Is Anyone Against Open Access?
posted by Frank Pasquale
William McGeveran offers a nice roundup on the topic here; and debate seems to be shifting from “whether” to “how.” I just wanted to open up a comment thread: is anyone against this? Why? I got a few responses to an earlier post on the topic, but they were ably responded to by OA leader Peter Suber.
October 16, 2006 at 10:22 am
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Responses (4)
Jason Mazzone - October 16, 2006 at 1:02 pm
In practice, law reviews operate (and have long operated) as open access publishers. Even when law review editors require an author to sign away a copyright and even when they include copyright notices on their publications and on their websites, these things have little bite and little impact.
Law reviews simply don’t have much interest in limiting reproductions of their works and they don’t typically have somebody on staff who can police copyright infringement. (One board doesn’t typically care what happens with articles produced by an earlier board.) And it’s hard to imagine a law review bringing a lawsuit for copyright infringement–what law review is going to sue professors who post their own articles on websites or distribute copies of a piece to students for class? Perhaps there have been lawsuits (or threatened lawsuits) of this nature but they must be very rare. Everybody understands that in practice the law review norm is free access.
The real issue, I think, is not trying to pressure law reviews into adopting open access but getting them to make their copyright notices and such conform to and acknowledge the open access policy they already, in effect, follow. Some already do this. Some (remember these are law students) make strong copyright claims.
So to answer your question: nobody is opposed to open access–but not everyone is upfront about allowing it.
Bruce Boyden - October 16, 2006 at 4:35 pm
I thought I posted a comment here but it seems to have disappeared. Basically, I wondered how the publishers are paid. If they’re paid by the subscription, then free page-proof downloads may undercut their business. Same with Lexis and Westlaw, which I forgot to mention. To the extent hard copies/proprietary databases are still useful, there has to be a means for publishers to recover their costs and make a profit.
Also, I’m skeptical of a generally applicable norm on professors, as I stated in the comments on Legal Theory Blog, but I have nothing against increasing the attractiveness of open access venues, as Mike Madison has suggested.
William McGeveran - October 16, 2006 at 5:18 pm
Thanks for the link, Frank!
I wish the situation were as rosy as Jason Mazzone describes, but I don’t think his characterization is quite accurate. To be sure, it is unlikely that most law reviews have the capacity or the desire to police their copyrights very aggressively. I would add that many uses of content from law reviews would be protected anyway by the fair use doctrine.
That is only half the story, however. Would-be users often need ironclad rights clearance because various gatekeepers demand it: the universities where they work, the publishers who distribute the possibly infringing work, insurers, and so forth. In addition, even a low risk of liability is unacceptable to plenty of users (particularly those with the minimal resources of the typical scholar). And there is a serious practical limitation on access as well — lots of Concurring Opinions readers have effectively unlimited access to Westlaw and Lexis, but the rest of the world does not.
Perhaps changes in law review policies merely would accord with their actual practices — but many law reviews nonetheless have resisted making such policy changes. And though it may be easy for professors to post their own articles on the web (contrary to their contracts with journals), surprisingly few do so.
Most of all, as argued eloquently by several of the people to whom I linked (including Larry Solum, Susan Crawford, Mike Carroll, and Dan Hunter), there is the matter of establishing an appropriate norm of openness for legal academia. Even if users of law review content can get away with ignoring a copyright because the practical risk of suit is low, I don’t think that’s enough. After all, we are supposed to be committed to both (1) the law and (2) intellectual openness and interchange. Accepting quiet infringement seems to run against both principles.
So, to Frank’s question: even if no one opposes the idea, at a minimum there seems to be a whole lot of inertia to overcome.
Jason Mazzone - October 16, 2006 at 7:05 pm
I didn’t say things were rosy. I identified what I saw as the real issue with respect to law reviews–an issue more specific than the discussion here has so far identified–and I urged making official copyright policies consistent with actual practices. If I thought there were no costs associated with journals asserting intellectual property interests they don’t have any interest in enforcing or motivation to enforce, I wouldn’t have pushed for the reform.
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