From: Rick Anderson <[log in to unmask]>
Date: Tue, 6 Nov 2018 11:07:26 +0000
But if I understand the case law that has followed from the Sherman Act, a
monopoly doesn’t lose its innocence by virtue of mere market dominance; it
loses its innocence when it arises from businesses engaging in a
“combination... or conspiracy, in restraint of trade or commerce.” (The
quote is from Section 3 of the Sherman Act, the full text of which can be
found at https://tinyurl.com/ycvnagfg, for those interested.) As far as I
can see—and please, if I’ve missed something in the complaint please
correct me—no one is accusing Elsevier of conspiring with any other
business in order to undermine competition in the market.
Tennant’s and Brembs’ real complaint seems to be against scholarly
publishing itself, which (they correctly point out) is not a market of
substitutes. But that’s not the fault of Elsevier or of anyone else; it
arises from the simple fact that what scholarship produces are more-or-less
unique documents: generally speaking, no two biology or sociology or
physics articles are similar enough in content that one of them could
functionally substitute for the other—if they were, we would strongly
suspect one of the authors of plagiarism. This means that monopoly control
of the market for any individual product of scholarship is inevitable and
will always rest with its copyright holder (in the form of an “innocent
monopoly,” as you point out, Kevin). Unless, of course, the copyright is
broken—either literally (by the work being placed in the public domain) or
functionally (by the work being licensed to the public under CC BY or its
equivalent).
In any case, I can’t see how the innocent monopoly that I hold over the
market for my article suddenly becomes nefarious when I transfer my
copyright to a publisher—let alone how it becomes uniquely nefarious when
transferred to Elsevier in particular. In neither case is there any
conspiracy between putative competitors for the purpose of exerting illegal
control over a market.
---
Rick Anderson
Assoc. Dean for Collections & Scholarly Communication
Marriott Library, University of Utah
Desk: (801) 587-9989
Cell: (801) 721-1687
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From: "Smith, Kevin L" <[log in to unmask]>
Date: Sun, 4 Nov 2018 19:19:49 +0000
I am not an anti-trust expert by any means, but I think the answer to this,
and to the same question posed by Rick, is straightforward. The limited
monopoly held by individual authors is not a problem — it is an “innocent”
monopoly, just like my exclusive rights over by house — because it does not
convey market dominance. The monopolist problem the complaint outlines is
quite different, where a large conglomeration of monopolies over content
are exercised in order to dominate a market and to exclude competition. The
line that is allegedly crossed has to be define within the terms of a
particular market, of course, which is precisely what competition
authorities are charged to do.
Kevin
On Nov 4, 2018, at 12:47 PM, LIBLICENSE <[log in to unmask]> wrote:
From: Kent Anderson <[log in to unmask]>
Date: Fri, 2 Nov 2018 06:42:35 -0700
Can someone explain to me what a “monopoly over articles” means compared to
the cultural expectations prohibiting duplicate publication and plagiarism?
Isn’t every article locked down by these expectations and norms, moreso
than by copyright?
Also, not all publishers require copyright transfer, so if this were an
issue for an author group, authors could shop for publishers who don’t. The
market would respond, and to some extent has responded. Isn’t copyright
transfer a market condition susceptible to market pressures?
But the first question is the one I’m most curious about. What would
“non-monopolized” articles look like? Any different?
--
*Kent Anderson*
CEO, *RedLink* and *RedLink Network*
57 East Main Street, Suite 211
Westborough, MA 01581
https://www.redlink.com
*Phone: *508-366-5653
*Cell:* 774-288-9464
*Email:* [log in to unmask]
*ORCID:* 0000-0002-5458-6735
*[snip]*
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