Plagiarist or Puppet? US Rep. Carolyn Maloney’s reprehensible defense of Elsevier’s Research Works Act

There has been lots of activity this week surrounding the “Research Works Act“, a bill introduced in the US House of Representatives that seeks to end the NIH’s Public Access Policy. Despite the flurry of attention to the bill, its authors – Reps Carolyn Maloney (D-NY) and Darrell Issa (R-CA) have remained silent (save a brief twitter exchange between Issa and Tim O’Reilly).

That changed today when a letter from Rep. Maloney defending the bill was published on the blog of Harvard researcher Alex Kentis (she was responding to his expression of opposition to the bill). Maloney writes:

Dear Dr. Kentsis:

Thank you for taking the time to contact me about your opposition to HR 3699. As someone who represents thousands of researchers, research institutions, and publishers, and a strong advocate who helped double NIH funding, I appreciate the opportunity to respond.

First, I think it’s important to point out that this bill does NOT impact research reports and raw data generated by government-funded research. This information would still be available at no cost to the public. Reports that suggest that these NIH funded research papers (prior to peer review) will not be available for free are wrong. Authors still retain the ability to share data, reports, and other forms of research findings derived from the taxpayer-funded research. However, once a publisher has worked on a manuscript, spent private funds to improve it and has peer-reviewed it, under this bill, the government would not be able to take that work-product and disseminate it for free. The information, the manuscript, and the data can be made available for free before they receive any private investment.

The purpose of HR 3699 is to support the continued investment and innovation by private-sector publishers in scientific, technical, medical and scholarly journal articles and to advance the public interest in the important peer-review publishing system that helps ensure the quality and integrity of scientific research.

The importance of peer review cannot be overstated. It is the system by which experts give informed comments on papers in highly specialized fields of science. It is essential to providing independent, informed, objective assessments to maintain the quality of scientific articles and ensure that science develops independently of ideological and political interests. Because peer review happens and fixes problems prior to publication, we never hear about the false or erroneous research that would otherwise make it into journal articles.

Moreover, the publishing industry has invested in providing public access to scientific journal articles. Patients can get free access to information on new research through various publisher programs including PatientINFORM. Anyone can go into research libraries for free access to the articles in which publishers have invested substantially to ensure their high quality.

Two-thirds of the access to PubMed central is from non-US users. In effect, current law is giving our overseas scientific competitors in China and elsewhere important information for free. We are already losing scientists due to a reduction in funding for federal research. This policy now sends our value-added research papers overseas at no cost.

Finally, as people continue to struggle during these difficult economic times, it is important to be mindful of the impact of various industries on job creation and retention. New York State is home to more than 300 publishers that employ more than 12,000 New Yorkers, many of whom live in or around New York City in my district. New York City scientific publishers represent a significant subset of the total, and more than 20 are located in Manhattan, publishing thousands of scientific journals and employing thousands of New Yorkers. This bill saves American jobs. No industry could survive a model whereby they invest private dollars and are then required to give it to the federal government to disseminate the final product for free.

Once again, I appreciate your taking the time to contact me.

Sincerely,
CAROLYN B. MALONEY
Member of Congress

I will point why I think her letter is ignorant, ill-informed, deceptive, patronizing, jingoistic and generally vile an a separate post. But first I want to point out something else that struck me about the letter.

Last Thursday, I wrote a post here speculating on the link between Rep. Maloney’s support for the bill and the large number of contributions she has received from senior American executives of the Dutch publishing conglomerate Elsevier. My post got some good play, and obviously came to attention of people at Elsevier, because shortly after it was posted comments began to appear from Tom Reller, Vice President for Global Corporate Relations at Elsevier (I know this is really him from communications we’ve had via email).

Although I disagree with virtually everything Reller said (here is my response to his post), and find many of his points to be factually inaccurate, I’ll give him credit for remaining engaged in the discussion and defending his point of view. I read his comments closely and considered them carefully. Thus, they were still fresh in my mind when I read Rep. Maloney’s letter today. And let’s just say that it was hard not to detect a certain, umm, “similarity”, between the comments he posted as part of an ongoing dialog on my blog last week, and those sent out today by Rep. Maloney.

So that you can make your own judgment, I’ll repost his first set of comments here for your examination:

Elsevier, along with other commercial and non-profit publishers do indeed support the Research Works Act and commend Congressman Issa and Congresswoman Maloney for co-sponsoring this important legislation. You ask why Congresswoman Maloney co-sponsored this legislation? Simple. New York is one of the country’s leading publishing states with more than 300 publishers that employ more than 12,000 New Yorkers, many who live or work in or around New York City. Elsevier and many other publishers have offices located in Congresswoman Maloney’s district. We support her because she has been a strong supporter of this important industry, our employees and good public policy. And we believe the Research Works Act is good public policy.

For starters, the Research Works Act would only apply to journal articles where the private sector has provided a value-added contribution in the creation of these information products. The bill specifically excludes research reports and the raw data generated by government-funded research. Authors still retain the ability to share data, reports, and other forms of research findings derived from the taxpayer funded research, including their submitted manuscripts.

But while the government may fund the research, it does not fund the peer review process, editing, or publication of these private-sector information products. Elsevier and other commercial and non-profit publishers invest hundreds of millions of dollars each year in managing the publication of journal articles. Government mandates that require private-sector information products to be made freely available undermine the industry’s ability to recoup these investments.

The publishing industry has invested significantly in providing public access to scientific journal articles. Patients can get free access to information on new research through various publisher programs including PatientINFORM. This program is provided in partnership with major heath organizations including the American Cancer Society, American Heart Association, and the American Diabetes Association. In addition, many publishers offer a low-cost (between $1 and $4) access through DeepDyve and other similar view-only services. Free access to journal articles is also provided through research libraries throughout the country. Publishers have also partnered with the United Nations to create Research4Life which provides free access to medical and agricultural institutions and practitioners in the developing countries. Millions of articles are downloaded each year as part of this program.

We’re very proud of what Elsevier has done throughout the years to expand access in sustainable ways, improve the research experience and enhance knowledge and discovery. And there are millions of researchers and other information professionals who value that contribution as well.

Now, I’m no expert on analyzing text (ok, I am, but that’s neither here nor there), but COME ON. Several sections Rep Maloney’s letter are sentences long copies of Reller’s comments , and the overall content and style are all but identical. These were clearly written by the same person.

Of course I don’t exactly how it came to be that a member of the US Congress was sending out emails defending a bill that were apparently written by the same person who was defending the same bill a week earlier on my blog verifiably identified as the head PR person for a company who would be a major beneficiary of said bill, and whose senior executives from all across the country just happened to have made lot of recent donations to said member of Congress. I’m sure it’s all just a coincidence.

Yeah, right. The comments on my blog were clearly Reller – his writing was natural and engaged directly with what other people were saying, so I’m sure he wasn’t just spouting prepared text. There are only two viable explanations for how essentially the same text ended up in Maloney’s letter. Either she copied it from my blog without citing its source (a clear violation of the Creative Commons Attribution license that governs all content on the site), or, Reller wrote the letter, either directly, or indirectly by preparing text that Maloney’s office could use to defend the bill. So Rep. Maloney a plagiarist or an Elsevier puppet.

Look, I’m not naive. I know this is the way our government works. Some monied special interest wants the shape the law to their liking, so they essentially buy a member of Congress by donating money to them and having their top executives do so as well. What they get for their money is access, a pliant ear, and the submission of legislation crafted to advance the narrow interests of the donor, often at the expense of the members own constituents and the broader public interest, and, in this case, in direct conflict with many issues the legislator has fought for in her career. Since the member of Congress doesn’t really care about the issue, or understand what the bill actually does, the donor provides their PR spin for them to use in defending it. Sometimes the bills don’t pass. But often they do. That’s how we end up with a government whose actions are often so wildly out of line with the public good.

So, given the history of their campaign contributions to Rep Maloney, I’m not really surprised to find that Elsevier’s fingers would be all over this bill and Rep Maloney’s defense of it.

We (my colleagues at PLoS and many others) have spent over a decade fighting to secure public access to publicly funded research. We finally start to make some progress – imperfect as the NIH Public Access Policy is, it is an important step in the right direction. And what happens? A member of Congress who faces no threat of defeat in the upcoming election disgracefully sells out the public good in exchange for some measly campaign contributions, and then doesn’t even have the decency to defend her actions with her own thoughts and words.

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48 Comments

  1. Posted January 13, 2012 at 5:22 am | Permalink

    It’s funny, as I read the letter, that is exactly what went through my mind, that I had read those words somewhere before. And I had read them quite carefully because I know Tom Reller professionally and was interested in what he had to say. My guess is that Rep. Maloney copied the text from your blog. But if she read the blog, why not post a comment and engage in the discussion as Tom Reller has? I am sure she is reading this post too!

    I am generally on your side, Michael. I support openness and I support Open Access as a viable business model, but I take my hat off to Reller for at least engaging in the discussion and putting his view forward. I am sure many other publishers are reading these posts. Why don’t they comment?

    For the record, I run a company doing composition of journals and Elsevier are our biggest clients. But I am not afraid to say that Open Access is the way to go. We’d still all be in business, and making money, but all information would be open.

  2. DrugMonkey
    Posted January 13, 2012 at 7:25 am | Permalink

    The only part you seemingly missed is where the lobbyists write the actual text of the legislation so that it is exactly what they want. Would you be surprised if Mr Reller had also crafted the Act itself? Perhaps he would care to go on record here as to Elsevier’s direct contributions?

  3. Posted January 13, 2012 at 8:44 am | Permalink

    Thanks for the extended analysis and one doesn’t need the textual expertise to see the linkage. You couldn’t put it better: “So Rep. Maloney is a plagiarist or an Elsevier puppet.” Also, one has to love the underlying logic here – federal funding is being cut, non-Americans are accessing our work, thus we now have to reign in online access. A real recipe for being a global leader in health research!

    I mean we all know how this environment works but one would expect Rep. Maloney to at least assign an office intern to hack out a decent paraphrase rather than a blatant copy.

  4. Denis Alexander
    Posted January 13, 2012 at 11:42 am | Permalink

    “But while the government may fund the research, it does not fund the peer review process….”

    Wait, do you mean I should have received a check for all my reviews? Where are they?

    “…. editing,”

    You mean all the corrections I have to make to the proofs because not once the math appears correctly?

    “….or publication”

    You mean clicking on a button to publish the PDF I sent you?

    ” of these private-sector information products.”

    There is no content or information added by the private sector.

  5. neuromusic
    Posted January 13, 2012 at 12:36 pm | Permalink

    @DrugMonkey bingo

  6. Joel
    Posted January 13, 2012 at 1:15 pm | Permalink

    Another interpretation for the identical passages in the letters is that the Congress and the contributors are not just in bed with one another metaphorically.

    This is disgraceful. It represents corruption of a kind that may be technically legal but represents a betrayal of the oath of office. Let us recall that access to scientific literature is essential to small tech startup companies for whom literature search and retrieval costs are a major barrier.

    The claim that the money would go to support peer review is, as Denis Alexander says, laughable. The real peer review is very often some poorly-paid graduate student or postdoc who is tossed a paper and told that it’s an honor to work for free.

    Let’s call this what it looks like: bribery of the congresswoman by a foreign company and collusion in the coverup.

  7. Posted January 13, 2012 at 1:36 pm | Permalink

    Michael,

    Executive Director Of Rockefeller University Press Mike Possner forwarded me the following letter he wrote to Carolyn Maloney. RU Press is, of course, a member of the AAP.

    pdf version: http://www.mediafire.com/?vu7ng37vkamxxzg

    Dear Representative Maloney,

    I am the Executive Director of The Rockefeller University Press, a nonprofit organization that publishes three biomedical research journals. I am contacting you as a publisher and as your constituent in the 14th Congressional District of New York to express my strong opposition to the Research Works Act (H.R. 3699), which you and Representative Issa introduced into the House on December 16, 2011.

    I want to state emphatically that I support the NIH Public Access Policy and think it should be expanded to other federal funding agencies. All publishers of biomedical research understand several truths: 1) that their content is generated in large part through federally funded research, 2) that the peer review process is carried out in large part by federally funded individuals, and 3) that a significant portion of their subscription revenue is obtained from government funded institutions. Although publishers’ content may technically be considered “private-sector research work” as described in the text of H.R. 3699, its very existence depends on public funding.

    Some publishers believe they have an obligation to give back to the public that has provided those funds, and, even before the NIH mandate, they made their online content free after a short delay under subscription control. However, a few large, highly profitable publishers refused to do this voluntarily and thus forced the NIH into the position of mandating deposition of NIH-funded research publications in PubMed Central to make them available to the public.

    At The Rockefeller University Press, we have released the content of our three journals to the public six months after publication since January, 2001, and our subscription revenues have grown since then. All of the content in our journals is released to the public, regardless of funding source. We are not aware of any data indicating that subscription revenues of biomedical research journal publishers have been directly and negatively affected by the NIH mandate.

    Enacting a law that prohibits federal funding agencies from mandating public access to the results of the research they fund will deprive the public of important information that is rightly theirs. Although this Act has been supported by the Association of American Publishers (AAP), it is vital that members of Congress know that not all members of this Association agree with their position. The Rockefeller University Press is a member of the AAP, but we strongly oppose H.R. 3699.

    Yours sincerely,
    Mike Rossner, Ph.D.
    Executive Director
    The Rockefeller University Press

    These comments are the opinion of the author and do not necessarily reflect the position of The Rockefeller University.

  8. Mark Funk
    Posted January 13, 2012 at 3:18 pm | Permalink

    That certainly explains Tom Reller’s comment …”when we say private sector, we are only referring to…” http://www.michaeleisen.org/blog/?p=807#comment-52363

    Sounds like the publishers wrote the bill.

    Maloney will claim the copy and paste was the result of an intern.

  9. Just Saying
    Posted January 17, 2012 at 8:02 am | Permalink

    @drugmonkey – is this such a shock? BTW, who do you think wrote the NIH public access policy (spoiler: the OA lobbyists)? Do you think Harkin just thought if that on his own? Not to mention it was tucked in an appropriations bill. At least this bill will have to go through proper tracks (ie, a hearing). If you want to talk dirty policy, the NIH public access policy was not the OA lobby’s finest moment.

  10. Michael Eisen
    Posted January 17, 2012 at 8:09 am | Permalink

    1) The Public Access Policy did not originate with Harkin. It was first introduced into the report language surrounding NIH Appropriation by former Oklahoma Rep Ernest Istook in 2005 or 2006. Get your facts straight if you’re going to bandy them about.

    2) An appropriation bill is EXACTLY the right place for the public access policy, as it is a condition Congress is placing on the receipt of federal funds.

    3) I think this was one of OAs finest moments, in that it was fighting for the public good and trying to strengthen the relationship between science and public.

  11. Just Saying
    Posted January 17, 2012 at 8:11 am | Permalink

    “We (my colleagues at PLoS and many others) have spent over a decade fighting to secure public access to publicly funded research.” ME

    Well Michael, don’t stop at the journal articles. Let’s give “access” to all of the fruits from taxpayer funded research.

    I had some posts on Michael’s other blog that never got answered, but I am very interested in hearing about the OA community’s willingness to give the taxpayers access to ALL of the research results that they have funded. For instance, can you tell me, really, how the public does not deserve to have free or discounted access to drugs, devices, or other inventions that they helped paid for, under the same principle that you expound upon above? If the journals owe the public and their funders their content for free, why are not they entitled to the royalties to patents they paid for? It would help alleviate the strain on research dollars and healthcare costs if all royalties were transferred back to NIH and taxpayers received a discount for the amount of basic or clinical research when they purchase a drug, device or other invention that they funded. Why should public investors have to pay twice for the drugs and devices they funded, and why should the scientists get to keep the royalties from these inventions after we already paid them a hefty salary??

    OA: “Bayh-Dole! Only when we say so!”

  12. Michael Eisen
    Posted January 17, 2012 at 8:15 am | Permalink

    I completely agree! I think Bayh-Dole should be repealed and that there should be absolutely no IP granted as the result of publicly funded research.

  13. Just Saying
    Posted January 17, 2012 at 8:22 am | Permalink

    @Michael – any policy that makes changes to a longstanding copyright law belongs in an authorizing bill, NOT a spending bill. Appropriations bills allocate funds. They should not be used to implement policy. Leave the legislating to those who know how things should actually be run for the good of the public. It indeed was a sneaky policy that you would be heralding as deplorable if the policy did not suit your agenda. Perhaps we should be able to parachute any policy changes into spending bills as long as it fits your definition of “what is good for the public??” Well, in my view, since the public has no interest in paying for you and your small affluent community to view science articles, you should stop asking them to pay for the costs of publication for such articles. Leave the research dollars to actual conduct of research.

    As stated in my previous post, waiting for your check to the US treasury in the amount of any royalties or profit sharing agreements you may have.

  14. Just Saying
    Posted January 17, 2012 at 8:28 am | Permalink

    @Michael – well, since you believe in the repeal of Bayh-Dole, in your efforts to lobby to eradicate the 12 month embargo, please let your fellow PIs know that it is due to your principled belief in the faults of Bayh-Dole. Please seek to change the policy to simply state: “all IP resulting from taxpayer funded research, including journal articles, inventions, drugs, devices, etc, and royalties, shall be transferred to the treasury, or in the case of a product, made freely available.” I think you might see you’ve lost a few soldiers (and for good reason). But otherwise, stop trying to cherry pick when it suits your agenda.

  15. Michael Eisen
    Posted January 17, 2012 at 8:38 am | Permalink

    I know it’s the party line for you in the publishing industry to say this modified copyright, but this is a ridiculous argument. The Public Access Policy is an agreement between the NIH and recipients of its grants requiring grantees to make their published works available to the public. It does not modify copyright or copyright law in any way, as countless of lawyers have made clear.

    The only reason copyright ever comes into play is that some grantees choose to endanger their ability to fulfill their obligation to the NIH and the public by assigning the copyright they hold in their works to publishers who do not wish them to be made public. Such publishers can easily avoid this problem by not accepting papers from NIH grantees without threatening their sacred copyright.

    And, for the record, I have rejected any opportunity to patent of otherwise profit under Bayh-Dole from any work from my lab – even though much of it is privately funded.

  16. Michael Eisen
    Posted January 17, 2012 at 8:43 am | Permalink

    Bayh-Dole has nothing to do with publishing policy, and is therefore not relevant to this discussion.

    But I am more than happy to make it clear that my belief in public access to publicly-funded research papers derives from the principle that all results of all federally funded research should be made available to the public for free (in the case of information) or, more generally, without the added costs that private assignment of IP creates.

  17. Just Saying
    Posted January 17, 2012 at 9:03 am | Permalink

    @Michael – the OA policy indeed changes copyright. Before the NIH policy, a publisher’s copyright was governed by a law that has been on the books for decades. After the NIH policy, that was changed to 12 months. I’m not sure what lawyers can’t see that obvious dynamic, but they probably were on retainer by OA lobbyists. As such, there are other lawyers that can claim the opposite, so let’s not get into the “these lawyers said…” game. Let’s figure it out ourselves. We have agreed in this country that funding science is an apropos role for the federal government. Hence, they conduct the preponderance of research that publishers turn into journals. To change an NIH policy in way that adjust/affect other established laws that govern publishers is indeed changing the entire market and dynamic considerably – due to the fact that the market for publishers is dominated by a single large federal entity in NIH. Changes like these should have hearings and real debate among legislators. Not ticked in a spending bill. How would the science community react if an NIH policy was implemented along the lines of: “NIH can only enter into research contracts, grants or cooperative agreements with institutions in Massachusetts.” Along your lines of thinking, it’s not coercive: the PIs have a choice, not get funded or move to Massachusetts. When the NIH policy was changed, it affected copyright in the same way: come to our side or too bad. It was a clever move by the OA lobby, but to claim otherwise is just spin.

    I admire your generosity with your intellectual fruits. Your a Steve Wozniak in a world of Steve Jobses. But if you truly believe that the heart of the debate is that all IP from publicly funded research belongs in the public domain, I suggest you hash that conversation out with your colleagues vis-av-is the OA debate. I think you’ll find many in your community do not share your beliefs. But I would condemn those that wish to keep IP for their own self-interest when it comes to royalties and patents, but want to take IP from a third-party volunteer contract that PIs engage in with publishers. To only choose or lobby for one is opportunistic and unprincipled and misleading to the public.

    In the meantime, I suggest you start to lobby for the roll back of Bayh-Dole as well using the same arguments. I know the NYT would be happy to run an article entitled: “Drugs, Inventions bought, then paid for (by the public)”

  18. Just Saying
    Posted January 17, 2012 at 9:07 am | Permalink

    Bayh-Dole is especially relevant: when does the taxpayers’ investment and rights end?

  19. Crusty the Clown
    Posted January 17, 2012 at 6:05 pm | Permalink

    Sigh. I’m afraid it’s infra dignitatem for a clown to debate a sock puppet, so I will merely make some general observations.

    Those articles available for free on PubMed Central are composed of 100% recycled electrons. Actually, there’s not even that much substance to them: it would be more correct to consider them as no more than patterns (or rearrangements) of electrons or magnetic domains or optical impedance domains or whatever. They are massless. They don’t have a shelf life. One article/file/pattern can be replicated any number of times, with ease and with little expenditure of either time or energy, with something as simple as , . Twenty-first century digital technology has refined and ephemeralized them until, stripped of all gross material being, they are nearly pure Thought and Memory.

    Medical devices and drugs, on the other hand, have a physical existence. Moreover, they are applied directly to living human beings in medical treatments. They can be dangerous if misused or poorly constructed or if their constituent parts, individually and severally, do not meet strict requirements. They are worlds apart from pdfs of research papers, and attempts to draw an analogy between the two are both inapposite and disingenuous.

  20. Crusty the Clown
    Posted January 17, 2012 at 6:18 pm | Permalink

    I made a formatting error in my last post please replace

    something as simple as , .

    with

    something as simple as (Right Click), (Save Link As…).

    Apologies to all.

  21. Just Saying
    Posted January 17, 2012 at 8:01 pm | Permalink

    Ah, the clown is back! Welcome! Although his error is not only in formatting, but basic jurisprudence as well. Someone!! Phone the NYT!! Their online editions no longer have copyright protections! Call the libraries so they can pull case law textbooks off the shelves – decades of case law are no longer valid! The Clown has proclaimed that since online mediums actually have no mass (actually incorrect when speaking of the infrastructure to produce it), they are no longer afforded the rights of intellectual property protection! They are….no one’s.(??) With Kant-like confidence, they just….exist.

    So the statute of limitations to affording the right to protection for the fruits of one’s labors is….if it can hurt someone? That’s terrible logic. Come on.

    How about you just try and answer this question without sounding like someone who desperately trying to find some tortured reason to justify their own selfish interests: why can I enter into a private product development agreement with a third party to create a product and collect any royalties, but I can’t enter into a private publishing agreement with a third party journal to distribute my work?

    The truth is, the science community can choose to publish however it wants. No one forces you to pursue any journal. But it’s not the public’s IP when it comes to a privately contracted and produced journal articles, but yours alone to profit from when it becomes a product. You can’t have it both ways. To argue for it is selfish, unprincipled and a slap in the face to your taxpayer investors.

  22. Michael Eisen
    Posted January 17, 2012 at 8:08 pm | Permalink

    The truth is, the science community can choose to publish however it wants. No one forces you to pursue any journal. But it’s not the public’s IP when it comes to a privately contracted and produced journal articles, but yours alone to profit from when it becomes a product. You can’t have it both ways. To argue for it is selfish, unprincipled and a slap in the face to your taxpayer investors.

    And nobody forces publishers to accept papers from authors who receive federal funding knowing that they will have to be made freely available within a year of publication. If publishers don’t want to comply, they should refuse the papers.

  23. Crusty the Clown
    Posted January 18, 2012 at 7:30 am | Permalink

    The resident sockpuppet seems to have a problem with reading comprehension, inasmuch as it attacks me for things I never said. Now, I’m only a clown and no one need pay attention to anything I say, but that doesn’t give anyone the right to put words in my mouth or deliberately twist my meaning.

  24. Just Saying
    Posted January 18, 2012 at 8:39 am | Permalink

    Ah, I shouldn’t feed the clown…..

    but, “Those articles available for free on PubMed Central are composed of 100% recycled electrons. Actually, there’s not even that much substance to them…” and “Medical devices and drugs, on the other hand, have a physical existence. Moreover, they are applied directly to living human beings in medical treatments. They can be dangerous if misused…” And to paraphrase the punch line, “no similarities can be drawn between the two.

    I stated the consequences of exactly what you said (clownish), as well as put forth a relevant question. You refused to answer and got all clown-like. Sad clown.

  25. Just Saying
    Posted January 18, 2012 at 8:50 am | Permalink

    @Michael – “nobody forces the publishers to accept the manuscripts from NIH-funded work.” I think the OA lobby should be lucky that they haven’t yet. A court challenge would surely break for the publishers, as an agency policy, enacted through a spending bill, would never trump established law. But how about I pose the same question back to you: no one forces the PIs to seek publication in these journals. There are other ways to distribute science other than these journals. Current publishers have stated that they welcome the chance to compete for authors with OA journals. Why would the OA lobby seek to change the rules of the game in their favor before trying to effect market change?

    • Michael Eisen
      Posted January 18, 2012 at 7:50 pm | Permalink

      One of the conditions the NIH imposes on many grants is that recipients make reagents they generate (e.g. bacterial plasmids) available to their colleagues. In doing so are they rewriting property law? Of course not. Nor are they rewriting copyright law by requiring grantees to make their works freely available. It requires bizarrely convoluted logic to conclude that publishers have copyright on work that has not yet been sent to them.

  26. Crusty the Clown
    Posted January 18, 2012 at 10:30 am | Permalink

    Thanks for the object lesson in sockpuppet techniques. In actuality, all one can reasonably conclude from my January 17, 2012 at 6:05 pm posting is that I believe the proffered analogy does not stand up to careful consideration and therefore cannot be used as a basis for rational discourse. I invite readers to revisit my post for confirmation of this.

    All the rest – the extrapolations, the rewording, the innuendos, the sarcasm – are the products of a sockpuppet’s fevered imagination as it erects the scaffolding of misquotes and misdirection it needs to hold the straw men which it intends to set up and then knock down.

    I apologize to the readers of this blog for prolonging this conversation. My goal was to educate people about sockpuppetry so they could recognize it when they encounter it in the future. The best course of action is to never engage a sockpuppet or a troll. When everyone ignores them they tend to wither.

  27. Dan Sumner
    Posted January 18, 2012 at 7:45 pm | Permalink

    Odd that you think a member writes their own stuff. Some young (soon to be former) staffer was told the write a letter supporting the bill, had gotten the good stuff from the company PR folks and was to ignorant or lazy to rewrite.

    Surely you have student in your class that would qualify for the member’s staff.

    As for the contributions. My experience is that companies find members who tend to support positions they like and contribute to their campaigns. That is far more common than members changing positions to get contributions. Yes, members mouth positions supported by companies. They do the same for Greenpeace and NRDC. No member has time to actually think about most of the votes they make and so rely on folks that generally agree with.

  28. Just Saying
    Posted January 18, 2012 at 9:04 pm | Permalink

    Are the reagents in question patented? Probably not, so that’s a tortured analogy.

    As far as your comment about the NIB policy, I’m surprised you’re not familiar with it (I’ve pasted it below). It requires the deposit into PMC of any final, peer reviewed manuscript 12 months after publication. So indeed, the are talking about a journal’s property at that point. So no convoluted logic necessary (I’m not exactly sure what you were referring to actually). The policy is pretty clear: go seek publication and then deposit the article, regardless of whatever copyright protections the contract with the publisher says, into PMC in 12 months.

    “The Director of the National Institutes of Health shall require that all investigators funded by the NIH submit or have submitted for them to the National Library of Medicine’s PubMed Central an electronic version of their final, peer-reviewed manuscripts **upon acceptance for publication**, to be made publicly available no later than 12 months after the official **date of publication**: Provided, That the NIH shall implement the public access policy in a manner consistent with copyright law.”

  29. Just Saying
    Posted January 18, 2012 at 9:12 pm | Permalink

    If the NIH policy said: at the end of a grant, a grantee shall write up a final report and deposit it into PMC, that would be a fine perrogative. But they want the PI to seek the merit and value of back-end peer review of grants, as well as the copy editing, etc. If the NIH wants that, and the costs are infinitesimal as the OA community claims, why doesn’t NIH just manage the process and direct the PIs to bypass traditional journals. It’s because they know the costs are huge, even with volunteers. They don’t want to get into the publishing business. But they found it perfectly acceptable to tell their PIs to go seek publication, have the journals bear the cost, and then forget about their distribution rights, the PI has to deposit in 12 months. It’s like asking PIs to seek commercialization of their patents, but then reducing patent protection from 14 years to 12 months. Imagine the impact on the developer market. Not to mention the equally obvious violation of patent rights. What do you think that would do to the appetite of PIs and developers to produce products?

    • Michael Eisen
      Posted January 18, 2012 at 9:25 pm | Permalink

      Your interpretation of the NIH policy is incorrect.

      The policy was crafted as a compromise between what public access advocates like me wanted (immediate OA, with full funding of OA charges) and what most publishers wanted (no public access policy at all). The result was free access (not full open access) after a delay of up to a year, which, after gathering input from many publishers, the drafters of the policy felt would not compromise publishers’ ability to recover their costs (since most subscription revenue comes from institutions whose members need immediate access to the latest research). Because of this compromise (which I view as an needless sell out of the public interest to publishers) it was hoped that publishers would be OK with the policy and facilitate the deposit of articles in PMC. Indeed, many publishers actively support the policy and help authors with submission. However, not all publishers do. But they are aware of the policy when they receive articles from NIH-funded authors. If they don’t like it, they don’t need to accept these papers. And if a publisher won’t support the policy, authors don’t need to submit papers to these journals. There is no need for any contention over copyright to emerge in the first place. Publishers that say there is want to have it both ways – they want to publish publicly funded research, but they don’t want to conform to the guidelines under which publicly-funded authors operate. That is the publishers issue, but has absolutely nothing to do with copyright.

  30. Just Saying
    Posted January 18, 2012 at 9:23 pm | Permalink

    Sorry – 20 years of patent protection for pharmaceuticals, not 14. Imagine the impact on health care costs if the public didnt have to pay again for the drugs they funded. Would the OA community embrace a similarly principled NIH policy that reduced patent protection from 20 years to 12 months for drugs or devices derived from taxpayer funded research?

    • Michael Eisen
      Posted January 18, 2012 at 9:27 pm | Permalink

      As I said. I support patent protection of ZERO years for drugs and devices derived from taxpayer funded research.

  31. Just Saying
    Posted January 19, 2012 at 2:18 pm | Permalink

    Michael – you can continue to believe the NIH policy has nothing to do with copyright, if that makes you feel better (doubt it). But it has everything to do with it. It’s like implementing a new NIH policy that says, “NIH shall only enter into research contracts, grants or cooperatives with institutions in Massachusetts.” In your view, this wouldn’t be unlawful to the other 49 states – it’s simply an NIH policy. Nor would it handicap the PIs in the 49 other states: either don’t be funded by the NIH, or move to MA.

    In your world view, a federal agency has carte blanche over what “policies” they can implement, no matter what established law says. You seem to think there’s a choice for journals in the matter, despite the fact that the NIH grantee came to them voluntarily and entered into a private contract. The publishers are playing nice in my view. They are fully within their rights to simply ignore the NIH policy and argue the matter in court. After the end of the grant, NIH has no legal right to tell the PI how to publish their research, in the same way it cannot coerce a patent from their PIs.

  32. anonymous moose
    Posted January 19, 2012 at 4:33 pm | Permalink

    I am baffled by the statements of Maloney, Reller and of “Just Saying” here, that the NIH policy actually affects copright or IP law. To make such a claim with a straight face, you need to believe that your audience consists of, well, idiots. This spin is so retarded that even I, who only fleetingly heard of the NIH policy and of this whole issue before, immediately saw the flat in Reller’s logic: when one requires researchers to make works available to the public, they do just that. It is not NIH’s responsibility to make sure that the researchers abide by the law: that is the researchers’ own responsibility.

    Reller could just as well claim that property law allows armed robbery, since if I am faced with heavy bills, my only realistic choice to get money is to commit armed robbery. Therefore, we need to abolish property law. We can plat this game all day. I don’t know what troubles me more: that lobbyists actually think that this poppycock would convince people, or that it just might be that this poppycock does convince people.

  33. Just Saying
    Posted January 19, 2012 at 9:17 pm | Permalink

    ” It is not NIH’s responsibility to make sure that the researchers abide by the law: that is the researchers’ own responsibility.”

    Aside from your rant, I’ll try and address just this statement, which seems to be the heart of your complaint. You’re right, NIH cannot change LAW with a POLICY. But given their weight in the market, they can influence copyright. To say they haven’t is purely semantics. The distribution contract that PIs sign with private publishers are subject to copyright law – not the NIH policy. The NIH policy pits PIs against the NIH – tacitly threatening them, when in reality, the PI is at the whim of the publisher. Big journals have more sway obviously. PIs could just throw their hands up to NIH in 12 months and say “ask them for the manuscript.” what is NIH going to do if publishers stop depositing? Punish the PI? That’s not fair – they’re just trying to get the best SIF. Pass another policy that bans PIs from submitting to that journal? What if the majority of PIs don’t care and WANT to submit to Cool Journal of Everything?

    It’s tantamount to a federal policy that says: “if you take a Pell Grant, you must seek private employment after graduation. Furthermore, each year the former grantee must make public all intellectual property that they helped create at said company.” Would that not be forcing the grantee to break patent law, or at least put them in a very awkward position (not knowing who to answer to)? Don’t you think someone would eventually challenge this POLICY as it contradicts with patent LAW?

    • Michael Eisen
      Posted January 19, 2012 at 11:15 pm | Permalink

      Mr. Saying, it is too bad that someone so interested in defending copyright law hasn’t bothered to actually study it very carefully. Because it more than amply demonstrates that your statements about copyright are wholly incorrect.

      When Congress passed the governing version of the Copyright Act in 1976 it specifically dealt with this issue. I point you to the following report language associated with the bill – http://codes.lp.findlaw.com/uscode/17/1/105/notes – in particular to the last sentence of the following paragraphs, where Congress makes it perfectly clear that, while they were not universally extending to federal grantees the prohibition on copyright that applies to federal employees, federal agencies have the right to make contractual demands of their grantees with respect to copyright if “the agency involved finds that the need to have a work freely available outweighs the need of the private author to secure copyright, the problem can be dealt with by specific legislation, agency regulations, or contractual restrictions..” This is PRECISELY what the NIH has done here. Indeed, they have acted in a far more limited way than Congress envisioned, in that they did not preclude grantees from claiming copyright in their work. Rather, they simply reserved for the NIH the right to redistribute the work after allowing publishers the opportunity to charge for access for up to 12 months.

      Here is the relevant section of the report language.

      Copyright Law Revision (House Report No. 94-­‐1476)

      A more difficult and far-reaching problem is whether the definition should be broadened to prohibit copyright in works prepared under U.S. Government contract or grant. As the bill is written, the Government agency concerned could determine in each case whether to allow an independent contractor or grantee, to secure copyright in works prepared in whole or in part with the use of Government funds. The argument that has been made against allowing copyright in this situation is that the public should not be required to pay a “double subsidy,” and that it is inconsistent
      to prohibit copyright in works by Government employees while permitting private copyrights in a growing body of works created by persons who are paid with Government funds. Those arguing in favor
      of potential copyright protection have stressed the importance of copyright as an incentive to creation and dissemination in this situation, and the basically different policy considerations,
      applicable to works written by Government employees and those applicable to works prepared by private organizations with the use of Federal funds.

      The bill deliberately avoids making any sort of outright, unqualified prohibition against copyright in works prepared under Government contract or grant. There may well be cases where it would be in the public interest to deny copyright in the writings generated by Government research contracts and the like; it can be assumed that, where a Government agency commissions a work for its own use merely as an alternative to having one of its own employees prepare the work, the right to secure a private copyright would be withheld. However, there are almost certainly many other cases where the denial of copyright protection would be unfair or would hamper the production and publication of important works. Where, under the particular circumstances, Congress or the agency involved finds that the need to have a work freely available outweighs the need of the private author to secure copyright, the problem can be dealt with by specific legislation, agency regulations, or contractual restrictions.

  34. Posted January 20, 2012 at 12:07 pm | Permalink

    @Denis,

    I intend this only as an example, and not an argument one way or the other.

    Here is an example of something done by a publisher: Springer for R&D. Please take a quick look. Please note that this is built in-house with full-time developers, designers, database admins, etc.

    (It’s also intended for the private sector as well…:))

    And please also note that my comments are mine alone and not Springer’s.

    Scott

  35. Scott Epstein
    Posted January 20, 2012 at 12:19 pm | Permalink

    I’m really interested in this sentence:

    However, once a publisher has worked on a manuscript, spent private funds to improve it and has peer-reviewed it, under this bill, the government would not be able to take that work-product and disseminate it for free.

    How does that work, actually, with commercial journals with page charges? It seems to me that under the logic here, all page charges should automatically become APCs…? Since the page charge pays for the improvement and peer review?

    Consequently, the “spent private funds” argument could then only apply to journals that don’t have page charges…

    (NB: My opinions are mine alone and not Springer’s.)

  36. anonymous moose
    Posted January 20, 2012 at 7:24 pm | Permalink

    @Just Saying:

    Before I answer your points one by one, let me explain the birds-eye view of what really is going on: In the broad, NIH has recognized a flaw in the way science is published. There is a tragedy of the commons, or a prisoner’s dilemma, in effect: if all scientists decided together to only submit to open-access journals, information would be free and society would be better off. However, since a vast majority of prestigious journals are not open-access, because of historical reasons, it is difficult to cause scientists to move in the direction of open access, since each of them separately has an incentive to keep publishing in non-open-access old-school journals. NIH is trying to upset this Nash equilibrium using the Public Access Policy, which is exactly what should happen when society is stuck in a bad equilibrium. Causing an equilibrium-shift is not easy, since everyone has to shift from doing things in one way to doing things in another way. This process might, as you say, put some grantees “in an awkward position” for a few years. They’re adult professionals, and they’ll get over it. When we emerge on the other side, social welfare will increase and everyone will have a better life, except the publishing companies, who will have to find another cash cow. That is, unless someone enacts a law that stops this change from happening and makes us stay with the current, deficient, system.

    Now, about the specifics of your last message:

    You write: “You’re right, NIH cannot change LAW with a POLICY. But given their weight in the market, they can influence copyright. To say they haven’t is purely semantics.”

    Can you explain this word, “influence”, and the meaning in which you use it? Copyright is a legal right. How can NIH influence copyright? I believe that you are using the word “influence” as a weasel-word. (And you accuse me of semantics?) NIH sets policy. They set conditions to researchers that want to get funding from them. They are not influencing law in any way.

    “PIs could just throw their hands up to NIH in 12 months and say “ask them for the manuscript.” what is NIH going to do if publishers stop depositing? Punish the PI? That’s not fair – they’re just trying to get the best SIF. Pass another policy that bans PIs from submitting to that journal? What if the majority of PIs don’t care and WANT to submit to Cool Journal of Everything?”

    PIs are not children. When they wish to get funding for research, there are responsibilities that go with this. NIH say something very simply: if you want to be funded by the public, please make the results of your research available to the public. The fact that such an obvious and ethically-straightforward requirement is being thwarted by making it *illegal* points to how all-encompassing corporate America has become. NIH has no responsibility pandering to PIs and publishers in the name of status-quo. NIH is funded by the public, and wishes to serve the public. If the way science is done today stands in the way of it, then the status-quo has to be changed, and if the status quo won’t change, NIH (read: the public) does not have to allocate funds. It’s really that simple.

    “It’s tantamount to a federal policy that says: “if you take a Pell Grant, you must seek private employment after graduation. Furthermore, each year the former grantee must make public all intellectual property that they helped create at said company.”

    You are correct, this is a great comparison. Enacting such a policy would be unfortunate, however, since Pell grants are meant to encourage social mobility, as well as to support excellence among people who cannot otherwise afford to get a good education and realize their potential. Putting roadblocks in the way of that would be counter-productive. But, yes, you are indeed correct: if the Department of Education decided to restrict Pell Grants as you specify, that would be unfortunate, but would we make a law that forbids such a restriction? Of course not. If you think that the NIH policy is so bad, go ahead and protest it. Arrange a letter by vocal opponents of the NIH policy. Lobby with the Government to instruct NIH to change this policy. Whatever. But making it illegal is absurd.

    “Would that not be forcing the grantee to break patent law, or at least put them in a very awkward position (not knowing who to answer to)? Don’t you think someone would eventually challenge this POLICY as it contradicts with patent LAW?”

    I don’t understand why you keep twisting reality like this. the policy does not *contradict* patent law. No matter which words you choose to capitalize in that sentence, it won’t make it correct. The policy is a policy. Scientists can choose to follow it, or they can choose to decline their NIH grants. They can’t have it both ways.

  37. Crusty the Clown
    Posted January 21, 2012 at 9:30 am | Permalink

    A quote from Upton Sinclair comes to mind:

    “It is difficult to get a man to understand something, when his salary depends upon his not understanding it!”

    One suspects this is the source of Mr. Saying’s apparent cognitive difficulties.

  38. Crusty the Clown
    Posted January 21, 2012 at 10:00 am | Permalink

    I read an article last week at guardian.co.uk about Kodak filing for bankruptcy and in it I found this apt quote:

    Robert Burley, professor of photography at Ryerson University in Toronto, said: “Kodak has been obliterated by the creative destruction of a digital age. Like many of its competitors, it appears unable to make the transition into the 21st century. Five years ago, it was unthinkable that this American business legend would find itself in a bankruptcy position. Kodak was caught in a perfect storm of not only technological, but also social and economic change.”

    Indeed. “The times they are a changing,” as Dylan sang long ago. Legend tells us that Xerxes ordered his slaves to whip the waves in a futile attempt to halt the progress of the tide; if AAP orders its bought-and-paid-for politicians to whip up laws in an attempt to stem or even reverse the tide of cultural and technological innovation I have little to no doubt that it will meet with equal success.

  39. Just Saying
    Posted January 21, 2012 at 2:14 pm | Permalink

    Anon Moose – thanks for engaging in a fruitful discussion. I would go through each point one by one and try and hash this out a bit more with you, but I simply don’t have the time at the moment. Perhaps later.

    You mentioned big picture….I too will take a brief stab at the Big Picture:

    1.) the only people that care about OA are a small minority of scientists that are leading the charge. They are not the majority. Their motivations seem to be more self interested in being able to claim father to the movement than whether it is actually right or wrong, a good policy or bad. Their lobbying efforts would be better served advocating for a larger NIH budget.

    2.) the main beneficiary from an OA policy are the universities. Once again, the higher education system is trying to pass off more and more of their costs squarely on the taxpayers.

    3.) a mire principled approach would be to simply make all IP – including articles, drugs, devices, inventions, etc – free to the public. But the universities would lose their cash cow, and so would the PIs. Meanwhile, the taxpayer angel investors continue to pay twice.

    4.) By all standards, PIs are affluent, educated, and very specialized. They represent an extremely small population in the US. Yet, they want to make all taxpayers pay for their access to journals through an author pays model. This model is far more inefficient, as PIs will undoubtedly start to request full access to journals they only use sparingly.

    5.) There has been a completely inauthentic and astroturf campaign by the OA community in bringing “maligned taxpayers” to Congress. For all purposes, these people do not exist. The public largely does not care. For those that do, from my understanding most publishers provide access for free. So who is left to complain about paying? PIs.

    6.) Given that the preponderance of PIs have no issue with their current ability to access science, there is no empirical or theoretical evidence that having authors and taxpayer pay for the articles would make accelerate scientific discovery. To argue that is unfounded speculation. OA is about who pays. That’s it. The people that need access to science already have all the access they need. Their institutions are the ones that purchase it. OA wants someone else to pay for it.

    Michael – that is a great reference. I simply do not feel that the merits of an OA policy were adequately presented, and the astroturf campaign of maligned taxpayers was used successfully but dishonestly. A proper legislative debate would have been appreciated, as is what is happening with the RWA.

    Crusty – I do not work for not have any financial stake in the publishing world. Simply an outside observer that was in the science world for a number of years. I just call a spade a spade, and hate when people try to pass the buck for their costs to someone else.

    • Michael Eisen
      Posted January 21, 2012 at 10:44 pm | Permalink

      Mr. Saying – as much as I don’t want to encourage your continued trolling, your statements are so outrageous as to require a response.

      1.) the only people that care about OA are a small minority of scientists that are leading the charge. They are not the majority. Their motivations seem to be more self interested in being able to claim father to the movement than whether it is actually right or wrong, a good policy or bad. Their lobbying efforts would be better served advocating for a larger NIH budget.

      You base this statement on what exactly? OA advocates have spent over a decade putting forward a consistent case for why open access is a good policy. And in all of your logorrheic posts on the topic you fail to meaningfully engage any of them, choosing instead to question people’s motivations. I’ll just point out that the world’s largest biomedical journal is an open access one, a major commercial publisher recently paid several hundred million dollars to buy another open access publishers, the worlds three biggest private funders of biomedical research just launched a new high-profile open access journal, and a large number of prominent commercial and society journals just came out in support of the NIH’s public access policy. I’ll leave it to the readers’ to decide if that is a fringe movement.

      2.) the main beneficiary from an OA policy are the universities. Once again, the higher education system is trying to pass off more and more of their costs squarely on the taxpayers.

      This is just incredibly ignorant. You consistently refuse to acknowledge that most of the money that universities spend on biomedical journal subscriptions comes from the federal government as part of the overhead paid on research grants. Universities do not stand to benefit at all if the government chooses to shift how it pays for publishing from subscriptions to open access.

      3.) a mire principled approach would be to simply make all IP – including articles, drugs, devices, inventions, etc – free to the public. But the universities would lose their cash cow, and so would the PIs. Meanwhile, the taxpayer angel investors continue to pay twice.

      As I’ve said before, I completely agree with this. But in making this statement aren’t you agreeing with my whole point – that taxpayers shouldn’t have to pay again to benefit from research they paid for in the first place?

      4.) By all standards, PIs are affluent, educated, and very specialized. They represent an extremely small population in the US. Yet, they want to make all taxpayers pay for their access to journals through an author pays model. This model is far more inefficient, as PIs will undoubtedly start to request full access to journals they only use sparingly.

      I have no clue what you’re talking about. This is not a question about who will pay to support journals – the government pays now through subscriptions, and it would through up front charges under open access (though they would pay a lot less under OA, as numerous studies have shown). The question is whether, after spending tens of billions of dollars on research, and billions on publishing, if the finished product will be available to the taxpayers who paid for it, and to all of the students, teachers, physicians, etc… who want, but do not currently have, access to the literature.

      5.) There has been a completely inauthentic and astroturf campaign by the OA community in bringing “maligned taxpayers” to Congress. For all purposes, these people do not exist. The public largely does not care. For those that do, from my understanding most publishers provide access for free. So who is left to complain about paying? PIs.

      You know these people don’t exist why? You think it’s an accident that patient advocacy groups have strongly backed the NIH Public Access Policy, and that PubMed Central gets millions of hits a month? And most publishers do not give people access for free. That is the whole point.

      6.) Given that the preponderance of PIs have no issue with their current ability to access science, there is no empirical or theoretical evidence that having authors and taxpayer pay for the articles would make accelerate scientific discovery. To argue that is unfounded speculation. OA is about who pays. That’s it. The people that need access to science already have all the access they need. Their institutions are the ones that purchase it. OA wants someone else to pay for it.

      You are just making stuff up. A huge number of PIs do not currently have access to all of the literature they need. I am at one of the largest research institutions in the world, and I frequently come across articles that I do not have access to. Only an incredibly small fraction of researchers at places like Harvard and Stanford have anything even approaching universal access to the literature. I suggest you talk to people struggling to keep up to date at smaller colleges and universities and you will quickly see just how wrong you are.

      Michael – that is a great reference. I simply do not feel that the merits of an OA policy were adequately presented, and the astroturf campaign of maligned taxpayers was used successfully but dishonestly. A proper legislative debate would have been appreciated, as is what is happening with the RWA.

      Seriously, what are you talking about? The NIH had an open comment period on this matter, and there have been at least two separate hearings on the topic in Congress. But I would LOVE to see a wider debate on this topic, because all of the evidence and the weight of public opinion are strongly on our side.

      Crusty – I do not work for not have any financial stake in the publishing world. Simply an outside observer that was in the science world for a number of years. I just call a spade a spade, and hate when people try to pass the buck for their costs to someone else.

      Actually, you’re calling an umbrella a spade – whether this derives from ignorance or mendacity I do not know. And whether you work for a publisher or not, you do a remarkably good job of parroting their tired and deceptive arguments in defense of a system that is no longer serving the interests of science or the public.

  40. Crusty the Clown
    Posted January 22, 2012 at 11:37 am | Permalink

    Mr. Saying says:

    5.) There has been a completely inauthentic and astroturf campaign by the OA community in bringing “maligned taxpayers” to Congress. For all purposes, these people do not exist. The public largely does not care. For those that do, from my understanding most publishers provide access for free. So who is left to complain about paying? PIs.

    Crusty replies:

    How about “aggrieved taxpayers?” Synopsis: My adult son was struck by a car 3 yrs. ago. Initial GCS was 5, massive subdural hematoma, subfalcine & right uncal herniation, severe TBI; emergency hemicraniectomy saved his life and most of his functions. Skip forward to one yr. status post with contralesional spastic hemiplegia and homonomous hemianopsia, as well as post-traumatic seizures. His epileptologist had him on 3 anti-seizure medications simultaneously and he still had about 1 seizure/month. Each time he seized it set his rehabilitation back a week or so. I was his case manager and health care advocate so I was researching seizure triggers, but I was no longer affiliated with an educational institution and I was staying in a hotel room in NYC hundreds of miles from my home and my contacts in academia. I was constantly running into paywalls with prohibitive fees. (One 8-page article on rehab from 1929 was available for only $31.53 or some such!!) Eventually I found a web site discussing the effect of exercise on seizure threshold, realized he was over-exerting (I was the one who took him to the gym every day), and reported to his specialist who then set reasonable limits on gym time. His seizure frequency dropped to 2 or 3 a year.

    Yes, I was able to find the information I needed to care for my son. No, AAP and the medical publishing industry didn’t help in the least. No, it did not suffice that PIs and MDs allegedly have unrestricted access to journals – they didn’t care for him all day every day and observe his workouts. No, it’s not a good idea to get medical information from web sites of unknown reliability. Yes, it’s much better to read the primary literature, if it’s not hidden behind a paywall.

    My taxes help pay for university research buildings, lab equipment and reagents for researchers, salaries of PIs and co-Is and reviewers, journal page fees, and the civic infrastructure which supports both the public and private realms. I have a reasonable expectation that the knowledge gained from pubicly-funded research should be available to me without having to pay for it a second time.

  41. Just Saying
    Posted January 23, 2012 at 8:30 pm | Permalink

    Oh Michael – you continue to let me down. You aren’t even aware of how university finances work, including your own. Berkeley’s libraries are supported substantially from private donations, not taxpayer funding. You are wholly incorrect or lying, I can’t tell which. Either way it’s sad to see. If you don’t think that the universities are trying to make up for decreased private donations that have helped libraries pay the bills over the years, I suggest you a.) turn on CNBC, and b.) dig into your library’s finances a little better. Whatever taxpayer dollars are funding the library, they’re decreasing also. But it’s not 100%. Not even close.

    This is about dollars no sense. It’s too bad that you can’t see that. Incredibly naive, which probably makes you a good scientist. Again, since my tax dollars pay your salary would you mind if I sat in the back of your class? I have that “right,” don’t I? To utilize the service that I have already paid for? Your arguments are so contrived and twisted they are laughable. You’re a True Believer. You simply choose to ignore points that contradict the way you want to view the situation. When confronted with principle, you spin.

    Since it seems that we’ve devolved into name calling and attempts to discredit (mainly from your side – I thought you were a little more scholarly than that), I think I step away for now. I wished you would engage on a number of the issues a bit more (economic effect of an OA model, excess waste, when does a taxpayer’s investment END, etc.).

    Crusty – for all the trash talk on a blog, what happened to your child was terrible and he is quite fortunate to have a father like you. I say that having almost lost a child of my own. I won’t argue but just ask why stop at the knowledge gleaned from taxpayer funded research? Why not ask for the products and devices you as a taxpayer funded? Private investors that put up seed funding for great ideas get paid well. Why do we as taxpayers pay twice when PIs and universities split the royalties and profit? Will the OA community, right now, expand open access to include those devices,/drugs/etc. by introducing similar legislation, or are you afraid of the letter from the Dean you might receive? Or do you not want to give up your cash cow? Open access should be to all IP, correct?

    • Michael Eisen
      Posted January 23, 2012 at 10:02 pm | Permalink

      Oh Michael – you continue to let me down. You aren’t even aware of how university finances work, including your own. Berkeley’s libraries are supported substantially from private donations, not taxpayer funding. You are wholly incorrect or lying, I can’t tell which. Either way it’s sad to see. If you don’t think that the universities are trying to make up for decreased private donations that have helped libraries pay the bills over the years, I suggest you a.) turn on CNBC, and b.) dig into your library’s finances a little better. Whatever taxpayer dollars are funding the library, they’re decreasing also. But it’s not 100%. Not even close.

      At the risk of disappointing you yet again, Dearest Just, let me give you some data. In 2008-09, the last year for which I have complete numbers, UC Berkeley spent approximately $5.6 million acquiring print and digital serials in science and engineering. At the same time they received approximately $4.8 million in overhead on federal grants dedicated specifically to library operations in support of federally sponsored research. This $4.8 million is the result of the overhead agreement negotiated between the university and federal government in which a specific allocation of 1.8% overhead on all federal grants is included to fund library operations that support research endeavors on campus – which is essentially all journal acquisitions. In other words 80% of the Berkeley science and engineering serials acquisitions budget comes directly from the federal government. The other 20% comes from university general funds, which are a mix of funds from the state government and tuition.

      You might also be interested in knowing that private donations to Berkeley have actually gone up every year even in the midst of a down economy as part of the university’s agressive campaign to make up for ongoing public disinvestment in education. Since you are such an expert in university finances, you will undoubtedly be aware that most of this money is allocated to specific purposes. Last time I checked, Berkeley had no donors who earmarked funds for subscriptions to biomedical research journals. But I’m sure our development office and librarians would love to see any list of such willing donors you can provide.

  42. Posted April 22, 2012 at 3:11 pm | Permalink

    There can, in fact, be no dispute to the link between Rep. Maloney’s support for the bill and the large number of contributions she has received from senior American executives of the Dutch publishing conglomerate Elsevier.
    As clearly illustrated in this excellent article, and subsequent comments, once again the truth is attempted to be veiled through political and semantical gymnastics.

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