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'.
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.
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.
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. . . .
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.
Academic publishers generally do give explicit "consideration" to make the contract valid. I don't remember what Elsevier does exactly, but the "consideration" is typically discounts on copies of the journal or conference proceedings where the article will appear or other types of discounts on the publisher's products. Yippee. The contracts typically don't actually promise to publish anything (they don't want legal liability that way).
"Elsevier gives NOTHING to the author except the promise of publication and distribution"
The "status" of publication has a demonstrable market value, so I'm not sure why we are debating this.
I know it sounds stupid, and it's a case of {pschopaths>incompetents>losers}, but in reality the author's "careers" and "reputations" are on the line. And the academics are in the Losers bucket here. The grant-writers and tenure comittees take the title of "incompetents". And yes, the Elseveiers very much psychopaths.
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'.