From: Kevin Smith <[log in to unmask]>
Date: Fri, 29 May 2015 12:17:30 +0000

What is ridiculously overreaching is the use of the word "stealing"
here.  It is an unfortunate fact that the legacy content industries
often use the language of theft and stealing in a legally inaccurate
way to create a moral panic.  But it is less appropriate around
academic publishing than in almost any other context.

We need to recall that academic publishers get the content they sell
for free.  There is no other industry I know of that is allowed to
sell, at monopoly prices, content for which they pay their suppliers
nothing at all.  Scholarly publishing has had an incredibly privileged
market position for years because what they supplied -- printing,
binding and distribution -- was so costly and difficult.  But that
market position has changed in the digital environment.  All that the
quoted statement suggests is that we should ask if the value
proposition still holds.  Are we getting a benefit that justifies the
cost?  Clearly many people believe that we are not getting adequate
benefit from the large commercial publishers.  The value proposition
is different with non-profit university presses, but we are still
entitled to inquire into it.

To steal from a university press, in the proper legal sense, we would
have to break into its offices and take away their computers, etc.,
with the intent to permanently deprive the press of their use.  That
would be the crime of theft.  To infringe a publishers copyright, we
would have to use content over which they held a valid copyright in an
unauthorized way.  That would be the tort of infringement -- a civil
wrong -- but not theft or stealing.  But to decide that a particular
press is not giving value that justifies the cost -- to decide not to
give that press content over which I am the legitimate copyright
holder -- that is just a business decision.  Presses are not entitled
to the works of any author; they must compete, at least a little bit,
to show that they deliver value.  To shout theft just because someone
says that they do not believe the value is there is truly ridiculous
overreaching.

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

-----Original Message-----
From: Sandy Thatcher <[log in to unmask]>
Date: Thu, 28 May 2015 09:13:34 -0500

To Stevan's objection I would add that such a statement as this is
ridiculously overreaching:

At 6:49 PM -0400 5/27/15, LIBLICENSE wrote:
>
> We do not believe that scientific, economic and social progress should be hindered in order to protect commercial interests.

It just so happens that university presses have "commercial interests"
also. If taken literally, this statement advocates stealing everything
that university presses publish.

I would also second Stevan's point about CC-BY-NC-ND. I have argued
elsewhere that humanists especially are not well served by just CC-BY
alone because they have an interest in making sure that their writing
is translated correctly and CC-BY provides no protection against
sloppy and poor translation.  Moreover, insisting on CC-BY for OA
monographs would undercut one business model that has been used
successfully by university presses (like the one I directed at Penn
State) to  make OA monograph publishing possible.

Be careful what you wish for!

Sandy Thatcher


> From: Stevan Harnad <[log in to unmask]>
> Date: Wed, 27 May 2015 13:44:11 -0400
>
> I beg the OA community to remain reasonable and realistic.
>
> Please don't demand that Elsevier agree to immediate CC-BY. If
> Elsevier did that, I could immediately start up a rival free-riding
> publishing operation and sell all Elsevier articles immediately at cut
> rate, for any purpose at all that I could get people to pay for.
> Elsevier could no longer make a penny from selling the content it
> invested in.
>
> CC-BY-NC-ND is enough for now. It allows immediate harvesting for data-mining.
>
> The OA movement must stop shooting itself in the foot by
> over-reaching, insisting on having it all, immediately, thus instead
> ending up with next to nothing, as now.
>
> As I pointed out in a previous posting, the fact that Elsevier
> requires all authors to adopt CC-BY-NC-ND license is a positive step.
> Please don't force them to back-pedal!
>
> Please read the terms, and reflect.
>
> SH