Prodding the behemoth with a stick

 

Like many academics, I was interested to see an announcement on social media that a US legal firm had filed a federal antitrust lawsuit against six commercial publishers of academic journals: (1) Elsevier B.V.; (2) Wolters Kluwer N.V.; (3) John Wiley & Sons, Inc.; (4) Sage Publications, Inc.; (5) Taylor and Francis Group, Ltd.; and (6) Springer Nature AG & Co, on the grounds that "In violation of Section 1 of the Sherman Act, the Publisher Defendants conspired to unlawfully appropriate billions of dollars that would have otherwise funded scientific research".   

 

So far, so good.  I've been writing about the avaricious practices of academic publishers for over 12 years, and there's plenty of grounds for a challenge. 

 

However, when I saw the case being put forward, I was puzzled.  From my perspective, the arguments just don't stack up.  In particular, three points are emphasised in the summary (quoted verbatim here from the website): 

 

• First, an agreement to fix the price of peer review services at zero that includes an agreement to coerce scholars into providing their labor for nothing by expressly linking their unpaid labor with their ability to get their manuscripts published in the defendants’ preeminent journals.

 

But it's not true that there is an express link between peer review and publishing papers in the pre-eminent journals.  In fact, many journal editors complain that some of the most prolific authors never do any peer review - gaining an advantage by not adopting the "good citizen" behaviour of a peer reviewer.  I think this point can be rapidly thrown out.

 

• Second, the publisher defendants agreed not to compete with each other for manuscripts by requiring scholars to submit their manuscripts to only one journal at a time, which substantially reduces competition by removing incentives to review manuscripts promptly and publish meritorious research quickly. 

 

This implies that the rationale for not allowing multiple submissions is to reduce competition between publishers.  But if there were no limit on how many journals you could simultaneously submit to, then the number of submissions to each journal would grow massively, increasing the workload for editors and peer reviewers - and much of their time would be wasted. This seems like a rational requirement, not a sinister one.

 

• Third, the publisher defendants agreed to prohibit scholars from freely sharing the scientific advancements described in submitted manuscripts while those manuscripts are under peer review, a process that often takes over a year. As the complaint notes, “From the moment scholars submit manuscripts for publication, the Publisher Defendants behave as though the scientific advancements set forth in the manuscripts are their property, to be shared only if the Publisher Defendant grants permission. Moreover, when the Publisher Defendants select manuscripts for publication, the Publisher Defendants will often require scholars to sign away all intellectual property rights, in exchange for nothing. The manuscripts then become the actual property of the Publisher Defendants, and the Publisher Defendants charge the maximum the market will bear for access to that scientific knowledge.” 

Again, I would question the accuracy of this account.  For a start, in most science fields, peer review is a matter of weeks or months, not "over a year".  But also, most journals these days allow authors to post their articles as preprints, prior to, or at the point of submission. In fact, this is encouraged by many institutions, as it means that a Green Open Access version of the publication is available, even if the work is subsequently published in a pay-to-read version.  

 

In all, I am rather dismayed by this case, especially when there are very good grounds on which academic publishers can be challenged.  For instance:

 

1. Academic publishers claim to ensure quality control of what gets published, but some of them fail to do the necessary due diligence in selecting editors and reviewers, with the result that the academic literatureis flooded with weak and fraudulent material, making it difficult to distinguish valuable from pointless work, and creating an outlet for damaging material, such as pseudoscience.  This has become a growing problem with the advent of paper mills.

 

2. Many publishers are notoriously slow at responding to credible evidence of serious problems in published papers. It can take years to get studies retracted, even when they have important real world consequences.

 

3. Perhaps the only point in common with the case by Leiff Cabraser, Heimann and Bernstein concerns the issue of retention of intellectual property rights.  It is the case that publishers have traditionally required authors to sign away copyright of their works.  In the UK, at least, there has been a movement to fight this requirement, which has had some success, but undoubtedly more could be done. 

 

If I can find time I will add some references to support some of the points above - this is a hasty response to discussion taking place on social media, where many people seem to think it's great that someone is taking on the big publishers. I never thought I would find myself in a position of defending them, but I think if you are going to attack a behemoth, you need to do so with good weapons.  

 

 

Postscript

Comments on this post are welcome - there is moderation so they don't appear immediately.

 Nick Wise attempted unsuccessfully to add a comment (sorry, Blogger can be weird), providing this helpful reference on typical duration of peer review.  Very field-dependent and may be a biased sample, I suspect, but it gives us a rough idea.

PPS. 5th October 2024.

Before I wrote this blogpost, I contacted the legal firm involved, Leiff Cabraser, Heimann & Bernstein, via their website, to raise the same points.  Yesterday I received a reply from them, explaining that "Because you are located abroad, unfortunately you are not a member of this class suit".  This suggests they don't read correspondence sent to them. Not impressed.