Law Librarian Blog

Some Developments in the Apple e-Book Case

There were two developments in the Apple e-book case recently.  The first is a settlement between Penguin and the states with Penguin paying $75 million.  This represents the largest amount paid by one of the five publishers in the litigation.  Penguin has an incentive to get this off its plate as it pursuing a merger with Random House.  All publishers have now settled with the Justice Department and the states leaving Apple as the only defendant contesting the antitrust allegations.  Details are in paidContent.

The second development is the fight over redacting information generated by Amazon that Apple wants to introduce at trial in its defense.  Apple claims that some of it will embarrass Amazon, such as showing the company’s own view of the Kindle as being inferior to the iPad.  Other parts of the documents will show that Amazon attempted to engage in the same conduct for which Apple is now on trial.  There are emails from Amazon executives, for example, that indicate that Amazon was independently considering the agency model with the publishers.  Here is a quote from a different story in paidContent:

”I guess what we never figured in was the idea that five publishers would band together and insist on receiving worse terms,” the email said. “And then Amzn would be ‘cornered’ into accepting them.”

“Hysterical, isn’t it?” the Amazon executive replied. “Jedi Mind Tricks here in Seattle.”

Simply working off this one snippet does not necessarily lead to a conclusion that Amazon’s conduct favors Apple’s defense, at least taken out of context as it is presented.  I’m not sure characterizing what Amazon was thinking compares to what Apple allegedly did.  We’ll see whether the Justice Department proves its case.  Apple and the publishers have been trying to make Amazon the issue at trial as a way of justifying their own pricing actions.  Judge Cote has decided to keep the information redacted for the time being.  The trial is slated to begin on June 3^rd.  [MG]  

India Publisher Threatens $1B Lawsuit Against Colorado Librarian

Here we go again.  This time it’s a publisher out of India that is threatening to sue Jeffrey Beall, a librarian at the University of Colorado over characterizations he’s made on his Scholarly Open Access Blog.  That blog identifies, in Beall’s opinion, publishers that take advantage of academics needing a publisher for their papers.  Beall recently received a letter from representatives of OMICS Publishing Group threatening a lawsuit seeking $1 billion (not a mistake) in damages and possibly up to 3 years of prison time in India for violations of Section 66A of India’s Information Technology Act.  The Act makes it a crime by its terms to use a computer to publish any information that is grossly offensive or has menacing character.

An article in the Chronicle of Higher Education (this one is not behind a pay wall) offers some details of the letter:

The rambling, six-page letter argues that Mr. Beall's blog is "ridiculous, baseless, impertinent," and "smacks of literal unprofessionalism and arrogance." The letter also accuses Mr. Beall of racial discrimination and attempting to "strangle the culture of open access publications."

"All the allegation that you have mentioned in your blog are nothing more than fantastic figment of your imagination by you and the purpose of writing this blog seems to be a deliberate attempt to defame our client," the letter reads. "Our client perceive the blog as mindless rattle of a incoherent person and please be assured that our client has taken a very serious note of the language, tone, and tenure adopted by you as well as the criminal acts of putting the same on the Internet."

I did a search in WorldCat on OMICS as a publisher.  There were 334 records in the database.  305 of these were Internet links, 10 were serials, and only 2 were books.  The Edwin Mellen Press in contrast was better represented in worldwide library holdings.  Readers may remember that the EMP was one of the first publishers to take legal offense at how its business model was characterized by a librarian.  See LLB posts here, here, here, and here for coverage. 

The CHE article also posits potential results of any lawsuit based on whether a suit is brought in India or the United States.  A favorable outcome for Beall is likely in U.S. courts and uncertain in India’s courts.  There are issues as to whether a judgment in India against Beall could be enforced in the United States.  The numerous comments to the article speculate on that.

I have to believe these kinds of threats will do little to change any impression of OMICS and more likely draw attention to their publications and practices.  I can’t comment on whether or not they are respectable publisher.  As with the Mellen Press, I had never heard of the publisher until it threatened suit.  I know who OMNICS is now.  I’ll be following this one as the situation develops.  [MG]

DOJ Files New Details In Apple e-Book Case

The Justice Department filed multiple documents on Tuesday in the Apple e-book case.  The most interesting of these are the Plaintiffs’ Proposed Findings of Fact and Conclusions of Law and Plaintiffs' Pretrial Memorandum of Law.  The documents are dated April 26, 2013 on the Department’s web site but were made public yesterday.  The lengthy documents describe the back and forth between Apple and the publishers where Apple acted as a conduit for information between each publisher in addition to the direct contacts the publishers made with each other over how to manage e-book pricing in the market.  It’s pretty substantial stuff.  Here’s an example from the Proposed Finding of Facts:

54. Publisher Defendants communicated to one another their plans to window specific titles, which they believed would pressure Amazon to raise its retail e-book prices. For example, in an August 14, 2009 e-mail to Hachette Livre CEO Arnaud Nourry, Hachette Book Group CEO David Young writes: “Completely confidentially, [Simon & Schuster CEO] Carolyn [Reidy] has told me that they are delaying the new Stephen King, with his full support, but will not be announcing this until after Labor Day . . . .” PX-0274.

55. In the same e-mail, Mr. Young criticized Random House CEO Markus Dohle as an “appeaser” for his refusal to window Dan Brown’s The Lost Symbol: “You should know that I have been told by a reliable source that the [internal Random House] publishers voted for the Dan Brown to be delayed but they were over-ruled by Markus who is apparently ‘obsessed’ by his desire to meet Jeff Bezos: why this should matter to him and what he thinks he would gain from such a meeting is beyond me. He appears to be an appeaser which is not good with them being the market leader. . . .” Id. Mr. Young’s “reliable source” was a senior Random House executive who subsequently joined Macmillan in the fall of 2009.

56. Mr. Young concluded this e-mail containing confidential information about Hachette’s competitors’ business plans by advising Mr. Nourry that he should permanently destroy the message: “I think it would be prudent for you to double delete this from your email files when you return to your office.” Id.

The document would be a good basis for a book or a movie.  The publishers were pretty open with each other about their antipathy to Amazon and its pricing practices.  They tried various strategies such as windowing titles to get Amazon to raise its prices, but mostly failed.  Apple came along and expressed a desire to not compete on price (Proposed Finding of Facts par. 107) with Apple pushing the agency model as a way to accomplish everyone’s goals.  It’s not merely a quote from Steve Jobs’ biography at issue here. 

These are interesting documents chock full of direct quotes from emails and depositions.  I’m sure Apple’s attorneys are smart enough to create a context that challenges the inferences from the filings.  One lesson stands out, and it’s an old one:  if one’s conduct is going to be legally questioned, one should try and minimize the documentation for that conduct.  Redundant back-up systems for email and other corporate documents sometimes may be our friend and sometimes be our enemy.  There’s a lot of electronic evidence in this case.  I hope we might see more of the documents at issue than merely those quoted by the Justice Department.  [MG]

LSAC Loses a Round in Its Discrimination Case

The Law School Admission Council lost a battle earlier this week in its attempts to deflect a California discrimination lawsuit for the way it handles individual seeking accommodations.  The case started out as an administrative hearing over practices such as requiring test takers to provide extensive documentation for a disability and flagging test results to schools that accommodations were given.  It has since been removed to California state court and finally to the federal district court for the Northern District of California.  The plaintiff in this iteration of the dispute is the California Department of Fair Employment and Housing.  That entity is seeking relief for those aggrieved by the LSAC’s practices in California, though the suit has the potential to affect disabled test takers on a nation-wide basis. 

The LSAC argues that Federal Rule of Civil Procedure 23 applies in situations where the rights of a group are involved.  The Court, however, ruled that the California agency can proceed as a “government enforcement action” with reliance on Supreme Court precedent to that effect.  Under these circumstances, the government is vindicating a legal right available to all citizens rather than a group that may or may not be certified as a class under Rule 23. 

The Court tracked the current controversy to that of General Telephone Co. of the Nw., Inc. v. Equal Employment Opportunity Comm’n, 446 U.S. 318 (1980).  In that case the Supreme Court held the EEOC could proceed against General Telephone in a sex discrimination case under the authority of Title VII of the Civil Rights Act without first certifying the aggrieved employees as a class.  Judge Edward M. Chen extrapolated from General Telephone and other Ninth Circuit cases that state law can provide a sufficient basis for proceeding in the same manner in this case.

I expect the LSAC to appeal the decision, and given the character of the Ninth Circuit, I expect this decision to be affirmed.  I can’t predict whether the Supreme Court will take up the case.  I do know that the Ninth Circuit is one of the most reversed courts in the country.  The LSAC’s best strategy may be for the dispute to go to the Supreme Court and hope for the best.  I personally believe the LSAC should simply comply with the antidiscrimination laws and be done with it.  As with most litigation, nothing that could be easy needs to be easy.   Download the opinion in DFEH v LSAC.  [MG] 

The Mellen Press Speaks

For those interested in the continuing saga of the Edward Mellen Press, the Chronicle of Higher Education published a profile of Herb Richardson, the driving force behind the Press and the lawsuits against its critics.  The article is a fair representation of the man and his motives and even gets a published statement to that effect from a letter to the editor by the man himself.  The article describes some unhappy battles Richardson has fought when he was a faculty member at various institutions.  These apparently honed his motivation to fight his critics in one form or another.  His view on the latest matter is that rather than bullying his critics with lawsuits, he is the one being bullied.  I believe that is a matter of opinion, and the comments associated with the story bear that out.  Consider viewing Who Defines the Debate from the Academe Blog.  It’s a lengthy response to the Chronicle piece.

Richardson states his latest quest in his letter:

I have engaged and won five cultural/political battles. My next is to bring Web blogging within the framework of law governing civil society. To do this, I am using defamatory Web statements that have been made about the Edwin Mellen Press as an opportunity to initiate lawsuits for libel against two universities. Through these lawsuits, I hope that penalties for cyberbullying will be assessed and, thereby, some legal precedents established.

Anyone who files a suit of this kind should be prepared to lose as much as to win.  Establishing precedents doesn’t necessarily mean they will stand in one’s favor.  [MG]

Scott Turow Responds To The Kurtsaeng Case And More

Scott Turow, author and president of the Authors Guild, wrote an op ed piece on the Kurtsaeng case in the New York Times last Sunday.  Naturally, he’s appalled at the outcome, though that is really a minor part of his complaints.  The bulk of the piece rails against Google, technology, piracy, and even libraries.  I recommend the piece by Mike Masnick in Techdirt that takes Turow’s arguments apart paragraph by paragraph.  I’ll only add a few thoughts here. 

Turow says about libraries: 

Even libraries and authors, usually allies, have grown less cozy. No one calls our public library system socialistic, though it involves free distribution of the goods authors produce, and even though in many Western nations, authors get a tiny fee when libraries lend their works. Authors happily accept our system, because libraries have nurtured them as writers and readers. 

Now many public libraries want to lend e-books, not simply to patrons who come in to download, but to anybody with a reading device, a library card and an Internet connection. In this new reality, the only incentive to buy, rather than borrow, an e-book is the fact that the lent copy vanishes after a couple of weeks. As a result, many publishers currently refuse to sell e-books to public libraries. 

Scott, did you consider for a moment that even when a publisher does “sell” e-books to libraries that it does so at exceptionally high prices and terms, along with harsh digital rights management that hamstring the distribution and end use of the copy?  Why, I’d almost think you despair at the fact that library lending can’t be further restricted and monetized somehow. 

And then there are the pirates, aided and abetted by the major search engines: 

The pirates would be a limited menace were it not for search engines that point users to these rogue sites with no fear of legal consequence, thanks to a provision inserted into the 1998 copyright laws. A search for “Scott Turow free e-books” brought up 10 pirate sites out of the first 10 results on Yahoo, 8 of 8 on Bing and 6 of 10 on Google, with paid ads decorating the margins of all three pages. 

1998 you say?  And 15 years later Congress still hasn’t corrected this situation?  I’d almost get the impression that the pirates have a better lobbying effort than the Guild. 

Google, which seems to have the better track record on pirate links get its hits.  First there is the Google book scanning project in which the Guild soldiers on as a litigant, even when the publisher plaintiffs and others have settled.  Then there is the HathiTrust, an outgrowth of the scanning project, which was forced to suspend its orphan works program because it had trouble identifying authors and titles.  None of that, however, changes the underlying and more important fact that the District Court in the HathiTrust case found the wholesale scanning of library collections to produce an electronic index is fair use.  The Courts are just not cooperating. 

There are multiple points of view on how Internet availability of books, legal and otherwise, affects how authors exploit their works.  Author Neil Gaiman said this: 

You're not losing sales by getting stuff out there. When I do a big talk now on these kinds of subjects and people ask "What about the sales you are losing by having stuff floating out there?" I started asking the audience to raise their hands for one question -- Do you have a favorite author? And they say yes and I say good. What I want is for everybody who discovered their favorite author by being lent a book put up your hand. Then anybody who discovered their favorite author by walking into a book story and buying a book. And it's probably about 5-10%, if that, of the people who discovered their favorite author who is the person they buy everything of and they buy the hardbacks. And they treasure the fact they've got this author. Very few of them bought the book. They were lent it. They were given it. They did not pay for it. That's how they found their favorite author. And that's really all this is; it's people lending books. 

I don’t think that Gaiman is encouraging piracy.  He seems to have accepted it as a component of book discovery which conceivably may increase sales.  Turow says his concern is with the mid-list authors who may lose sales more than an established author.  I can appreciate that concern, though I believe that obscure authors would still be obscure if the Internet had not been created. In fact, I think they would be more obscure.

My opinion is to either change the law or change the business practices.  The latter may be easier as it doesn’t require an act of Congress.  Railing against the various court rulings doesn’t change anything.  Oh, and lay off the libraries if you don’t mind.  We follow the copyright laws even if some Internet sites do not.  [MG]

Cooley's Defamation Case Against An Anonymous Blogger Goes Back to Square 1.5

The complicated case of the Cooley Law School’s suit against an anonymous blogger on defamation claims has reached another strategic point.  A little history is in order.  Blogger Doe discovered the lawsuit via publicity generated by Cooley law school.  Cooley later filed a discovery motion to the hosting provider (Weebly) located in California for Doe’s identity in a California Court.  Doe’s site is still online, in fact, from the same provider. 

Weebly promised Doe’s attorneys to wait until a certain date before complying with the motion, allowing time for appeal.  One of Weebly’s employees, however, turned over the information three days earlier.  Cooley sued Doe under his real name (we don’t know the gender of the anonymous blogger, and I will use the nominative “him” as did the Michigan Court of Appeals in its opinion).  The trial court suppressed the name in court filings.  Doe asked the trial court for an order of protection forbidding Cooley from producing his name.  The trial court concluded that Michigan law does not address the situation and used Dendrite (New Jersey) and Cahill (Delaware) for standards in deciding the issue.  Other courts confronted with the same issue have used one or both of these cases as guidance when existing precedent is not available.  The trial court found that these cases did not provide relief for Doe but did not release his identity pending appeal.

The Michigan Court of Appeals reversed.  It analyzed the logic of cases from multiple jurisdictions as a survey of how courts have addressed the issue of First Amendment protection for anonymous speech on the Internet in a defamation context.  In the end, however, it found that the issue could have been decided adequately under Michigan Court Rules without relying on foreign law.  The case was remanded for further consideration under the correct procedural standards.  The opinion is here.

Speaking of Cooley, the law school is working on an alliance with Western Michigan University.  The Detroit Free Press reports that the schools already have three joint degree programs and that discussions on the alliance go back at least three years.  [MG]

The Strange Case of Edwin Mellen Press Continues: Threatened with Lawsuit, Blog Takes Down Posts and Comment

Edwin Mellen Press is at it again. This time the publishing house threatened to sue the Society for Scholarly Publishing if it did not remove from its blog, The Scholarly Kitchen, two posts that a blog contributor wrote which reported and commented on the publishing house's lawsuits against Dale Askey and McMaster University as well as one published comment to one of the posts. Quoting from Edwin Mellen Press Threatens to Sue Society for Scholarly Publishing (The Chronicle's Wired Campus):

“The society and the blog are both volunteer-run efforts,” [The Scholarly Kitchen editor] Kent Anderson said, “and the feeling was that the best way to respond to the threats was to comply with them but also show people what the threats were.”

See The Scholarly Kitchen at Posts Removed Because We’ve Received Letters From Edwin Mellen Press’ Attorney (Includes texts of the two letters).

Hat tip to LJ InfoDocket's Gary Price for this development in the strange case of Edwin Mellen Press.

Update Oops! I forgot to mention the two Scholarly Kitchen posts targeted by Edwin Mellen Press were written by a librarian at the University of Utah.

For previous LLB posts that range from merely mentioning Edwin Mellen Press to reporting and commentary, see:

• Academic Librarian Sued For Dissing Publisher In A Blog Post (Feb. 7, 2013)
• The Curious Case of Edwin Mellen Press (Feb. 11, 2013)
• Another Publisher Threatens Suit Against A Librarian For Blog Comments (Feb. 18, 2013)
• When All Else Fails, Sue or Threaten to Take to Court the Publishing Industry Critic (Feb. 19, 2013)
• I got tenure after my book was published by Edwin Mellen Press (Feb. 25, 2013)
• An Update on the Curious Case of Edwin Mellen Press (March 5, 2013)
• The Curious Case of Edwin Mellen Press, Part 2: Drop the Second Lawsuit! (March 11, 2013)

[JH]

Harlem Shake Song's Copyright Problems

No April Fool's Day joking around because some folks could end up joining the Sampling Lawsuit Hall of Fame. [JH]

Court Rules Gag Provisions On NSL Letters Unconstitutional, Enjoins Their Issue

Judge Susan Illston of the District Court for the Northern District of California declared unconstitutional parts of the statutes that authorize NSL letters and the requirement that the recipient stay silent about them.  The case comes from a challenge to the FBI’s authority in a letter sent to an unnamed telecommunications company.  The Electronic Frontier Foundation helped in representing the petitioner. 

Judge Illston reviewed Supreme Court precedent on prior restraint issues and the case of John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008).  In that case, the Second Circuit found violations of the First Amendment but interpreted the circumstances of the case along with the language of the statute essentially maintain the status quo.  Judge Illston was having none of it, concluding “that the NSL provisions suffer from significant constitutional defects which cannot be remedied in this forum.”  She enjoined the Government from issuing NSLs and enforcing the nondisclosure provisions in this or any other case.  The order was stayed for 90 days to give the Government time to appeal to the Ninth Circuit.  That is almost guaranteed. 

The opinion is here, courtesy of Professor Steve Vladeck’s Lawfare blog.  Discussion is available in Wired and Slate.  [MG]

Short Takes On The News: Google Reader, The Apple e-Book Case, TLDs, And Law Applications

Google is killing Google Reader as of July 1, 2013.  I don’t use the product myself (or RSS for that matter), so I have no feelings about the move one way or the other.  However, any numbers of articles in the popular and semi-popular press express shock and/or sadness at the announcement.  Felix Salmon writes a Reuters post asking whether Google has killed RSS altogether, though he suggests that Facebook and Twitter feeds may have replaced the immediate need for RSS.  A post in Socialmedia Today offers instructions on how to move to other RSS readers out there.  Ars Technica posits that an equivalent of Google Reader will wind up as part of Google+.  That wouldn’t be surprising as Google seems committed to creating more reasons for subscribers to mingle on Plus pages.  CBS News reports that Digg has announced it is building a substitute reader to fill the gap.

Poor Tim Cook.  The Apple CEO has been ordered by Judge Denise Kote to give a deposition to the Government in the Apple e-book antitrust case.  He had declined due to lack of any unique knowledge about the arrangement with publishers according to paidContent.  It was Steve Jobs’ baby all the way.  Bloomberg fills in a few more details.  Cook was running Apple on a day-to-day basis while Jobs’ illness played out.  Other depositions from Apple employees suggest Cook did have private conversations with Jobs about e-books.  There’s something about that “under oath” thing that helps bring these things out.  Apple is the only defendant left in the case with the publishers having settled.

It seems that Amazon’s attempt to gain the top-level-domains (TLD) of .book and .author (and others) is raised the ire of the Authors Guild, Barnes & Noble, and other objectors.  ICANN has approved the creation of additional TLDs and the land rush is on with Google, Microsoft, Amazon and others attempting to snap up domains.  Amazon potentially would be the one who would control registration for .book sites and could conceivably keep the domain for its own use.  The Guild thinks this is anticompetitive.  My reaction to the Guild in past scrums such as the Apple e-book case and the Google scanning case is the Guild is wrong.  Here, I think the organization is absolutely right.  I can see Google controlling .goog in a similar way as the TLD is reflective of its corporate name.  However, .book and .author are too generic to be controlled strictly by Amazon.  The comment period is closed, but more information on what ICANN is doing is here.

Finally, the latest LSAC figures are no comfort to deans who may be ruffled by the latest U.S. News law school rankings:

As of 03/08/13, there are 323,167 Fall 2013 applications submitted by 46,587 applicants. Applicants are down 17.9% and applications are down 21.6% from 2012.  Last year at this time, we had 84% of the preliminary final applicant count.  Last year at this time, we had 88% of the preliminary final application count.       

The charts are here.  Many are asking the question why the University of North Texas is opening the UNT Dallas College of Law for business in Fall of 2014 in light of figures that are not likely to get better in the coming years.  Is Texas really an underserved legal market?  [MG]

The Curious Case of Edwin Mellen Press, Part 2: Drop the Second Lawsuit!

While Edwin Mellen Press dropped one lawsuit against Dale Askey, LJ InfoDocket's Gary Price has confirmed that the publisher's founder, Herbert Richardson, is moving forward with the second lawsuit. From the Canadian Library Association:

CLA continues to monitor the legal action taken against Dale Askey by the Edwin Mellen Press. While the lawsuit in which both McMaster and Askey are named has been dropped, the second lawsuit in which Askey is named as an individual remains.

CLA strongly reiterates our support of Dale Askey and of intellectual freedom. We urge Edwin Mellen Press to drop this second lawsuit against Dale Askey.

With over 3,000 supporters now, this petition has been revised to reflect the current situation (original statement quoted in part here):

The libel suit by Edwin Mellen Press against Dale Askey, a university librarian, for expressing his professional opinion about the quality of Edwin Mellen publications is an egregious assault on academic freedom. At this writing, March 8, 2013, the joint libel suit against Askey and McMaster University has been dropped.  However, the lawsuit by the Press against Askey still stands.  Please stand with Askey and ask Edwin Mellen Press to drop the second lawsuit against him.

To: Edwin Mellen Press

End the second libel suit against Dale Askey.

Sincerely,
[Your name]

 [JH]

An Update on the Curious Case of Edwin Mellen Press

Yesterday The Chronicle 's Wired Campus blog reported that Edwin Mellen Press was dropping its libel lawsuit against Dale Askey. [LLB coverage and commentary]. From the Chronicle's post:

“The financial pressure of the social-media campaign and pressure on authors is severe,” Edwin Mellen Press said in a news release issued on Monday. “EMP is a small company. Therefore must choose to focus its resources on its business and serving its authors.”

In her Out of the Jungle post, Edwin Mellen Press Drops Suit Against Librarian Blogger, about this development Betsy McKenzie observed

The Edwin Mellen Press had come under a great deal of negative press and criticism from bloggers and academic organizations and authors for this lawsuit. It had been pointed out that this was a second time the press had engaged in a similar lawsuit apparently designed to silence criticism. #freedaleaskey is the Twitter hashtag for commentary on the lawsuit, and a good search to look for criticism, though simply searching "Edwin Mellen Press" will also turn up a lot.

See Askey's Feb. 21, 2013 Thank you for the support post for the identity of associations and others who were speaking out against the legal action taken by Edwin Mellen Press. For example, over 2,000 people signed this petition that stated in part:

[I]t is time for professors and others who are concerned about the free exchange of ideas about the quality of academic presses to petition Edwin Mellen to drop the lawsuit. The press can only further harm its reputation by playing the bully in this matter. A far better response to a critical assessment of the quality of its publications would be for the Edwin Mellen Press to step up its efforts to build a solid reputation in academic circles.

The Wired Campus post also reported that last Friday the Canadian Association of University Teachers announced McMaster University, Askey's current employer, was going to pay his legal expenses. Before that decision Askey was covering his own legal expenses.

NB: According to The Chronicle's report It is unclear whether the publishing house's founder, Herbert W. Richardson, will drop his lawsuit against Askey for remarks published in comments to posts published on Askey's blog, The Bibliobrary. [JH]

I got tenure after my book was published by Edwin Mellen Press

If you hunt around the Edwin Mellen Press website you might find author testimonials like one I did during my review of the publisher's catalog of philosophy titles on Feb. 9-10, 2013. (Results of my buy-not-buy decision here.) The gist from [prof's name and link to testimonial omitted] was "I got tenure after my book was published by Edwin Mellen Press".

I don't know if the author only submitted his book to Edwin Mellen Press or only submitted his work to Edwin Mellen Press after it have been rejected by one or more publishers. But consider the message. Remember it was a testimonial by an author about an employment-related result of event after his book being was published that was selected for display by Edwin Mellen Press on its website. (Oops, see how easy it is to draw conclusions.) Place that in the context of Dale Askey's critique of the Press and the titles it publishes.

It is not unusual for publishing houses to solicit submissions for possible publication. Is this one of the ways Edwin Mellen Press goes about acquiring titles for its catalog of offerings? Was the intended audience authors desperately to publish, not perish?

Book testimonials, typically authored by someone who may have read the book are just marketing fodder. Testimonials by authors in this context are a bit odd but they too are nothing more than marketing fodder. No reader should conclude I am stating or implying that the Edwin Mellen Press publication of this testimonial signals in any way, shape or form that listing on a CV a title "published by Edwin Mellen Press" has any value whatsoever.  

Many factors go into a tenure review committee's decision making matrix. Being published by Edwin Mellen Press may or may not have been a factor considered by the tenure review committee in this instance. The author's testimonial does not state a causal link; it simply asserts a fact that can be verified. I'm assuming it is true. I'm omitting the poor prof's identity because legal counsel for the Δ may want to ask him one hellva lot of questions. They might include but certainly may not be limited to the following:

• Why did you submit your publication to Edwin Mellen Press?;
• What questions were asked by Edwin Mellen Press during its acquisitions screening process?;
• Was your testimonial statement voluntary or a condition of being published?;
• Was the testimonial displayed on the publisher's website full and complete?
• Who were the members of your tenure review committee?

Oops!

Statements of support for Askey. In addition to the previously reported ARL-CARL Joint Statement in Support of Dale Askey and McMaster University, see

AAUP Issues Statement on Edwin Mellen Lawsuit;

CLA Supports Dale Askey in Libel Suit Defence;

ACRL Board of Directors Statement on Edwin Mellen Press v. Dale Askey; and

ALA President Maureen Sullivan responds to Edwin Mellen Press lawsuit (text republished below).

“As president of the American Library Association, I share the deep concern expressed by the Association of College and Research Libraries, the Association of Research Libraries and the Canadian Library Association among many others in deploring the actions of the Edwin Mellen Press in filing a libel suit against Dale Askey, currently a librarian at McMaster University, for expressions of his professional opinion on his personal blog not associated with either Kansas State University or McMaster University.
 
“This action strikes at a core responsibility of all librarians as information professionals to provide considered, critical advice to the reading public regardless of the type of library in which they are employed.
 
“In addition, it has the potential to significantly poison the good relationships enjoyed by the library and publishing communities. I call upon the Press to reconsider its actions and drop this assault on intellectual and academic freedom.”
 
"The American Library Association is the oldest and largest library association in the world, with 58,000 members. Its mission is to promote the highest quality library and information services and public access to information."

In the event the Canadian Center for Science and Education does more than just threaten to sue Jeffrey Beall, associate professor and scholarly initiatives librarian at the University of Colorado Denver, for being included in Beall’s List: Potential, possible, or probable predatory scholarly open-access publishers based on his Criteria for Determining Predatory Open-Access Publishers (2nd ed., Dec. 1, 2012), my hunch is statements in his support will be forthcoming.

For previous coverage and commentary on LLB, see:

• Academic Librarian Sued For Dissing Publisher In A Blog Post (Feb. 7, 2013)
• The Curious Case of Edwin Mellen Press (Feb. 11, 2013)
• Another Publisher Threatens Suit Against A Librarian For Blog Comments (Feb. 18, 2013)
• When All Else Fails, Sue or Threaten to Take to Court the Publishing Industry Critic (Feb. 19, 2013)

[JH]

 

When All Else Fails, Sue or Threaten to Take to Court the Publishing Industry Critic

In a recent post about the curious case of Edwin Mellen Press which alleges that Dale Askey committed libel (and McMaster University, vicarious libel) in a Canadian court, Mark Giangrande wrote "I can’t imagine a suit such as this making much progress in a U.S. court. Otherwise every bad book review ever written would be the subject of litigation" See Academic Librarian Sued For Dissing Publisher In A Blog Post on LLB. In Another informative item on the Edwin Mellen Affair (Leiter Reports: A Philosophy Blog) Chicago Law prof Brian Leiter comments that "Canadian libel law is a bit closer to the insane British model than I had realized, for example, in putting the onus on the defendant to establish the truth of the facts asserted and the reasonableness of his opinions."

Yesterday, Mark reported that the Canadian Center for Science and Education (CCSE) is threatening to file suit in a US court against Jeffrey Beall, associate professor and scholarly initiatives librarian at the University of Colorado Denver, over being included in Beall’s List: Potential, possible, or probable predatory scholarly open-access publishers based on his Criteria for Determining Predatory Open-Access Publishers (2nd edition). Both posted were published on Beall's Scholarly Open Access: Critical analysis of scholarly open-access publishing. Do note well the blog's subtitle.

Both Askey and Beall were practicing critical analysis grounded in their professional expertise. Perhaps if the posts had been written by someone who was not a librarian, neither publisher would have given either post a second thought.

On Feb. 14, 2013, ARL and CARL issued a joint statement in support of Dale Askey and McMaster University.

The Association of Research Libraries (ARL) and the Canadian Association of Research Libraries (CARL) share a commitment to freedom of opinion and expression of ideas and are strongly opposed to any effort to intimidate individuals in order to suppress information or censor ideas. We further share the belief that a librarian must be able to offer his or her assessment of a publisher’s products or practices free from such intimidation.

...

“No academic librarian, research library, or university should face a multi-million dollar lawsuit because of a candid discussion of the publications or practices of an academic publisher,” said Brent Roe, Executive Director of CARL. “The exaggerated action of Edwin Mellen Press could only impose a chill on academic and research librarians’ expression of frank professional judgments.”

I haven't checked to see if ARL-CARL has issued a similar statement of support for Jeffrey Beall but it wouldn't take much text editing to do so.

If Askey had published a post along the lines of "the 2012 winner of best new title in academic publishing is X which was brought to market by Edwin Mellen Press" and/or Beall had posted "the best scholarly open-access publisher in 2012 was CCSE," the only people who might be questioning their street creds would be other librarians. I seriously doubt questioning librarians would sue the blog authors for injury to their and their profession's reputation. Differences in frank professional judgements based on the rigor of critical reasoning abound inside and outside the library community.

Apparently there are two publishers who fail to understand this. Alternatively, their lawyers fail to understand that not all publicity is "good."  Think of the legal publisher community's private WTF reactions to the Land of 10,000 Invoices cocoon which resulting in the myopic arrogance of TR Legal washing its dirty laundry in the public forum known as Rudovsky. Question our editorial updating practices! Well, yes. And then there was the opps known as Whatever Happened To The Rudovsky Case? In the context of CCSE's lawsuit threat, Mark writes "I think this may be another be careful what you ask for situation." Yup.

End note. But for lawsuits, filed or threatened, I would not have been aware of either Askey or Beall's blogs. Of particular interest to me is monitoring dubious practices in the scholarly OA publishing industry. Taking the RSS feed for Beall's Scholarly Open Access: Critical analysis of scholarly open-access publishing is highly recommended because I don't know any librarian who is doing as good of a job as he is by thinking out loud in the librarian blogosphere about the sometimes too-good-to-be-true claims of OA publishing. For example, just read the following two posts:

Publisher Charges Authors for Retractions ("I am involved in a case of duplicate publishing — as the person who discovered and reported it to Springer, who published it the second time. I have been copied on many emails being sent among the authors, the editors, and Springer.") and

New Publisher Fakes Association with Reed Elsevier (If you want a really good example of a predatory publisher, have a look at KnowledgesPublisher. This brand-new publisher uses lies and deception to make itself look legitimate.  The journal has a large logo on the left side of the page that says, “2012 Impact Factor 0.315!” The problem is that the 2012 impact factors have not been published yet and won’t be until summer. At the bottom of the page, the site has this statement, “Copyright © 2013 Elsevier Inc. All rights reserved.” This is deception; the journal is trying to associate itself with Elsevier. In fact there is no connection. (Emphasis in the orginal))

[JH]

Another Publisher Threatens Suit Against A Librarian For Blog Comments

What is it with Canadian plaintiffs and libel lawsuits against librarians?  Inside Higher Ed reports that the Canadian Center for Science and Education (CCSE) is threatening to sue Jeffrey Beall, associate professor and scholarly initiatives librarian at the University of Colorado Denver over inclusion in a list of predatory publishers.  Beall’s criteria are fairly extensive, but include elements such as an author having to pay for publication; a questionable editorial staff; vague contact information; editorial practices that do not match those from publisher associations; and evidence of author misconduct such as plagiarism.  The CCSE takes umbrage that some of its titles makes Beall’s list.  The letter states that being on the list leads to a natural tendency to injure our client’s reputation” and promises legal action in a California court. 

This is on the heels of the Edwin Mellen Press suing librarian Dale Askey, associate librarian at McMaster University in Canada with similar accusations.  See previous LLB posts The Curious Case of Edwin Mellen Press and Academic Librarian Sued For Dissing Publisher In A Blog Post for more details and opinion.  More recent developments on the Edwin Mellen press case are available in this article from the Chronicle of Higher Education and this one from Inside Higher Ed.  I recommend the comments from both stories. 

I can’t speak for the Canadian litigation but anything done in the United States would likely lead to discovery requests aimed at author contracts, editorial practices and the like.  I think this may be another “be careful what you ask for” situation.  [MG]

Can "Good Law" Certifications Filed in Court Proceedings Be Protected by Copyright?

In A Victory for Fair Use: Online Publication of Attorney Filings OK, Copyright Suit Against Lexis and Westlaw Dismissed, Jean O'Grady reports that US District Judge Rakoff dismissed the plaintiff's claims in Edward White v. West Publishing Corp, U.S. District Court for the Southern District of New York, No. 12-1340, that WEXIS violated ... well, just read the title of the Dewey B Strategic post.

Call me even more cynical that O'Grady. The only thing the author of court filings can lay claim to is certifying that the legal arguments made are based on "good law." O'Grady reports that Judge Rakoff's dismissal will be followed up with an opinion. I doubt WEXIS will complain if the Court's opinion is derived from their briefs. [JH]

The Curious Case of Edwin Mellen Press

(Ironically, no college librarian's blog post disparaging an academic publisher has ever been read by a human being.) -- Quoting Hamilton Nolan's parenthetical comment in Publisher Sues College Librarian for Saying Publisher Sucks.

Nolan is referring to Dale Askey's "The Curious Case of Edwin Mellen Press" on The Bibliobrary. The post was published in 2010 and taken down in early 2012. It is the basis for a libel (including vicarious libel) lawsuit brought in a Canadian court by Edwin Mellen Press and can be found here. The publishing house is seeking from Askey and his university employers something in the vicinity of $4.5 million in damages according to some US-published accounts that might be based on exchange rate calculations. In $-CAN the damages amount stated in the court filing totals $3.5 million.

With the rise of eBook self-publishing, perhaps this is the order-of-magnitude amount of cash the Press needs to execute an exit strategy. Alternatively and based on what may be why academic authors eventually end up seeking the Edwin Mellen Press imprint for their works, perhaps this is the amount of cash the Press needs to gear up in a big way to bring to market its current and/or future catalog offerings in eBook formats which otherwise might not see the light of day "published by Edwin Mellen Press".

Edwin Mellen Press publishes titles in philosophy and other disciplines. Having read a bit of philosophy in my day (BA with a major in Philosophy and a minor in Theology plus one year's work towards an MA in Philosophy -- until I decided to change my career track from driving a taxi to something else) and continuing to do so, like Mark Giangrande wrote in his post, I also had no idea what sort of titles Edwin Mellen Press brought to market. Interested, I delved into my 40-plus years of collected works on philosophy last weekend. Nope, didn't find a single Edwin Mellen Press title. Then I took a look at the publisher's sales catalog for philosophy titles. Yup, I saw nothing I would want to add to my private collection.

"I'm no lawyer, but can't judges immediately dismiss libel lawsuits that are clearly about topics that no one in their right mind would care to read about?" wrote Gawker's Hamilton Nolan. Catching the drift of what he thinks about this lawsuit?

And can't those judges also order the clown-like academic publisher that filed said lawsuit to be locked in a room for a period of one hundred days with nothing to read except The Middle Eastern Influence on Late Medieval Dances: Origins of the 29987 Istampittas?

This isn't the first time this publishing house filed a lawsuit based on the same sort of published statements made by Askey. Note well, Edwin Mellen Press lost its earlier lawsuit. [JH]

Academic Librarian Sued For Dissing Publisher In A Blog Post

A post in the Leiter Reports: A Philosophy Blog describes an incredible legal attack on a librarian at McMaster University in Canada.  Edwin Mellen Press sued the University and the librarian over the content of a blog post that is described thusly by Leslie Green of Oxford (via Leiter’s post):

A professional librarian at McMaster University’s library complained, in a 2010 blog-post, that Mellen was a poor publisher with a weak list of low-quality books, scarcely edited, cheaply produced, but at exorbitant prices.  Librarians are expert at making such judgments; that’s what universities pay them to do.  And the post made a key point about the public interest: ‘in a time when libraries cannot purchase so much of the first-class scholarship, there is simply no reason to support such ventures.’

Mellen is demanding $3 million in damages for the alleged libel in the Ontario Superior Court.  I recommend reading Green’s comments via the link to Brian Leiter’s blog.  I can’t imagine a suit such as this making much progress in a U.S. court.  Otherwise every bad book review ever written would be the subject of litigation.

Before I had been alerted to this, I had no knowledge of the Edwin Mellen Press.  A search is WorldCat shows that Mellen publications populate libraries with an aggregate listing of 12,679 book titles.  This figure came from searching Edwin Mellen Press in the publisher field.  Of course, placement in libraries, even in the amount noted does not imply quality one way or the other.

I happened across one of the forums in the Chronicle of Higher Education that is devoted to Mellen.  I would think that the publisher might find the 20 some pages that span some three years of posts to be at least as objectionable compared to the opinion of a university librarian.    Mellen has its defenders including posters who claimed to be representatives of the company.  The positives were that it was an outlet for academic publishing when other presses rejected manuscripts.  As such its catalog contains any number of narrow topics that might not get published elsewhere.  I suppose there is value in that.

The negative comments, however, were very negative.  The various posts appeared to suggest that Mellen was the imprint of last resort for an academic that could not find an outlet elsewhere for a manuscript.  Further comments suggested there was a quality problem, though this was engaged by the Mellen supporters to the contrary.  I don’t know who is right, but if I took the 20 pages of comments to heart I would think that Mellen indeed has an image problem that is consistent with the opinion of McMaster University librarian.   Perhaps the Chronicle has better lawyers to account for the lack of legal engagement on its end.

I want to make it clear that my lack of knowledge of Mellen does not give me the ability to agree or disagree with any statements made by anyone commenting on Mellen.  I have to say, however, suing a librarian is not going to silence any of the other critics of Mellen.  I don’t know the details of Canadian libel law but I do think bringing attention to this matter will likely backfire on Mellen no matter how it comes out.  Read more at the Academic Librarian Blog from Princeton. 

Update:  The Chronicle of Higher Education has a lengthy article with more of the back story on the suit.  Read it here.  [MG]  

Flagging Ban in California Designed to Protect Disabled LSAT Test Takers From Potentially Discriminatory Law School Admission Review Put On Hold

NLJ's Karen Sloan reports that Sacramento County Superior Court Judge Raymond Cadei issued a preliminary injunction blocking enforcement of California Assembly Bill 2122 on Feb. 1st. The statute would have prohibited the LSAC from continuing its "flagging" practice for alerting law schools when LSAT test takers with disabilities received extra time for the LSAT.

Sloan reports "[t]he ruling means that the flagging ban will not apply to scores earned during the February 9 administration of the LSAT, the first since the bill went into effect on January 1." For more, see Ruling allows council to 'flag' disabled Law School Admission Test takers. [JH]