Major Publishers Sued for Antitrust Violations

Professor Lucina Uddin, with Justice Catalyst and the law firm Lieff Cabraser, has filed an antitrust case against six of the largest for-profit publishers: Elsevier; Wolters Kluwer; Wiley; Sage; Taylor & Francis; and Springer Nature, as well as the International Association of Scientific, Technical and Medical Publishers, commonly known as STM. Interestingly, this is a class action lawsuit from a private plaintiff, not a government action.

The complaint is a broadside against the current state of the scholarly publishing industry. For its antitrust claims, the plaintiffs point to three major areas: uncompensated peer review; the requirement that authors submit exclusively to one journal; and the requirement that, upon article acceptance, authors sign away their rights to publishers that prevent the authors from sharing their research. The plaintiffs point to language found in STM’s International Ethical Principles for Scholarly Publication, which all publishers in the case agree to, in support of their case.

It is important to keep in mind that a complaint does not need to go that far in detailing the legal arguments that go into a case. The plaintiff says the defendant did some things, asserts those actions were unlawful, states the source of the unlawfulness, and asks for some relief. The first of those take up the majority of the brief. Before the court can really get into the lawfulness question, it will have to resolve the issue of this being a class action, and the definition of the class. The publishers will likely assert that individual authors cannot be joined as a group, and need to be treated individually. They might have a point, in that some people may have only interacted with the system as peer reviewers, and some people may have only been submitting authors. 

Allegations

The first allegation is about unpaid peer review labor. This allegation should give the defendants the most pause. Why aren’t peer reviewers compensated financially? Whatever that reason is, is there a better way to deal with that issue rather than not paying them? By many accounts, we are reaching a peer review crisis in terms of finding enough reviewers. The biggest problem the plaintiffs face here is that their allegation is pretty weak in terms of pointing to the actual language in STM documents that say reviewers should not be paid. There is acknowledgement that it is volunteer work, but none of the ethics requirements say not to pay. 

The second is the requirement that authors only submit to one journal at a time. This certainly predates STM, but it is mentioned in the STM ethics. It is an interesting idea to consider what academic publishing would look like where journals compete for articles at the submission stage. Most law publishing is already this way. Allowing multiple submissions has not led to any monetary compensation for authors, but there are ways authors use the system to maximize prestige, which is one of the main benefits authors get from publishing. It is also arguably quite inefficient, with potentially hundreds of journals all spending time to review a submitted manuscript with no pay-off. 

The final claim is against the practice in author agreements that prohibit sharing of the manuscript. I’m not sure that this is completely factually correct, as it seems to mix articles under submission and articles that are published, but the claim will need to be fleshed out in light of policies on things like preprints. The complaint is also against publishers requiring authors to sign publishing agreements where the authors transfer their copyright.

Analysis

Overall, I do not think this lawsuit will “fix” scholarly publishing. It does not effectively address the prestige economy that drives authors to certain behaviors in the first place; nor would the industry become less consolidated. However, even if it turns out that the business of scholarly publishing is not the way it is due to unlawful market collusion, it is good to question why the industry is shaped like it is.

I am not sure how the large Open Access publishers, MDPI and Frontiers, did not get listed as parties in the lawsuit. Given the suit alleges the defendants own a little more than half of all academic journals, they must be more concerned with titles than articles published. In addition, totally OA publishers likely could not be included in the third alleged unlawful practice, as authors are allowed to share their work.

I think the case will eventually be whittled down to the peer review compensation issue, where it will be easiest to define a particular class of people affected. At that point, a settlement that includes changing the language of the ethics guidance of STM, plus a monetary payment to reviewers (where the lawyers received a nice percentage of the total) would probably be in everyone’s best interest.

Appeals Court Rules in Internet Archive Controlled Digital Lending Case

The Second Circuit Court of Appeals has ruled against the Internet Archive (IA) and its Controlled Digital Lending program in Hachette Book Group, Inc. v. Internet Archive, holding that the program was not fair use, with every fair use factor supporting Hachette et al. (the Publishers). An appeal is possible, but the future of doing CDL at scale under the fair use doctrine is bleak. 

How We Got Here

Controlled Digital Lending (CDL) is the digitization by libraries of lawfully acquired books, and the lending of those copies  via technical measures that prevent copying digital files, while ensuring that there are never more total copies (physical and digital combined) in circulation than the number of physical copies owned.

This case started back in 2020. Internet Archive had a CDL program for years, with their own books and with partners. During the COVID emergency, in response to library closures, they started a “National Emergency Library” where they removed the cap on the number of digital copies of books they circulated. At this point, a number of large publishers sued IA for copyright infringement.

The Internet Archive could not deny they made copies of books, but claimed CDL was allowed under fair use. The district court that heard the case ruled against IA on every major point. Internet Archive appealed to the Second Circuit Court of Appeals, and the case was heard in late June. Importantly, between the District Court opinion and the Appeals Court hearing, the Supreme Court decided Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, interpreting fair use in a way that put much weight on the ability for a copy to substitute for an original work as being against fair use.

Second Circuit Ruling

The three-judge Appeals Court ruled against the Internet Archive on all four fair use factors. 

  1. Purpose and Character of Use

This section examines two important questions. One, was the use of the copy transformative? And two, was the use commercial? 

The issue of transformative use really decided the case. Internet Archive pointed to cases that said a use might be transformative if it improved efficiency in delivering the content, as CDL does. CDL also allows people to link directly to the book as a source of information. However, the Court said that the use was “meant to–and does–substitute for the original Works.” (p.24). This substitution is the antithesis of transformativeness. The Court then tried to articulate the difference between a transformative work and a derivative work. A derivative work is defined by statute as “…work based upon one or more preexisting works…” with many examples and the catch-all “any other form in which a work may be recast, transformed, or adapted.” E-books are not listed in the definition, but the Court stated that changing the medium of a work is by itself a derivative use. (p. 25). The Court did have to distinguish a couple of other cases, most notably the Sony copyright case from the 1980’s, which allowed people to use VCRs (technically Betamax) to record television programing to watch it later, in such a way cabins the opinion to a particular time period in broadcasting and technology that raises questions as to whether the court would rule the same way today.

On a side note, in considering the owned-to-loaded ratio of CDL as a basis for the use being transformative, the court said “IA does not perform the traditional functions of a library; it prepares derivatives of Publishers’ Works and delivers those derivatives to its users in full.” (p. 31). I do not think this was a significant part of the Court’s analysis, but it does point to an issue that was more present in the initial stages of the case – is the Internet Archive a library? I hope courts take that question beyond “lending of print books” if called upon to make that specific choice in the future.

The use was found by the Second Circuit to be non-commercial, with the program only providing attenuated financial benefit to IA, but that did not swing this factor in favor of the Internet Archive. 

  1. Nature of the Work

While Internet Archive argued that the copying of non-fiction books should at least be neutral in the balance of fair use, as facts are not protected by copyright, the Court still found that overall, non-fiction books have the type of creativity that copyright protects. (p. 41). This is one spot where a specific book-by-book analysis could have made a difference, instead of looking at the aggregate, but this is typically not a decisive factor and probably saved months of time in reaching an opinion that would have come out much the same.

  1. Amount and Substantiality of Portion Used

This factor is tricky in that courts need to emphasize that there is no strict quantitative rule that a certain amount of copying is always fair use, or that copying an entire work is never fair use. The Court here pointed out that IA copied entire works, and also made those works available to the public in their entirety. (p.42). The Court looked back at the first factor here to say that since the copying was not for a transformative purpose, but to substitute for the work, the copying was too much. This is not usually a decisive factor, and the court here seemed most interested in highlighting why this copying was different than in its Google books case, where Google copied entire books, but only made snippets available to the public.

  1. Effect of Use upon Potential Market for Work

The court held that the Publishers did not have to prove harm with evidence, but that the Internet Archive had to meet a near impossible standard – proving that CDL does not harm the market for books. (p.45).  The IA was not helped by the fact that most of the Publishers did not provide monthly sales data. Both IA and the Publishers had expert witnesses, but the Publishers’ expert carried the day in critiquing IA, as the Court was not persuaded by the analyses from IA looking at book sales during and after the National Emergency Library. (pp. 49-52). The court put stock in the idea that if a copy is available for free, the market for the paid version will be affected negatively, and also noted a couple of phrases from IA’s promotional material strongly suggest it was appealing to other libraries to utilize IA’s CDL program so as not to have to pay for ebooks. It is quite possible the Publishers could have found examples of libraries doing exactly that – libraries deciding not to buy eBooks and instead putting IA’s Open Library books into their catalog for patrons – and used that as evidence. However, the Publishers may have been more worried about opening the door to the idea that the copyright holder should have to provide evidence of market harm, which is a standard they would really want to avoid.

The Court did nominally consider the benefit the public derived from IA’s CDL to counterbalance to market harm. Here it really discounted the value of providing access to knowledge to the public, and focused on the argument that providing copies of books would disincentivize authors, and disincentivized authors would not create new works, harming the public. This Court cited the Supreme Court on this exact point. Perhaps if the Supreme Court was able to monetize its opinions instead of them being in the public domain, they would take more cases!

The Future of CDL

The most immediate question is what this means for CDL of books that are not available electronically from a publisher. On the one hand, the court says that “[W]e conclude that the challenged practices–IA’s lending of its “own” digital books that are commercially available for sale or license in any electronic text format,’ . . . are not fair use.” (p.20). On the other hand, it defines the market as the market for “the Works in general, without regard to format.” (p. 46) and makes it clear it thinks that creating a digital copy of a book was making a derivative of the original, and not a transformative use. Put together, it is hard to see how any book could be digitized and used for CDL without permission.

That permission may be the key to future CDL. There is nothing saying that a publisher could not allow libraries to copy and lend books with a one-to-one owned-to-loaned ratio, or any ratio. It might not appeal to Hachette, but there could be publishers who do not have the bandwidth to have their own digitization program, nor want to work with platforms like OverDrive, and choose to have library-based CDL, perhaps with some money changing hands. 

As for IA’s program, IA is “reviewing the court’s opinion.” They could appeal to have the case re-heard by the entire Second Circuit, though this is rare. Longer term, IA does have an option to appeal to the Supreme Court, but the Supreme Court does not have to hear it. There is a hint of a circuit split on the issue of proving a lack of market harm, as the D.C. Circuit ruled in a different direction in the similar case ASTM vs. PRO. But, the Second Circuit here relied heavily on the very recent Warhol case, which the Supreme Court decided in 2023. I think that makes a grant of cert unlikely.  Even if the Supreme Court would be interested in addressing the market harm issue, Internet Archive will have to consider if that would be enough to change the final result. Proponents of CDL may need to focus on legislative changes to copyright law, especially to libraries’ copyright exemptions in 17 USC 108, to deliver on the benefits of CDL.

Silver lining for non-profits, and maybe Creative Commons

As mentioned above, there was some good news from the decision about non-commercial use. At the district court level, Internet Archive’s CDL program was deemed a commercial use, as IA had a donate button on the same page as the book. There was also language about IA gaining reputational benefits from the program. This was all despite IA being a non-profit organization. The Second Circuit found that this standard would be very damaging to non-profits in general, and would likely prevent them from ever utilizing fair use. (pp. 37-38). Though not mentioned in the case, this language might also provide a little more clarity around the Creative Commons BY-NC license, where commercial is not defined.

What does this case mean for AI?

This case will also interest people looking at the New York Times case against OpenAI and Microsoft, currently in a lower court within the Second Circuit. Many AI companies claim that scraping the internet and using copyrighted works in training a model is fair use, and cite the Google Books case. I would not say this case is likely to swing the result of AI training cases, but two bits stand out.

First, the court positively cites language from several cases that says a copy is not transformative if it just “repackages” or “republishes” a work. Query whether training a Large Language Model is just repackaging content into some set of probabilities and relationships between words. Second, in discussing the third fair use factor, it reiterates its decision in another case to limit the factor to the amount of the material “made available to the public.” (p. 42). Assuming the public cannot extract copyrighted content back out of a model (which is a point of debate, and might depend on the content), it seems like the AI companies will do well on that factor. 

Apologizes for citation style to any Bluebook devotees!

New Addition to Ebook Collection

More and more across academia, students getting involved with scholarly publishing on their campuses. Whether this takes the form of contributing to research papers or authoring articles and submitting them to journals, young scholars are seeking opportunities to participating in developing discourse and add to the scholarly record. Boston College libraries in particular supports this in a variety of ways; all students are welcome to apply for funding via the Open Access Publishing Fund, which provides support with the coverage of Article Processing Charges for authors interested in submitting work to, and our Open Journal Systems platform, which currently hosts nine student journals publishing material.

Given the relative increased interest, the timing of this new title could not have been better. How to Edit and Manage a Successful Scholarly Journal: Humanities, Arts, and Social Sciences was publishing in May of 2024 and consists of eighteen chapters covering a wide variety of central topics that any young scholar should keep in mind. From best practices around building an editorial team to how to judge questionable and predatory editorial behaviors, this helpful guide provides a foundation for higher education practitioners interested in guiding students through the process of being published or attempting to manage a serial. And indeed, the ebook is now fully accessible for rental through the Boston College libraries’ catalogue.

While there are eighteen chapters in the collection that cover a wide range of topics geared towards helping scholars think about publishing in the humanities, arts, and social sciences, Chapter 8 “Rebound and renewal: strategies and tactics for journal revitalisation” focuses on some ideas for picking up journals that may struggle to consistent gather and publish content on a quarterly or yearly basis. The chapter outlines best practices around communications with an editorial board and some suggested leadership roles, and also discusses ideas for attracting submissions, such as publishing “special issues” with a clearly defined focus – inviting a wider array of reviewers for a more non-committal approach to introduce young scholars to participating in scholarly publishing. Additionally, sticking to consistent timelines for the review process leads to more consistent positive relationships with authors, which can help provide sources of content when a journal is looking for submissions.

Here at Boston College, we have a number of journals that still enjoy tremendous global readership, but are no longer publishing current issues. Elements is a interdisciplinary undergraduate journal with a long history of publication at Boston College, but is currently not actively seeking submissions. Additionally, Lingua Frankly, another long time student publication, explores undergraduate work that has to do with language or linguistics, but has not had an active editorial board since the major disruptions of the pandemic. If you have interest in revitalizing or starting your own an open access journal at Boston College, please reach out to Gabriel Feldstein and the Scholarly Communications Team for more information. Click the images below to view the publications from the respective student journals.

Elements has been in publication since 2005 and has published 28 issues with Boston College Libraries.
Lingua Frankly, Boston College’s undergraduate linguistics journal, has published 4 volumes starting in 2013.

What is “Inclusive Access” – and how is it different from Open Education Resources?

As publishers, librarians, faculty, and administrators continue to search for more equitable means of providing learning materials to their students, new methods and ideas have surfaced as ways of knocking down financial barriers to accessing textbooks and other educations resources.

One exciting new development from different academic libraries and library coalitions has been the development of Open Educational Resources, or OERs. According to Education Week, “Open Educational Resources are materials for teaching or learning that are either in the public domain or have been released under a license that allows them to be freely used, changed, or shared with others.” Generally, these resources are developed by faculty in conjunction with librarians or university presses with published expertise. As more and more OERs are created, more and more syllabi are including OERs, as professors know that students can access these materials without having to incur costs.

On the other hand, publishers have also tried to address the need for more affordable course materials by packaging access to materials in what they are calling “equitable” or “inclusive” access. When students enroll for a class, if they do not choose to proactively opt-out, the cost of their textbooks is averaged across the entire institution, regardless of the particular courses a student may be taking, and added to the students tuition bill – ensuring that students will be able to access materials assigned by a professor in a course. For teachers and students, these models can seem similar, as both ensure that students will have “Day One Access” to the materials (that is to say, they will have access to the course materials without an extra cost or step of buying the textbook on the first day of the semester). However, the methodology behind each is very different.

Open Educational Resources are built explicitly as low or no cost options for courses. These tools are often developed by faculty and generally under CC BY licenses, allowing for derivatives to be built and possibly improved by future uses and technologies. Inclusive Access, however, is a profit-motivated model that being rolled out by publishing companies to make sure their materials are in the hands of students and being used in courses. Ultimately, because the impact on faculty and students in the classroom or taking a course can be similar at the point of use, sometimes OERs and Inclusive Access can be confused – but as the landscape continues to change and new technologies are developed, it will be important for librarians to be able to make the case for OERs and distinguish the two models for faculty. Studies continue to come out detailing the benefits of differing models – but the nature of OERs and their ability, generally, to be adapted, allows for students and faculty to be constantly engaging and creating new learning materials, while the same cannot be said for Inclusive Access which continues to stir concerns about transparency and overall cost.

Relatedly, Messina College recently opened its doors with a new associate’s degree program. Part of the promise of the program is the commitment to providing one-hundred first generation, high financial need students an opportunity to pursue an associate’s degree at Boston College. And indeed, as a part of this program, the costs of the textbooks and resources like laptops will be paid in advance. In this case, however, the university itself is footing the bill for the resources, without passing the burden of payment on to the students – certainly an exciting move towards a more equitable landscape on the part of the university!

InfraFinder – a new tool from Invest in Open Infrastructures

As more and more libraries and authors are seeking open source platforms and technologies for their publishing, the need for a systematic way to consider options arises. Invest in Open Infrastructures has developed a new tool that can help practitioners decide what open source platforms might be best for a given use case.

The InfraFinder tool allows users to browse across 57 different open source platforms that have been developed for different purposes by practitioners prioritizing open models of publication. The tool has a number of different filters to effectively compare different technologies and platforms – in addition to specific information about each solution. When using the tool, a user can select up to four solutions at a time to compare across a number of categories and considerations – a very helpful way to compare open software solutions side by side.

This exciting tool is also relatively new – having been developed and released between 2023 and 2024. As more open infrastructure projects are developed and added to this tool it will become a more and more helpful place for authors and librarians to go to get a sense of what tools exist.