I started out just wanting to tighten and revise an interesting publication agreement I saw online, but since I sometimes deal with academic publishing in my day job, it got me thinking about all the various permutations and so I realized that I'm not aware of any real taxonomy for academics. Creative Commons does great work for content, and although it started out largely in the software space, it serves as an excellent model.
Not having done extensive research on what else is out there and currently restless and sick, I wanted to jot down some ideas for a mix-and-match Academic Commons for open access publishing, modeled of course on Creative Commons multi-tiered approach. I've not checked any of these names or labels, and haven't dig deeply to see whether someone else is already doing a project like this, but I find it extremely compelling and so I wanted to flesh out my thoughts.
Monday, February 24, 2014
The Shieber Model Publication Agreement: an Analysis
As mentioned in the previous post, Stuart Shieber at Harvard proposed a model OA journal publication agreement on his blog. In many ways, it is comparable to the simplified agreements made available by the University of Michigan, and Shieber points to another example as a starting point under the label of an "Online Guide to Open Access Journals Publishing", which some cursory Googling found mostly dead links and a few references to a project from 2010 that may have changed its name or merged with another project since.
That starting point agreement is essentially a CC-BY license with an additional clause granting first publication rights to the journal. In essence, the journal executing that agreement would become the "official" citation. It's simple, painless, and also likely inadequate for many journals--even very OA-centric ones. The UM license is more in the ballpark of a robust, generally OA publication agreement. But while it accomplishes OA ends, it's written as an arrangement between an author and a publisher that permits open access, rather than an agreement for the use of a work that is open access. Shieber's model is similar, but contains some helpful added specificity.
That starting point agreement is essentially a CC-BY license with an additional clause granting first publication rights to the journal. In essence, the journal executing that agreement would become the "official" citation. It's simple, painless, and also likely inadequate for many journals--even very OA-centric ones. The UM license is more in the ballpark of a robust, generally OA publication agreement. But while it accomplishes OA ends, it's written as an arrangement between an author and a publisher that permits open access, rather than an agreement for the use of a work that is open access. Shieber's model is similar, but contains some helpful added specificity.
Saturday, February 22, 2014
Open Access Journals: The Publication Agreement Quandary
Open Access (OA) in scholarly publishing is slowly but surely gaining speed and acceptance in the academic community. For many, if not most, younger scientists and scholars, any other arrangement seems nonsensical). Traditionally though, publishers have held a complex role as editors, gatekeepers, disseminators, and custodians of the literature.
So when any postdoc or junior faculty member can pop something out on a blog like this one, what role do the journals play? Editing, peer review, and publishing can all be outsourced or completed with free and open web-based tools, making the prospect of paying journals on both ends for their services (in money and in copyrights) simultaneously less attractive and less necessary. The world has changed to one of tearing down barriers and crowdsourcing--the gates are wide open. Self-promotion on Twitter (ahem) connects the community in ways that were only fantasy just 10 years ago (realtime, public interaction from basically anywhere in the world with a cell signal? We're living in the future!). What's left?
So when any postdoc or junior faculty member can pop something out on a blog like this one, what role do the journals play? Editing, peer review, and publishing can all be outsourced or completed with free and open web-based tools, making the prospect of paying journals on both ends for their services (in money and in copyrights) simultaneously less attractive and less necessary. The world has changed to one of tearing down barriers and crowdsourcing--the gates are wide open. Self-promotion on Twitter (ahem) connects the community in ways that were only fantasy just 10 years ago (realtime, public interaction from basically anywhere in the world with a cell signal? We're living in the future!). What's left?
Friday, November 22, 2013
The Share-Alike vs. Non-Commercial Debate
One of the more interesting and seemingly intractable debates surrounding open source/open access is the growing volume of displeased chatter within the copyleft community around "NC" restrictions in licenses. A lobbying effort to recognize the "superiority" of share-alike provisions has organized and a group called Freedom Defined published an explanation of their view on "Reasons Not to Use a Creative Commons -NC License".
Creative Commons, which supports multiple variations, recently linked to the discussion, adding the "Free Culture" label to help people choose, but wisely stopped short of endorsing the label as a uniform goal. As CC puts it,
The "free culture" licenses are CC0, CC-BY, and CC-SA (and combinations thereof). The "non-free" licenses are those with NC or ND mixed in.
ND, which prohibits derivative works, obviously limits cultural expansion (but allows you to use the work intact without the SA or NC restrictions). The NC version acts as a bridge to a more open community and it acts as a stopgap against commercial exploitation, which may enter a grey area with some kinds of projects. However, the SA license has its own problems that are not recognized by Freedom Defined.
Creative Commons, which supports multiple variations, recently linked to the discussion, adding the "Free Culture" label to help people choose, but wisely stopped short of endorsing the label as a uniform goal. As CC puts it,
"CC hopes to promote a more open culture than “all rights reserved”. Some creators want to allow very broad use of their works. Some wish to allow some uses but restrict others. We believe that all levels of openness are worth encouraging and supporting as an alternative to “all rights reserved.” While we hope that some creators will use the non-free licenses as a stepping stone to greater openness in the future, CC encourages sharing under any of its licenses as a way to create a more open culture."
The "free culture" licenses are CC0, CC-BY, and CC-SA (and combinations thereof). The "non-free" licenses are those with NC or ND mixed in.
ND, which prohibits derivative works, obviously limits cultural expansion (but allows you to use the work intact without the SA or NC restrictions). The NC version acts as a bridge to a more open community and it acts as a stopgap against commercial exploitation, which may enter a grey area with some kinds of projects. However, the SA license has its own problems that are not recognized by Freedom Defined.
Friday, February 8, 2013
E-Books and Economics
With today's news that MacMillan has settled with the DOJ over its pricing investigation, the discussion about what exactly is going on with this industry is back on the front page (for limited values of "front page"--no doubt most people don't care at all).
One comment I've often seen is some variation on the idea that what the publishers and Apple were doing was taking power away from customers and handing it back to publishers.
Almost. It shifts power away from distributors back to the publishers. This, of course, is why the publishers signed on in the first place.
In neither the Amazon nor the Apple model is the customer the one with power. Amazon is using its weight to crush competing bookstores by purchasing books from publishers and then selling them at a loss in order to encourage people to invest in their store. Apple, on the other hand, tried to use its weight to stop Amazon, which actually would have eliminated the Amazon price advantage and made it possible for multiple bookstores to run digital versions, because they'd have to compete on things other than trying to match Amazon's negative margin.
The question is which is better for the customer, and is one or both illegal?
One comment I've often seen is some variation on the idea that what the publishers and Apple were doing was taking power away from customers and handing it back to publishers.
Almost. It shifts power away from distributors back to the publishers. This, of course, is why the publishers signed on in the first place.
In neither the Amazon nor the Apple model is the customer the one with power. Amazon is using its weight to crush competing bookstores by purchasing books from publishers and then selling them at a loss in order to encourage people to invest in their store. Apple, on the other hand, tried to use its weight to stop Amazon, which actually would have eliminated the Amazon price advantage and made it possible for multiple bookstores to run digital versions, because they'd have to compete on things other than trying to match Amazon's negative margin.
The question is which is better for the customer, and is one or both illegal?
Friday, December 21, 2012
Shut up and take my money, but do it now before I find it for free!
Fascinating op-ed over at the Guardian on staggered releases driving people to piracy.
I agree that there's a clear effect on piracy resulting from botched international rollouts, but I think there are two issues conflated here. One is miscalculation by content companies--intentional delay, which does indeed rob them of legitimate customers and encourage piracy. But the other is that it's not feasible to negotiate release deals worldwide simultaneously. Sometimes you just can't legally offer things in a timely manner.
That's not a legitimate driver of piracy. Would simultaneous worldwide release turn some pirates into customers? No doubt. But would the cost of doing so (a) preserve current profits and (b) not create additional pirates as a result of higher prices? Unlikely.
I find fault with the "legitimate alternative" argument just as I do with the spurious "lost sales" arguments on the other side. The truth is that wanting instant gratification is just as powerful a piece of social psychology as externalizing blame. It's not right when the media companies do it and it's equally bizarre for people to whine about the draconian measures and outlandish claims of the *AA and then turn around and do the same.
I agree that there's a clear effect on piracy resulting from botched international rollouts, but I think there are two issues conflated here. One is miscalculation by content companies--intentional delay, which does indeed rob them of legitimate customers and encourage piracy. But the other is that it's not feasible to negotiate release deals worldwide simultaneously. Sometimes you just can't legally offer things in a timely manner.
That's not a legitimate driver of piracy. Would simultaneous worldwide release turn some pirates into customers? No doubt. But would the cost of doing so (a) preserve current profits and (b) not create additional pirates as a result of higher prices? Unlikely.
I find fault with the "legitimate alternative" argument just as I do with the spurious "lost sales" arguments on the other side. The truth is that wanting instant gratification is just as powerful a piece of social psychology as externalizing blame. It's not right when the media companies do it and it's equally bizarre for people to whine about the draconian measures and outlandish claims of the *AA and then turn around and do the same.
(Ab)use of patents
There's a charmingly predictable fracas brewing over at Slashdot regarding today's announcement that the EU plans to act regarding Samsung's abuse of standards-essential patents in their dispute with Apple.
As of right now the highest-promoted comment is "And yet...they do nothing to Apple and their rounded corners?"
That's exactly right. Setting aside the gross oversimplification of that comment, the galaxy of difference between design and utility patents, and the merits of any such patents, the actionable item here isn't present in any of Apple's asserted patents.By contributing your patent to a standard and thus earning the status of a standards-essential patent (SEP), you give up certain powers that you would otherwise have. For fans of the Laffer curve, you're engaging in an act that vastly broadens the base of your royalty audience (by putting it into a standard) but also greatly constraining your freedom to set royalty rates. This is also the reason why Apple can set royalty rates at whatever it wants for its proprietary patents while Samsung can't do the same for its SEPs.
Likewise, you can't be as aggressive in discussions, whatever the rates. You don't have the power to walk away unilaterally. If someone says they're already licensed through a component supplier, you don't get to deny that without supporting authority. You don't get to say that an offer is unfairly low and end negotiations to try to get a competing product banned. The general intent is that you don't get to use SEPs as a weapon. Standards bodies and governments take an unkind view to patent ambush. That's the price you pay, and that's why Samsung is in trouble here.
If you have set a complicated pricing structure for those patents involving monetary and non-monetary consideration being exchanged, then you also must tread lightly when negotiating offers.
On the other hand, Apple is legally free to be as unreasonable as it wants with non-SEP utility patents and design patents. Neither Apple nor Samsung are strangers to adverse actions in the EU, so the nerd rage should just be put in check. Apple's involvement here isn't even a factor in the EU's preliminary findings--the only important facts are around Samsung's conduct.
As of right now the highest-promoted comment is "And yet...they do nothing to Apple and their rounded corners?"
That's exactly right. Setting aside the gross oversimplification of that comment, the galaxy of difference between design and utility patents, and the merits of any such patents, the actionable item here isn't present in any of Apple's asserted patents.By contributing your patent to a standard and thus earning the status of a standards-essential patent (SEP), you give up certain powers that you would otherwise have. For fans of the Laffer curve, you're engaging in an act that vastly broadens the base of your royalty audience (by putting it into a standard) but also greatly constraining your freedom to set royalty rates. This is also the reason why Apple can set royalty rates at whatever it wants for its proprietary patents while Samsung can't do the same for its SEPs.
Likewise, you can't be as aggressive in discussions, whatever the rates. You don't have the power to walk away unilaterally. If someone says they're already licensed through a component supplier, you don't get to deny that without supporting authority. You don't get to say that an offer is unfairly low and end negotiations to try to get a competing product banned. The general intent is that you don't get to use SEPs as a weapon. Standards bodies and governments take an unkind view to patent ambush. That's the price you pay, and that's why Samsung is in trouble here.
If you have set a complicated pricing structure for those patents involving monetary and non-monetary consideration being exchanged, then you also must tread lightly when negotiating offers.
On the other hand, Apple is legally free to be as unreasonable as it wants with non-SEP utility patents and design patents. Neither Apple nor Samsung are strangers to adverse actions in the EU, so the nerd rage should just be put in check. Apple's involvement here isn't even a factor in the EU's preliminary findings--the only important facts are around Samsung's conduct.
Wednesday, December 19, 2012
Myth of the EULA, part 2
This is a continuation of the Myth of the EULA, part 1.
Purchasing boxed software does not confer upon a buyer any rights in and of itself, other than to the bits of plastic and paper themselves. It doesn't matter for the purposes of the law that you were able to leave a retail establishment with a box or that money was exchanged for the mere option of future use of software. There is a countless number of such situations in commerce. The fact that you are offered as a convenience an option to make the purchase up front and evaluate the terms later is not a loophole.
At the outset, a purchase is just that: an act of commerce. A copyright holder produces copies and offers them for sale on the following terms: pay them $50 and agree to a set of conditions, and you can have this copy. If you pay $50 and walk away with the box, you haven't perfected the distribution yet. You've obtained some rights that Mr. Copyrightholder can't successfully sue you about--you can set the box on fire if you'd like or sell it on to someone else--but you're not totally in the clear.
Myth 2: I have rights because I paid for the software
These variations play on the idea that once money changes hands, what once was yours is now mine. This is true with an important caveat: you only get what you paid for. Buying a a gallon of milk for $5 doesn't get me the whole cow.Purchasing boxed software does not confer upon a buyer any rights in and of itself, other than to the bits of plastic and paper themselves. It doesn't matter for the purposes of the law that you were able to leave a retail establishment with a box or that money was exchanged for the mere option of future use of software. There is a countless number of such situations in commerce. The fact that you are offered as a convenience an option to make the purchase up front and evaluate the terms later is not a loophole.
At the outset, a purchase is just that: an act of commerce. A copyright holder produces copies and offers them for sale on the following terms: pay them $50 and agree to a set of conditions, and you can have this copy. If you pay $50 and walk away with the box, you haven't perfected the distribution yet. You've obtained some rights that Mr. Copyrightholder can't successfully sue you about--you can set the box on fire if you'd like or sell it on to someone else--but you're not totally in the clear.
The Myth of the EULA
Go to any geek-infested corner of the Internet and you'll find a discussion of half-truths surrounding the legality, use, and avoidance of software licensing (often referred to as end-user license agreements ["EULA"], despite this being only one type of license). Most of them are entertaining and creative, but carry little to no weight in the real world.
Ultimately, this does much more harm than good. Open source and capital-F Free licenses rely on the same legal mechanisms for enforcement. There is plenty of room for debate on whether the morality of "copyleft" (where you are granted rights in exchange for agreeing to disclose changes and allow similar use by others) stands superior to more permissive licenses (that grant rights but do not impose the copyleft obligations) or to proprietary licenses (that some view as used primarily to restrict rights). However, the legal mechanics are the same.
Many individual licenses contain provisions that are invalid, unenforceable, illegal, or some combination of the three. There are serious problems with some software licenses and the concessions individual users and customers must make with some high-profile applications and online services, and shifts in legal thinking may pave the way for a more balanced approach in the future. For a time, courts were rejecting binding arbitration clauses left and right (although the pendulum seems to have swung the other way lately). But the legal weight of individual agreements or provisions within them says nothing of the software license agreement as a tool.
Ultimately, this does much more harm than good. Open source and capital-F Free licenses rely on the same legal mechanisms for enforcement. There is plenty of room for debate on whether the morality of "copyleft" (where you are granted rights in exchange for agreeing to disclose changes and allow similar use by others) stands superior to more permissive licenses (that grant rights but do not impose the copyleft obligations) or to proprietary licenses (that some view as used primarily to restrict rights). However, the legal mechanics are the same.
Many individual licenses contain provisions that are invalid, unenforceable, illegal, or some combination of the three. There are serious problems with some software licenses and the concessions individual users and customers must make with some high-profile applications and online services, and shifts in legal thinking may pave the way for a more balanced approach in the future. For a time, courts were rejecting binding arbitration clauses left and right (although the pendulum seems to have swung the other way lately). But the legal weight of individual agreements or provisions within them says nothing of the software license agreement as a tool.
Sunday, November 25, 2012
Of Ransoms and Rounded Rectangles, Part 2
This is a continuation of a series on issues surrounding standards-essential patents, FRAND licensing, and the other legal/business attributes that are in the spotlight thanks to the Apple/Samsung/Google/Microsoft smartphone wars.
Samsung's patents are part of the 3G standard so they can't sue to stop Apple from using them
False. Samsung does have a number of standards-essential patents regarding cellular communication. However, industry standards are not necessarily free and open (a topic for another day!). Corporations regularly develop patentable work on their own, and for reasons of monetization, influence and control, and/or interoperability, they sometimes submit those patents to standards bodies. The cost of doing so is an obligation to license those patents under fair, reasonable, and non-discriminatory (FRAND) terms.
Since Samsung's patents are important hardware patents and Apple's are just silly design stuff, doesn't Samsung have the upper hand with way more valuable patents?
Not necessarily. Samsung's patents are in a FRAND pool and Apple's are not. Apple is under no obligation to license any patents that Samsung might be infringing upon at any cost. If Apple wants to charge $50 per unit to license patents it holds, it can. It can even charge Samsung $50 and let Microsoft use them for free in a cross-licensing deal.
Samsung doesn't have that option. They have no choice but to accept an amount that is consistent with what other companies are paying. That's not easy, because the big players don't pay anything, having cross-licensing deals. Samsung is arguing that because Apple is a big player with little to contribute to the standards, that it should pay a lot more than nothing. Apple is arguing that Samsung is demanding that Apple pay for rights already held by Qualcomm, Apple's supplier of 3G radios, in essence "double dipping". I'll look at that in more detail another time.
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