March 25, 2017

Publishing Ethics and Platform Neutrality | Peer to Peer Review

Do librarians really get sued, or threatened with lawsuits, all that often? It is hard to say. My initial impression is that they do not get haled into court very often, but it is very difficult to know about threats. There may be more saber-rattling than we know about, and if such threats actually prevent librarians from taking the challenged action, we might never know about it. That is called a “chilling effect,” and there is a website devoted to cataloging such threats, which librarians should be aware of and, I think, contribute to when appropriate.

But surely it was remarkable last month when two lawsuits against librarians both made the news within the same week or so. Actually, only one was a real, filed lawsuit – the one brought by Edwin Mellen Press against a librarian at McMasters University in Canada for a blog post he wrote while at his previous employment that questioned the quality of the books published by the Press. In the other case, an online, open access publisher sent a cease and desist letter, along with a demand for $10,000 in damages and legal fees, to Jeffrey Beall, a librarian in Colorado who maintains a list of “predatory” open access publishers.

I hope this is just a bizarre coincidence, and not the start of a trend or, worse, the visible tip of a long dormant iceberg of intimidation. But even assuming that these are two isolated events, the coincidence of the timing and the content of the claims can teach us a couple of things.

First, lawsuits over bad “reviews,” which take the shape of claims about defamation (slander or libel), are usually counterproductive. The publicity that comes with filing a lawsuit over an alleged defamation usually has the effect of spreading the damaging statements that prompted the suit in the first place much more widely. Since I have never been an acquisitions librarian, for example, I knew very little about the Edwin Mellen Press before last month. Now I know, or think I know, a lot more, and it is not what the Press wants me to think about when I hear their name. Even if the win their suit or achieve a favorable settlement, I will probably always identify them as the publisher that had to file a lawsuit to suppress criticism of their books and business practices from a librarian.

There is a name for this phenomenon, coined by Mike Masnick of the TechDirt blog. It is called the Streisand effect, owing to the efforts made by Barbara Streisand to prevent the public availability of a photograph of her beachfront home in Malibu. Her efforts did not banish the picture from the Internet—something that is nearly always impossible—but they did increase exponentially the number of people looking at the photo. So it is with defamation claims; the lawsuit itself can do greater harm by bringing more attention to the negative things that were said than the original statements would otherwise have received. A good lawyer should always inform her clients considering such lawsuits about this likelihood, and only plaintiffs really convinced that they want satisfaction, even if they are further harmed in the process, should go forward.

Second, the specifics of these two cases are especially interesting to me because of the parallelism between the complaint made by a traditional publisher and that threatened by an online, open access one. Both publishers were accused of less-than-ethical practices, and both turned to litigation or threats of litigation to make those accusations go away. Part of the lesson—putting aside any judgment about the merits of these particular claims—should be that unethical practices are platform-neutral.

Jeffrey Beall’s website, which elicited the threat from The Canadian Center of Science and Education, is focused on so-called predatory open access publishers, and I have always wondered why it is limited to open access. Most librarians know about traditional, subscription-based publishers who employ less than ethical business practices. We have heard about journals that publish issues dedicated to a topic that are supported by a pharmaceutical company, which hopes to increase sales and may even dictate the contents. Another common practice, I am sorry to say, is to re-release an earlier book with a slightly different title and very few alterations, hoping that libraries will buy the new “edition” (which is sometimes not identified as an edition) without realizing it is a duplicate in terms of content. And whether or not the charge is true regarding the Edwin Mellen Press, we are also aware of traditional publishers who publish cheaply-made books at high prices, hoping for sales, mostly to libraries using approval plans, and depending on volume or inertia to prevent returns. I could name such a press that I am familiar with (not Edwin Mellen), but those chilling effects I spoke of earlier prevents me. If we are going to call out such predatory publishers, shouldn’t we do so in a neutral way, rather than focusing on a particular business model?

The argument behind special attention to predatory open access publishing is, I think, that now it is authors that need to be aware of these journals, which are hoping for lots of author-side fees and not very selective about what they will accept. Librarians have known for quite a while that there are certain publishers and some business practices they need to guard against, but it is new for authors to have to practice similar caution. Perhaps that is a sufficient justification for an “open access only” list of bad actors. But I am afraid that the emphasis on open access tends to allow people to think that ethical failings are strictly an open access problem. A better approach, in my opinion, is, first, to recognize that most publishers, whether traditional or employing new business models, are ethical and sincere in their desire to provided needed services to the scholarly community. Then, we should recognize that those few who fail to pursue that higher goal and resort to predatory tactics may be found in both the traditional and open access realms. Finally, we need to see this as an opportunity to work with our faculty authors so that they understand that benefits, downsides, and risks that accompany whatever publishing models they are considering.

Kevin L. Smith About Kevin L. Smith

As Duke University’s first Director of Scholarly Communications, Kevin Smith’s ( principal role is to teach and advise faculty, administrators and students about copyright,intellectual property licensing and scholarly publishing. He is a librarian and an attorney (admitted to the bar in Ohio and North Carolina) and also holds a graduate degree in religion from Yale University. Smith serves on Duke’s Intellectual Property Board, Digital Futures Task Force and Open Access Advisory Panel. He is also currently the vice chair of the ACRL’s Scholarly Communications Committee. His highly-regarded blog on scholarly communications discusses copyright and publication in academia, and he is a frequent speaker on those topics.

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