reed elsevier – Techdirt (original) (raw)

from the locking-up-science dept

The very first copyright law in the US was officially called “An Act for the Encouragement of Learning.” Indeed, that was the actual stated purpose of copyright law at the time. It wasn’t supposed to be a system for protecting the revenue of artistic folks. In fact, it didn’t even cover most artistic works at the time. It was limited to “maps, charts and books.” Music? Not protected. Paintings? Not protected. Sculpture? Not protected. That’s because it wasn’t about artwork, but about the spread of knowledge through learning.

Yes, the idea was to provide a limited monopoly to incentivize the initial creation, and the exchange was that it would then be given into the public domain soon after, such that everyone could learn from it. Yesterday, we covered the importance of the public domain, and today’s topic for Copyright Week goes hand in hand with it: the idea of open access.

Copyright law was supposed to encourage greater access to knowledge to have a better educated populace. But the current setup of the law appears to do the exact opposite of that much of the time. When it comes to newly discovered knowledge, our copyright law (and the way it’s used by some giant companies) seems almost entirely focused on making knowledge more expensive and less open thereby massively hindering the ability to share knowledge and better educate the public.

This has been seen most recently in the publishing giant Reed Elsevier’s effective war on access to knowledge, using copyright law as a sort of weapon to block researchers from sharing their own research. However, as we’ve discussed for many years, the whole system is rigged against knowledge access and sharing, and in favor of giant publishers locking up knowledge — often including research that was funded almost entirely by your tax dollars.

Here’s how the privitization of knowledge works, thanks to copyright:

  1. Professor wants to do some research, and files for some grants (usually from the government) to pay for that research. If that professor works for a state school, at least part of their salary is already partially paid for by public funds.
  2. Government agrees to grant, provides taxpayer money to the researcher to conduct important research.
  3. Research is completed, and the professor and some grad students/assistants write up the results in a paper.
  4. Because academics are still (stupidly) judged on how often they “publish” in “prestigious” journals, the professor submits the paper to a few well known journals. In some (though not all) fields, the journals make the professor pay a submission fee.
  5. The journals send the paper out to two peer reviewers, who do not get paid. They basically provide an editorial function to the publisher for free.
  6. The journal “accepts” the paper, and demands that the professor hand over every possible copyright on the work and related research. I even know some academics who had to recreate their own research for later research, because they felt they were barred from using a chart they had created in a previous work without violating the copyright.
  7. The publisher then sells the journal to academic libraries at absolutely insane prices. A freedom of information request at one university a few years ago showed that the university paid £688,093 — or 1.1million—overafiveyearperiodforjustthreeproductsfromElsevier,andonlyoneofthoseproductsincludedfullaccesstoallofthepublishedpapers.Theothertwoweremerelyfor“abstractsandstatistics.”Forjustthepopular‘ScienceDirect,’thisoneuniversitypaidbetween1.1 million — over a five year period for just three products from Elsevier, and only one of those products included full access to all of the published papers. The other two were merely for “abstracts and statistics.” For just the popular ‘Science Direct,’ this one university paid between 1.1million—overafiveyearperiodforjustthreeproductsfromElsevier,andonlyoneofthoseproductsincludedfullaccesstoallofthepublishedpapers.Theothertwoweremerelyfor“abstractsandstatistics.”Forjustthepopular‘ScienceDirect,’thisoneuniversitypaidbetween150,000 to about $200,000 per year, for a subscription to just one journal.
  8. Even when, as with the National Institute of Health, there’s a requirement for “open access” publishing after one year, many journals will try to charge a very high fee (often thousands of dollars) to pay for “submitting” the paper to an open access repository.

In short, we have taxpayer funded research for which the publisher pays nothing, but gets the entire copyright, and then they sell the journals back to academic institutions for subscriptions often well over $100,000 per year — and the research is completely locked up. Even more insulting in all of this, copyright was never the reason that the research was done in the first place. Remember, the purpose of original copyright law was to create an incentive for these individuals to do the research and publish the results — but here, researchers are academics who are getting paid via grants, so the copyright is not the incentive at all.

It can be argued that copyright was at one point part of the incentive for the publishers to set up the peer review process, and then to help publish and distribute the works, but is that a process that is needed any more? It’s difficult to see how. The things that publishers do (peer review, distribution) can be done much more effectively and efficiently these days, without the gatekeeper status or the insanely high prices. Oh yeah, and without locking up the knowledge.

Learning and scientific knowledge increases when we share knowledge, data and information widely and freely, allowing others to learn from it, to build on it and to continue to educate others and themselves. Today’s copyright law does the opposite in almost every way. That’s why radically changing how open access works and when it’s expected is so important if we’re to bring copyright law back anywhere near its initial intended purpose.

Filed Under: copyright, copyright week, knowledge, open access, privateering, privitizing, research, science
Companies: elsevier, reed elsevier

from the more-smoke-and-mirrors dept

For decades now, we keep hearing various “copyright intensive” companies whining to the press and politicians about how the “biggest threat” they face is continued copyright infringement. We hear about how it’s undermining not just their business, but entire economic sectors, the basis of capitalism and the fundamental rule of law. Copyright infringement, we are told, is one of the largest risks to the economy and society that you could possibly imagine. We’ve long questioned the validity of those claims, especially since history has shown that the industry cries wolf fairly frequently and has always been wrong. Most famously, of course, the MPAA’s Jack Valenti told Congress that “the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.” That was in 1982. In 1986, the home video market — which the VCR created — made more money for the MPAA’s studios than the box office did. It’s tough to believe the “threat” claims when they’re always wrong.

But, the “copyright intensive” industries just keep on making those claims, and there’s always some in the press and among elected officials who either don’t know or don’t care about the past (or technology or reality) and automatically believe those claims. They just assume that of course copyright infringement must be a huge threat because these companies say so.

A new study, however, found a pretty good way to evaluate the reality of that threat. Jonathan Band and Jonathan Gerafi realized that a good “independent” third party to evaluate the risk and threat of copyright infringement would be investment analysts. Their only stake in the game is whether or not the company is going to do well or poorly. If the perceived risk and threat was real, they’d certainly be letting everyone know. So, Band and Gerafi have produced a new research report studying equity research reports issued over the last quarter for eight of the top companies in the so-called “copyright intensive industries.”

The choice of companies is interesting, because all eight are among those that regularly scream the loudest about the “threats” of infringement: Sony (owner of Sony Music and Sony Pictures), Vivendi (owner of Universal Music), Disney, Viacom (who also owns Paramount), Microsoft, Adobe, Pearson and Reed Elsevier. If you’re keeping track, that’s basically three of the largest movie studios, two of the largest music labels, two of the largest software companies and two of the largest publishers. If copyright infringement was really this existential threat they’ve all been screaming about, certainly it would show up in the equity analysts’ reports, right?

Well, let’s take a look at the findings:

And, in case you were wondering, the reports that didn’t list copyright infringement as a risk (i.e., nearly all of them) did list out a variety of other factors. It wasn’t just a case where they weren’t covering risks at all. They carefully looked at the market, and didn’t seem to think infringement was a real risk at all.

And, it’s important to note that since these are all public companies, the execs at those companies often spend a lot of time “educating” the analysts about the state of their business. In fact, in the annual reports for six of the eight companies listed, the companies themselves do list infringement as a major risk. It just looks like the analysts looked at the detail and simply didn’t see any legitimate threat in most of the cases.

Filed Under: copyright, copyright intensive industries, equity analysts, infringement, jonathan band, jonathan gerafi, risk
Companies: adobe, disney, elsevier, microsoft, paramount, pearson, reed elsevier, sony, sony music, sony pictures, universal music, viacom, vivendi

Vandals Win First Round Of Ridiculous Lawsuit Variety Filed Against Them; Issue Mocking Video

from the third-rate-punk-band,-huh? dept

We’ve written a couple times about the absolutely ridiculous lawsuit that publishing giant Reed Elsevier filed against the punk band The Vandals. At issue was the fact that, years ago, the band put out an album, in which its logo was designed to parody the logo of Daily Variety, the Hollywood trade rag published by Reed Elsevier.

Way back when the album was first coming out, Variety had sent a cease and desist letter, and rather than fighting it (with a very strong fair use/parody claim) The Vandals caved and agreed not to use the image. However, the image can still be found online — but not on sites controlled by the band. So Reed Elsevier and Variety are suing the band for somehow not magically stopping these other sites from using the image.

I had thought that once the ridiculousness of this became public, Reed Elsevier would quickly back down, but instead it dug in. Even more ridiculous is that it sued in Delaware, knowing that this would make life more difficult for the band, which is based in LA. Making things even more interesting is that the band’s bassist, Joe Escalante, is also a former entertainment industry lawyer, though not a litigator. But, not one to back down from a fight, he decided to represent the band, went about learning the basics of litigation, and even got himself admitted to practice in Delaware.

Escalante emailed us to let us know that all of this has paid off so far, as the band has won the first round of the legal fight, and got the suit tossed out in Delaware and sent to California where it should have been filed in the first place. The short and sweet court order makes it clear that the judge finds it distasteful that Reed appears to have purposely filed the lawsuit across the country from the band to make life difficult for the band. You can see the full order below, but the key point is in the footnote, where the court notes that it certainly could have jurisdiction on the case, but given the circumstances, it feels that it is not appropriate, clearly suggesting that it recognizes the use of the court in Delaware was mainly to inconvenience the band:

The court recognizes that it could, if it were so inclined, choose to exercise jurisdiction over this matter and permit this case to proceed here in Delaware, given that a settlement agreement between the parties contains a clause that names Delaware as the forum for litigating disputes arising from the agreement. That settlement does not bind this court, however, and given the facts and circumstances surrounding this case, the court has decided in its discretion to decline to exercise jurisdiction. First, all relevant conduct and activities appear to have taken place in California, where the defendants reside and operate. Similarly, it appears that the Central District of California would be a far more convenient forum for trial, since the court’s reading of the complaint and other documents in the record is that the vast majority of documents and witnesses pertaining to this case are in California. Furthermore, the consent judgment that underlies the plaintiffs’ complaint was entered by the United States District Court for the Central District of California, and states that that court retains jurisdiction for the purposes of enforcing the consent judgment and related permanent injunction. It would be far better for that court to determine whether the conduct in question falls within the scope of the consent judgment and permanent injunction. Finally, given the defendants’ apparently limited financial resources and the significant costs associated with litigating in Delaware, the court finds that the defendants would be unfairly prejudiced if they were forced to litigate in this district.

In response to this ruling the band has been mocking Variety and its lawyers relentlessly. The link above goes to a pretty incendiary blog post which, frankly, might also open the band up to defamation charges, but that would really only be digging Reed Elsevier deeper into a truly pointless legal battle. Separately, the band has used our favorite movie creation tool, Xtranormal to create this rather hilarious (and probably NSFW) video of a “fictitious meeting” between Variety’s outside lawyer on this case and Variety’s editor. It made me laugh:

Filed Under: california, daily variety, delaware, jurisdiction, logo, the vandals, trademark, variety
Companies: reed elsevier

Daily Variety Refuses To Back Down On Vandals Lawsuit

from the pick-your-battles dept

Earlier this year, we wrote about how publishing giant Reed Elsevier had decided to sue the band The Vandals, for supposedly violating a previous agreement not to use an album logo that parodied Reed’s publication, Daily Variety:

While the band had agreed not to use the logo, images with the logo were being found on various websites, but it was other sites using it, not the band promoting it itself. Furthermore, it’s clearly a parody, which should be legal (though it’s complicated by the band’s agreement to stop using the logo, so the contractual issues take precedence over the trademark/parody questions). What’s amazing is that after all the negative attention being put on Reed over such a ridiculously minor issue, the company refuses to back down and is still pushing forward with the case. It’s difficult to see why this makes sense in any way. Reed is a publishing giant. It hardly needs to win this lawsuit, and it’s got nothing to do with protecting its trademark any more. Besides, this lawsuit has done a hell of a lot more to promote the old logo than anything that happened before.

Where this gets even more interesting (or potentially dangerous, depending on your opinion), is that the band’s bassist, Joe Escalante, is a former entertainment lawyer who is representing the band in the case. Despite not being a litigator, he’s been learning about litigation and even got himself admitted to practice law in Delaware, where the lawsuit was filed (the band is trying to get the case moved to LA). Escalante has been publicizing all of the aspects of the case, and the band is even holding a “fundraising” concert to fund the legal defense.

Filed Under: contracts, daily variety, logos, trademark, vandals
Companies: reed elsevier

Reed Elsevier Sues Punk Band Over Parody Logo That Was Discontinued Years Ago

from the daily-trademark-variety dept

brian williams alerts us to the news that the punk band The Vandals was recently sued by publishing giant Reed Elsevier because back in 2004, the band put out an album that used the font used by Hollywood trade publication Daily Variety for its own name on the album cover:


After the album was released, the band and its record label were sent a cease-and-desist over the logo. Rather than fight it (and they had a strong parody case), the band and the label complied with the C&D and stopped using the logo, replacing it with the one you see at the bottom of the image above. The Vandals seems quite confused over the nature of the lawsuit, seeing as they complied with the C&D more than five years ago:

The Daily Variety claims that our old logo for Hollywood Potato Chip, which is a parody of the Daily Variety logo commenting on the materialistic culture of Hollywood, is still on the Internet and they are suing us for this. We agreed not to use this logo anymore and we have no product for sale with this logo so their claims that we are intentionally using it and harming the Daily Variety are ludicrous.

We do not have this logo, or any other of their logos on any of our sites under our control. They are telling us that it is still on the Internet but they wont tell us where it is. Instead, they have demanded a HUGE sum of money. I mean HUGE, OUTRAGEOUS, and IMPOSSIBLE TO RAISE; and $25,000 for their attorneys to cover all the damages they have suffered from what they call a breach of our settlement agreement.

We have breached nothing. We are just a punk band and a small insolvent record label trying to keep stuff on the shelves and pay royalties to other artists.

Website The Wrap asked Reed Elsevier for comment and got the following message, which doesn’t address any of the actual issues:

“The stylized VARIETY mark is a very well known and valuable trademark which the Vandals misused,” Henry Horbaczewski, counsel for Reed Elsevier, wrote in an e-mail message to TheWrap. “We sued them, and they accepted a settlement agreement in which they promised to stop misusing our mark, because we wanted to stop the misuse, not their money. They then ignored their agreement.”

Horbaczewski added: “[Vandals drummer Joe] Escalante is a lawyer. He should have known the consequences of his actions.”

It’s difficult to see how they have much of a case unless there’s a lot more going on here. First of all, the use of the logo here is almost certainly protected as a parody use — and it’s difficult to believe that anyone (moron in a hurry or not) would face a likelihood of confusion and believe somehow that the album was endorsed or supported by Daily Variety. Even so, if it’s true that The Vandals are not selling anything with this logo, then it’s difficult to see how Reed Elsevier can claim that this is “use in commerce.” This whole thing seems like a pointless lawsuit for no reason whatsoever. Perhaps Reed Elsevier’s lawyers would be better served making sure that the company isn’t publishing fake, ghost-written journals at the behest of industry interests, rather than suing a random punk band for a parody…

Filed Under: daily variety, parody, the vandals
Companies: reed elsevier

Supreme Court Says Courts Still Have Jurisdiction Over Unregistered Copyrights

from the how-big-a-deal-is-this? dept

There have been a series of lawsuits over the past decade or so concerning newspapers and magazines republishing old content that was created by freelancers in digital format. Basically, the publications had freelancers create content for publication. Years later, this wonderful world we know as the internet became a big deal (and, before that, CD-ROMs) and the publishers wanted to republish their archives in digital format (first CD-ROMs, then the internet or other electronic database). Some of the freelancers got upset, saying that the publications were reusing their content without permission, and that the license to use the content had been for the one use only. Lawsuits were filed and eventually, in the Supreme Court ruled that this violated the rights of freelancers. That set off a flurry of other similar/related lawsuits. In one of those other cases, the publisher and freelancers eventually reached a settlement — but not all of the freelancers were satisfied with it.

In appealing the settlement, it was noted that many of the freelancers had not registered their copyrights. Now, as you hopefully know, you automatically get copyright on any new content as soon as it’s set in tangible form, but if you decide to register it, it gives you additional privileges and remedies against infringement. In most cases, not having a registration greatly limits what you can do in terms of a lawsuit against infringement. So the issue in this lawsuit — Reed Elsevier v. Muchnick — became whether or not those unregistered stories (and their authors) could be covered by the settlement.

Copycense points us to the Supreme Court’s ruling (pdf) which says that, contrary to what the Appeals Court had ruled, it is perfectly fine to include unregistered copyrights in the court’s jurisdiction. While some are reporting that this means you no longer need to register to sue, I don’t think that’s what the ruling is actually saying. It simply says that just because you haven’t registered, it doesn’t mean that it’s outside of the court’s jurisdiction. So it sounds like this means that unregistered copyrights can get included in a settlement/class-action lawsuit like this one, but the holders of those unregistered copyrights might still have difficulty (or great limits) should they try to bring the lawsuit directly themselves. It would be great to get some of the copyright lawyers in the community here to weigh in as well.

Filed Under: copyright, freelancers, registration
Companies: reed elsevier

from the yeah,-that's-convincing dept

Sherwin Siy (one of the few people who actually was allowed to glance briefly at parts of the proposed ACTA treaty, though under strict NDA) has written about yet another letter sent by the entertainment industry to the government in support of ACTA. This letter includes pretty much everyone who benefits from abusing copyright laws and is afraid of the internet:

Advertising Photographers of America American Association of Independent Music (A2IM) American Federation of Television and Radio Artists (AFTRA) American Society of Composers, Authors and Publishers (ASCAP) American Society of Media Photographers, Inc. (ASMP) Association of American Publishers (AAP) Broadcast Music, Inc (BMI) Commercial Photographers International Directors Guild of America (DGA) Evidence Photographers International Council Independent Film and Television Alliance (IFTA) International Alliance of Theatrical Stage Employees (IATSE) Motion Picture Association of America, Inc. (MPAA) National Music Publishers Association (NMPA) NBC Universal News Corporation Picture Archive Council of America (PACA) Professional Photographers of America (PPA) Recording Industry Association of America (RIAA) Reed Elsevier Inc. Society of Sport & Event Photographers Software & Information Industry Association (SIIA) Stock Artists Alliance Student Photographic Society The Advertising Photographers of America The Walt Disney Company Time Warner, Inc. Universal Music Group Viacom Inc. Warner Music Group

Funny… isn’t it, that all these companies and industry groups are supporting a deal that no one’s seen yet? Oh wait… that’s because many of them have seen it and actually have had a hand in creating it. But what’s really damning is that no where in the letter do they explain why this is actually needed or how it will do anything valuable. Instead, it’s a pure faith-based letter saying “if you pass this secret treaty, good things will happen.” I don’t know about you, but generally, I prefer there to be actual proof and evidence that restricting consumer rights around the world actually leads to some sort of real benefit.

Tellingly, they don’t respond to any of the points we raised earlier. This is not a treaty to help people or the economy. It’s a deal to try to sneak through a system for propping up an obsolete business model by companies who don’t want to adapt.

Filed Under: acta, copyright, counterfeiting, evidence, lobbyists, secrecy
Companies: a2im, aap, aftra, ascap, asmp, bmi, disney, gda, iatse, ifta, mpaa, nbc universal, news corp, nmpa, paca, ppa, reed elsevier, riaa, siia, time warner, viacom, warner music group

Merck And Elsevier Exposed For Creating Fake Peer Review Journal

from the wow dept

I know I’ve mentioned for a while that I’ve been spending a lot of time looking into the healthcare industry — particularly pharmaceutical companies, but haven’t written that much about them yet because I haven’t had the time to put everything together. However, the one thing that seems pretty consistent is how incredibly untrustworthy some of these companies are. The claims that it costs $800 million to make a pill are totally unsubstantiated. The idea that patents are necessary to create drugs is also entirely unsubstantiated. The more you look at it, the more you realize that patents have actually allowed the pharma industry to slow down many potential life-saving innovations in favor of a drug-based solution that isn’t always the best. That isn’t to say that there aren’t some valuable pharmaceuticals, but the industry has a long history of deception and convincing the public and politicians that they need a lot more protection and money than they really do — and that their drugs are more effective than they really are.

Even so, I was still somewhat stunned to read (via Clay Shirky) that Merck supposedly created a fake peer-reviewed journal to publish data that made its drugs look good. It also got Elsevier to publish the journal to make it look legit (Elsevier being one of the bigger publishers of — of course — proprietary medical journals). Two companies with a history of locking up information and data teaming up to mislead doctors and the public? What a shock…

Of course, this is exactly the sort of thing that you can do when everything is locked up and proprietary, rather than open. There’s almost no way to confirm or check the data or information to make sure it’s legit, so people tend to assume it is. In that regard, perhaps it’s no surprise that the two companies eventually went down this road, but it does highlight one of the problems with the way the system works today. As Shirky later points out this is hardly unique for a firm like Elsevier, which has faced some serious ethical questions regarding its publications in the past as well.

Filed Under: closed source, journals, peer review, pharmaceuticals, proprietary, scams
Companies: elsevier, merck, reed elsevier

Big Publishers Increasingly Experimenting With Free Academic Journals

from the about-time dept

For many years there’s been a push to create free research journals in various academic and scientific fields. The reasoning was that the high expense of the traditional journals made new breakthroughs and research much more difficult and expensive, potentially slowing down important advances. There was also some concern about publicly funded research not being available to the public. For a while, the traditional publishers acted horrified at the idea of free journals, but it appears that they’re finally realizing the idea might not be so bad. Publishing giant Reed Elsevier is launching a new free medical journal online for oncologists that it hopes to support with advertising. It hopes to sign up a bunch of doctors to use it and may launch other free journals in other medical areas. It’s definitely an experiment — and appears to be driven in part by the growing number of free sources online — but it’s still good to see the big publishing houses not just bashing the idea, but testing it out themselves.

Filed Under: medical journals
Companies: reed elsevier