Boycotting the Plaintiffs?

It has been a season of discontent with publishers. After HarperCollins announced in March that they were going to impose a 26 checkout limit on ebooks licensed to libraries, a number of libraries began boycotting HarperCollins and refusing to purchase Harpercollins ebooks, with a few taking the next logical step and boycotting print titles as well. New Jersey public librarian Andy Woodworth started an online petition to challenge HarperCollins, and apparently tens of thousands of people have signed it. So far, it’s had little effect on HarperCollins that I can tell.

That scandal made the library news, but another petition and call for boycott didn’t. The philosophy of science journal Synthese published a special issue on Evolution and Its Rivals (subscription definitely required).The online version came out as the guest editors intended, but when the print edition was released in March, and unbeknownst to the guest editors, the editors-in-chief inserted a disclaimer saying they had observed “”that some of the papers in this issue employ a tone that may make it hard to distinguish between dispassionate intellectual discussion of other views and disqualification of a targeted author or group.” Most people interpreted this as a criticism of Barbara Forrest’s article, “The non-epistemology of intelligent design: its implications for public policy.” The New York Times article about the incident reported her article used “language some would later criticize as unfit for a scholarly journal” in criticizing noted Intelligent Design (ID) proponent Francis Beckwith. The “some” who later criticized the article were apparently Beckwith and Beckwith supporters, who allegedly complained and threatened legal action. I read through the article, and while it’s a devastating critique of the epistemological claims of ID to be taken seriously as science, it doesn’t seem to me to have language unfit for a scholarly journal. If you subscribe to Synthese, you can judge for yourself.  (And check out John S. Wilkins’ article “Are Creationists Rational?” in the same issue, in which he argues they are, at least within a “bounded rationality model of belief choices.”) The guest editors complained to well known philosopher and philosophy blogger Brian Leiter that they had known nothing about the disclaimer. He called for a boycott and started a petition demanding an apology and retraction of the disclaimer from the Synthese editors-in-chief, among other things. The apology and retraction have been just as forthcoming from the editors as a change in ebook policy has been from HarperCollins. Another philosopher called for a subscription boycott as well. Depending on how libraries get access to this particular Springer journal, such a boycott might not be possible.

These two controversies are different in the relationships between the petitioners and their targets. Public librarians are merely consumers of HarperCollins ebooks, but philosophers are the editors, reviewers, and contributors to Synthese. Somehow I doubt HarperCollins will lose much money, and they might even join Simon and Schuster and MacMillan in not allowing ebook licenses to libraries at all. However, an effective boycott of Synthese could destroy not only the reputation but the existence of a top philosophy journal.

A third controversy began a couple of years ago when Oxford U. Press, Cambridge U. Press, and Sage sued Georgia State University over alleged copyright violations in their handling of ereserves. They have now, in the words of Inside Higher Education, “proposed an injunction that, if approved by a judge, would make Georgia State University comply with strict guidelines for copying and distributing copyrighted texts.” The implications of the injunction have been covered very effectively by Barbara Fister in the Library Journal and the Duke University Scholarly Communications Officer Kevin Smith on Duke’s scholarly communication blog, and by several people in this CHE article. Fister likened the injunction to Soviet attempts to suppress free speech, while Smith called it a “nightmare scenario for higher education.” The injunction would prevent GSU “from creating, reproducing, transmitting, selling, or in any manner distributing, or assisting, participating in, soliciting, encouraging, or facilitating the creation, reproduction, download, display, sale, or distribution in any manner of, copies, whether in hard copy format, digital or electronic computer files, or any other format, of any and all Works without permission,” where permission means paying a fee to the Copyright Clearance Center.

That’s pretty dire stuff. If I’m interpreting it right, and I very well might not be, the injunction would include, for example, a professor taking an article from JSTOR and loading that article onto her Blackboard site, or a library from putting the file on ereserve. That is, a university would have to pay extra for permission to distribute to students journal articles that the university’s library had already subscribed to for a full campus license. Though this might be the extreme example, it would seem to consider “facilitating the distribution” of digital documents that were already paid for and accessible to the entire campus community to be a violation of copyright. This seems utterly foolish to me, so if I’ve misinterpreted the extent of the injunction, please let me know. Most would say that the scenario I described is indeed a violation of copyright law, to which I have a couple of replies. First, if so, then current copyright law is unjust law, and thus deserves to be civilly disobeyed. It is contrary to the mission of the university to create and disseminate knowledge, and to the Constitution’s intent that copyright exists to promote science and the useful arts. Second, any law that prohibits such distribution is not only unjust, but stupid, which is why the intelligent professoriate ignores it.

While there has been some press coverage, I haven’t seen any call for a boycott of Oxford, Cambridge, and Sage titles, except in a few comments on the articles mentioning the injunction. That there seems to have been little or no response from any faculty is disappointing, though not that surprising considering the problems the open access movement has had. The injunction would be very difficult to enforce, as the oversight of faculty would be almost impossible, but the very fact that respectable academic presses are seeking an injunction so restrictive it borders on the absurd should give everyone pause. It’s one thing to protest scanning large chunks of a print book
and putting it on the open web (which allegedly is the sort of thing that prompted this lawsuit in the first place), or putting up works by commercial presses. It’s another thing entirely when publishers want to restrict access to scholarly works or expect copyright payments for articles that already have campus-wide licenses, which would be the case for anything from a campus-wide subscription database that is used in ereserves or placed on learning management systems.

I’d like to see some faculty call for a boycott just to see what the response would be. A boycott by librarians would be impossible. No decent academic library could just refuse to purchase or license material from those three publishers. The quality, for the most part, is just too high, and there would be faculty protests. A faculty boycott would have to be a precursor to any library boycott. If and only if the quality of their publications dropped because top scholars refused to publish, review, or edit for them would libraries be able to boycott them effectively. It would be interesting just to see the response from the publishers. Better still would be for scholars to move to open access publications to finally make the fruits of scholarship universally accessible like they should have been all along.

12 thoughts on “Boycotting the Plaintiffs?

  1. Thank you for this; I thought I was alone in imagining it. I have a question and an observation.
    The question: why hasn’t the library advocacy machine seized on this as a golden opportunity? PUBLISHERS SUE TO OUTLAW E-RESERVES. How is that not an attention-grabbing headline, even considering faculty attention spans for information-related issues? If nothing else, making hay from this might discourage other publishers from trying similar lawsuits!
    The observation: Faculty won’t lift a finger on an information issue until something in their information world breaks — big, bad, and visible. The serials crisis wasn’t it; this could be. (I don’t think it will be, because early signs are the case won’t break that way. Opportunity lost?)

  2. That would be a great headline, but I agree that there will be no great concern among faculty until they personally are affected. If universities were forced to comply with the terms of the injunction, and ereserves basically shut down as being too expensive, and learning management systems were monitored for compliance, then maybe there’d be some concern. Something like that would do more to help the open access movement more than anything has yet.

  3. I will agree that it is rather hard to turn up the heat on a company like HarperCollins with my motley band of petition signers; it’s hard to gauge what kind of impact that number of people signing is having on any dialogue (HarperCollins or otherwise) about the future of eBook lending models. I’d like to imagine there will be more care in the future as to how it will be handled, but beyond that, I remain hopeful.
    As to academic publishers, it sounds like the academic publishing ecosystem is small enough that if one link balks it can throw the whole system into disarray. That puts librarians and faculty in a position to be able to influence future content decisions, something that should not be lightly discarded. I would hope that apathy and/or a lack of desire to change the status quo would not be prohibitive reasons to flex some muscle on publishers who engage in behaviors that do not serve their customers or academic publishing very well.
    Good luck with that!

  4. Andy, I wasn’t maligning the petition; it’s just that I suspect it will be difficult to force changes on such a major publisher. If I’m wrong, so much the better.
    And you’re right about academic publishing in some ways. A handful of publishers control a very large percentage of the serials publishing, which is where the problems are. However, the relative lack of success of the open access movement, SPARC, etc., shows how difficult any significant change is. Mostly, I think it’s that boycotting presses means that professors can’t publish in the top journals, which in turn means they are less likely to get tenure, promotions, and prestige. Libraries and the informal network of information sharing have shielded most professors from the consequences of continuing to publish with for-profit academic presses. Hence, we have the so-called “serials crisis” that has gone on for decades, but which is a crisis perceived mostly by librarians.

  5. Having taught in several Law Schools and Philosophy Departments in both the US and the UK, I must say that I have sometimes been very uneasy about the comparatively lackadaisical attitude that some US universities take to dissemination of scans and downloads of copyrighted material behind the Blackboard wall. Like you I think copyright law in both countries is badly wrong, but unlike you I don’t think that creating convenient access for students is the right pretext for civil disobedience, and I don’t think it’s civil disobedience anyway to disseminate copyrighted matter in secret (to be civil disobedience, it has to be done in public).
    In the UK the universities reached a collective agreement with the CLA (our nearest equivalent to the CCC) covering ‘coursepack’ dissemination, i.e. the compilation of materials for students on paper or online. This agreement was reached following a period of great disruption when the CLA tried to extract item-by-item payments for coursepacks in its early days. The coursepack limits are the same as other user limits under the CLA licence (e.g. one article from a single journal issue, one chapter of a book) so the agreement doesn’t give us total freedom. Broadly speaking, however, it is liberal enough to keep us honest. So where its restrictions are inconvenient I have no compunction in telling students to do their own legwork.
    One reason why creating convenient student access is not the right pretext for civil disobedience is that students who want Blackboard versions of everything are typically being lazy, and we are encouraging their laziness. By and large, it’s only slightly more troublesome to use the lawful alternative (visiting the library or logging on to the library ejournals portal). If they were being denied access altogether – by closure of the library or withdrawal of ejournal subs – that would be a different matter.
    I’d discourage OUP, CUP and Sage from insisting on the heavy-handed terms of the injunction they seek against GSU. I hope the wording you quote is just a warning shot across GSU’s bows. If not, OUP, CUP and Sage will alienate many people with whom they desperately need to do business if they are to survive (including authors such as me). Yet I’d equally encourage GSU, and other US universities in the same position, to face up to the widespread problem of casual violation of copyright laws by faculty and students, and not to play the innocent with the publishers. It’s time for them collectively to regularize their position.

  6. John, Thanks for your thoughtful comment. Unfortunately, I still disagree, especially for digital journal articles that have been provided to journals for free by scholars, reviewed and edited for free by other scholars, and already licensed for campus-wide access to universities. While putting these article on ereserve or on Blackboard may or may not be legal, I see nothing remotely unethical about it. Again, I’m not talking about content produced for commercial reasons by commercial presses, but scholarly content already licensed from academic presses.
    I also don’t think it’s a matter of encouraging laziness. The point of a philosophy class is to learn philosophy, and any time students spend having to gather up their materials for class is time they could have been reading (though I’m not saying they would be), and multiplied by however many classes they were taking. In the U.S., as you know, most universities also have an affiliated bookstore where professors place orders for all the books that will be used in their classes, so that students can go to one place and be assured they can find all the books they need for their classes. Is this encouraging laziness? Would it be better to just hand out the syllabus and say, “go find the books yourself”? Ereserve functions the same way.
    The logic being used against ereserve could be used against libraries in general. Libraries buy books, and allow many people to use them for their research. Why shouldn’t professors and students have to buy their own books for research? OUP, CUP, and Sage exist because they provide a service to the scholarly community, not just so they can make as much money as possible. If they want to hinder rather than facilitate research and scholarly communication, then they’ve failed.

  7. I’m not sure if course packs and e-reserves encourage laziness per say, but I do think that they have been somewhat detrimental to students’ research skills. We are seeing more students every year (undergraduates, but also increasingly graduate students) who cannot successfully interpret the most basic article citation. While I see your point that reserves and course packets free students from tasks that aren’t necessarily essential for the course (as in your philosophy example), I do believe that many of our students cannot locate materials from a citation because they rarely asked to do so. The e-reserve copy or packets are just given to them in course after course. So when a student is finally confronted with a research project, citations and bibliographies are foreign to them (I won’t even get into the problems this can create for academic honesty). So while I do not think we should completely abolish reserves and course packets, I do wonder if we are doing students a disservice by not making them go through the various steps to actually find a source.

    • Having worked in both print and electronic ereserves, I can vouch for the advantage of having as much material as possible available electronically. When journals were put on print reserve, they often went missing–sometimes for a day, sometimes forever. Fair use is not a defense but a right, and not taking advantage of it defeats the purpose for which it was fought.

  8. That’s a good point, and one that’s hard to address. Often that skill is supposedly taught in some sort of freshman writing course, but by the time they need it the students have forgotten. On the other hand, I know senior faculty with long publication records who aren’t much better. One prof’s research assistant flaked out for some reason, and I found out the professor didn’t know how to search our OPAC or the major index for the field. I suspect students are as clueless as they’ve always been, but the scholarly information universe is so much more complicated. Could we really teach students who might do only a handful of smallish research papers to be great searchers? I just don’t know.

  9. Students must be encourage to do their own research regardless. Copying materials will not promote any self enhancements and research materials will provoke our minds to think far and wide. Its a journey that the best students always embark.

  10. Pingback: A Couple of Points about the Elsevier Response | Academic Librarian

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