From: "Seeley, Mark (ELS-CMA)" <[log in to unmask]>
Date: Wed, 6 Jan 2016 22:46:29 +0000

The core US statute talks about conspiracies to restrain trade (or
competition), which can probably cover a multitude of activities (but
not seminars I think).  EU competition law principles are not wildly
different from the US, although the US tends to focus on actual impact
on trade whereas the EU principles can be used to find a violation
even when there is no clear actual impact (so collusive behavior can
be problematic even if in the end it is ineffective or not actually
carried out in practice).  That probably exhausts my antitrust
expertise.

But this is all pretty theoretical in any event—the reality is that in
terms of government enforcement of such laws, government tends to look
at manufacturers-producers-distributors, so they’d be more interested
as Kevin Smith intimates in publishers as opposed to libraries or OA
advocates.  The most recent major case involving publishing is of
course the Apple case involving several major US trade publishers,
which somehow ignored the remarkable market impact of another company
that starts with ‘A’ namely Amazon.

I suppose I’m a representative of “legacy” publishing—being in a
publishing house that has been around for more than a century—but I
assumed the key question in Berlin had to do with how to transition
from subscription-based models to a Gold OA model—something that many
publishing houses, legacy or newbies, are actively working on (as we
are).  There are obviously a lot of questions about how quickly such a
transition can happen, and what the practical implications will be for
research-intensive institutions (as opposed to other institutions
which consume more than they produce), which has been discussed in
many different fora, and I assume that these points were discussed in
Berlin as I am sure we will hear more about over time.

I understand that there are controversies and different points of view
about Green vs Gold, and the value of “legacy” publishers—I tend to
think the answer is actually in the market—good journals (including
niche journals that serve their niches well) draw authors and
readers—and they probably do so regardless of their exact business
model or where they are in transitioning to different business models.

Best,
Mark

Mark Seeley, Senior Vice President & General Counsel
Elsevier
50 Hampshire Street, 5th Floor, Cambridge, MA 02139, USA
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(781) 354-4429
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External information at http://www.elsevier.com/wps/find/homepage.cws_home



From: LibLicense-L Discussion Forum
[mailto:[log in to unmask]] On Behalf Of LIBLICENSE
Sent: Tuesday, January 05, 2016 7:26 PM
To: [log in to unmask]
Subject: Re: Berlin 12 Conference Focuses on Proposal to Flip
Subscription Journals to Open Access
From: Kevin Smith <[log in to unmask]>

Date: Tue, 5 Jan 2016 18:39:20 +0000

I am a lawyer, but not experienced in antitrust, so I can only give a
lay opinion on this particular issue.  But my opinion is that there
will be legal challenges from the legacy publishing industry to any
real attempt to transform scholarly communications.  I would imagine
anti-trust will be one of the avenues considered, although I think
that the particular nature of the market analysis done in an
anti-trust action would have risks for publishers as well, so they
might decide to focus on other legal strategies.  But I think the
academic community should make decisions as responsibly as it can
while nevertheless anticipating that there will be lawsuits. It is
hard to imagine commercial publishing interests giving up the cash cow
that is the current model of academic publishing without a legal
fight.

But I would also note that my own objection to the plan that has come
out of Berlin 12 is that it is still focused on paying legacy
publishers to publish journals, just doing so in a different way.  I
believe we need to look beyond APCs, and even beyond the idea of a
journal as currently understood, to see what the future of scholarly
communication can be.  So maybe this proposal is not the one that will
draw the legal ire of commercial publishers; they have, I hope, much
greater changes to fear.

Kevin L. Smith
Director, Copyright & Scholarly Communication
Duke University Libraries


-----Original Message-----
From: Joseph Esposito <[log in to unmask]>
Date: Mon, 4 Jan 2016 18:22:12 -0500

Jean-Claude Guedon is of course entitled to his subtexts, provided
that he does not attribute them to me.

David Prosser's comment is thoughtful and helpful, but I still hanker
for the perspective of a lawyer with experience in antitrust. I assume
that David is not an antitrust lawyer, but I could be wrong about
that.

Speaking as someone who has spent much of his adult life dealing with
civil litigation and regulatory concerns, I can say that no one
without the protective shield of an established organization will want
to get too close to this situation without assurances from antitrust
lawyers. This may be a bigger issue for us Americans, who live with a
nutty legal system.

Joe Esposito