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 (: General: +1 (617) 397-2800; Direct: +1 (781) 663-2241; Mobile: +1 (781) 354-4429 *: [log in to unmask] Executive Assistant: Christopher Whibley (: +1 (215) 239-3351; Mobile: +1 (267) 240-7294 *: [log in to unmask] Internal Elsevier Legal department intranet site: http://nonsolus/legaldepartment/ 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