On Fri, 21 Nov 2003, Dan Hunter
(Robert F. Irwin IV Term Assistant Professor of Legal Studies,
The Wharton School, University of Pennsylvania) wrote:
> Thanks for the details. All good strategies, with which I'm reasonably
> familiar given that one of my areas of professional interest is in the
> propagation of [peer-ro-peer] networks and the copyright effects on same...
>
> ...[California Law Review] 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 the specific issue in this case is with SSRN...
> http://www.ssrn.com/
> ...which is subject to attack as a centralized repository of material
> which is copyright by others.
Dear Dan,
This is *precisely* one of the two fundamental reasons why I have
redirected my efforts and support from central archiving (such as
the Physics ArXiv, and CogPrints, which I founded in 1997) to
institutional self-archiving:
http://www.ecs.soton.ac.uk/~harnad/Temp/archpolnew.html
REASON 1: Researchers and their own institutions share a common
interest -- because they are co-beneficiaries -- in maximizing the
access to, and thereby the impact of, their own research output.
They co-benefit from their research impact, in terms of enhanced research
funding, prestige, and prizes. It is for this reason that institutions
have "publish or perish" policies (these days weighted by the citation
impact of each publication) and it is for this reason that institutions
reward their researchers accordingly (salaries, promotion, tenure, etc.)
Consequently, it is researchers' institutions that are in a position to
extend the carrot/stick of "publish or perish" to "maximize the impact
of your journal publications" by providing open access to them. Central
archives and disciplines do not share these interests (they are not even
really entities) and they cannot mandate self-archiving.
Moreover, institutions are in a position to take on the distributed
load of self-archiving their own research input, at far less (because
distributed) expense. A central archive has a bigger burden. But, more
important, a central archive cannot monitor and enforce self-archiving,
as the researcher's own institution and department can, under a systematic
open-access-provision policy.
Most important and relevant in all this, is the fact that because of
the common "glue" of OAI-interoperability, which is a shared metadata-tagging
standard that makes it *irrelevant* where individual papers are physically
archived, because their metadata can all be centrally harvested
to make them seamlessly searchable and accessible *as if* they were
all sitting in one central archive:
http://www.openarchives.org/ and
http://oaister.umdl.umich.edu/o/oaister/
OAI has effectively transformed all distributed OAI archives into one
global virtual archive.
REASON 2: Like you, I don't set much store by publishers' likelihood
of success in going after individual self-archiving authors or
their own institutions and hence partners in the research. But
they *do* have some possibility of success in going after a
3rd-party central archive like SSRN, invoking copyright law to
treat them as copyright-infringing rival publishers. At the very
least, publishers' lawyers can intimidate central archives, as the
service-providers, into removing papers they challenge, without
even having to consider the doomed strategy of trying to go after
the authors or their institutions directly.
So that too is a needless handicap of central archiving -- especially
in our OAI-interoperable age.
But there is a solution, since "archives" are all just virtual entities
anyway! And the solution could have a strong positive effect on momentum
in self-archiving (for currently neither the central nor the institutional
archives are filling nearly as fast as they could or should):
For the papers with copyright problems, SSRN need merely reconfigure
itself as a metadata havester (like OAIster) instead of being only the site
archiving the full-texts themselves! The authors would be asked to deposit
those problem papers in their own institutional archives, and merely tag
them for SSRN harvesting (and perhaps even that tagging is unnecessary,
harvesting being the powerful and sophisticated technique it has become).
Or authors could deposit the metadata and links directly into SSRN themselves.
This would effectively defeat the potential invocation of 3rd-party
copyright-infringement, because those papers would be sitting in their
home archives! (Of course the distinction is absurd in the postgutenberg
medium, but we have to keep slow-witted pedants happy!)
In microcosm, a similar point has already been scored: In their wording,
green publishers first tried to hedge by invoking an absurd, arbitrary,
and technically incoherent distinction between a researcher's "home
website" and an "institutional OAI archive".
"Academic Press Journal Article Copyright Policy"
http://www.ecs.soton.ac.uk/~harnad/Hypermail/Amsci/0269.html
http://www.ecs.soton.ac.uk/~harnad/Hypermail/Amsci/0581.html
"Copyright: Form, Content, and Prepublication Incarnations"
http://www.ecs.soton.ac.uk/~harnad/Hypermail/Amsci/1629.html
"Open Letter to Philip Campbell, Editor, Nature"
http://www.ecs.soton.ac.uk/~harnad/Hypermail/Amsci/2601.html
But of course the author's "home website" is merely a sector on a disk
provided by his institution, and so is his "institutional OAI archive,"
and those sectors can be named and assigned and metadata tagged in any
way the research's institution wishes (including cosmetically, to satisfy
empty and arbitrary contractual stimulations)! So this piece of incoherent
nonsense has since been quietly dropped from publishers' fine print on
this score...
http://www.lboro.ac.uk/departments/ls/disresearch/romeo/Romeo%20Publisher%20Policies.htm
> 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.
I understand completely, and that is why I urge the
distributing/harvesting strategy for problem cases -- the "virtual center"
in place of the "geographic center." It solves this problem for SSRN,
and it gives further impetus to self-archiving itself!
No need to bother doing it retrospectively, but just forward-going. The
formal policy could be split: Archive directly in SSRN if there is no
problem, but archive at home and just provide the metadata and link
otherwise!
> 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).
The decisive weapon in this war is OAI-interoperability, which has
effectively eliminated the distinction between local and central
archiving!
Best wishes, Stevan
Stevan Harnad
NOTE: A complete archive of the ongoing discussion of providing open
access to the peer-reviewed research literature online is available at
the American Scientist September Forum (98 & 99 & 00 & 01 & 02 & 03):
http://amsci-forum.amsci.org/archives/september98-forum.html
http://www.cogsci.soton.ac.uk/~harnad/Hypermail/Amsci/index.html
Post discussion to: september98-forum@amsci-forum.amsci.org
Dual Open-Access Strategy:
BOAI-2 ("gold"): Publish your article in a suitable open-access
journal whenever one exists.
BOAI-1 ("green"): Otherwise, publish your article in a suitable
toll-access journal and also self-archive it.
http://www.soros.org/openaccess/read.shtml
http://www.ecs.soton.ac.uk/~harnad/Temp/berlin.htm
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