Some thoughts on the AHA's statement on Open Access

This is just a brief note on the AHA Statement on Open Access (with a special hat-tip to Jason M. Kelly’s insightful point-by-point response).

Though I’m writing from a standpoint within academic publishing, I won’t comment on whether we deprecate works published open-access as dissertations (for various reasons I'm sure you can imagine). I want to pull the focus back a bit and point out a few obvious things. (Hey, somebody has to!) The AHA’s statement is quite pragmatic in working within the status quo: publishers have a lot of power, especially over young academics’ careers.

However, publishers have that power because departments (and, perhaps more crucially, university administrations above them) have given it to them: hiring and tenure are not, cannot be done in today’s university, on the basis of a departmental decision. Rather, there needs to be outside evidence, measurable evidence!—checklists and scores and quantifiably lawyer-proof mountains of Why we hired X and not Y. This is a fact of life, and the AHA is wise not to take on the ABA (and that ain’t the booksellers’ association here).

But the AHA could have done more. Let me quote one point from the AHA and Kelly’s counterpoint.

AHA: By endorsing a policy that allows embargos, the AHA seeks to balance two central though at times competing ideals in our profession–on the one hand, the full and timely dissemination of new historical knowledge; and, on the other, the unfettered ability of young historians to revise their dissertations and obtain a publishing contract from a press.

Kelly: It is important to protect the interests of early career historians.  But, this statement seems to understand their interests narrowly.  What kind of academic community should we help craft with them?  I would suggest that we help craft a community of openness and collaboration — one that embraces technologies that are likely to expand our impact and reach wider audiences.  This may mean remaking the conventions of the profession and likely requires that we abandon ad hoc attempts to protect the status quo.  This will likely mean confronting the habitus of our profession and disrupting the institutions that we have been working in for over 100 years.

(my emphasis)

The “ability of young historians to revise their dissertations and obtain a publishing contract from a press” is not by any possible stretch of the imagination an “ideal in our profession”—it’s a means, a practical stepping point to keep future scholars in business. But far more importantly, academic publishing is exactly the business of “full and timely dissemination of new historical knowledge.”

And here’s where the AHA erred. They should have called out both publishers and their own membership for slowing down the timely publication of new scholarship. “Confronting the habitus of our profession and disrupting the institutions” is another way of saying, “We need to raise our game to a new level, and fast, or we're going to be looking for a new game."

Young scholars--don't just "obtain a publishing contract," make that diss into a manuscript. 

Senior scholars--turn around your goddamn manuscript reports.

Publishers--you know how complicated this is and the gazillion things that can derail or slow publication.

Everyone: Do it better. 

Sale or license? (with a dash of California vs. New York!)

That nice boy from the midwest, Marshall Mathers, just won his case, F.B.T. Productions v. Aftermath Records in the Ninth Circuit Court of Appeals. This is, for lack of a better term, a pretty Big Effing Deal for electronic publishing in any medium. Here's why.

When authors or musicians (and other kinds of talented and creative individuals) sign a contract with a publisher, it's usually structured in the following way. Every time the publisher sells a copy of the work, the author (I'm going to say author, though the artist here is a musician) gets a cut, anywhere from, oh, four percent up to maybe twenty or twenty-five percent. (The more copies that the publisher thinks will sell, the bigger a percentage they'll pay to the author, since fixed costs for the work—editing, design, mastering, preparation of "plates" [digital or metal], and the like—become a smaller percentage over a bigger print run.)

However, if the publisher licenses subsidiary rights in the work to someone else, then the author and publisher usually split the proceeds fifty-fifty. This is because the publisher is doing work to negotiate these deals—they wouldn't happen without the publisher making them happen in most cases—but not, usually, investing much, if anything, in these subsidiary-rights ventures. What sorts of things are we talking about? Translations, abridged editions, adaptations into another medium (movie versions of books! comic book versions of movies!), licensed merchandise and apparel, coursepacks, magazine excerpts... you get the idea.

Now, here's why I think that the Ninth Circuit made a good decision: The [music] publishers were trying to have it both ways. They were claiming, when it came to their talent, that they were selling copies of the works to distributors, who were in turn selling copies to their customers. They were therefore accounting for any money that came in on these deals as Sales, and paying the authors a Royalty on these sales, as their authors were due in their contracts, maybe 5, 10, 15, 20 percent. However, the publishers were turning around and treating their "distributors" on these deals very much as licensees: the publishers made them all sign license agreements, which were only in force for limited times; the publishers retained the right—and the material/electronic capacity—to withdraw access to the work; the publishers only allowed very specific in short, they called it a license, they structured it like a license, and it quacked like a license.

The court said, "Nuh uh uh! You want this to be a license because you want to keep lots of control over the work itself. You can't go paying the author like you've sold copies of the work and don't have any control over where they go from here." Calling BS on any entity trying to own both sides of an argument is a good thing in my book.

Where will things go from here? Well, the article I kicked off with does a pretty good job of summarizing things: Fretting and complaining from publishers of all stripes, then someone will take a position "for the author" and "against the industry" and bang, higher royalties for authors on electronic editions (succumbing to what will surely be an increasingly loud plaint from authors and agents for such a raise). The ways that these institutions respond is quite familiar.

To give a little background for what's going on in the last paragraphs of the article: First, there is a broad sense that the Ninth Circuit is "more liberal" than the Supreme Court (see Newdow), but that may be more of an image than the substance warrants (I do have a day job, or I'd check stats for Supreme Court reversals of 9th Circuit decisions), and this isn't a straightforward liberal/conservative issue anyhow. Within the realm of publishing, things get even more complicated; while the Ninth circuit encompasses California, and, within it, a whole squadron of film and music companies, the biggest players in the publishing of words are located in New York, in the Second Circuit, and the Second Circuit has never felt the need to bow to Ninth Circuit precedent (I suspect that the Second and Ninth Circuits might even take a tiny breath of pleasure in taking a contrary position to what the other has staked out).

Third, no one wants to take this to the Supremes, since a broad decision is an awful big gamble and this court isn't knee-jerk predictable on these issues. So we're unlikely to get a firm, nation-wide binding system to establish the lines between sales and licenses, but we are likely to see more clarity about such things in contracts.

And last, the prospect of more direct-from-publisher-to-consumer sales of electronic editions is growing. In selling such editions, publishers can maintain the control they would have to use a license to maintain in an environment of distributors and retailers.

“Justice?—you get justice in the next world, in this world, you have the law.”—Wm. Gaddis, A Frolic of His Own

An open letter to Google

Please, feel free to cut, paste, and send this message to the Googleplex from as many directions as you see fit.--Dingbat

Dear Google,

Please cease and desist from claiming "Map Data (c) 2010 Google" in the lower edge of the maps you present at your lovely and helpful web page, http://maps.google.com. As any legal hack can tell you, data cannot be copyrighted. You are, at best, embarrassing yourself, and, at worst, stealing from the public, by claiming ownership over something that is our common property, the public domain. That's pretty evil, in my book, and I think your corporate charter says something about that.

With thanks,

Dingbat

PS: When you give transit directions to MDW airport (e.g.), you don't need to send folks to the MDW transit center, and then back out again on the 63W bus so that they can go in the "front door" on 63rd Street. It's probably a good guess that they want to go to the terminal, and probably a good guess, too, that the Transit Center is there so people can get from PT to the terminal. Cheers!

Follow-up rant: Patent 7, 041,042

I'm calling B.S.

So the reason that I posted the picture of the bottom of the airsickness bag was...what the hell are they patenting? Like no one's made an airsickness bag before?

Having read the patent I'm calling B.S. again, and doubly. As mentioned, no one's made an airsickness bag before? No one's made a plastic seamless-sided bag before? It's not blindingly obvious to use the latter as the former?

Secondly, the very bag I held in my hands and which you see a picture of below, was imprinted with no "indicia" or "graphics comprising instructions for using said tubular member in the event of nausea." That imprinting is one of seven claims of the patent.

There's a patent examiner out there who needs to look me in the eye and tell me that this will "promote the progress of science and useful arts." As someone who makes a living from intellectual property, I'm keenly aware that invention, discovery, and creation need to be made profitable. I'm also keenly aware of when something stinks. And this one smells as bad as its intended contents.

OK, rant over. Now that I've gotten that out of my system, I feel much better. Hey, maybe it does work, after all!