For what it’s worth, we recently did some investigation into this to try and find a loop-hole. We looked at it from an ILL point of view, e-journal subscription licensing and legal deposit provision and came to the conclusion that there is no loop-hole to exploit in traditional library service provision; if we were to implement the button it would have to be author mediated, not librarian mediated. Guess it would have to be stated in the CTA.
Why even try to search for a "loophole" that would allow the fulfillment of Button-press eprint-requests from users to be taken out of the hands of the author and put into the hands of a 3rd party?
Not only would that have made the Button illegal, thereby defeating its purpose in mooting publisher embargoes.
It would also have deprived the author of a useful metric of research impact: number of eprint requests (not quite the same thing as number of downloads).
(The eprint-request count is perhaps even a bit of a 2-edged sword, in that some authors may actually come to prefer the Button to OA, because of the feedback it provides as to who is requesting their work! We can be fairly confident, though, that the growth of OA mandates worldwide -- and with it the growth of immediate-OA as well as of Almost-OA from Button-generated eprint-requests -- will in most cases increase the pressure for immediate-OA, hasten the demise of OA embargoes, and with it the need for the Button.)
So, please, leave well enough alone. Mandate deposit immediately upon acceptance for publication, but otherwise, having mandated the N-1 of the author keystrokes required for deposit, leave the Nth keystroke to the author.
(I don't even think it's a good idea for the library to relieve the author of the responsibility to make the first N-1 keystrokes, though this would certainly not be illegal: We are talking about a few extra minutes worth of keystrokes per paper. Authors can delegate those to secretaries, research assistants or students, but they are left entirely to the library immediate-deposit will not become the natural milestone in the author's research cycle that it needs to become, in order to ensure that the deposit is done at all: the dated acceptance letter from the journal is sent to the author. That sets the date of immediate-deposit, and also determines which version is the final, accepted one. The publication date is uncertain and could be as much as a year or more after acceptance. In other words, the indeterminacy of the publication date could be even longer than OA embargoes.)
(One of the flaws in the Harvard-style mandate -- OA rights reservation by default, with an author opt-out option -- is that instead of mandating that authors deposit in the repository, it mandates that they provide refereed draft to the Provost. But the Provosts have been sitting on those refereed drafts, again even longer than the embargoes they were meant to circumvent, instead of making them immediately OA, or at least Almost-OA.)
Mandate immediate-deposit and leave the rest in the hands of the author.
Put all administrative efforts instead into monitoring mandate compliance -- by systematically collecting the dated acceptance letters instead of the papers themselves, and ensuring that the repository deposit-date is within a few days or weeks of the acceptance date.
Stevan Harnad
Joseph Greene
Research Repository and Systems Librarian
James Joyce Library
University College Dublin
(353 0)1 716 7398
(353 0)1 716 7686
joseph.greene@ucd.ie