By Kevin Smith

The lawsuit is really a rather local affair; an action brought by Louisiana State University against Elsevier alleging breach of contract.  But the facts raise significant questions  for all Elsevier customers, and especially for public universities that do business with the publishing giant (which is to say, all of us).  Even more significant, I think, is what the specific circumstances, and some of the comments made about the lawsuit, tell us about the future of scholarly communications.  In my mind, we have reached the “enough is enough” point with Elsevier.

By now many will have already seen news reports about the lawsuit; there are stories and comments here, here and here.  So I don’t need to go deep into the details of the case.  Suffice it to say that the dispute centers on whether or not LSU’s campus subscription agreement with Elsevier includes the School of Veterinary Medicine (SVM).  For some while the SVM did have a separate, duplicate contract with Elsevier.  Elsevier, of course, loves such double-dipping and appears to actively encourage it. In this instance, new leadership at LSU officials determined that they could let the duplicative contract lapse, because the campus contract so clearly includes the SVM.  Recent tweets from Elsevier have denied this, but the agreement is an attachment to the public complaint that LSU has filed, so anyone can read it and discover that the SVM is included in three distinct ways.  First, the SVM is included in the geographic identification of the “sites” covered by the agreement, since the SVM is located on the main LSU campus in Baton Rouge.  Second, the students and faculty of the SVM are included in the count of users which forms the basis for the pricing in the agreement.  Finally, the designated IP ranges in the campus agreement include the IP ranges for the Vet School.  Frankly, this is an easy call, and Elsevier’s breach when they shut down access for some of those designated IP addresses seems quite clear.

The approach that Elsevier is taking seems to be based on the fact that the SVM library at LSU has a separate budget.  The company appears to believe that each and every library budget on an academic campus must include a substantial slice for Elsevier, and even their own contracts should not be allowed to stand in the way of their fundamental rapaciousness.  This is precisely why I believe we must go the other way, by extricating ourselves as academic institutions from any financial involvement with Elsevier.  Elsevier simply does not care about scholarship, content or access; they only care about revenue; this makes them an unacceptable partner in the academic enterprise.

During the course of the negotiations that led up to this lawsuit, LSU officials heard what many of us have heard, explicitly or implicitly — “you will never pay Elsevier less.”  This is reflected in the “commercial solution” that Elsevier has proposed, which would require LSU to subscribe to $170,000 worth of journals they do not need or want, and to pay nearly as much as the separate SVM contract cost (comically, Elsevier uses that “nearly” as a way to call this proposal, which would needlessly cost LSU $200,000, a “savings”).  None of this is surprising; all librarians know that Elsevier will negotiate about anything but price, and that their view of their entitlement is the unmovable foundation of all negotiations with them.  The LSU situation, however, really puts into sharp focus Elsevier’s insistence that it, not the institution, must control spending and access decisions.  Ultimately, If Elsevier’s financial and subscription demands are permitted, they — a foreign corporation with no values other than profit — will shape what scholarships we can give, what research we can done, and which faculty get tenure.  This is not acceptable.

Even more unacceptable are the implications of Elsevier’s decision not to accept the service of process in this lawsuit at their New York offices.  The LSU agreement, like all contracts with public institutions in the U.S., has a clause that designates the law of Louisiana as the governing law for the agreement.  But Elsevier is now saying that, as a Dutch company, they must be served in the Netherlands using the complex processes dictated by the Hague Convention.  This is NOT a normal procedure in this kind of lawsuit, and it is probably just a bullying tactic intended to draw out the lawsuit and raise its cost for LSU, in hopes that the University will back down.  Nevertheless, it ought to make all U.S. universities ask ourselves if these clauses actually have any meaning.  If Elsevier reserves to itself the right to interpret everything in its agreements unilaterally in its own best interests, the legal requirement that state institutions only submit to the law of their own state may not be met, even when Elsevier agrees to insert such clauses.  We simply may not be able, as a matter of our own state laws, to enter into an agreement with a company that behaves this way.

In the last few weeks, I have had the opportunity to interact with two lawyers from outside of academia who have each studied the situation we all find ourselves in when we try to do business with Elsevier.  From very different perspectives and based on different legal situations, both lawyers arrived at the same conclusion — you cannot do business with this company.  Both recommended that American universities need to find ways to extricate themselves from relationships with Elsevier; that we develop strategies to do so as quickly as possible, and that our freedom from Elsevier should be a long-term commitment.

I began to propose the outlines of a long-term strategy in this blog post from last month.  I was interested to see that a short-term strategy was suggested by the the Association of Universities in the Netherlands in a press release that describes their inability to negotiate a subscription agreement with Oxford University Press. They point out five options for faculty researchers in a post-OUP (and, by extension, a post-Elsevier) world: requesting articles through ResearchGate, Academia.edu and other international networks, making direct requests from authors, finding Green OA versions of articles in repositories, using interlibrary loan, and finding OA versions using Unpaywall and the Open Access button.

In recent years, librarians have become very concerned about so-called predatory practices associated with some open access publishers.  These practices, while concerning, are no where near as harmful to the academic mission as are the practices at Elsevier.  We are like that metaphorical frog being slowly boiled.  We have become dependent, or at least we believe we are dependent, on Elsevier, and cannot make the decision that it is time for us to jump out of the pot.  But the water is way too hot right now, and we must, for the sake of our institutional missions, jump soon.

 

Kevin Smith

Kevin Smith is a librarian, a lawyer focusing on copyright issues, a scholarly communications advocate, and the Dean of Libraries at the University of Kansas.

Comments (4)

  1. I think libraries are on board with getting ‘off board.’ Where we have run into roadblocks is faculty and university administration not wanting to abandon ship. The library talks over and over about unsustainable subscription costs, unfavorable contract terms, and so on, but has had little success in changing minds. Who in the US has had success in leaving Elsevier? Who wishes they could? We are about to enter into contract negotiations with them as we are in the last year of a 3-year bid. Last time was quite aggressive and the only way we were able to continue our subscription given the costs was with the directive of administration and extra funding from the provost. Not looking forward to next year.

    1. In response to Sian Brannon, I point to table 1 at https://scholarlykitchen.sspnet.org/2017/05/01/wolf-finally-arrives-big-deal-cancelations-north-american-libraries/ , which lists a handful.

      1. Thanks! My library is on that list, having broken up some things. I wonder about which libraries will cancel Elsevier specifically – who would like to do that?

        1. My reading of table 1 is that institutions in that list with “Elsevier” next to their name have cancelled their package with that publisher and have not gone back. Maybe I’ve misunderstood …

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