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Fair Use and Open Science

Update: The issue has been resolved amicably and Shelley has some further thoughts. And some even more further thoughts. The discussion will continue here on Scienceblogs and elsewhere in the follwoing days….

If you read other Scienceblogs and not just me, you are likely quite aware of the “Wiley Affair”, but if you are not here is a quick summary:

My esteemed colleague here at scienceblogs, Shelley Batts of the Retrospectacle blog, did what we all do all the time – what is one of the primary role of science blogs: compared what a scientific paper says to what the press releases and media say about the paper. It was a paper widely reported by the press about the potential health effects of drinks like daikiri. Shelley wrote in her post that the paper is fine, but that the media coverage is faulty (what’s new?). In order to demonstrate what the paper really says, she, as we often do, reprinted a table and one panel of a figure from the paper in her post.

Then, all hell broke lose, and some low-level administrative assistant, probably instructed by someone in the scientific society that edits the journal, threatened Shelley with Wiley (publisher of the journal) lawyers, citing copyright infrindgement. Shelley replaced the images with her own, Excel-drawn figures (fortunately, this was one of the rare occasions when paper actually contains all the raw data needed to make a graph). Her polite e-mail to the person elicited just a short, impolite response repeating the request to remove the images. Shelley’s e-mail to the Wiley lawyer remains, as of time of this writing, unanswered.

Now, this is something that really goes against the direction in which science reporting is heading getting more and more open and free – and directly threatens science blogging, so it is not surprising that we are all piling up on Wiley and the journal about this.

Janet Stemwedel, Rob Knop, Mike the Mad Biologist, Suzanne Franks, John Wilkins, Jason Rosenhouse, Orac, Mark Chu-Carroll, Chris, Afarensis and Razib have all jumped in Shelley’s defense with thoughtful posts. John Pieret discovered that, ironically, Patents, Copyrights & Trademarks For Dummies was published by Wiley. John Hawks gives an excellent cool-headed perspective, which was followed up by Guru. Check out more good responses by Bill Hooker, Duane Smith, PithLord, Tyler DiPietro, Larry Moran, Richard Baker, 0xDE, Razib, Romunov, Reed Cartwright, Rebecca Hartong, Corey Tomsons, R. W. Donnell, Rory Hester, Jen and Dan.

This is not a new issue either. I have blogged about the fair use of images before and Pedro Beltrao did some digging about various journals’ policies.

[More on Fair Use here, here, here, here and here.]

Images are not the only problem in question, and we have discussed some of those issues, e.g., the hiring of the nastiest, filthiest PR guy by Elsevier, Wiley and the American Chemical Society here, here, here and here. This is related to the efforts of the old media to marginalize blogs in every way as long as possible, as in the case of accessibility to embargoed papers by EurekAlert.

As I said before here:

While the world is moving towards an Open Science model of exchange of scientific information, there are, as expected, forces that are trying to oppose it. Whenever there is a movement to change any kind of system, those most likely to lose will make a last-ditch and nasty effort to temporarily derail the progress. So, in this case, the Big Science Publishers have decided, instead of joining the new world of Open Science and using their brand names, their know-how and their infrastructure to become the leaders in the new system, and instead opted to go all mean and nasty. Once they finally lose, they’ll lose for good and it will not be pretty

Information always wants to be free. In this day and age, due to technology, it can. Just try saying ‘macaca’ or singing “Bomb Iran’ and see what happens! Very few lawsuits against blogs regarding copyright (or libel) have actually gone through, but in those few, bloggers won. The same applies to the science publishers adhering to the old model. They are feeling the heat (and apparently starting to respond). People are moving away from their journals and submitting to Open Source journals instead. PLoS-Biology is already 14th and moving up on the impact list (as flawed as it is, it can be used as a quick-and-dirty method for seeing trends). In a year or two, it will threaten ‘Science’ for the top spot. There is a growing number of people, like Jonathan A. Eisen who refuses to publish in ‘Science’, who are embracing Open Source publishing. The old model will crumble and the dinosaurs can choose to adapt or go extinct.

Update: More reactions from Revere, Sandra Kiume, Chad Orzel, Chris Rowan, Dave Munger, Abel Pharmboy, Steve Higgins, Dan, Pedro Beltrao, Matsu, John Pieret, Neil Saunders, Kristjan Wager, Bill LaLonde, Lab Cat and Gosecondlife.

And Shelley has another word.

This is going to spread very wide, as Cory Doctorow has also linked and commented.

More blogosopheric responses: Jonathan Eisen (who thinks I am a ‘she’, but OK), Rob Knop, Euan Adie’s blog on Nature, Reed Cartwright, Neurocritic, u(n)PHYSICal, Howard Rheingold, Jake Young, John Lynch, Tara C. Smith, Josh Rosenau, Martin Rundkvist, Steinn SigurĂ°sson, Alex Palazzo, Jason Rosenhouse, PZ Myers, John Dupuis, Gail, Jonathan Badger, Intothestacks, DigitalKoans, Deepak Singh, Stew, Drugmonkey, Krish, John Hawks, Yanowhiz, Daniel, Jason, Fjodor, Pedro Beltrao, BruceG, Jeff Fleck, Romunov, AverageEarthman, Arunn, Lindsay Beyerstein, Anonymous Coward and Johan.


  1. #1 MartinC
    April 26, 2007

    It might be a good idea to point out that the letter to Shelley Batts came from the UK office of the journal. Presumably they are working on the basis of UK than US law and, as such, one cannot assume any sort of constitutional free speech argument will have legal authority. Just because we might hate the idea of what this company is doing doesn’t mean they are not legally entitled in the UK to act in this manner and since this blog is published (i.e. is available on the internet) in the UK they have legal, though perhaps not moral, reason to act.

  2. #2 Kristjan Wager
    April 26, 2007

    Actually, given that Shelley is based in the US (and the server she uses is as well), it would be US laws that apply, not UK laws. The availablity of the content of the blog to the UK is not really relevant.

  3. #3 Joseph j7uy5
    April 26, 2007

    They will go extinct. Just like Chrysler, and before that, American Motors. And the 8-track. It is just a question of how long they can cling to a little niche.

  4. #4 MartinC
    April 26, 2007

    Krisjan, are you completely sure of UK law on this matter ?
    To publish something in the UK means to make it available. It doesn’t matter if the server is based in another country as it is still being made accessible to readers in the UK.
    The legal opinions I have seen still suggest that action could be taken against the publisher (Shelley and Scienceblogs/Seed). I could be wrong here but when I was a moderator of a messageboard in the UK a few years ago we got legal advice to this effect.

  5. #5 Kristjan Wager
    April 26, 2007

    MartinC, first of all, I’m not a lawyer, so take this for what it’s worth.

    Generally in international law, people can be sued either where the crime takes place (i.e. where the server is, in this case), where they live, or where the contract says that law disputes should be solved. There is no contract in this case, so the other two options are in play.

    When it comes to copyright laws, there are some international agreements, that means that they are very similar in most of the world (Russia being a noteworthy exception), but the lawsuits still has too take place in the country where the copyright infringement takes place, and their local copyright laws apply.

    In Denmark there has been a lot of debate about a Russian site, allofmp3, which sells mp3s very cheaply (presumably due to lack of royalty payment). It hasn’t been shown that it is illegal in Russia (allofmp3 claims to pay royalty in Russia), so it’s in principle not illegal to buy them from Denmark, though a Danish court have ruled that access to the allofmp3 server should be blocked by Danish IPs.

  6. #6 Pithlord
    April 26, 2007

    Kristjan is correct. In English conflict-of-laws doctrine, the applicable law for an alleged copyright violation coming from a website in the US would be the US.

  7. #7 Anonymous coward
    April 26, 2007

    The take-home message is know your rights and thread carefully. I’ve been threatened by a cancer quack after denouncing the “therapy” on my blog and it created me all kinds of problems. Thankfully these suits are rarely successful. I wish we had anti-SLAPP legislation in Canada to protect against libel bullies like in the USA…


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