Legal Threats (Updated)

(This issue came to a happy conclusion. After the uproar generated by this being publicized by so many blogs and websites, the publisher got in touch with Shelley, gave her permission to use the figures, apologized, and promised to do some internal legal education so that this won’t happen again.)

This doesn’t affect me personally, but my friend and fellow ScienceBlogger Shelly Batts of
Retrospectacle has been threatened by
lawyers from the Journal of the Science of Food and Agriculture, one of the Wiley group’s journals, for reproducing a part of one figure from an article that she was writing about.

In a sane world, this would be a clear case of “fair use”: Shelley was not stealing or taking credit for anyone’s work. She did not reprint the article. She did not write about the work without giving credit to the original authors: she provided a full and appropriate citation of the article. All she was doing is what many bloggers do regularly: she was writing about an interesting piece of research that had been published in her area. But her article doesn’t fit the spin that the authors/publishers wanted to put on it. So they resorted to legal threats to try to shut her down.

There’s really nothing bloggers like us can do to stop publishers from pulling obnoxious stunts like this, except to publicize it, so that they realize there is some cost to them associated with this kind of behavior. That’s why I’m writing this. Wiley needs to recognize that as a publisher of scientific journals, it’s absolutely unreasonable and unacceptable to threaten lawsuits against other scientists who reference their work.

0 thoughts on “Legal Threats (Updated)

  1. Jonathan Vos Post

    In legal terms, I think this assault has “a chilling effect” on science journalism and science. That is, it goes against the letter of the law and the intent of the law, with respect to the First Amendment.
    As scientists, or as journalists (some bloggers are clearly journalists), all we own is our intellectual property and our reputation.
    When a wealthy, powerful organization makes a pre-emptive strike against a scientist or journalist, under the transparent pretext that they are defending intellectual property, they are actually undermining the very scientists and journalists who are intended to be protected by the Constitution.
    The Constitution is quite clear on the benefits accorded to content creators, whether they be newspapwer writers or inventors.
    I hope thqat Scienceblogs, SEED, the ACLU, whomever it takes, assembles a dream team of lawyers and hammers back at the Journal of the Science of Food and Agriculture, winning not only exoneration for Shelly Batts, but also clarification of “fair use” to science bloggers, award of attorney fees, and sanctions for prosecutorial misconduct and intentional infliction of emotional distress.
    I am outraged. Thank you, Mark, for informing us, and taking the moral high ground. Please keep us posted here.

  2. Elf Eye

    Shelley might want to reference the recent settlement between Carol Loeb Shloss and the Estate of James Joyce, which had been using the threat of litigation to prevent her from making fair use of documents because Stephen Joyce didn’t like the interpretations Shloss was making. The settlement represented a complete capitulation on the part of the Estate, and Shloss has now followed up by filing for reimbursement of her expenses.

  3. ERV

    Hmm– Makes me wonder too, what if it was HER paper? Im going to have my first ever paper published soon, and I want to blog about it. Can I not write about my own research after, say, Journal of Virology (or whoever) publishes it??
    Another reason to ditch the ‘old’ system and go PLOS.

  4. Mark

    I am a little bit testy and it’s easy to say these things when you’re not really in that situation, but I like to think I would have replied that I would welcome their lawsuit and would be most happy to meet them in court.

  5. Shelley

    Thank you Mark for your support!!
    I blogged a paper of my own a bit back, but didn’t reproduce the figures verbatim from the paper: I used the figures I acutally created myself. Nobody bothered me.
    Thing is, I’ve reproduced figures MANY times, sometimes I get notes of thanks from the authors for highlighting their research!! This is the first time I ever got a threat.
    As for meeting them in court, I’m a grad student (ie, poor). As much as I would have loved to be the legal pioneer, I couldn’t afford to lose.

  6. gwangung

    I would think it is appropriate to ask these people for justification.
    If they get a hail of inquiring, polite emails (and follow ups if the inquirers don’t get satisfactory responses), it would be quite within the boundary of fairness as far as I’m concerned.

  7. Bob O'H

    ERV – check the copyright for the journal. Some journals give the copyright to the author, rather than keep it themselves.
    The lawyers are nuts. My suggestion: send them a package of puzzle books, with a note to say that they’ve obviously got too much time on their hands.

  8. W. Kevin Vicklund

    BTW, has a clearing house for such legal threats. This is a perfect(?) example.

  9. Brooks Moses

    Bob, ERV: Also, check the assignment agreement. Many journals keep the copyright, but assign a very permissive license to the author to reprint it, distribute excerpts from it, and so forth. Oddly enough, this doesn’t seem to break down along commercial vs. non-commercial lines; Elsevier is actually reasonably good, IIRC, and some professional societies are horrid.
    Personally, I think it’s reasonable for the journal to keep the copyright, so long as they provide a fair license back to the original author (and, of course, don’t do stupid things like the original topic of this post!). Many of the online archives of “legacy” papers can only exist because the journal has the copyrights — otherwise, they’d have to track down the original authors and get republication permission from all of them, which would be prohibitively time-consuming and expensive. And owning the copyright is also necessary for pursuing legitimate plagiarism.

  10. Torbjörn Larsson

    I understand that protecting copyrights can be a problematic issue. But in the case of science it is absurd to repress citations and get a bad rep out of it.
    And since it brings forth that the publisher pushes an agenda, I’m glad it backfired. I hope the new lite archive systems will bring down the old, slow megafauna of publishers.
    Thanks for informing us, and kudos to Shelley who managed to keep the original post and message intact with own graphics instead.

  11. Geoff

    @Brooks Moses: I can’t agree with you on the necessity of copyright re-assignment. For reprinting, why can’t a worldwide, non-exclusive, perpetual license to the publisher suffice? The author could take the article somewhere else later, of course, which seems to be a Good Thing for scientific publishing (competition and all that), though less good for the publishers…
    Also, plagiarism != copyright infringement; remember, the ideas and facts contained in an article are not copyrightable (in the US), although the specific expression of them is, so you could easily plagiarize a work without infringing. Likewise, you could infringe, for example, by posting the entire article on your blog, giving full credit to the authors, without plagiarizing.

  12. Sarah Cooney

    Dear all
    I am Director of Publications at the Society of Chemical Industry, owner of the journal in question (JSFA).
    There has been a misunderstanding with this issue, inadvertently caused by a junior staff member at our Society. Our official response is below:
    ‘We apologise for any misunderstanding. In this situation the publisher would typically grant permission on request in order to ensure that figures and extracts are properly credited. We do not think there is any need to pursue this matter further.’
    I have written to Shelley to clarify that this was a general misunderstanding, and she has been happy with my response.
    The journal in question is owned by the Society of Chemical Industry. We work in partnership with Wiley to produce our journals.

  13. Torbjörn Larsson

    Seems that the journal finally answered Shelly. (IIRC she mentioned no response after 30 hours in a comment.) Mistakes do happen, good to have it cleared out.
    (But this is an example of one reason why lite and fast publishing is preferred.)

  14. Shelley

    The journal responded because of the dogpile. Or, more precisely, about 1 hour after the post got picked up by both BoingBoing AND SlashDot.

  15. Jonathan Vos Post

    If it’s okay with Mark for me to cross-blog what I said at Dynamics of Cats (and, by the way, I had a bad day in Court, subpoena’d as an eyewitness, but cut off by the judge before I could give any testimony or lodge any of a massive pile of evidence, and the Plaintiff’s lawyer whom I assisted was gaveled down by the judge in his 1st paragraph, unable to make his first argument before the hearing was ended):
    IANAL [I am not a lawyer] (merely now and then a paralegal for 15+ years specializing in Appellate and Supreme Court briefs and writs, and Intellectual Property) but I think about the “Doctrine of Respondeat Superior” — that is, the alleged junior member of staff (Lisa Richards, Editorial Assistant, Journal of the Science of Food and Agriculture) WAS, if authorized to write to Shelley at Retrospectacle, WAS de facto and de jure speaking for the corporation (Wiley) and therefore Wiley IS liable for damages, i.e. for defamation of Shelley, and might be found liable for additional damages for failing to determine the truth of the matter(“reckless disregard for the truth”), and could end up paying for Shelley’s legal expenses and sanctions above and beyond that. Of course, Shelley’s said that she’s too impovershed to buy Justice, and the EFF hasn’t stepped in.
    There are two kinds of Justice in the United States of America.
    (1) Justice for the Rich;
    (2) Justice for the Very Rich.
    As to my Bad Day in Court: what I think we had was a judge losing his mental faculties, and this was a Motion for Reconsideration of the motion that, in the previous hearing, he had revealed that he didn’t actually know what day it was, insisting on the record that certain papers were “filed yesterday” when they were, in fact, filed 9 days earlier, and on that basis openly refused to read any of 150+ pages of dispositive evidence. In my opinion, the judge was showing favoritism to a defense attorney representing a defendant accused of malpractice on the basis of himself losing his mental faculties. The Defendant is being sued for Malpractice by at least 2 former clients, one after a Congressional investigation found him guilty of “massive noncompliance with subpoena.” I rest my case, about the 2 kinds of Justice.

  16. Torbjörn Larsson

    WAS de facto and de jure speaking for the corporation

    Oh, no doubt (at least about de facto). The “junior staff” is corporate BS. Nobody cares about who did it and what competence that person had.
    Unfortunately some of the mailers seems to have been less than kind to the person in question (see Shelleys blog), which is the same mistake.

  17. Luna_the_cat

    Shelley points out:

    The journal responded because of the dogpile. Or, more precisely, about 1 hour after the post got picked up by both BoingBoing AND SlashDot.

    Ah, good point.

  18. raj

    Amen. In a world where corporations can steal trademark on words that have long been in the public domain, and can get absurd patents (with prior art easily available online), it’s not surprising that this happens.
    But back in the mid-90s, a Kinko’s employee did the same sort of thing to me. He refused to let me use their equipment to scan CD covers for my print review magazine. I quoted fair use and that I had direct permission from labels. I had my cellphone and I dialed one label rep to prove to him I wasn’t lying and he still wouldn’t let me. At this point, he felt he’d been shown up and told me to leave.


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