaining infringing copies of those PJAs. ResearchGate is not a passive host of a forum where infringement just happens to occur. Rather, ResearchGate actively participates in the ongoing infringement, in which it directly engages by duplicating, displaying, and distributing unauthorized copies of PJAs. ResearchGate also intentionally facilitates, supports, and lures users into uploading and downloading unauthorized copies of PJAs.

Big, if true. I have some doubts that I will write about later.

As far as what this suit and the publishers’ assertions mean for authors, I suggest reading this detailed post by Brandon Butler at UVA on the subject. It’s the best explanation I’ve read yet on copyright, open access and publisher-author sharing policies.  The “tl;dr” for that post is sad but accurate: “You probably can’t share your research as widely as you thought, and this is a problem endemic to academic publishing.”

The Authors of the ResearchGate Articles

One thing I found so interesting about the complaint in the most recent lawsuit was that it had very little discussion of the authors of the articles involved, or about the research itself (to be fair, if I were writing the complaint for the publishers, I’d try to leave the authors out of it too). Discussion of the authors and their articles is important context, though, for understanding how these articles were created, who posted them to ResearchGate in the first place, and what rights those users might have. Were any authors U.S. government employees who had no rights to be transferred to the publishers? Were any subject to university open access policies that reserve rights to universities or authors? Were any subject to funder OA mandates? Or did authors pay for open access for any of these articles? 

Thankfully, to bring a copyright infringement suit, one must actually identify the content alleged to have been infringed, even if you don’t talk much about it in the complaint. In this case, ACS and Elsevier provided a list in “Exhibit A” to the complaint of the 3,143 articles that they claim were infringed. I haven’t had time to fully explore those articles (these is a spreadsheet with information for all 3,143, if you’d like to do your own research). But thanks to some advice from some fantastic colleagues here at Duke, I was able to extract that data and run some searches for information about the articles and authors. I searched those article 3,143 DOIs in Web of Science, which returned 3,082 records. Here’s some of what I learned from those records:

Author Organizations

  • Most authors of these articles are affiliated with non-US institutions. From among the 3,082 records, the top ten author organizational affiliations are:
    • Chinese Academy Of Science (176 articles, 5.7%)
    • Centre National De La Recherche Scientifique Cnr (128 articles, 4.1%)
    • Universite Cote D Azur Comue (100 articles, 3.2%)
    • University Of Chinese Academy Of Sciences Cas (68 articles, 2.2%)
    • University Of California System (60 articles, 1.9%)
    • Russian Academy Of Sciences (49 articles 1.6%)
    • Indian Institute Of Technology System IIT System (45 articles, 1.5%)
    • State University System Of Florida (37 articles, 1.2%)
    • Nanyang Technological University (36 articles, 1.2%)
    • Nanyang Technological University National Institute Of Education Nie Singapore (36 articles, 1.2%)

I think there is a whole other blog post to be written about publishers going after articles authored in large part by non-Western authors. But I’ll not touch that for now and focus on the license situation.  I can’t speak about all of those institutions, but at least one (the University of California System) has an open access policy. I’m not sure how that policy/license factors into the posting of the articles to a site like ResearchGate, but it’s worth exploring. Two of the authors are Duke authors, and I know we have an OA policy that affects whether posting the articles to ResearchGate is permissible.

Article Funders

  • Unsurprisingly, given the authorship, most articles with identified funders are not based in the US. The top 10 funders are mostly Chinese.
  • NSF funded 38 of the articles, and NIH funded 24.

Again, unclear how funder OA policies may factor into the posting of these articles, but worth further exploration.

“Open Access” Articles

These articles raise some important questions about what rights the authors thought they were getting when they paid the OA fees for their articles. Did they understand that posting to ResearchGate would be disallowed? It also raises a question about how Elsevier is interpreting the “non-commercial” clause of the CreativeCommons license (is an author posting to ResearchGate “commercial” use?) and how that matches up to, e.g, the interpretation of that language by Creative Commons and by courts such as in Great Minds v. FedEx.

I haven’t had as much time as I would like to fully explore these articles and their authors. I should say that I’m not particularly sympathetic to ResearchGate or its business practices, but I do sympathize with authors who are trying to share their research in the best way they know how. From them, I would be particularly interested in hearing what they think about this lawsuit — were they consulted before the suit was filed? Are they aware that it was even filed? Do they agree with it? Did they understand their publication contract and its effect on posting to sites like ResearchGate? I’m hopeful that someone out there will take up the important work of developing better information about authors views on lawsuits like this.