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Elsevier, NewsCorp, Facebook, and Yahoo join ignorant attack on open access

Elsevier, NewsCorp, Facebook, and Yahoo are some of the major players in NetChoice, an industry group "promoting convenience, choice, and commerce on the net."

NetChoice has a watch list for bad legislation that it calls iAWFUL (Internet Advocates' Watchlist for Ugly Laws). The latest version of iAWFUL includes the White House OA directive plus the state-level OA bills in California, Illinois, and North Dakota. (Yes, there was a bill in ND, and no, NetChoice doesn't seem to know about the OA bill in NY.)

Insofar as NetChoice has an argument for opposing these OA initiatives, it's a crude bolus of false assertions and assumptions. I haven't seen this kind of motivated distortion since the days of PRISM and the Research Works Act.

1. From NetChoice: "Bills are requiring professional journals to give away their published content if there was any involvement by state employees or any amount of state government funding."

False. Not one of these bills requires journals give away anything. The bills that cover public funding agencies (the Obama directive and the bills in CA, ND, and NY) regulate grantees who receive public funds, not journals or publishers. Grantees must make a certain version of their work OA on a certain timetable. Publishers who don't like that needn't publish their work. BTW, the NIH has required this since 2008, and not a single surveyed publisher, including Elsevier, has refused to publish NIH-funded research as a result; more on this below. 

The bill in IL is in a completely different category, and merely requires Illinois public universities to set up task forces to consider university-level OA policies. The universities needn't adopt policies, and if they do, the policies needn't take any particular form.

2. From NetChoice: "This unfortunately diminishes the employment prospects of in-state professors and threatens in-state businesses that receive any state assistance."

It's hard to know where to start with such an unintelligible, unargued assertion. In-state professors who receive state funds will have their employment prospects enhanced. Getting funded is good for a scholar's career. The access terms attached to the funding don't affect those career prospects, except to enhance them further by boosting citations to the scholar's work.

In-state businesses likewise: If they apply for funding and receive it, they're better off, not worse off. The bills don't require them to disclose trade secrets. The bills only apply to work published in peer-reviewed journals.

3. From NetChoice: "These proposals set a precedent for state control over creative productions where any government employees played even a minor role.  These bills’ principles could logically extend to assert state copyright over other content coming out of the state’s colleges and universities. For example: [1] Essays, blogs, and comments written by students employed as teaching assistants, [2] A violin professor’s sheet music or audio recordings, [3] Videos where faculty assisted in production or editing, [4] Photographs taken by work-study students, [5] Original artwork created with guidance from college instructors, [6] Software developed by students where professors assisted with debugging."

When a bill is limited to publicly-funded research published in peer-reviewed journals, then it's limited to publicly-funded research published in peer-reviewed journals. It doesn't cover music or artwork or unpublished notes. Yes, the state could in principle change the focus of its research-funding program, but it has a rationale, and a good rationale, for requiring OA to publicly-funded research and not to other categories. NetChoice's lunatic slippery-slope is like arguing that if the state can compel the recipient of a publicly-funded research grant to spend the money on research, then it could in principle compel the recipient to spend it on cheeseburgers and pornography.

4. From NetChoice: "[I]n-state professors and researchers will be disadvantaged relative to their peers at universities across the country. Second, the bills would deny in-state professors the opportunity for high-profile publications in paid journals, decreasing their chances for exposure and career advancement. Finally, the bills make it harder for in-state universities to attract and retain professors and researchers keen to publish their work in paid journals."

The objection seems to assume that those who receive public funds will be disadvantaged somehow, for example, because they will be prohibited from publishing in journals, or in peer-reviewed journals, or in subscription-based peer-reviewed journals. But that's false. Since 2008, the NIH has required green OA for NIH-funded research published in peer-reviewed journals. Instead of prohibiting that kind of publication, the policy is limited to that kind of publication. Some subscription-based journals dislike the policy and lobby against it; and the wealthiest of those, Elsevier, also belongs to NetChoice. But not a single surveyed publisher has refused to publish NIH-funded authors, not even Elsevier. If subscription-based publishers see risks in publishing NIH-funded authors, then without exception they see more benefits than risks. The NIH policy hasn't limited the freedom of NIH-funded researchers in the slightest.

I don't expect NewsCorp, Facebook, and Yahoo to understand the issues surrounding OA to research. But I expect Elsevier to understand them. And I expect any organization publicizing a watch list of bad legislation to read the legislation it criticizes, and summarize it accurately. The members of NetChoice should be ashamed, and supporters of OA, along with supporters of accurate public debate, should push back strongly.

Unfortunately, the FUD is spreading. ComputerWorld just publicized the NetChoice iAWFUL list, further distorting the list's original distortions. For example, NetChoice is merely lazy and oblivious to the distinction between OA through journals and OA through repositories (gold OA and green OA). ComputerWorld positively mixes them up, and suggests that state and federal OA initiatives are gold mandates.

#oa #openaccess #netchoice #fud #elsevier   #newscorp   #facebook #yahoo
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I haven't written much about the state-level OA bills, but I could provide links for those who are interested. Meantime, here are the tag libraries on them from the Open Access Tracking Project:

* CA =
* IL =
* ND =
* NY =

I have written in detail about the White House directive, which NetChoice included in its attack. See my lengthy article on the White House directive and FASTR in the March 2013 issue of my newsletter.

Also see the OATP tag library on the White House directive:

One more note on the Obama directive which I should have added to the main post: Even the Association of American Publishers (AAP) has endorsed the White House directive. NetChoice is way out in the fringe on this.

I don't expect anything better of NewsCorp, but I really thought that Elsevier, even if they've not changed in fundamentals, would at least have learned the lessons of PRISM and the RWA.

One can only wonder what people like Alicia Wise make of this. It must be hard to be the Director of Universal Access at an organisation that, once again, is actively campaigning against open access.
Awful. In the face of this, there needs to be a complete boycott of Elsevier as a library sponsor. Don't let them represent themselves at conferences, don't answer their inquiries. The power to the librarian slogan was a slap in the face. We can do without their money! 
Hi Peter,

I've just checked and we did not see the iAwful publication before it came out, and we had no involvement in the drafting of the language for the piece.  We will discuss this with the Executive Director and express our concern with wording and tone of this piece.  It is extremely unhelpful.

- Alicia
Hi Alicia. Thanks for looking into this. I hope Elsevier can persuade NetChoice to retract the piece. If not, I hope Elsevier can disavow it.
Don't forget the Elsevier boycott - inspired by a similar fight for the Research Works Act - is still open and inviting new participants!

Alicia - if this wasn't Elsevier, then who? If Elsevier is a member, you can find out, right?
Dear Peter,

Would you be interested in republishing this on +ProfHacker ? (Nothing we publish goes behind the Chronicle paywall, and everything we publish is licensed Creative Commons.)

When you get a chance, just let me know. Thanks!

Hi +George Williams. Thanks for the thought. On the one hand, I'd love to see the message get out further. That's why I made it public in the first place. On the other hand, if I were re-posting it today, I'd want to modify it. Unfortunately I'm traveling tomorrow, have a full day today, and won't have time for the modifications. But please feel free to write about it, paraphrase it, or just link to it. If you do, please mention the date of the original post.

Here are the two chief modifications I'd make if I had time.

1. Elsevier has disavowed the NetChoice piece in a series of public tweets from Alicia Wise and Tom Reller. See @wisealic and @tomreller for 5/17/13. I'd want to note that, and re-focus attention on the NetChoice members who have not yet disavowed it, especially Facebook and Yahoo.

2. I'd want to incorporate the point I made in my first comment on the post (above), that even the AAP has endorsed the White House OA directive. 

BTW, I'm a regular reader of +ProfHacker and like its uncontentious exploration of practical hacks. I imagine that all your regulars like it for the same reason. Is ProfHacker taking a turn toward policy issues and public-interest advocacy? If not, or if this would be an exception, I'd hesitate to incur the wrath of readers who find this post off-topic. I can say this as one who supports both the ProfHacker topic and (of course) my own advocacy position.
Peter says: "Elsevier has disavowed the NetChoice piece in a series of public tweets from Alicia Wise and Tom Reller. See @wisealic and @tomreller for 5/17/13."

I think that is an extremely charitable interpretation. What's actually happened is that, with Elsevier as a corporation signed up to NetChoice, two individual employees have expressed reservations about the specific language used on the website to support a position which they have in no way disavowed.

That is a positive step, and I welcome it. But so far it's a tiny one. Elsevier have a long, long way to go to undo the damage they've done here. Pulling out of NetChoice completely is the only way to restore what remains of their reputation.
Hi Mike. I'd also like to see Elsevier quit NetChoice or use its influence to get NetChoice to retract the piece. But in my comment to George Williams, I was talking about how I'd modify my post if re-posting it today. I'd acknowledge the disavowals by Alicia Wise and Tom Reller. I'd acknowledge them as new since my original post, relevant, welcome, and unofficial. 

Elsevier is extremely unhappy with the iAwful publication by NetChoice. It's director was travelling internationally on Friday and when I left the office that evening we had urgent requests for a call back from him. Two of my colleagues were on call to receive it this weekend to convey our unhappiness clearly and forcefully. Tomorrow morning is when I will have an update on that call and next steps.

Director of Universal Access
Hi all,

On behalf of Elsevier:

NetChoice is a forum for  a great variety of digital businesses on a wide range of e-commerce and internet regulation issues, so the positions they take on any one issue don’t necessarily reflect the views of each company.  We have been in contact with NetChoice to express our serious concern about the tone and content of its iAWFUL list, and to express concern about the lack of transparency in the process by which that list was developed.  They have made clear to us that the list and associated content  was crafted by the Executive Director of NetChoice without specific review or input from its members.   Therefore, the content does not necessarily represent the views of all of its members.   They have agreed to add a clarifying statement to communicate this on their website.  We will continue to work with them to encourage greater transparency and a formalized approach to crafting statements and seeking the views of members before these are issued in future.

- Alicia Wise
Director of Universal Access
Thanks, Alicia. Does anyone know how to link to specific comment on G+? I'd like to tweet what you wrote.

In response; surely it's not in Elsevier's interest to be visibly connected to an organisation that makes statements on its behalf without even consulting you first. I can't imagine why you would allow people unconnected with you take a dump on your PR efforts like this. What do you get out of being a NetChoice member? Surely nothing that counterbalances this damage?
For Alicia:  sorry, this is not good enough. Sometimes an organization belongs to a group that occasionally makes decisions not all agree with, it is true. However, Reed Elsevier is the ONLY scholarly publisher listed as a member on the NetChoice site. If Elsevier is not pushing this issue, who is? If you do not agree, shouldn't the statement be at least taken down, if not repudiated? If not repudiated by NetChoice, then how about Elsevier? I don't mean just "it wasn't us". If this is not the Elsevier position, please state what your position IS - again, considering that Elsevier is the ONLY listed scholarly publisher member.

Current members listed on the NetChoice site are:
Electronic Retailing Association
Reed Elsevier
The Wine Institute

It is difficult to imagine why any of these other members would oppose open access to scholarly information, where Elsevier to date has a substantial history of doing exactly this.
Thank you, Heather, for articulating that so clearly.
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