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.

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