Re: Central versus institutional self-archiving

From: Dan Hunter <>
Date: Sun, 23 Nov 2003 19:52:33 +0000


Thanks for the details [below]. All good strategies, with which I'm
reasonably familiar, given that one of my areas of professional interest
is in the propagation of p2p networks and the copyright effects on same.

However, the specific issue in this case is with SSRN
which is an excellent addition to the typical publishing environments
(in terms of getting the ideas out to a broad audience), but which
is subject to attack as a centralized repository of material which
is copyright by others. 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.

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).

best wishes


Dan Hunter
Robert F. Irwin IV Term Assistant Professor of Legal Studies
The Wharton School
University of Pennsylvania

On Thursday, November 20, 2003, at 09:02 PM, Stevan Harnad wrote:

> On Thu, 20 Nov 2003, Dan Hunter wrote:
>> Thanks for the analysis. And can I just say that I was only
>> deferential and cautious since I was trying to persuade them to change
>> their mind at the meeting they were having yesterday, and I find that
>> you catch more flies with honey (and snide remarks on the side). They
>> have, in fact, deferred their decision until Spring, so it seems to be
>> working. A bit.
>> I'll be using your information in the battle against increasingly
>> "white" journals in law. Oddly, many of them are going from green to
>> white, in a peculiarly perverse example of the power of commercial
>> publishers.
>> best wishes
>> Dan.
> Dan,
> I'd also like to make a few strategic suggestions:
> (1) Removing a paper posted on the web -- even though it looks feasible
> on paper, and to lawyers accustomed only to the paper medium -- is not
> the same as removing a paper from bookshelves and withdrawing it from the
> market. Once a digital document has been broadcast to the digital
> airwaves it is never possible to remove it completely: It will have been
> harvested, cached, copied, and propagated in many directions from which it cannot
> be withdrawn. (Try removing a paper from the "Usenet" complex! No one
> would know where to begin, or whom to turn to!)
> (2) So if in the initial posting of the preprint, prior to submission,
> the author posts it sufficiently diversely -- or even if just to one site,
> but that site is picked up by lots of harvesters -- there must be a word
> for the kind of law it would be that would require the author to do the
> undoable at some later date! Rather like a law that says visitors may
> come to Baltimore, and they may inhale the air, but not exhale it. Or
> they may only come if they do not have a blue-eyed maternal grand-uncle.
> (3) There is also a slippery slope between the preprint and the refereed
> postprint: How many drafts back, and how similar a draft, counts as the
> *same* paper?
> In other words, it is not at all clear whether any journal is in a
> position to require an author to remove drafts that are no longer within
> his power to remove (but were posted at a time when it was not within
> any journal's power to prevent their being posted); nor is it clear
> how similar a text they would even be entitled to require removing,
> even if it were removable.
> For these reasons, with Charles Oppenheim (the EU copyright
> and intellectual property adviser at Loughborough University in
> the UK and director of the Romeo Rights project), we devised the
> preprint-plus-corrigenda strategy for authors to legally get around
> even the most restrictive copyright transfer agreement:
> The agreement is only binding from the moment it is signed, and pertains
> to the "value-added" draft that the journal has refereed, the author
> has revised, and the editor has accepted (the postprint). The author
> self-archived the preprint before submission. After refereeing,
> revision and acceptance, author agrees to transfer copyright but tries
> to retain the right to self-archive the postprint. If the journal
> (green) agrees, all is well and author self-archives the postprint. If the
> journal (white) refuses, author signs it all over anyway, and instead of
> self-archiving the postprint, merely self-archives the corrigenda
> arising from the refereeing and revision, and links them to the
> already-archived -- and ubiquitous -- preprint.
> I believe that requiring the removal of the non-value-added preprint is in any
> case not a copyright matter, as it was legally (and irreversibly) broadcast
> at a time when the sole copyright for *that* text was the author's. Hence it is
> not a copyright but a contractual matter, i.e., a matter of journal policy -- one
> usually going by the name of the "Ingelfinger Rule" (after the first editor of
> the New England Journal of Medicine, who formulated it, and then many
> journals followed suit). Today, the Ingelfinger Rule is being dropped by most
> publishers as being unjustifiable and unenforcable. It's time Law Reviews heard
> the news!
> Harnad, S. (2000) E-Knowledge: Freeing the Refereed Journal Corpus
> Online. Computer Law & Security Report 16(2) 78-87.
> Harnad, S. (2000) Ingelfinger Over-Ruled: The Role of the Web in the
> Future of Refereed Medical Journal Publishing. Lancet Perspectives
> 256 (December Supplement): s16.
> Cheers,
> Stevan
> --------------------
> Stevan Harnad
Received on Sun Nov 23 2003 - 19:52:33 GMT

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