When is enough enough? – IO: In The Open

lterrat's bookmarks 2017-05-09

Summary:

"During the course of the negotiations that led up to this lawsuit, LSU officials heard what many of us have heard, explicitly or implicitly — 'you will never pay Elsevier less.'  This is reflected in the 'commercial solution' that Elsevier has proposed, which would require LSU to subscribe to $170,000 worth of journals they do not need or want, and to pay nearly as much as the separate SVM contract cost (comically, Elsevier uses that 'nearly' as a way to call this proposal, which would needlessly cost LSU $200,000, a 'savings').  None of this is surprising; all librarians know that Elsevier will negotiate about anything but price, and that their view of their entitlement is the unmovable foundation of all negotiations with them.  The LSU situation, however, really puts into sharp focus Elsevier’s insistence that it, not the institution, must control spending and access decisions.  Ultimately, If Elsevier’s financial and subscription demands are permitted, they — a foreign corporation with no values other than profit — will shape what scholarships we can give, what research we can done, and which faculty get tenure.  This is not acceptable.

Even more unacceptable are the implications of Elsevier’s decision not to accept the service of process in this lawsuit at their New York offices.  The LSU agreement, like all contracts with public institutions in the U.S., has a clause that designates the law of Louisiana as the governing law for the agreement.  But Elsevier is now saying that, as a Dutch company, they must be served in the Netherlands using the complex processes dictated by the Hague Convention.  This is NOT a normal procedure in this kind of lawsuit, and it is probably just a bullying tactic intended to draw out the lawsuit and raise its cost for LSU, in hopes that the University will back down.  Nevertheless, it ought to make all U.S. universities ask ourselves if these clauses actually have any meaning.  If Elsevier reserves to itself the right to interpret everything in its agreements unilaterally in its own best interests, the legal requirement that state institutions only submit to the law of their own state may not be met, even when Elsevier agrees to insert such clauses.  We simply may not be able, as a matter of our own state laws, to enter into an agreement with a company that behaves this way.

In the last few weeks, I have had the opportunity to interact with two lawyers from outside of academia who have each studied the situation we all find ourselves in when we try to do business with Elsevier.  From very different perspectives and based on different legal situations, both lawyers arrived at the same conclusion — you cannot do business with this company.  Both recommended that American universities need to find ways to extricate themselves from relationships with Elsevier; that we develop strategies to do so as quickly as possible, and that our freedom from Elsevier should be a long-term commitment.

I began to propose the outlines of a long-term strategy in this blog post from last month.  I was interested to see that a short-term strategy was suggested by the the Association of Universities in the Netherlands in a press release that describes their inability to negotiate a subscription agreement with Oxford University Press. They point out five options for faculty researchers in a post-OUP (and, by extension, a post-Elsevier) world: requesting articles through ResearchGate, Academia.edu and other international networks, making direct requests from authors, finding Green OA versions of articles in repositories, using interlibrary loan, and finding OA versions using Unpaywall and the Open Access button."

Link:

http://intheopen.net/2017/05/when-is-enough-enough/

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Open Access Tracking Project (OATP) » lterrat's bookmarks

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Date tagged:

05/09/2017, 22:34

Date published:

05/09/2017, 18:34