Stevan:
Thanks for the details [below]. All good strategies, with which I'm
reasonably familiar, given that one of my areas of professional interest
is in the propagation of p2p networks and the copyright effects on same.
However, the specific issue in this case is with SSRN
http://www.ssrn.com/
which is an excellent addition to the typical publishing environments
(in terms of getting the ideas out to a broad audience), but which
is subject to attack as a centralized repository of material which
is copyright by others. I can put my material up on my website, or
propagate it through eDonkey/BitTorrent/etc, and there is essentially
nothing that California Law Review can do about it. They can sue me,
but I'm a really really really good copyright lawyer, and I would be
*delighted* to run that case in the courts and in the courts of public
opinion. However if California Law Review insists that SSRN take the work
down, then SSRN has a major problem and may eventually give in. This is
something that I don't want to see happen.
Hence the strategy in this case is not about my articles (which I can
propagate in all manner of devious and amusing ways) but in protecting
the benefits of alternative dissemination mechanisms like SSRN. I
don't care about winning the battle (my articles). I do care about
winning the war (SSRN and like mechanisms are protected).
best wishes
Dan
Dan Hunter
Robert F. Irwin IV Term Assistant Professor of Legal Studies
The Wharton School
University of Pennsylvania
On Thursday, November 20, 2003, at 09:02 PM, Stevan Harnad wrote:
On Thu, 20 Nov 2003, Dan Hunter wrote:
Thanks for the analysis. And can I just say that I was only
deferential and cautious since I was trying to persuade them to change
their mind at the meeting they were having yesterday, and I find that
you catch more flies with honey (and snide remarks on the side). They
have, in fact, deferred their decision until Spring, so it seems to be
working. A bit.
I'll be using your information in the battle against increasingly
"white" journals in law. Oddly, many of them are going from green to
white, in a peculiarly perverse example of the power of commercial
publishers.
best wishes
Dan.
Dan,
I'd also like to make a few strategic suggestions:
(1) Removing a paper posted on the web -- even though it looks feasible
on paper, and to lawyers accustomed only to the paper medium -- is not
the same as removing a paper from bookshelves and withdrawing it from the
market. Once a digital document has been broadcast to the digital
airwaves it is never possible to remove it completely: It will have been
harvested, cached, copied, and propagated in many directions from which it
cannot
be withdrawn. (Try removing a paper from the "Usenet" complex! No one
would know where to begin, or whom to turn to!)
(2) So if in the initial posting of the preprint, prior to submission,
the author posts it sufficiently diversely -- or even if just to one site,
but that site is picked up by lots of harvesters -- there must be a word
for the kind of law it would be that would require the author to do the
undoable at some later date! Rather like a law that says visitors may
come to Baltimore, and they may inhale the air, but not exhale it. Or
they may only come if they do not have a blue-eyed maternal grand-uncle.
(3) There is also a slippery slope between the preprint and the refereed
postprint: How many drafts back, and how similar a draft, counts as the
*same* paper?
In other words, it is not at all clear whether any journal is in a
position to require an author to remove drafts that are no longer within
his power to remove (but were posted at a time when it was not within
any journal's power to prevent their being posted); nor is it clear
how similar a text they would even be entitled to require removing,
even if it were removable.
For these reasons, with Charles Oppenheim (the EU copyright
and intellectual property adviser at Loughborough University in
the UK and director of the Romeo Rights project), we devised the
preprint-plus-corrigenda strategy for authors to legally get around
even the most restrictive copyright transfer agreement:
The agreement is only binding from the moment it is signed, and pertains
to the "value-added" draft that the journal has refereed, the author
has revised, and the editor has accepted (the postprint). The author
self-archived the preprint before submission. After refereeing,
revision and acceptance, author agrees to transfer copyright but tries
to retain the right to self-archive the postprint. If the journal
(green) agrees, all is well and author self-archives the postprint. If the
journal (white) refuses, author signs it all over anyway, and instead of
self-archiving the postprint, merely self-archives the corrigenda
arising from the refereeing and revision, and links them to the
already-archived -- and ubiquitous -- preprint.
http://www.ecs.soton.ac.uk/~harnad/Hypermail/Amsci/0541.html
http://www.eprints.org/self-faq/#copyright1
I believe that requiring the removal of the non-value-added preprint is in any
case not a copyright matter, as it was legally (and irreversibly) broadcast
at a time when the sole copyright for *that* text was the author's. Hence it is
not a copyright but a contractual matter, i.e., a matter of journal policy --
one
usually going by the name of the "Ingelfinger Rule" (after the first editor of
the New England Journal of Medicine, who formulated it, and then many
journals followed suit). Today, the Ingelfinger Rule is being dropped by most
publishers as being unjustifiable and unenforcable. It's time Law Reviews heard
the news!
Harnad, S. (2000) E-Knowledge: Freeing the Refereed Journal Corpus
Online. Computer Law & Security Report 16(2) 78-87.
http://cogprints.soton.ac.uk/documents/disk0/00/00/17/01/index.html
Harnad, S. (2000) Ingelfinger Over-Ruled: The Role of the Web in the
Future of Refereed Medical Journal Publishing. Lancet Perspectives
256 (December Supplement): s16.
http://cogprints.soton.ac.uk/documents/disk0/00/00/17/03/index.html
Cheers,
Stevan
--------------------
Stevan Harnad
