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


On Sun, Jan 3, 2016 at 7:18 PM, LIBLICENSE <[log in to unmask]> wrote:
>
> From: "Guédon Jean-Claude" <[log in to unmask]>
> Date: Thu, 24 Dec 2015 11:18:21 +0000
>
> When I read a statement expressing an outlandish hypothesis about a
> closed meetings of librarians and scholars, I clearly see the
> sub-text. By the same principle, any seminar would run afoul of "the
> law". Which law, incidentally? US? German? Martian?
>
> Whether this is mind reading or not is not my concern. From my
> perspective, it is simply discourse analysis.
>
> As for an apology, I do not begin to fathom what the apology might be
about.
>
> This said, happy holidays ... and peace to all beings (men included)
> of good will.
>
> Jean-Claude Guédon
> ________________________________________
>
> From: Alex Holzman <[log in to unmask]>
> Date: Tue, 22 Dec 2015 21:04:11 -0500
>
> Jean-Claude, unless you can read minds, you have no idea what Joe
> Esposito was thinking when he asked about possible antitrust
> implications of the meeting.  Regardless of your personal views, the
> question of whether the meeting might run afoul of any laws is in
> itself completely unbiased.  It's a question about law.  And it is
> certainly neither a threat from Joe nor his endorsement of
> oligarchies. From where I sit, you owe an apology.
>
> Thanks,
>
> Alex Holzman
>
>
> On Tue, Dec 22, 2015 at 8:04 PM, LIBLICENSE <[log in to unmask]> wrote:
> >
> > From: "Guédon Jean-Claude" <[log in to unmask]>
> > Date: Tue, 22 Dec 2015 17:41:30 +0000
> >
> > Joseph Esposito's remark is really weird if we think about the fact
> > that we live in the context of a tight oligopoly of a few commercial
> > publishers. But that seems to be all right, at least to him!
> >
> > On the other hand, when some librarians and researchers join
> > together for a quiet strategy meeting, the threat of antitrust is
> > immediately raised. And I mean "threat".  Amazing!
> >
> > Does anyone on this list remember professor Barschall who was sued
> > (under anti-trust provisions) in four countries for displaying
> > accurate comparative figures of publishing costs for a set of
> > physics journals. Gordon and Breach was behind this, in personal
> > terms, cruel move. Gordon and Breach lost everywhere. With deep
> > pockets, they annoyed Barschall literally to death for between ten and
twelve years.
> > It all stopped only when Wiley took over Gordon & Breach.
> >
> > Orwell's notion that some are more equal than others is turning out
> > to be ever more accurate.
> >
> > As for the possible relationship between ethics and profit seeking,
> > I will the readers judge.
> >
> > Jean-Claude Guédon
> >
> > ________________________________________
> >
> > From: Joseph Esposito <[log in to unmask]>
> > Date: Mon, 21 Dec 2015 09:33:16 -0500
> >
> > I would be interested to know from lawyers familiar with antitrust
> > issues whether this development may face legal challenges.
> >
> > Joe Esposito