
Elsevier steps up its War On Access  - anu_gupta
http://svpow.com/2013/12/17/elsevier-steps-up-its-war-on-access/
======
logfromblammo
As I see it, the authors must retain all their copyrights, because any valid
transfer of copyright would entail valuable consideration from Elsevier to the
author. The authors pay Elsevier to coordinate peer review and publish using
their brand names. This necessarily includes granting a license to Elsevier to
copy and distribute the author's work.

Now, there may be other contract terms that are not obvious. One such term may
be that the author not publish the work himself. The worst that could happen
here is breach of contract. Since the only up-front consideration was from the
author, this just means that Elsevier doesn't need to do what the author paid
them to do, while still keeping the consideration of cash plus copyright
license. It's sole remedy is to not coordinate peer review and not publish.
Since it ALSO charges fees on that end, it has no reason to do that.

There must be a quid pro quo in a lawful contract. You can't bind someone to
its terms unless you give them some valuable thing in return. Elsevier gives
NOTHING to the author except the promise of publication and distribution. You
can never prevent the author from making his own copies, ever. Your sole
remedy is to write a penalty for doing so into the contract, but then you
would have to PAY the author something to enforce it.

Elsevier does not give the authors anything, therefore they cannot demand
performance under the contract. The only thing they can do is use one of those
restrictive terms to weasel out of their own obligations under the contract
while still keeping what the author gave them. They are absolutely in the
wrong by demanding people take down their own work.

(I am not a lawyer.)

~~~
simonster
As ridiculous as it sounds, many journals, including Elsevier journals,
require you to transfer copyright of your article to them. See
[http://cdn.elsevier.com/promis_misc/phcgj_copyright_form.pdf](http://cdn.elsevier.com/promis_misc/phcgj_copyright_form.pdf)
for one example.

~~~
logfromblammo
That's ridiculous. It's not even funny. I can't imagine how such a contract
could stand up in court if contested, unless Elsevier actually paid the owner
of the copyright something.

If a contract does not involve an exchange of value between the parties, but
instead appears to be a one-sided transfer, a judge might strike it down as
unconscionable. If the contract were voided in this way, instead of breached,
Elsevier would have to give back everything it got from the author. If you
paid for it, even one penny, that sale is much easier to defend in court.

But they don't pay. They charge at both ends.

~~~
hsitz
There is no legal requirement that contracting parties give equal value in
exchange. What you're referring to is commonly referred to as the
"consideration" required for a valid contract, but it is easily satisfied. It
does not require equal value, it requires merely that "something" be given by
both sides. E.g., if the author of an article desires to have it published, a
publisher's mere promise to publish could serve as consideration for the
author's transfer of copyright. "We'll promise to publish this if you transfer
copyright to us." That would be a perfectly valid agreement.

Also, you say "The authors pay Elsevier to coordinate peer review and publish
using their brand names. This necessarily includes granting a license to
Elsevier to copy and distribute the author's work." Well, transfer of
copyright by author could be seen as simply part of the payment to Elsevier to
coordinate peer review and publish the article. Consideration need not be, and
very frequently is not, in the form of money. In fact, even in contracts where
one party provides consideration in the form of money, the other party usually
provides its consideration by promising to perform a service, or to transfer
goods other than money.

There is a doctrine wherein otherwise valid contracts can be voided because of
"unconscionability". Although the term is thrown about a lot, contracts --
even very one-sided contracts -- are almost never voided for
unconscionability. The whole idea of contracts is that two private parties
agree to terms to apply between themselves. Courts are thus very hesitant to
intrude, unless there is a specific legal reason to do so, not just a general
charge of 'unconscionability'.

~~~
logfromblammo
A promise to publish is worth nothing. An enforceable obligation to publish
might be worth something. But if I were the judge, I think I would put the
onus on Elsevier to show how Elsevier's nonmonetary compensation provides
value to the author, _especially_ if they were required to transfer their
copyrights. From here, it looks like an enormous scam perpetrated on
researchers to force them to run full speed on a virtual hamster wheel in
order to keep their jobs or get promoted.

And if you also consider all the fake papers submitted as integrity checks on
the system that got accepted, it looks as though it's high time for
researchers, professional associations, and universities alike to forcibly cut
out the middleman and abandon his tainted brands.

~~~
anigbrowl
_A promise to publish is worth nothing. An enforceable obligation to publish
might be worth something._

When copyright is transferred, the promise effectively becomes an enforceable
obligation. Artists are (occasionally) able to wriggle out of contracts on the
basis of the failure to publish within a particular timeframe, because
popularity is arguably a function of the timely availability of new material.

~~~
hsitz
Yes, and I expect you (anigbrowl) understand this, but it wouldn't even
necessarily require that copyright be transferred to make a promise to publish
enforceable. One view of contracts is that a contract is merely a set of
legally enforceable promises. E.g., On December 1, 2013, Author and Publisher
reach an agreement: Author promises that on January 1, 2014 he/she will
transfer copyright to Publisher in exchange for Publisher's promise to publish
sometime in 2014. Each promise serves as consideration for the other and
Author becomes legally bound to transfer the copyright on January 1 as soon as
the agreement is made on December 1.

All of this goes far beyond main theme of the thread, but I initially raised
the point because there seemed to be some confusion on whether Elsevier could
rightfully claim ownership of copyrights. . . .

~~~
anigbrowl
Quite. I think part of the reason for the misconceptions is that many people
expect contracts to be equitable, and (IMHO) equity is the poor cousin in US
law because of excess proceduralism.

------
zvrba
When you agree to publish with Elsevier, you sign a contract where you agree
not to publish the final version of the article on-line. Many (most?) Elsevier
journals DO permit you to post the so-called "author's manuscript" if you also
include the appropriate disclaimer. (Whether this is permitted is also written
in the contract you sign.)

For example:
[http://zvrba.net/writings/fusion.pdf](http://zvrba.net/writings/fusion.pdf)

In that light, I don't think Elsevier is the worst among bad guys. For
example, you're also permitted to upload the unreviewed version to arxiv
before submitting it to journal. Some other journals will outright reject the
article because of its "prior publication".

~~~
mrstew
Yeah, that was my first thought too. It's a shock because people are used to
uploading their papers in final published form but I don't think it's a crazy
thing for Elsevier to do.

We should take the opportunity to tell authors to upload author copies into
their institutional repositories. That's do far more for open access than
complaining about how evil Elsevier is.

~~~
jbooth
It's a shock because the university system is paid for by us, by our tuition
and taxes. People pay high tuition to go to research universities and the
societal bargain USED to be that those tuitions subsidized basic research
which is available to society. Elsevier isn't contributing shit compared to
us, yet they can apparently lock up publication with a really small amount of
money compared to the rest of the uni system.

~~~
lutorm
It is my understanding that tuition never funds research, except possibly in
the sense that it pays some fraction of faculty salaries and buildings in
which the faculty have offices. The actual research is funded by grants.

------
matthewmacleod
_I thought Elsevier was already doing all it could to alienate the authors who
freely donate their work to shore up the corporation’s obscene profits._

This is not a statement that I would expect to see in a well-balanced post
containing sensible discussion about the pressing requirement for more open
access.

The full details on author rights are publicly available on Elsevier's site at
[http://www.elsevier.com/journal-authors/author-rights-and-
re...](http://www.elsevier.com/journal-authors/author-rights-and-
responsibilities) \- and as far as I'm aware, their current round of legal
threats doesn't contradict that.

Open access is REALLY, REALLY important to the future of science, but we won't
get anywhere by misrepresenting the current state of affairs.

~~~
Timmmmbob
It's correct though. Authors donate their work freely. Reviewers work for
free. I believe even editorial boards work for free. I'm not sure about that
though.

All Elsevier has to do is hassle people for reviews and run a website. Hardly
difficult. They only survive because of the insane network effects of journal
publishing.

------
alanh
I know 90%+ of the HN crowd sides, with good reason, against Elsevier, but I’d
like us to not use the word “war” unless there is mutual, systematic murder
between enemies.

War is a terrible thing. We shouldn’t water down our only real word for it by
applying it too loosely.

~~~
pessimizer
Your argument is against the English language rather than HN. "War" has been
used to describe things other than "mutual, systematic murder between enemies"
as long as the word has existed.

Complaining about using the word "war" when not actually talking about murder
is like complaining about using the phrase "I see" to say "I understand."

~~~
alanh
I’m not arguing “against English” or “against HN;” I’m arguing against
diluting the power of one specific word. You are, of course, free to disagree.

~~~
kazagistar
His argument was that you seem to be under the impression that this dilution
has not already happened long ago, which is clearly false. He is not diluting
the word war: you are just trying to restrict its usage for some reason.

Look at the definition, which reflects usage today: [http://www.merriam-
webster.com/dictionary/war](http://www.merriam-webster.com/dictionary/war)

------
dcc1
Pretty much most of elsevier works are available on pirate sites, all they are
doing is harassing their customers by this stage and further alienating them.

~~~
hwh
The general availability on the "black" market is a problem, though. It makes
authors easier with a status quo that is perceived as really, really bad by
those who pay the bills.

While information providers in academia (mostly still called "libraries")
struggle with their budgets, being forced to discontinue some journals and are
at a point where they would love to communicate their pressure to the
scientists (who decide upon where they publish, with good reasons) - they
cannot quite get the point through. Scientists established their own
information providing ways, being it Twitter (asking their collegues for their
own means) or Libgen and folks. And you could - as a scientist - always drop
the author a personal inquiry in the worst case. Nevertheless, the libraries
are expected to buy it by enough parties that are left out in the black market
game.

It's a pretty skewed market.

Disclosure: I work at a library that has to buy journals and struggles with
budget for this (as probably all libraries do).

------
CurtMonash
I'm confused -- does Elsevier let you post your own articles on your own
website (university-sponsored or otherwise)? If it does, then Elsevier isn't
exactly suppressing the free dissemination of research.

The answer probably lies in the meaning of the third checkmarked item on
[http://www.elsevier.com/journal-authors/author-rights-and-
re...](http://www.elsevier.com/journal-authors/author-rights-and-
responsibilities), which says the following is allowed:

Sharing individual articles with colleagues for their research use (also known
as 'scholarly sharing')

~~~
jahewson
Elsevier's T&Cs say that for preprint (i.e. draft copies) of an article
"voluntary posting on open web sites operated by author or author's
institution for scholarly purposes" is permitted.

~~~
xerophtye
Random question, is there a Diff requirement between a draft and a final copy?
What if there's only a difference of a few grammatical errors between
published version and the one before that? Would the researcher be allowed to
publish that "nearly-complete" copy of the paper?

------
gwu78
Maybe as this racket dies, slowly we'll see tuition fees drop accordingly. But
I'm not holding my breath.

I always thought a significant share of my tuition payments must have been
allocated to cover overpriced library subscriptions. I would go so far as to
say these publishers indirectly make university more expensive; because the
absurdly high cost of the subscriptions must surely passed on to students.

------
thearn4
Mathematician here. Time for another boycott?

------
snrip
This reads as being very butt-hurt that somebody else chooses not to give away
their core business. It is cool that you see profit as something obscene, but
don't blame others for making a business.

Same goes for sending takedown notices. If you are technically in breach, you
are in breach.

If you don't want to do business with Elsevier, that is fine. If you don't
want others to do so, that is fine too. This is just being sad.

~~~
tehwalrus
Nope. Elsevier's core business is coordinating reviews of papers - for which
submitters pay a fee and for which the participating reviewers don't get paid
- and then typesetting the articles using a special sauce and hosting it
behind a paywall.

A pre-print of an article typeset using LaTeX on the academic's own machine is
not under their copyright, and yet they're demanding take-down notices of such
pre-prints hosted on 3rd party machines.

They are overreaching, and now they're alienating universities (who pay
handsomely for site-wide subscriptions).

I don't give them long, even if they do publish Physica A.

~~~
zvrba
> yet they're demanding take-down notices of such pre-prints hosted on 3rd
> party machines.

When you agree to the copyright form, you also agree that you won't
systematically distribute preprints or submit them to a systematic
distribution service.

In comparison with other publishers, Elsevier is rather generous to allow
authors to post a preprint on their personal web-page (whether or not it is
served by their university.)

~~~
Luc
Generous is an unreasonable word to use in this context. Their profit margins
though, those are generous.

"Elsevier made $1.1 billion in profit in 2010 for a profit margin of 36%."

[https://libraries.mit.edu/scholarly/mit-open-access/open-
acc...](https://libraries.mit.edu/scholarly/mit-open-access/open-access-at-
mit/mit-open-access-policy/publishers-and-the-mit-faculty-open-access-
policy/elsevier-fact-sheet/)

~~~
res0nat0r
Isn't this a website about startups and business? What is wrong with a healthy
profit margin that is made by legal willing contracts between Elsevier and
scientists?

Just because they make money and are involved with copyright they are
automatically bad? If they were barely making any money and closer to broke
startup founders, then they would be OK?

~~~
jjoonathan
40% profit margins do not exist for long in properly functioning competitive
markets. Deeply entrenched companies typically run at 10%. Monopolies
(example: drug companies) run at 20% (arguably in the case of drug companies
this is ok because they operate with much higher risk).

If you find a 40% margin that can't be ascribed to transient behavior, you
have found a market that has entered one of the (many) modes of market
failure, in which the usual arguments for markets being a force for good (or
least evil) go out the window. We use markets precisely because they tend to
avoid situations like this; it baffles me how frequently the "market did it so
it must be good" argument rears its head every time there's an exception. It's
circular reasoning, at least for those of us who don't take the moral
infallibility of the free-market as an article of faith.

Specifically, they are not "automatically bad" because they make money using
copyright. They are bad because they've found a loophole that lets them
monopolize a critical distribution channel for taxpayer-funded research, and
they're milking the shit out of it at enormous cost to taxpayers and students.
Broke startup founders do not get to appropriate tens of billions of dollars
of taxpayer-funded work and hold it hostage from those who have paid for it,
and if they did it would not be OK.

~~~
res0nat0r
> They are bad because they've found a loophole that lets them monopolize a
> critical distribution channel for taxpayer-funded research

There would be no monopoly if scientists didn't agree to their terms and
refused to submit papers to them. They'd go out of business very quickly.

