Aaron Swartz and Lawrence Lessig at the Creati...
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In my last posting, I posed four questions brought to my mind by the Aaron Swartz case. Here, I propose what I think are reasonable answers to those questions. The result is kind of a long post, but hey, it’s the weekend. Tell your spouse that the yard work will have to wait; you’re busy helping to solve the fundamental structural problems of the scholarly information marketplace.

Are the legal penalties provided for copyright infractions proportional to the actual damage caused by such infractions?

In general, I don’t know the answer to this question; I don’t know how many varieties of copyright infraction are identified in the law and I don’t know what all the penalties are. In this particular case, however, I do find it alarming that a U.S. attorney — presumably someone who is well versed in the philosophy and principles underlying American jurisprudence — would be willing publicly to assert that “stealing is stealing, whether you use a computer command or a crowbar, and whether you take documents, data or dollars.” This is hogwash. For one thing, as I pointed out in my previous post, “stealing” electronic documents is not at all the same thing as stealing dollars or cars or any other physical objects; it’s a matter of creating unauthorized copies, not of taking the documents away from someone else. What is taken away in an online piracy case is the exclusivity of control that comes with “ownership” of a document. Such theft can be serious and I believe it should be taken seriously, but it is simply not the same thing as stealing a car. Online piracy and maritime piracy don’t magically become morally equivalent just because we use the word “piracy” to describe both, and the same is true of the word “stealing.”

But there’s another significant difference between illegal online copying and actual theft, and that difference is violence. Most of us have probably noticed that a white-collar criminal who is convicted of embezzling $10,000 will sometimes get a lighter sentence than a working-class criminal who is caught robbing someone of $500 at knife-point. One contributing factor to this pattern is probably the various kinds of structural prejudice that persist in our society. But another is the line we draw, as a society, between violent crime and nonviolent crime. I think that line is reasonable, I think it matters, and I think it’s worth preserving. I think it is blurred dangerously when prosecutors deal publicly in the kind of overheated rhetoric that was employed by the U.S. attorney in announcing the Swartz indictment, and I worry about the precedent such language sets. If Swartz is convicted, it will be very interesting to see whether the prosecution seeks, and succeeds in getting, the kind of punishment that would normally be reserved for those who actually use crowbars to steal dollars.

That said, Swartz is actually accused of doing more than just illegally copying mass numbers of documents, many of them copyrighted. He also stands accused of the online equivalent of breaking and entering. This leads to the next question:

To what degree does it make sense to give network security itself the force of legal protection?

Swartz is alleged to have committed the equivalent of breaking and entering in two ways: first, by actually, physically breaking into a locked network closet at MIT; second, by virtually breaking into a secured network by hacking past its security protocols; the indictment refers to this as “unlawfully obtaining information from a protected computer.” This offense is separate from the offense of pirating copyrighted material; if the allegations are true, then the crime of copyright infringement came after the crime of gaining illegal access to the network. (And in fact, although copyright infringement is part of what Swartz is alleged to have done, it’s not even included in the charges brought against him.)

I think the answer to this question is yes: it makes a great deal of sense for network security to be given the force of legal protection, for much the same reason that it makes sense to give locks on the entrances to privately-owned spaces such as homes and offices legal protection. Suppose that I’ve filled my home with copies of documents that are in the public domain—government reports, phonebooks, 19th-century monographs, etc. Now suppose that Aaron Swartz wants to have access to those documents; in fact, suppose that he feels passionately that everyone in the world ought to have free access to those documents. He is arguably right. Would the fact that those documents are in the public domain and should be freely available to all give Swartz the right to pick the lock on my front door, enter my home without permission, and make copies of them? Clearly not. The problem with doing so isn’t that he proposes to make illegal use of the documents; his proposed use is perfectly legal. The problem is that I have a legal right to secure access to my home, even if my home contains copies of documents that are in the public domain. The law recognizes a societal value in allowing people to secure their private spaces. Even if my private space contained objects that I actually had no legal right to have, the law makes provision for their removal by legal authorities following due process—it does not allow another citizen simply to break into my home and take those things away.

A data network is not the same thing as a private home. But my analogy doesn’t depend on a network and a home being the same thing; it depends on the logic between the two scenarios being parallel. To me, the fundamental conundrum is this: can a coherent legal system permit me to lock my door (or secure my network) while simultaneously allowing someone else to pick the lock (or hack into the network)? I don’t see how it can. I’m not sure that the legal remedies for network hacking ought to be exactly the same as those for breaking and entering, but it seems clear to me that the law should protect network security (where it has been legally and legitimately applied) and punish those who hack past it.

Does the current system of scholarly publishing currently exist to provide access to content, or to restrict it?

The formulation of this question paraphrases a comment by a Swartz supporter. I should probably have rephrased it in a more responsible way instead of simply repeating it in its original, rather tendentious form; my intent was not to endorse the sentiment but to examine it. Commenter (and fellow Chef) David Wojick caught the absurdity of the question immediately, and responded in what I think is the only realistic way: by pointing out that a system of scholarly communication will inevitably both provide access and restrict access. Since the services provided by a scholarly communication system are costly, those services will only be provided at some cost, and costs always put a limit on access. The question isn’t whether the costs will have an impact on access, but who will absorb the costs and whose access will be affected. Another question is: to what degree should the price of those services be set by a free-market system (and therefore provide for profit-taking)? This brings us to the final, and most fraught question that I believe the Swartz case should prompt us to face:

Should the very concept of intellectual property be rethought—at least in the realm of academic scholarship?

I argued in my previous post that the copyright regime on most university campuses is strange: the university hires people for the specific purpose of creating intellectual content, but then asserts no ownership over the content it has hired them to create. The fact that public funding is used to support some or all of the research that results in these intellectual products makes the arrangement stranger still. I’m not saying the arrangement is bad; on the contrary, I think it has generally worked out quite well for all concerned, except for one enormous problem: leaving copyright in the hands of academic authors has made possible the emergence of a massive commercial marketplace in scholarly documents which (the free market being what it is) have turned out to be objectively so valuable that the authors’ colleagues can’t afford access to them.

I realize it sounds as if I’m suggesting that the free market in scholarly resources should be dismantled and replaced by a different system, one that opens up access by excluding the profit motive and therefore keeping prices lower. But actually, that’s not what I’m saying at all. On the contrary: I believe the answer to this final question is no: we should not rethink the concept (or the application) of intellectual property in the realm of academic scholarship. I think the current system, whereby authors are generally allowed to retain copyright in what are arguably works for hire, and to trade that copyright to commercial publishers is, though flawed, the least bad system available to us.

Let’s consider the alternatives. Or, rather, the alternative, because there’s really only one: some kind of command economy in scholarly documents. Currently, scholarly documents are traded by their authors in what amounts to a free market of copyright and prestige (not readership; readership is incidental to prestige). The system generally works this way: an author has content to offer, and looks for the publisher that will confer the most prestige in return for rights to that content. Other factors may enter into the equation as well (number of readers, rights terms, etc.) but the primary exchange is one of rights for prestige: given the choice between ceding all rights and publishing in Nature on the one hand, and retaining copyright and publishing in Joe’s Biomedical Letters on the other, most tenure-seeking scholars will probably choose the former, because retaining copyright is much less important to their careers than being published in Nature.

Now suppose a university retained all copyright in the documents created by its faculty members, and therefore reserved the right to decide where and how those documents will be published. Those faculty members no longer have the right to decide with whom they will trade content for prestige. If the university deems Nature‘s copyright-transfer terms to be unacceptable, the faculty member can be forbidden from publishing there and can be forced to trade her content for less (or theoretically more, but let’s be honest here: it would be less) prestige from a less-demanding publisher.

Such a system might well have certain beneficial impacts on the system as a whole. The current market-based system has beneficial effects as well. Like the current system, the command system would also have deleterious effects. One such effect: the system would have to be national, even international, and monolithic. Unless all universities agreed to impose the same restriction on their faculty authors (and without exception), the varying amount of restriction from institution to institution would become a competitive tool used to attract high-profile faculty: “You don’t really want to stay at Podunk College, do you?”, the recruiters would coo. “Come to Glamorous University, where we’ll not only pay you more, but we’ll also let you retain copyright in that book you’ve been working on for the last five years.”

In fact, I’ll go further: I think the only way such a system could work would be if it were mandated and administered by the federal government. There would have to be sanctions imposed on colleges that tried to sidestep the requirement that they retain institutional control of faculty members’ copyrights. I realize that by invoking the specter of federal involvement I may be starting to sound like the academic equivalent of a Tea Party activist. But I’m not invoking the government as some kind of boogieman; I’m simply pointing out that universities are unlikely to police themselves effectively when there are potentially great benefits to be realized by policing themselves poorly. Some entity outside of the higher education establishment would almost certainly have to act as referee. And when the establishment we’re talking about consists of thousands of institutions, public and private, distributed across all 50 states, it’s hard to see what that entity could be if not the federal government. (In fact, since the scholarly economy is international, maybe it would have to be the United Nations. Now you can accuse me of invoking a boogieman: cue G. Gordon Liddy screaming on the radio about jackbooted thugs in blue helmets editing the People’s International Journal of Molecular Biology.) One response to this argument might be: come on, college athletics rules are enforced by the NCAA, and that’s not the federal government; why couldn’t there be an academic equivalent of the NCAA? My response would be: read that sentence again and tell me what there is about it that sounds better than the current system.

I’ve thought about this a lot, and in my view, there really is no reasonable option available to us that isn’t built on a foundation of free-market dealings in scholarly documents the copyrights to which are retained by authors and traded to publishers as those authors see fit. I’m not saying that this system doesn’t result in serious problems; on the contrary, there really is a pricing crisis in the serials marketplace, and that crisis is only possible because copyright holders have real monopolies and can therefore set very high prices for documents that are in high demand. Stopgap measures such as the Big Deal have masked the crisis temporarily, but have done nothing to solve it, and the fiscal disasters of the last few years have brought the crisis to a head. At my institution, we’re planning a $300,000 cut to our journal and database subscription portfolio in the coming year, with every expectation that we’ll have to do so again the following year. Why? Because our materials budget is flat, price increases for science journals and databases run about 9% per year, and $300,000 represents about 9% of our materials budget. Res ipse loquitur; the math is very simple. We can argue all we want about whether or not those journals and databases are worth what they cost, but those arguments ultimately mean nothing. Value is subjective; budgets are objective.

But what I’m describing is a pricing problem, not a structural problem. If scholarly journals all cost $15 per year and the price increased at a rate of .05% annually, no one would be saying that the system is broken. The fact is that our current system, though far from perfect, may well be better than any of the alternatives. And if that’s the case, then the Aaron Swartzes of the world are not only too extreme in their actions—they’re fundamentally wrong in their analysis of the problem, and their proposed solutions are fundamentally wrongheaded.

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Rick Anderson

Rick Anderson

Rick Anderson is University Librarian at Brigham Young University. He has worked previously as a bibliographer for YBP, Inc., as Head Acquisitions Librarian for the University of North Carolina, Greensboro, as Director of Resource Acquisition at the University of Nevada, Reno, and as Associate Dean for Collections & Scholarly Communication at the University of Utah.


20 Thoughts on "Asked and Answered: Here's What I Think the Aaron Swartz Case Means"

I largely agree with your post, but I want to pick on one detail where I don’t.

“difference is violence. Most of us have probably noticed that a white-collar criminal who is convicted of embezzling $10,000 will sometimes get a lighter sentence than a working-class criminal who is caught robbing someone of $500 at knife-point.”

I have noticed that “white-collar criminal who is convicted of an act to take BILLIONS that caused the death of many people will ALWAYS get a lighter sentence than a working-class criminal who is convicted of an act to take a few hundred bucks that violently killed one person.”

The difference is violence, and I think it is high time we stopped considering that violence makes a difference. If someone kills people by knowingly selling salmonella-contaminated peanut-butter, or by fraudulently rescinding their insurance coverage, then the victim is just as dead as if they shot them. If shooting someone carries the death penalty, the killing them with white-collar crime should carry the death penalty too.

Stealing someone’s money and enslaving them by a gang of thugs who overpower them with guns and knives, is a crime. Stealing someone’s money and enslaving them by a gang of Harvard graduates who overpower them with contracts they don’t understand and psychological marketing they can’t resist should be a crime that carries a LARGER penalty.

Hi, Dave —

Bernie Madoff might disagree with you that a white-collar criminal who embezzles billions “ALWAYS” gets a lighter sentence than a working-class mugger. But I don’t disagree with you that white-collar crime can be exceptionally serious, and of course I agree that white-collar crimes that result in people’s death should be treated much the same as violent crime (as you point out, dead is dead). It’s just that I think the element of actual, direct violence also matters, and I don’t think the law should start ignoring that element. When prosecutors start publicly comparing computer commands to crowbars and eliding the difference between stealing objects and creating copies, it seems to me that a precedent of dangerously poor critical thinking is being set.

I was thinking specifically of Bernie, but I think the comparison should be with a murderer rather than mugger. I would make the case that Bernie got off lightly. I assume some of the charities he stole billions from do would have done something good with those billions that would have resulted in saved lives. No billions; no saved lives. Murder. So the penalty should be the same. If the death penalty is appropriate for murder (and I not saying that it is), then it is appropriate for stealing a large enough amount of money.
Bernie enjoyed a long life of luxury at other people’s expense, and will spend his last few years in prison. May be lot of people, who aren’t being punished, but spend their lives imprisoned in a menial jobs and earn a few years in retirement would swap their life for his. Perhaps the young Bernie Madoff would not have started his ponzi scheme if he knew he faced the death penalty if he got caught,

No comment on the specifics of the Swartz case, but I must take exception to Rick’s characterization as “hogwash” the statement by the prosecutor that “stealing is stealing.” If this is hogwash, then our pigs bathe in scented perfume. Stealing is stealing. The analogy of the theft of copyrighted material to stealing a car, however, does not seem apt to me; it really does not matter that the copyrighted good is still available to the owner. Better to use another analogy: How about cheating with someone’s spouse? Not a crime you say? Perhaps, but check your gut before you say that.

Joe, you’re mischaracterizing my statement. I was clearly taking exception not to the simple proposition that “stealing is stealing” (who can argue with that?), but rather to the prosecutor’s explicit statement that infringing copyright with a computer constitutes the same kind of stealing as taking dollars with a crowbar. That statement of equivalency, I maintain, is hogwash.

Of course you and I agree that cheating on one’s spouse would be seriously wrong. But it seems to me that the question at issue here isn’t what’s morally right or wrong; the question is what kinds of legal remedies are appropriate in the case of what kinds of crimes. As I said in my posting, I think that copyright infringement can consitute serious crime, and in that case it should be dealt with seriously. But I also think it should not be confused (or irresponsibly compared) with violent crime.

Rick, I understood the point you were making and the distinction you are trying to draw. I simply don’t accept it. Stealing is stealing.

Make the analogy be between stealing books from a physical bookstore and copyright infringement. In both cases, what the theft has done is destroy a market. It can be a partial market, depending on the number of books stolen from stores or copies made and distributed via photocopy, or an entire market, which is likely to be the case if the work is posted to the web.

Rick, I think it should be pointed out that if you write an article or book (on company time) while employed by a private company (including Elsevier and Wolters Kluwer) the copyright to that material is owned by the employer and not the employee. Therefore the choices available are more nuanced than the black (free market) and white (state control) you paint in your analogy. I live in Hawaii; shouldn’t we the people of Hawaii claim ownership of the work produced by our employees while in the employ of the University of Hawaii? If these very same people were employed by IBM or Google or Elsevier their employers would claim ownership of the work. So why should it be different for academics employed by a state institution?

How is the ownership of article content different from ownership of a scientific discovery? If the article in question describes trial results of a drug invented by the authors while in the employee of the university; there is no question who owns the patent to the drug – the patent clearly belongs to the university. So why should it be any different for the ownership of the article describing that discovery? In all fairness, it should be pointed out that employees of drug companies regularly sign over copyright to publishers of research conducted at private companies so this odd dynamic is replicated in the private sector as well. So what explains this odd behavior?

The answer, academics and their employers willingly sign over copyright to publishers because the peer review and editing process adds value to the content (at least in medicine). If your research results are published in a New England Journal of Medicine or Lancet you add veracity to your study results. This added veracity is beneficial in two ways; it helps in the legal drug approval process and it helps to convince clinicians to prescribe the drug (thus increasing sales and royalties from patents). As both a citizen of the State of Hawaii and an owner of stock in Johnson and Johnson I directly benefit from this system because signing away ownership of an article to a publisher may increase my dividend revenues via drug sales (to JNJ) or lower the amount of tax dollars I send to the university system via patent royalties (to UH).

There is a good reason why pharmaceutical companies spend vast amounts of money on article reprints each year, the cache of an article brand increases the impact of a study result on sales of the product.

In complex issues such as the one described in your article, I always follow the advice of my maternal grandfather; “if you want to understand why things are the way they are – follow the money.” Why does the system continue to operate the way it does? Why do universities and private companies willingly sign away ownership to third party publishers? Follow the money.

This is why I find the PLoS experiment so fascinating. The disruptive power of PLoS is not just limited to the impact on subscription prices. If PLoS where to build a brand cache in both the academic and clinical communities, PLoS could prove to be very disruptive indeed. The dynamic described above would breakdown. The for-profit (and societies for that matter) publishers would experience extraordinary pressure on two revenue streams (subscription and reprint sales). Who would benefit most from this development? I don’t think that academic institutions would be the biggest beneficiaries, I suspect the biggest beneficiaries would be the pharma industry. Why do I say this? Because the industry would retain copyright ownership to a great deal of clinical research. They would then be free to do with it whatever they pleased (and for little cost). I think I just convinced myself to go out and buy more pharma stocks.

Mark, you’re making what sounds like a good, common-sense argument for the appropriateness of states asserting control over the scholarly documents produced by faculty members in their employ. As you say, when employees of for-profit companies do research, the written results are invariably the property of the companies that employ them. Why shouldn’t states do the same?

Why not indeed? It’s not because there’s not a good moral case to be made. I think the primary reason that state (and private) institutions don’t generally do it is that in order to work, a policy has to be more than morally defensible; it also has to be feasible. Implementing a policy of public ownership of scholarly products would be hugely difficult, at least in part (I believe) for the reasons I laid out in my piece.

As for PLoS’s putative impact on subscription prices: that would really be great, wouldn’t it? Eight years after the introduction of PLoS we in libraries have yet to see that effect, but there’s always hope.

The universities where I’ve worked have pretty liberal intellectual property policies for their employees (I’m on a few patents that sadly haven’t been licensed). Just as Rick points out for copyright in his article, it can be a real drawing card for bringing in faculty. If you have a choice between a university that lets you share in the massive profits of anything you invent while working there and one that keeps all the proceeds, it’s a pretty easy decision of where to work. Think for example about Google, where the original algorithms were put together under an NSF grant by researchers at Stanford. That worked out pretty well for both Stanford and the researchers in question.

A couple of thoughts Rick:

First, I think discussions of infringement and publishing often get bogged down in semantic arguments about the use of words like “stealing” and “theft”. There’s an argument that they’re words used by copyright holders to try to inflame passions rather than accurately describe what’s happening. I’m not sure I buy that, as I think they’re more meant to try to get across that some wrong is being done in a simpler manner. Regardless, I try to avoid such terms where possible as one often ends up debating them more than the act in question.

Infringement is indeed a different crime from “theft”, just as “breaking and entering” is a different crime and just as “arson” is a different crime. Each act has its own set of laws and punishments meant to cover it. The punishments for infringement are often seen as vastly harsher than those for simple theft (particularly when one is talking about a 99 cent song) but there’s a deliberate reason the punishments are on a higher level. When one steals a book from a store, the act has as limited, set financial impact on the victim. When one uploads a copyrighted work online and allows an unlimited number of people to download it without paying, that has a much greater potential economic impact.

That “potential” is where things get tricky as often the actual damage done is hard to trace, and the notion that a free downloader might not have purchased the work makes things grey rather than black and white. That’s why there’s a huge amount of flexibility in the punishments offered. For example, the Digital Theft and Copyright Damages Improvement Act of 1999 sets damages between $750 and $150,000 per work for willful infringement. That’s a pretty big range (although one should remember that punishments in cases like this are also meant as deterrents for other offenders so are often deliberately high).

What’s intriguing is that in the two recent music cases that came to trial (Thomas and Tenenbaum), juries have repeatedly sided toward the high end of the scale despite judges repeatedly trying to reduce the fines.

Hi, David —

Regarding terminology: you make good points. For a long time I’ve argued that particularly in the case of music, both sides of the “piracy”/”sharing” debate are using tendentious language that sneakily does the work of an argument while avoiding the actual construction of one. (Who would be in favor of “piracy”? What kind of person would oppose “sharing”?) When it comes to music, it seems to me that there’s a good, neutral term that more accurately reflects reality and, if we all agreed to use it, would actually be helpful rather than obfuscatory, and that term is “copying.” Copying may be right or wrong, legal or illegal, depending entirely on context. It’s what happens when someone uploads an album illegally to BitTorrent or when someone buys a song from iTunes. All of that said, in the Swartz case I think the problem goes beyond simple vocabulary. The prosecution is on the record as saying that illegal copying is the same thing as violent robbery, and that strikes me as a more substantive problem. The probem isn’t that the prosecutors are using unhelpful wording; it’s that they’re proposing a moral equivalency that seems to me dangerously wrongheaded.

I do agree with you, also, that it makes sense for the law to provide more open-ended penalties for online piracy (i.e. illegal copying) than for the theft of inidividual objects, for exactly the reason you state–it’s an open-ended offense that can have a long and growing impact on the victim. My concern isn’t with those who draw a distinction between online and physical theft, but with those who characterize online theft as equivalent to violent robbery.

Rick, I think there are other options than the two you describe in answer to your fourth question. E.g., some universities have invested in establishing their own publishing operations, and there is a system of some 80 presses functioning in the U.S. about a third of them involved in journal publishing. Why would it not be feasible for American universities to (1) upgrade that system by expanding its capabilities and then (2) require that all faculty publish through this system (or with other approved non-profit publishers)? Because of their university association, these would all carry the requisite prestige needed for career advancement, and because presses operate in similar fashion, it would not be necessary for universities to enter into the negotiation of terms for publication and could leave the choice of where to publish (within this system) up to faculty. The benefit, of course, would be to cut out the 30% rate of profit from the cost of publication, thereby allowing for lower subscription prices compared with commercially published journals. I think there is a lot to gain by universities reacquiring control of the scholarly publishing system that they once had, before commercial publishers got into the act in STM fields after WWII.

Why would it not be feasible for American universities to (1) upgrade that system by expanding its capabilities and then (2) require that all faculty publish through this system (or with other approved non-profit publishers)?

It wouldn’t be feasible because, when it comes to faculty recruitment, the university that does so would put itself at a competitive disadvantage relative to universities that let their faculty members publish wherever they want. I think you’re very much mistaken when you say that “because of their university association, these [presses] would all carry the requisite prestige needed for career advancement.” There is a very great difference in prestige between having one’s book published by Harvard University Press and by the University of Kansas Press. (This may be right and it may be wrong, but it’s a fact.) Right now, a scholar from any university can publish with Harvard UP; under the system you propose, a scholar would accept a job at some other university knowing that by doing so she is ruling out the possibility of publishing with Harvard UP.

Please note that I’m not saying such a system is impossible. I’m even open to the argument that it’s desirable. But I don’t see how it’s _feasible_ unless every institution of higher education were to agree to abandon its tradition of letting scholarly publications be traded on the open market, and also submit to oversight from outside the system — and that scenario doesn’t seem very likely to me.

Rick, I believe in Sandy’s proposal that researchers would be free to publish with the university press of their choice, not just with their own university’s press.

But you’ve hit the nail on the head for why it won’t work. Academia is in an absurdly competitive state. Any activity that reduces an institution’s ability to attract top talent is unlikely to take hold. If I’m a researcher and my employer won’t let my students publish in the absolute top journals (regardless of their publisher) then that hurts my students’ job prospects, and thus hurts my recruiting.

I’m as big a booster of the not-for-profit university press system as you’ll find but if it’s going to rise to dominate, it will need to come from a slow movement away from commercial publishers rather than a cat-herding exercise in trying to get every institution to agree on limits.

I would worry about small niche journals in such a system, as they’re often only possible because of big publishers’ economies of scale. There’s a reason why so many research societies have flocked to big publishing houses. Would such a system inherently favor a place like Oxford University Press, a rare university press that can offer the levels of scale of the big commercial publishers? Would this alleviate monopoly problems or only shift them to a new monopoly?

Also, the idea assumes that universities are immune to economic pressures. Given the funding problems in the University of California system, how long would it take for a press at a university in that system to be seen as a potential profit center used to make up budget shortfalls? If that university press published the top journal in a field, couldn’t they increase subscription prices or author fees with abandon?

Hi, David —

You’re right — I think I misread Sandy’s comment. I thought he was suggesting that each university could require its own faculty to publish with its own UP, but in fact he seems to have been suggesting only that faculty be required to publish within the nonprofit community. Apologies, Sandy!

But, as you point out, this still only goes partway towards solving the competition problem I described.

Yes, David has interpreted my proposal correctly. I once thought that there might be a “tipping point” reached when commercial publishers figured they could not continue to maintain their high levels of profit and would exit the business, leaving it by default to university presses and society publishers. but it appears now that commercial publishers have figured out how to make Gold OA generate as high profits at the TA system did. As for scale, collaborative efforts like Project Muse have solved that for smaller presses. At Penn State, our program of 12 journals could not have survived the transition to digital without Project Muse; but it did take care of the problem, financially, while allowing us to maintain the prestige of the journals we published as attractive for faculty in those fields. If universities don;t make some kind of effort along the lines I’ve suggested, they will be held hostage forever to the commercial publishers, who will continue to bleed universities dry.

Researchers choose the best journal they can get into for publishing their papers. Generally, “best” means the journal that will provide the most career advancement/funding value. Perhaps rather than a mandate that restricts where one can publish, why not instead think of ways that universities could offer incentives for keeping the money within academia, offering more career rewards for publishing with non-commercial entities? That might help eliminate the competitive disadvantage one would face if one tried to enforce limits on researchers.

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