Tag Archives: Elsevier

Louisiana State University Files Suit Against Elsevier; Elsevier Has Not Accepted Service

On February 27, 2017, Louisiana State University (LSU) filed a lawsuit against international science publisher Elsevier after the publisher breached its contract and refused to allow LSU’s veterinarian school faculty and students to access Elsevier content licensed by LSU’s Libraries. ARL’s press release is available here.

Background

LSU currently holds a license with Elsevier to cover its entire Baton Rouge campus. LSU’s veterinary school, which is located on main campus of LSU in Baton Rouge, Louisiana, previously held its own license with Elsevier. Upon the expiration of the veterinary school’s license with Elsevier, the veterinary school users continued resources licensed by LSU Libraries. The LSU Libraries’ license (attached as an exhibit to the end of the complaint) unequivocally covers its entire Baton Rouge campus, including the veterinary school.

Despite the fact that LSU Libraries license covers IP ranges specifically covering the veterinary school, Elsevier blocked access to users at the veterinary school. Upon discovery, LSU contacted Elsevier on October 11, 2016 to request reactivation of the IP ranges for the veterinary school. Elsevier unblocked those IP addresses, but then in January again blocked access for users at the veterinary school. Elsevier refused to respond to LSU’s written requests to reactivate these IP addresses.

Additionally, when LSU Libraries made a request to license 19 additional veterinary titles from Elsevier, the publisher initially responded that it would cost an additional $35,000 to add these titles. LSU Libraries accepted this price and requested an invoice only to then find Elsevier refusing to sell these titles to them.

Although LSU requested Elsevier to restore access to the veterinary school, Elsevier failed to respond until nearly six weeks later and only after LSU filed a lawsuit for breach of contract. Ultimately, Elsevier has refused to restore access for those in the veterinary school. Additionally, Elsevier has not accepted service of the lawsuit, which was filed in the Nineteenth Judicial District Court, Parish of East Baton Rouge, Louisiana, and for which service of process was attempted at Elsevier’s New York headquarters. As a result, LSU is now attempting to effect service of process at Elsevier’s headquarters in Amsterdam through the Hague Service Convention.

On April 22, 2017 Elsevier proposed that LSU “add a minimum of $170,000 of additional 2017 subscriptions to their existing contract” and “increase the price of Freedom Collection by $30,000 for the 2017 subscription period.” This amount represents an incredible increase in cost to LSU, and would not even cover the full 2017 calendar year.

Here’s my breakdown and analysis of what’s happened so far.

Elsevier’s Actions Prevent LSU from Exercising Sound Financial Stewardship of Scarce Public Resources

In essence, in an effort to exercise sound financial stewardship of public resources, LSU has been punished through Elsevier’s refusal to honor its contract. Elsevier’s actions in this case, from its blocking the IP ranges for the veterinary school to its failure to accept service at its New York office of the lawsuit to its outrageous demands that LSU Libraries pay an additional $200,000, demonstrate the publisher’s bad faith.

As a result of this dispute, Elsevier apparently wants LSU to add $170,000 of journals that the university does not need or want, a complete waste of scarce state dollars. Elsevier is holding hostage access to the veterinary school community in an effort to extort more money from a state institution. Keep in mind that LSU is already paying $1.5 million (and rising) to Elsevier.

All LSU is trying to do in the present case is ensure that it is not unnecessarily duplicating subscriptions for its campus and using state resources in a responsible manner. It is disappointing that Elsevier would respond to its own breach of contract by demanding more money from a public institution.

As summarized in LSU’s complaint:

Elsevier is well aware that LSU, like other universities, is heavily reliant upon the various types of research and educational content for which Elsevier enjoys monopolistic market powers and Elsevier is unfairly abusing its leverage to coerce LSU into paying additional and unnecessary subscription fees for research and educational content that LSU has already contracted for.

Elsevier Refuses to Honor The Plain Language of Its Existing Contract with LSU

The most obvious harm in the case comes from Elsevier’s refusal to honor its contract with LSU by blocking access to the veterinary school. Although the faculty, staff and students of the veterinary school had previously been able to access content licensed by LSU Libraries and such access was expressly covered under the IP ranges contracted for, Elsevier has denied access to these users.

Once again, Elsevier is using its monopoly power—LSU can only get the titles owned by Elsevier from Elsevier itself—to try to extract more money out of LSU. Elsevier is hoping that by refusing to honor its contract, it will be able to pressure LSU to renegotiate its current contract and pay even more money—more than the $1.5 million dollars the university pays each year to the publisher.

Elsevier Reneges on Its Contract with LSU for Additional Titles

While the major portion of the complaint involves Elsevier’s blocking of the IP ranges for the veterinary school and thus breaching its existing contract with LSU, the publisher also refused to honor the negotiations with respect to nineteen additional titles. When LSU inquired about these additional titles, Elsevier provided a quote. LSU confirmed acceptance of these terms and requested an invoice. Elsevier then replied “Thank you for these new title additions.” However, Elsevier subsequently refused to honor this agreement.

Every first-year law student takes contract law and the very first lesson is that an offer plus acceptance of that offer (plus consideration, such as money, to differentiate it from a gift) results in a valid contract. Here, Elsevier made an offer to add the requested titles in exchange for payment by LSU of $35,000. LSU expressly accepted. Elsevier even acknowledged receipt of acceptance. However, like its current contract with LSU, Elsevier has breached its own contract by now reneging and refusing to invoice the institution and provide the promised content.

Offer + acceptance (and consideration) = valid contract. Except, apparently, when you’re Elsevier. 

Elsevier’s Fails to Accept Service of the Lawsuit

Perhaps the craziest part of the entire story—though there are many deeply troubling actions by Elsevier—is the fact that Elsevier has not accepted service of the lawsuit. More than two months after the lawsuit was filed (during which time, LSU and its faculty, staff and students continue to be harmed by Elsevier’s refusal to honor its contract), Elsevier appears to be playing games with this public university. While it would be understandable for Elsevier to try to aggressively defend itself against the claims (even in a case where the facts clearly favor LSU), here Elsevier is essentially pretending that the lawsuit doesn’t even exist. This is not a standard delay tactic in litigation.

Elsevier does substantial business in the United States. The publisher charges millions of dollars each year to hundreds of universities and institutions in the United States. It has fourteen corporate headquarters and branch offices located in the United States. It is a member of the Association of American Publishers. According to OpenSecrets, last year Elsevier (under RELX) spent $1.72 million dollars lobbying in the United States (and lest you think RELX’s lobbying dollars are going to be substantially different from Elsevier, the 2014 filings show that while the company was still going by the name Reed Elsevier it paid $1.6 million dollars to its lobbyists). It has lobbied substantially on issues related to copyright and against open access. The publisher’s global litigation counsel was a witness in the House of Representatives Judiciary Committee copyright review hearing on Section 512. Elsevier has taken advantage of its rights to sue as a plaintiff in United States courts on multiple occasions in cases involving everything from breach of contract to copyright infringement to exemptions from sunshine laws. Clearly, Elsevier enjoys the benefits of its business in the United States and invests substantial resources into shaping the laws in this country.

While Elsevier enjoys all the advantages of doing business in the United States when it benefits the corporation, it conveniently decides that it’s a Dutch company when it is being sued. That LSU is being forced to chase Elsevier down in Amsterdam through the Hague Service Convention is an incredible outcome of the dispute.

Concluding Thoughts

Elsevier’s actions in the present case, including its refusal to acknowledge or respond to LSU’s requests for the publisher to abide by the terms of its own contract until after a lawsuit was filed, demonstrate its corporate culture. LSU’s complaint perfectly sums up Elsevier’s abuse of its monopoly power:

Elsevier’s total disregard for LSU’s serious concerns and amicable efforts to resolve this dispute reflects the monopolistic market power and arrogance that comes with Elsevier’s posturing as a “world-leading provider of information solutions that enhance the performance of science, health and technology professionals.”

Through its continuing breach of its contractual obligations to LSU under the Agreement, Elsevier has caused, and continues to cause, irreparable injury and significant damages to LSU and has significantly damaged, impaired and restrained the university’s ability to conduct research and educate its students, thereby improperly restricting and interfering with LSU’s primary purpose and constitutional mandate under the Louisiana Constitution.

In a time where states are facing enormous budget deficits public universities must ensure financial responsibility of scarce public resources. LSU is attempting to exercise sound judgment and stewardship of limited resources, but its only reward has been Elsevier blocking access to faculty, researchers and students at the university.

Moving from SSRN to SocArXiv

In May, Elsevier acquired SSRN, an open access repository heavily used in fields of law, economics and other social sciences. A number of great articles raising serious concerns about this acquisition were written following Elsevier and SSRN’s announcement, including posts by Brandon Butler and Ellen Ramsey, Kevin Smith, Paul Gowder, the Authors Alliance, and TechDirt, among others.

More recently, reports surfaced that SSRN started removing articles from its database even when the author to the posted article retained copyright and had explicit permission to post to SSRN. Articles posted under a CC license or originally posted in green open access journals were similarly removed, even where the article contained an explicit footnote asserting that the authors retained copyright. After a huge backlash, SSRN started restoring the papers upon the request of authors claiming a mistake in enforcing their copyright policies. SSRN also indicated that faculty posting final papers would need to add a statement in a footnote asserting copyright and open access permissions or submit their publication agreements to SSRN in order to have their papers posted.

Authors Alliance—as well as numerous academics—responded by asking whether it is time for authors to remove their papers from SSRN and find alternatives. Authors Alliance pointed out:

SSRN authors: you have not committed to SSRN. You can remove your papers from their service, and you can opt instead to make your work available in venues that show real commitment to the sharing, vetting, and refinement of academic work.

Alternatives obviously include an academic’s institutional repository or personal website, but authors might also consider the new, non-profit open access archive for social science research, SocArXiv. The recent announcement of this new archive comes at an opportune time given Elsevier’s May acquisition of SSRN and the ensuing changes to SSRN policies regarding posting of papers. SocArXiv, in partnership with the Center for Open Science, explained:

The initiative responds to growing recognition of the need for faster, open sharing of research on a truly open access platform for the social sciences. Papers on SocArXiv will be permanently available and free to the public.

Social scientists want their work to be broadly accessible, but it is mostly locked up from the public and even other researchers—even when the public has paid for it. SocArXiv wants to help change that. In recent years, academic networking sites have offered to make preprints available and help researchers connect with each other, but the dominant networks are run by for-profit companies whose primary interest is in growing their business, not in providing broad access to knowledge. SocArXiv puts access front and center, and its mission is to serve researchers and readers, not to make money.

Immediately after news broke that SSRN was removing papers, I checked my own author page to see if my dozen or so journal articles and briefs were still posted.  They are and I will use my author page one final time: to download my papers (they’re easier for me to find this way since I placed all of them on SSRN and won’t have to look through different files on my computer to collect them all) before moving them to try out SocArXiv. I hope other others consider moving their works to SocArXiv, as well.

For further reading, see Richard Poynder, “SocArXiv debuts, as SSRN acquisition comes under scrutiny.”

ARL and Higher Education Support Lingua Editors

On November 12, 2015, ARL, together with The American Association of State Colleges and Universities (AASCU), the American Council on Education (ACE), the Canadian Association of Research Libraries (CARL), the Confederation of Open Access Repositories (COAR), EDUCAUSE, and the Scholarly Publishing and Academic Resources Coalition (SPARC) wrote in support of the editors of the Elsevier journal Lingua who resigned en masse on October 27, 2015.  Lingua’s editors cited the journal’s price increases that outpaced costs of production and Elsevier’s refusal to transition the journal to an open access model as reasons for their resignation.  The editors announced a plan to launch an open access journal and, as the letter notes, “The actions of the Lingua editors reflect the underlying values of scholarship that knowledge should be shared as widely as possible for the benefit of research and society.”

 

The letter continues:

As organizations committed to the principle that access to information advances discovery, accelerates innovation, and improves education, we share the significant concerns raised by the Lingua editors and we support sustainable open access models. Furthermore, research is becoming increasingly international and we must develop a system that fosters global participation, regardless of geographical location or size of institution. To that end, we strongly support the Lingua editors’ decision to pursue an alternative solution, which will better serve the needs and values of higher education and the public that sustains it.

[. . .]

We firmly believe that the higher education and research communities need to collectively advance alternative models of scholarly publishing that are fair, sustainable, and transparent.

 

For more information, see “ARL, Higher Education Groups Support Lingua Editors, Open Access” on the ARL website.

Great Fair Use Advice from Reed Elsevier (Seriously!)

Sometimes litigation creates strange bedfellows. We have watched with great interest the case of White v. West, a lawsuit challenging legal research databases Lexis and Westlaw for their practice of ingesting legal briefs and motions filed in federal court cases, indexing them for search, and reselling access to the briefs in their own databases. An abbreviated order entered in February says the databases have won the case, most likely based on a fair use rationale, but a full opinion explaining the reasoning of the court is still forthcoming.

This situation is deeply ironic. Reed Elsevier and West Publishing, the parent companies of Lexis and West, are historically aligned with the rest of the content industry in opposition to any legal theory that loosens the grip of copyright holder control. Reed Elsevier in particular is quite aggressive. They funded an anti-fair use amicus brief in the Georgia State case, are a member of the AAP, which funded another anti-fair use amicus brief in the HathiTrust case, pushed hard for database legislation, and were behind the awful “Research Works Act” which would have outlawed federal public access policies.

But now these ardent maximalists find themselves in substantially the same position as the libraries they have lately antagonized, and they must rely on the strongest possible fair use arguments to get themselves out of copyright trouble. Remarkably, the briefs make an eloquent case for fair use, and libraries can learn a lot from them.

Reed Elsevier and West filed six briefs in the case that are chockfull of fair use arguments. Here are a few of the high points, taken from Document #69, Reed Elsevier Memorandum of Law in Opposition to Plaintiff’s Motion for Summary Judgment. The full brief is embedded at the bottom of this post:

First Factor: Purpose and Character of the Use

“After selecting the Briefs for inclusion in the BPM database, Lexis enhanced them by making them text and topic searchable, adding links to and from related opinions, expert testimony, and other related materials, and adding hyperlinks to cited cases and statutes.”

So, careful processing and contextualizing helps strengthen a transformativeness argument. Libraries who add helpful metadata, link documents with one another and with larger collections, and so on, are engaged in transformative activity that creates a new, improved research object, different from the raw item that was initially acquired.

“Following selection and enhancement, the Briefs were added to a sophisticated research tool consisting of interconnected legal documents for students and professionals to research legal arguments, case law, statutes, pleading formats and so on.”

Once individual works are tagged and so on, they can be further transformed by placing them into a larger tool that enables search and analysis across a large corpus.

“Plaintiff’s use of the Briefs was entirely different. They were created to advocate a client’s position in a court.”

While in the broadest sense, legal briefs are written (like every written work) to be read, the Elsevier legal team realizes that you need to look at a more specific purpose to determine whether a new use is transformative. Namely, you need to look at the main purpose that motivated the author to write and publish the work. Similar arguments could be made about many items in library archives and special collections, and even in general research collections. These works were created as business records, or personal documents, or to communicate privately, or to advocate a scholarly position to one’s peers, etc. Making them the object of research or teaching may well be transformative.

“The stark contrast in the purposes of these two uses alone confirms that Lexis’s use is transformative.”

Indeed, the case law is quite clear: a use is transformative (and thus favored under the first fair use factor) if it is made for a new purpose distinct from the purpose of the original work. Reed Elsevier should have put its attorneys in this case in touch with the ones representing the AAP in its anti-fair use amicus brief in the HathiTrust case, as the latter team sternly dismissed the idea that a new purpose is sufficient to render a use transformative. Indeed, the Reed Elsevier team cites with approval exactly the same language from Judge Baer’s decision in HathiTrust that the AAP team is trying to discredit.

Digital access provided to students for free is not the same as printed course packs sold for profit

Reed Elsevier argues persuasively that the Basic Books v. Kinko’s case, which found copy shops liable for providing students with course packs for profit, does not apply when the use is transformative and access is provided free of charge:

That case involved a private copy center charging college students for copies of course packets. Lexis, however, does not charge law students for access, and its use, unlike the defendant in Basic Books, did not have “the intended purpose of supplanting the copyright holder’s commercially valuable right.”

Second Factor: Nature of the work used

“Lexis therefore did not usurp any right of first “publication” because Plaintiff never had any intention to publish the Briefs beyond filing them in court.”

Libraries sometimes worry that for unpublished works they may face the claim that their use cannot be fair because it violates the old common law “right of first publication.” Reed Elsevier argues that for works that obviously were never destined for publication, there is no such right. Music to any archivist’s ears, I’m sure!

“[L]egal professionals who review already filed legal documents are not searching for clever turns of phrase—they are looking to see what arguments have been made, what authorities have been cited, and what facts have been relied upon by lawyers in cases similar to their own.”

Kinda sounds like what scholars are interested in when they look at articles and books, right? Just as Judge Evans did with the scholarly monographs in the Georgia State case, Reed Elsevier argues here that the briefs are not primarily about expression; they are about facts and analysis. This turns the second factor in favor of fair use.

Third Factor: Amount Used

“It is indisputable that it was necessary for Lexis to copy the entirety of the Briefs to create a fully searchable database and provide the user access to complete and accurate legal formats and arguments as part of its transformative use.”

Indeed, you can use the whole thing if that’s the right amount for your transformative purpose. If your purpose is to make a fully searchable database (ahem, HathiTrust), then, by golly, the whole thing is what you need! Reed Elsevier said so. (And so did the US Supreme Court, of course, in the landmark case Campbell v. Acuff Rose.)

Fourth Factor: Market Harm

“Plaintiff makes the circular argument that, because Lexis uses the Briefs for its sophisticated legal research database, ipso facto, Lexis has harmed Plaintiff’s ability to license its Briefs for that use.”

That’s right: just because, say, the AAP or the Copyright Clearance Center or the Authors Guild comes knocking with its hand out doesn’t automatically mean there is a genuine “market” that has been harmed by the use. That would be circular!

“To avoid this ‘danger of circularity,’ courts have held that market harm for purposes of a fair use analysis does not take into account any market created by the transformative use.”

So when someone like, say, the CCC or Reed Elsevier, does have their hand out, you can tell them they don’t get your money if what you’re doing is transformative.

“Plaintiff acknowledges that the Briefs were not created with the intention of selling or licensing them, and it has never attempted to sell or license the Briefs.”

Yep: there can’t be market harm if you’ve never intended to exploit a market. Again, good news for archives and special collections; all those business records and family photos and constituent letters are subject to a very friendly analysis under the fourth factor.

“First Amendment considerations are also part of the fair use doctrine.”

Fair use is not the last refuge of a scoundrel; it is a “built-in First Amendment accommodation[]” recognized by the Supreme Court. Where First Amendment interests are at stake (academic freedom, perhaps), the scale should tip further in favor of fair use.

It is really quite refreshing to read all the arguments that we in the library community have been making for years in the pages of a brief filed by the loyal opposition. I would like to hope that the publishers learned something from spending a little time on the Defendant’s side of the “v.,” but since their terrible GSU and Hathi briefs were filed after these wonderful briefs (and by different attorneys), I’m not optimistic.

What is crucial to understand is that academic publishing is not a free market. Researchers send papers to journals for free, because their jobs depend on it. Senior scientists don’t charge journals to review potential articles, thereby helping the editors to identify the best work, because that is a part of being an academic. Libraries have to subscribe, because the researchers they serve cannot work without access to the scholarly record. Academic publishers thus have a captive work force and a captive audience.

From the same amazing Boston Globe piece, the quickest and clearest summary of academic publishing’s dysfunction I’ve ever seen. It is VITALLY IMPORTANT that everyone in the ecosystem understand these basic facts.

In 2010 Elsevier reported revenues of about $3.2 billion, of which a whopping 36 percent were profit.

A fantastic column in the Boston Globe explains how some academic publishers are getting filthy rich off work they expropriate from the academic community and then sell back to us at a premium.

It’s about time that faculty woke up and realized their interests aren’t different from those of the librarians.

University of Pittsburgh Library System director Rush Miller, quoted in the U Pitt University Times on the Elsevier boycott. Right on!