Giving the Authors a Voice in Litigation?  An ACS v. ResearchGate Update

"The most interesting ResearchGate filing isn’t its factual answer to the complaint, but rather the motion that ResearchGate made accompanying its answer. That motion, with the inconspicuous title of “Motion for Notice Under 17 U.S.C. § 501(b)” asks the court to open the door for something big: communicating about the litigation with the actual authors of the articles posted to ResearchGate. Imagine that!

ResearchGate begins its argument by pointing out the unusual nature of the case, and why it is so important to clearly sort out who owns rights (authors versus publishers) in the articles underlying the lawsuit:

A typical copyright infringement lawsuit about copyrighted material appearing online involves a content creator suing a website owner when an unauthorized third party has posted the creator’s work to the website without the creator’s permission. But here, [the publishers] are suing . . . ResearchGate for allowing scientists to share their own work. . . . Under Plaintiffs’ infringement theories, if ResearchGate is infringing Plaintiffs’ copyrights in the articles at issue here, so are those articles’ authors. Accordingly, a finding that the appearance of those articles on the ResearchGate site was infringing would necessarily mean that the people who conducted the research and wrote the articles did not have the right to share them.

The motion goes on to argue that many authors of these articles (almost all of which were co-authored) still hold a valid copyright interest in them that would allow those authors to legally post the articles to ResearchGate. Even assuming that the publishers obtained valid transfers of exclusive rights from the corresponding authors, ResearchGate argues that there is no evidence that the publishers also obtained a valid transfer of exclusive rights from co-authors of the papers. Thus, those co-authors are free to make what uses they want with their papers, including posting to ResearchGate...."