copyright


This blog post looks at the open access debate, and notes how sustainability is as much of an ideological and political question as it is a financial issue. It is intended to follow up on previous blog posts (first, second, third) that discussed how the Aaron Swartz prosecution and death highlighted tremendous injustices in the legal framework governing scholarly communications.

At this year’s Society for American Archaeology (SAA) conference in Honolulu, I took part in discussions about open access in various forums, including the Digital Data Interest Group and a forum sponsored by the SAA Committee on Ethics. Sarah Kansa, a member of the SAA Publications Committee has also been participating in open access debates. There’s very little to report just yet, except that the issue of open access is clearly on the agenda of archaeology’s professional societies. The Obama Administration’s (Feb 2013) move to require open access of federally funded research outputs has clearly raised the stakes and urgency of the open access issue. This policy move followed years of advocacy efforts, culminating with a petition signed by over 65,000 people.

In these debates, open access has little explicit opposition as an ideal. Rather, resistance to open access focuses on fears of financial “sustainability.” The leaders of professional societies tend to cling to the status quo because they do not see a way to underwrite the costs of open access publication.

So let’s look at the issue of sustainability more closely.

Any form of publication has costs. Quality publication costs more. With Open Context, we’re working to develop editorial processes to publish higher-quality data, and we’re getting a better understanding of the required labor costs. As a publisher (but also as an academic author), I am very aware of the real costs and effort involved in publication.

However, publication costs make up only a fraction of the larger costs of doing quality research. Good research requires costly training, facilities, and in archaeology, it often requires access to remote locations, workers, labs, equipment, curation, site conservation, etc. Often these costs are financed with public funding (or publicly-regulated philanthropy). But even in cases where research costs are not directly financed through public support, field work is a highly regulated activity. Archaeological field work is almost universally governed or, in the case of Cultural Resource Management (CRM), mandated by public laws and agencies.

Since dissemination is an integral aspect of archaeological research, archaeological dissemination practices also should work toward building public knowledge goods. The open access critique of status quo publishing, is that conventional publishing models subvert the public interest and do not produce public goods, despite public financing of research. Conventional publishing channels public support of research (which finances and regulates all the facilities and the effort that occurs before an article even reaches an editor) into private “all-rights reserved” intellectual property.

One may argue that archaeology has gotten along just fine for many, many decades of conventional publishing, so why change it? There are two reasons, both involve the Web. First, the Web makes global distribution (copying content from servers like the one serving this blog, to clients like the browser you’re using) very cheap and easy. (Note: I said copying and distributing content is cheap; producing quality content is still expensive, as explained above). Cheap and easy copying and distribution is critical. It’s why open access is even on the agenda.

Second, the low cost of Web-based digital dissemination has helped to spark a political and legal context that makes open access increasingly needed for ethical, research, and instructional reasons. Cheap and easy copying and distribution represents a threat to traditional media business models, including publication business models. In response to this threat, media conglomerates have pushed for “the best laws money can buy,” (quoting copyright scholar, Pam Samuelson) and have pressured legislative bodies and law enforcement agencies to enact stricter controls, more intrusive surveillance, and harsher (actually oppressive) punishments for copying.

Unfortunately, these laws not only apply to popular music and movies, they also govern scholarly communications. Worse, many commercial scientific publishers actively promote and lobby to further strengthen these laws, leading to loss of privacy, invasive surveillance, and ever more draconian penalties. This transformed legal context, together with massive industry consolidation, makes conventional academic publishing very different from the “good ol’ days” before the Web. Here are some highlights of just how bad, in a legal sense, the publishing situation has become:

  • Many researchers (CRM, adjunct) without regular university affiliations, who beg university-library logins from friends and colleagues, are effectively a criminalized underclass, facing grave legal risks. How many of us do this on a regular basis? These practices violate the same sort of violations of terms-of-service that made Aaron Swartz face 50 years in prison. For instance, JSTOR’s terms of service (that Aaron Swartz allegedly violated in his felony charges) specifically prohibited actions like sharing logins.
  • Sharing papers (mainly in email, but also on social networking sites like Academia.edu) also carries risks. These risks are mainly in civil (not criminal) law, but that could change if something like SOPA passes. Mass copyright lawsuits with financially ruinous penalties do happen, some involving 100,000 people at a time, including children.
  • In 2007, law Prof. John Tehranian published a study where he calculated a jaw-dropping $4.5 billion (yes, with a b) in potential copyright liability involved in routine academic research and instructional activities over the course of a single year.
  • Copyright has expanded in scope into a more or less absolute and perpetual property right. No US copyrighted works entered into the public domain last year. None. If archaeologists only communicate their results as all-rights-reserved intellectual property, they’re clearly engaged in a form of appropriation. The (more or less) absolute (no fair use) and perpetual (de facto unlimited copyright terms) nature of these property rights increasingly excludes all uses, save commercial transactions. Doesn’t that reduce the scholarly record of the past into commodities? Doesn’t this put mainstream archeology uncomfortably close to the antiquities trade?

Killed by Sustainability?

Archaeology’s professional societies need to consider arguments about “sustainability” carefully. If we make financial sustainability our only concern in scholarly publishing, we undermine the whole point of research as a publicly supported pursuit. Our field is not sustainable, it does not turn a profit, and it requires continued public support (or public mandates in the case of CRM) to survive. We have to ask where monetizing the work of archaeology to make it “sustainable” only succeeds in breaking or distorting our field beyond recognition.

Open Access and Open Data can reduce overall costs and increase research opportunities. But open access is hard to sustain if the locus of sustainability rests solely on individual organizations and projects. A recent court case helps to illustrate this. Cambridge University Press, Oxford University Press, and SAGE sued Georgia State University over e-reserves to curtail “fair-use” (limitations in copyright law to allow research, instruction, critique, free speech). The suit was dismissed, but at the cost of over $3 million in legal fees to the university, and appeals are still pending. $3 million could have fully endowed a new professor chair in archaeology, relieved student debt, funded research, or underwritten a new high-quality open access publishing venue. Worse, the high cost of defending against such charges, even when dismissed(!), creates a chilling effect. Though the publishers lost in this round, fair use is notoriously ambiguous and risky to defend in court. The risks involved will no doubt motivate university administrators to make it much more cumbersome and costly for faculty and students to exchange publications in instruction. This legal dispute will only contribute to the general bloat of overhead and administrative hassles that increasingly burden scholarly life. Sadly, we lack clear information or accounting of the insidious costs of copyright protectionism. This greatly complicates policy making.

The Georgia State University case highlights the dangers of thinking about “sustainability” too narrowly. Standard paywalls and strong copyright ended up benefiting nobody but the attorneys. Fixating on narrowly defined notions of sustainability leads to what economists call a collective action problem. Each individual project or organization tries to survive so they have a strong incentive to monetize their intellectual property (paywalls, absolutism in copyright). Damaging negative externalities (legal risks and costly barriers) are problems for others. Thus, the current system clearly pits the interests of professional societies and publishers against those of society members, students, adjuncts, researchers lacking affiliations, libraries, funding agencies, and the public. We should not forget that university administrators find cutting archaeology, like the rest of the humanities and social sciences, very tempting and easy. The high costs of publication in STEM fields leave less money for both open and paywalled humanities publications.

Ignoring these issues and failing to address the collective action problems just reinforces and promotes an ideology that activities that can’t be monetized are not worth pursuing. I see this as particularly dangerous for archaeology, since our field is highly dependent on laws to protect heritage from the negative impacts of market forces.

Let’s put it more bluntly. Our professional societies seem willing to accept that paywalls, whose breach means 50 years in a federal prison (such as the JSTOR / Aaron Swartz affair), are a necessary cost of doing business. If so, what is wrong with bulldozers plowing through archaeological sites without restriction or mitigation. Isn’t that a necessary cost of doing business in construction? Or what is wrong with a university closing an anthropology department and canceling subscriptions to archeological journals? Can’t that be justified in the name of sustainability? What negative externalities can’t be defended for reasons of sustainability?

Where do we go from here?

If recent history is any guide, our professional societies will likely attempt to undermine the Obama Administration’s tentative steps to promote open access. They will likely do this out of fear, not malice. I don’t think underwriting the costs publishing peer-review open access literature are insurmountable. Financing open access is a challenge, but there are many models and many years of experimentation from which to learn. Some points:

  • Green Open Access: The Whitehouse seems to have endorsed a “green” model of open access, where copies of peer-review publications become available in open access repositories after an embargo period. (Gold Open Access is another approach, where papers are immediately available, free-of-charge, under liberal licensing conditions). Green Open Access enables publishers to profit on exclusive access for a limited time. Unfortunately, green models have a limitation in that even after articles are publicly available, they are still under “all rights reserved” copyright. This may still leave reuse costly and and difficult. Routine reuse such duplication of a previously published image for comparison as well as innovative approaches to text-mining can still be stymied in costly and complex licensing and permissions negotiations. Nevertheless, despite these problems, public mandates for green open access would still represent tremendous progress.
  • Article Processing Fees (Gold Open Access): Article processing fees, such as the $1350 – $1500 charged by the Public Library of Science (PLOS) for immediate, free-of-charge, open access publishing in their journals, represents the most widely known model. This level of expense is far too high for archaeology, a field struggling with much more limited grant and publication budgets. But smaller author-side fees may be feasible via subsidizing publication costs from other sources. Such subsidies may be an ethical necessity, since any fee to publish represents a barrier. A “pay-to-say” model of open access, while less legally dangerous in terms of copyright and access, can also have equity problems. This issue just reinforces my overall point that under-financing research and research dissemination leads to many dysfunctions.
  • Membership Fees: PeerJ, an important new commercial publisher, believes it can make a profit publishing free and open peer-review papers financed with only $495 in membership dues levied on contributing authors per year. That price-point starts approaching feasibility for some archaeologists, though most will still need more subsidized support. PeerJ, which only recently launched, is currently focusing on biomedical sciences. It remains to be seen if its model can be extended to archaeology.
  • Redirection and Subsidies: The points above note that subsidies likely need to play an important role to finance open access. The most obvious source for such subsidies comes form redirecting library subscription income to directly underwriting open access publication costs. The particle physics community recently made this shift, where libraries, physics journals, and other stakeholder came together to form the SCOAP3 consortium that now finances open access publishing. This kind of approach needs to be explored for archaeology.

The Need to Reinvest in Public Goods

It may be that archaeology’s professional societies can find no viable path to finance open access with existing funding. Archaeology is clearly underfunded and it may be too hard to find an acceptable mix of subsidies, advertising, author-side fees, and member fees to pay for open access. If that is the case, we shouldn’t count on libraries to continue paying subscriptions and supporting the current model much longer; a lack of public support inescapably bites one way or another. Even Harvard University, blessed with higher education’s deepest pockets, claimed it can no longer afford the costs of paywall scholarship. For reasons of sustainability (oh the irony!), Harvard urged its faculty to publish in open access venues.

Professional societies need to openly acknowledge the costs and risks (especially draconian legal risks) of our current publishing model. If open access is too hard to finance with given resources, we need to clearly communicate to public and private granting foundations and other financial supporters the severity of our financial situation and the costs of under-investing in the public good. Pretending that all is fine and well with our current paywall approach to publishing will do nothing to solve our discipline’s financial problems. Worse, it will only perpetuate a crippling ideology that research endeavors need to be more “business-like” (profit seeking) to be worth pursuing.

Academic institutions, including archaeology’s professional societies, have drunk the Kool-Aid of sustainability for too long. They have hiked tuition and fees raising student debt loads to dangerous and unprecedented levels, off-loaded teaching to an abused and disposable class of continent adjunct faculty (a process now rapidly accelerating with the rise of online courses- aka MOOCs), and have resisted open access reform efforts to break the grip of monopolistic publishers. Sustainability justifies all of these moves. But the real cost of these sustainability efforts leaves a scorched-Earth impact on the public good, undermining the whole point and rationale for the existence of higher education and research societies in the first place.

Sustainability is really a political issue. It cannot be divorced from larger debates about privatization, public goods, wealth inequalities, and how and why we conduct research. Instead of simply accepting the ideology of privatizing and monetizing everything – the ideology that underlies many ideas of “sustainability” – our professional societies should loudly highlight the inequities, risks, and real costs of our current publishing regime. If we can’t fund open access with available financing, we are under-supported. Our professional societies should use the issue of open access as the focus of capital campaigns and public policy efforts to support ethical practice in research and research dissemination.

It’s high time we get out of the ideological trap at the center of most debates about sustainability, and make a clear case that publication needs to reflect our scholarly values and our obligations to the public.

Mitch Allen, a publisher that I greatly respect, commented on my blog posts about Aaron Swartz and scholarly communications in archaeology. His comments got me thinking again about the issue in some depth, and I want to take the opportunity to write about it in preparation for the SAA conference in Hawaii.

Allen thought I was probably overstating the legal issues associated with sharing logins and sharing files to get scholarly publications. Sadly, I don’t think my statements were hyperbole:

  • Sharing logins to gain access to university library systems can involve grave legal risks. It violates the same sort of violations of terms-of-service that made Aaron Swartz face 50 years in prison. For instance, JSTOR’s terms of service (that Swartz allegedly violated in his felony charges) specifically prohibited actions like sharing logins.
  • Sharing papers (mainly in email, but also social networking sites) also carries risks, mainly in civil and not criminal law (but that could change if something like SOPA passes). Mass copyright lawsuits with financially ruinous penalties happen- even involving 100,000 people at a time, including children.
  • Litigiousness has entered the scholarly domain. University presses are suing universities over e-reserves to curtail “fair-use” (limitations in copyright law to allow research, instruction, critique, free speech).
  • Law Prof. John Tehranian published a study where he calculated a jaw-dropping $4.5 billion in potential copyright liability involved in routine academic research and instructional activities over the course of a single year.

I think the evidence is clear that current intellectual property rules carry significant legal risks for everyone. It’s worse for researchers at the margins of the profession who lack their own institutional logins.

Normative Publishing Practices and Antiquities Trading

Network security laws and copyright laws are unjust because they carry such disproportionate penalties. Huge commercial scientific publishers like Elsevier push to further strengthen these draconian laws. Elsevier lobbied in favor of SOPA, a bill that would have made even non-commercial infringement a felony offense. That would have put many routine library activities at risk. Copyright has expanded in scope into a more or less absolute and perpetual property right. No US copyrighted works entered into the public domain last year.

Like it or not (and I don’t), this legal context shapes academic communication and shapes its ethics. Regarding my point about the antiquities trade, yes, that was purposeful polemic to highlight these ethical issues. To expand on this point, if archaeologists only communicate their results as all-rights-reserved intellectual property, they’re clearly engaged in a form of appropriation. The (more or less) absolute (no fair use) and perpetual (de facto unlimited copyright terms) nature of these property rights increasingly excludes all uses, save commercial transactions. Doesn’t that reduce the scholarly record of the past into commodities?

Status quo publishing practices also carry similar destructive externalities as the antiquities trade. In the antiquities trade, only beautiful or rare objects get valued and contextual information is neglected and destroyed because it has no market value. How different is Academia then, when researchers think that only the final polished article or monograph has any value? What happens to all of that rich contextual information that can’t be squeezed into a 10 page paper? While researchers have very different and much more pro-social goals than antiquities traders, publishing incentives and practices clearly need to better align to those goals.

Open Access and Commerce

Lastly, the open access and open data movements are not anti-commercial. The public good that comes from public financing of research means making information resources that can be used commercially. The normative definitions of “Open Data” explicitly allow for commercial uses, as do open access publishers like PLoS. With Open Context, we happily work with commercial publishers to try to build incentives for the better treatment of primary data.

While Open Data and Open Access are not (usually) anti-commercial, these movements are anti-monopoly. They grew in response to the increasing absurdities of global intellectual property regimes that perpetuate monopolies of big media conglomerates. My objection to the status quo is not that publishing involves commerce, I object to fact that we’re largely failing to make any public goods (despite public funding), since the vast majority of academic communication happens in a monopolistic and exclusionary way.

Getting Past the Dysfunctional Status Quo

Something is obviously very screwed-up when university presses sue universities over e-reserves and many researchers lack the means to legally participate in their discipline’s communications. I don’t think the current situation works to anyone’s interest, except for large conglomerates like Elsevier. It certainly doesn’t help small publishers like Left Coast Press, since the cost escalations of the big commercial science publishers mean less budget to buy humanities and social science books (as eloquently noted by Cathy Davidson). It is self-defeating for archaeology’s professional societies to fight (or avoid) open access, since they are simply helping to perpetuate cost-escalations in the areas of scientific publishing (chemistry, biology, computer science) that university administrators prioritize over the humanities and social sciences. Our professional societies need to consider this larger economic reality when determining their positions on open access.

The work of publishers like Mitch Allen are important to the health of archaeology. His efforts add value and quality to archaeological communications. I am very open to debate about what constitutes the right balance between public and private in archaeology’s information resources and also a debate about how we finance quality publishing. However, I stand by my point that our current policy of investing almost nothing in public (open) information resources hurts our discipline and puts many of its practitioners in legal jeopardy.

UPDATE

Lawyers at the Electronic Frontier Foundation just posted a piece about the issues of felony violations of terms of service. Look at Point 4, substitute Pandora with JSTOR or a university library and you’ll see how all this applies to scholarship. See also this discussion of library licensing terms, since:

It is, however, very clear that licensing terms, which govern an increasingly large proportion of our collections, are a fundamental issue in the present and future usability of library resources by our campus populations.

 

 

Again, thanks to everyone for the thoughtful comments and discussion on my prior post here and elsewhere. I also want to thank Fred Limp, President of the Society for American Archaeology (SAA) for taking the time to share his thoughts on the topic, including posting them on this blog. Below are the comments he emailed to me (with permissions to post):

Eric,

Thank you for calling to my attention your thoughtful post at http://www.alexandriaarchive.org/blog/?p=891

All of us have been terribly saddened by this event. There are many others much more capable than I who have already spoken to the many issues and injustices that this personal tragedy has brought into stark and public focus. I do want, however, to speak to some of the specific points that you raise as the issue of open access relates to archaeology.

I need to clarify three points at the outset. Articles from the SAA journals, American Antiquity and Latin American Antiquity, are available in Jstor two years after their first publication. Members of the SAA who do not have access to Jstor through other sources can access all of these back issues of both journals  for a $25 annual fee –or just  $5 per year for members living in Latin America and a number of other countries. Starting in the early part of 2012 online access to the contents of these two journals became available to all members of the SAA as soon as the articles are published. The contents of the SAA’s Archaeological Record are available electronically at no cost to everyone. The society is initiating a new journal,  Advances in Archaeological Practice, in 2013. It will be available electronically to all members of the society who select it as their journal. Also in 2013 the Society will initiate Current Research Online.  The contents of Current Research Online will be available to everyone at no cost. However, only members of the Society may enter research project information into the system.

I provide this information as background to the following discussion about the relationship of the Society and the open access initiative. The SAA’s Board has given considerable thought to the issue of open access. It is important, I think, to make some distinctions about the nature and variation of open access. The first distinction is the significance of open access discovery. By this I mean that individuals can determine whether relevant information may (or may not) be available using search engines and other methods. All of the SAAs journal publications have this capability. The second element, of course, is whether the content itself is available. All of the last two years of the journal content for both American Antiquity and Latin American Antiquity is available to any member. It is not available, obviously, to the general public. The question then becomes what is the larger good that is served if these journals were open access to the general public – beyond the membership – versus their current situation. As you know many journals have subscription fees of many thousands of dollars. That is not the case for the Society. These journals are available to members as part of their standard membership fee, which is $140 per year. It is $65 per year for members living in Latin America and a number of other countries. If you wish to take both journals the second is $60 (or $38 for members living in the Latin America and other counties).

Clearly $140 (or $200 for two journals) is not free. Can it be justified, is it appropriate? The Society has conducted a number of studies of the membership, their interests and their perception about various Society programs. The complete reports are available on the SAA webpage. In all of these the most significant reasons people give for joining the Society, the overwhelming reason, is to attend the annual meetings and to receive the journal. While there are many other important functions, for most of our members the Society exists to serve these two purposes. The revenues generated by the modest membership fee and the modest meeting registration fee generates all of the revenue necessary to accomplish these goals. So the simple question becomes this – if the journal were available freely would the society’s membership shrink to the degree that there would not be adequate revenue to publish the journal? It might be possible to provide the journals at no cost to the public by increasing substantially the membership fees for those who remain members. Should members subvent the costs for others? Remember the SAA does NOT charge page fees or use other publication subvention costs – as many journals do with funds paid by grants or other sources. There is modest advertising revenue but it is a very minor fraction of the journals’ production costs.

So it’s a difficult question, and one the Society continues to address. What is in the best interests of not just the Society for American Archaeology but for archaeology generally? Do the benefits that would be achieved by making the journals open access overwhelm the negative implications of less resources to produce these same journals? Are the modest membership fees a significant barrier to an individual who is not an archaeologist? And a basic question should be asked – at the end of the day – if you are an archaeologist is it not reasonable to expect that you may want to (or perhaps even should be) a member of the very society that, in many ways, makes your profession viable?

While I respectfully disagree with this position, I want to thank Fred for his comments and for taking the issue of Open Access seriously. His comments reflect some of the discussion of the recent Society for Historical Archaeology (SHA) meeting noted in Doug’s Archaeology.

 

I’m looking forward to further, productive, and collaborative discussion on the topic. Perhaps professional societies can find some productive ways forward on the Open Access issue and do more to seek additional public support to help make Open Access financially (more?) feasible. We’ve long taken it for granted that public support only gets cut. Perhaps it is time to see this issue as a way for our field (and other sciences) to make a stronger case for public support by more directly contributing to the common good of public knowledge.





UPDATE

Now that I’m back from lunch, I can digest this further. Fred’s comments reflect his perspective with regard to SAA publications. However, the SAA is but one publisher. Even if its publication costs are relatively low, archaeological discourse takes place across many, many titles, typically managed by expensive commercial publishers. Legally accessing these requires institutional affiliations to get e-Journals, JSTOR and all the rest. Though you may get a few titles with your SAA membership, researchers lacking academic affiliations are still cut-off from the great majority of scholarly discourse. Most of them are stuck with extra-legal workarounds, putting these researchers in dire legal jeopardy. While I can understand Fred’s concern over financing SAA publications (and motivating membership), accepting the dysfunctions and legal dangers of pay-walls and strong intellectual property does not advance the interests of archaeologists or archaeology.

I don’t post to this blog as much as I used to, but every once in a while there are some developments in the world of data sharing and scholarly communications that I think worthwhile discussing with respect to archaeology. This blog post is an attempt to gather my thoughts on the issue of Open Access in advance of a forum on the subject that will be held at the Society for American Archaeology’s (SAA) annual meeting in Honolulu in April.

Yesterday, I learned that Aaron Swartz committed suicide at age 26. Aaron Swartz was active and prominent in many “open knowledge” efforts.  I had no real personal connection with him, and only remember meeting him once at a party thrown by Creative Commons in 2006 or so. I had no idea he was so young. His tragic death is reverberating around a community of activists that value sharing of knowledge and a free and open internet.

What does all this have to do with archaeology?

The story of Swartz’s death involves JSTOR. Most archaeologists have some familiarity with JSTOR, the online journal repository. JSTOR was originally funded by the Mellon Foundation. In some ways it is a resounding success, as it serves many, many scholars worldwide, including many archaeologists. Unlike many digital scholarly communications initiatives, JSTOR is also financially “sustainable.” It is held up as a model for how to do digital scholarship right. It serves a large community and does not have to come back year after year begging for more grant money. JSTOR’s revenues come largely from subscriptions. If you don’t have an affiliation with a subscribing institution to JSTOR, you don’t get access to the vast majority of its resources. In other words, JSTOR sustains itself by setting up a “pay wall.”  That pay wall blocks some 150 million attempts to access JSTOR every year.

Here’s where this ties back to Aaron Swartz. Swartz was caught attempting a mass download of some 4.8 million articles from the JSTOR repository via MIT’s network. To JSTOR’s great credit, it did not pursue charges against Swartz. However, MIT and the US Dept of Justice come out looking far worse. US prosecutors charged Swartz with criminal hacking, and he faced 35(!) years in federal prison. Essentially, US prosecutors charged Swartz with terrorism (see Lessig’s excellent account), all for downloading academic articles in a manner that did not damage MIT’s network or JSTOR (see this expert witness). According to Swartz’s family, this legal hounding directly (and understandably) motivated his suicide.

This is obviously a tragic case, and another sad example of routine abuse of the legal system with regard to intellectual property and computer crime. JSTOR did not want to threaten Swartz with 35 years of prison for downloading articles. But, in the end, that did not matter. He still faced a draconian prison term, roughly equivalent to the punishment for 2nd degree murder, because he violated network rules and barriers JSTOR put into place around research materials.

And that’s the crux of the problem, and why Open Access is  one of the key ethical issues now faced by archaeology. Pay walls and intellectual property barriers carry real, and clearly very oppressive, legal force. I doubt, the SAA, the Archaeological Institute for America (AIA), or the American Anthropological Association (AAA) would want to press for felony charges or long prison terms if someone illegally downloaded a journal article from one of their servers. Nevertheless, Swartz’s case demonstrates that such barriers clearly carry dire legal implications.

There are many excellent reasons to promote Open Access in archaeology, summarized in this recent issue of World Archaeology dedicated to the subject. But the Swartz case helps to highlight another. Professional society reluctance (in the case of the SAA) or outright opposition against Open Access (AIA, AAA) puts many researchers at risk. Many researchers, particularly our colleagues in public, CRM, and contract archaeology or our colleagues struggling as adjunct faculty, either totally lack or regularly lose affiliations with institutions that subscribe to pay-wall resources like JSTOR. Many of these people beg logins from their friends and colleagues lucky enough to have access. Similarly, file-sharing of copyright protected articles is routine. Email lists and other networks regularly see circulation of papers, all under legally dubious circumstances. Essentially, we have a (nearly?) criminalized underclass of researchers who bend and break rules in order to participate in their professional community. It is a perverse travesty that we’ve relegated essential professional communications to an quasi-legal/illegal underground, when we’re supposedly a community dedicated to advancing the public good through the creation of knowledge about the past.

We have to remember, we, as a discipline work in the public interest. Public funding directly (grants) or indirectly (heritage management laws) supports, permits, and regulates our efforts. Doesn’t it make more sense to remove barriers to scholarship and remove harsh legal threats to sharing research?

Of course, many would say this is utopian and not financially sustainable, and that the only way to finance high-quality publication in archaeology is through pay walls and the commoditization of our discipline’s intellectual property. But commoditization has its costs. We have a model for totally privatized and commoditized archaeology that is “financially sustainable” in that it does not require any input of public or philanthropic funding. It’s called the antiquities trade. And it is ugly and destructive.

It’s time we also start seeing the ugliness in the current dissemination status quo, where the information outputs of archaeology become privatized, commoditized, intellectual property. This status quo carries the baggage of a legally oppressive system of copyright control, surveillance, and draconian punishments. Rather than dismissing Open Access off-hand, we have an ethical obligation to at least try to find financially sustainable modes of Open Access publication (see Lake 2012,  Kansa 2012 [pay-wall][open-access pre-print]).

Swartz’s tragic case demonstrates that some models of financial sustainability are not worth the cost.

Update:

Thanks for all the retweets, comments, and discussion. Please constantly pressure professional societies, universities, an government to make research dissemination more just. Also, I was wrong about the severity of Swartz’s threatened punishment. It would have been better for him to have been accused of murder, selling slaves, or helping terrorists build a nuclear bomb.  A complete travesty of justice that taints Academia.

If you haven’t noticed yet, the Wikipedia is blacked out, Google has blacked out its logo, and thousands of other sites are taking similar action to protest SOPA and PIPA. These bills in the House and Senate respectively threaten the open foundation of the Web, and the open dissemination of knowledge not just by the Wikipedia, but also by libraries and archives. The Research Works Act, subject of a previous blog post, would further damage the cause of open science and scholarship by making it much more difficult to promote open access to peer-review literature based on publicly financed research.

For open archaeology, Open Context has also joined in protesting these bills.

Update:

Sean Gillies, lead developer of Pleiades, has a beautifully rendered blackout page on his blog.

Update 2:

Jon Voss, a leading advocate for Linked Open Data for cultural heritage wrote a great discussion on why SOPA is so dangerous.

Update 3:

More anti-SOPA / anti-PIPA action from archaeologists here: http://mediterraneanworld.wordpress.com/2012/01/18/sopa-blogging-and-scholarship/

On the heels of SOPA, a bill that will make libraries vulnerable to lawsuits and felony charges for trying to do essential library functions (preservation and access to cultural works), comes another worrisome piece of legislation. The problematic bill is H.R. 3699, the “Research Works Act“.

Basically, the aim of the bill is to step back from recent reforms advocated by the “open science” community and prohibit federal agencies from requiring open access to the outcomes of grant funded research. For example, the bill would stop the NIH from requiring public access to $20+ billion in NIH funded medical research.  The bill would further entrench the current system and hugely costly system of scholarly communications, that works as a lucrative subsidy for [increasingly monopolistic] commercial publishers.

Commercial publishers, like Elsevier see huge profit margins, on the order of 35%. They have an excellent business model, since they don’t pay their authors or reviewers. The vast bulk of the blood sweat and tears behind a publication comes from grant funded research, presented (for free) by researchers, and reviewed and edited by other research peers (as a free service to their community). The publishers get all that effort and the copyright, then they lease it all back to universities (many of which are public institutions) under huge subscription regimes with draconian access and intellectual property controls. The costs of serial publications has exploded over the past two decades, and we even see some academic publishers suing faculty and universities for including works in course websites behind login barriers. The title of a recent article in the Guardian sums it up nicely: “Academic publishers make Murdoch look like a socialist

University libraries deal with crushing price escalation by reducing services and passing costs to the rest of the university, which means tuition hikes, reduced faculty salaries, reduced research budgets, and reduced faculty hiring. It’s part of the reason why higher-education is such a dreadful mess. Disciplines like archaeology suffer disproportionately, since archaeology is relatively low in priority in terms of funding and facilities, and is more likely to see cuts.

The fact that so many archaeological researchers routinely and uncritically continue to participate in a manifestly broken system of closed-access scholarly communications is ultimately self-defeating. If archaeological researchers want to see their discipline thrive, they really need to pay much more attention to how their research is communicated. This bill would make it harder to reform the status quo and reduce the costs, access restrictions, and intellectual property encumbrances that stifle research.

So please speak up and actively lobby against this bill. The Scholarly Publishing and Academic Resources Coalition (SPARC), a non-profit coalition of libraries, has an invaluable set of resources for contacting your legislators about this misguided bill.

Update

It looks like the Ecological Society of America (ESA) has a disturbing response to this, by putting the interest of its publishing wing ahead of the interests of its members.  Jonathan Eisen does a brilliant critique of the ESA’s confusion on these issues. The ESA’s position reminds me of the American Anthropological Association’s high-profile (and highly problematic) lobbying against open access 5 (!) years ago. (Savage Minds also has some good, pointed critique of the open access opponents, keeping up the same good work they’ve been doing for over 6 years!)

In some ways I can’t believe that we’re still having these fights; the broken status quo is very, very deeply entrenched. I wonder what would happen if libraries would just cancel subscriptions in mass. Perhaps then we’ll see some pretty rapid adoption of open access.

 

Update 2

Wow! Lots of blogosphere / Tweetosphere activity about this bill. Jason Baird Jackson provides some great links, including a post by UC Berkeley’s Michael Eisen noting how one of the bill’s sponsors Rep. Maloney gets lots of donations from Elsevier (no less!). Search and web-services on those data are provided by MapLight, a leading open government / transparency organization. It looks like the Research Works Act represents one of the best laws money can buy.

I’m mulling over developments around the “Stop Online Piracy Act” (SOPA, warning a PDF), a new bill going through the US Congress regarding copyright and the Web.

The American Library Association, Association of Research Libraries, and the Association of College and Research Libraries wrote a very alarming letter about the harmful impacts of SOPA. In case any archaeologists out there haven’t noticed, archaeological research is very dependent on libraries. This is increasingly the case for digital archaeology, where digital archaeological projects greatly benefit from the expertise, infrastructure, and collaboration of our colleagues in digital library programs. For example, Open Context benefits from digital preservation services provided by the California Digital Library. Similarly, tDAR also taps into library infrastructure, as it uses the CDL’s EZID service for managing persistent identifiers.

Librarians are mainly concerned about how the bill defines “willful infringement” of copyright. The bill expands the definition of “willful infringement” to include activities that don’t have a commercial purpose. Even non-commercial infringement would be a felony crime (with very draconian penalties), and that means libraries will be at great risk for being dragged into court.

What does this mean for digital archaeology and open science? It’s really hard to tell at this stage but I think we should worry, and worry a lot! As I wrote about, archaeologists depend upon libraries. If libraries run the risk of facing criminal prosecution for doing their job, then their costs will balloon and they will become risk adverse – to say the least. Those costs will be passed on to researchers and students, meaning library services to our discipline will suffer. We would see less access to archaeological literature and data, less innovation in digital data sharing efforts, and lots more confusion about what is or is not criminal infringement.

Mainly, I worry about what this means for data archiving and dissemination, an issue at the heart of my professional interests. Are these projects at risk for felony charges if there’s a copyright dispute? Would projects like Open Context get shut down and get blacklisted if someone makes an accusation of copyright infringement? What digital libraries want to run the risk of backing up these projects and archiving our data should this bill pass? Since nobody but lawyers really understand what constitutes copyright infringement, this is a major concern.

Anyway, these are my initial thoughts and worries. If anyone has better information and analysis of this bill, I’d love to see it! In the meantime, I think the picture below says it all:

A librarian at an Occupy protest (Source: kimyadawson via http://theillustratednerdgirl.tumblr.com/post/11149745396/its-true-you-guys-librarians-know-whats-up)

 

 

 

 

In light of the recent triennial review of copyright practice in the US by the  US Copyright Office (a division of the Library of Congress) that legalized “jail-breaking” iPhones, I thought it would be a good idea to point out some good, freely-available materials on copyright relevant to archaeology and the humanities in general:

  • article about “Copyright Urban Legends” from the June 2010 issue of Research Library Issues;
  • implications of the US Copyright Office exemptions to the Digital Millennium Copyright Act for educators from Planned Obsolescence;
  • the Privilege and Property. Essays on the History of Copyright edited book;
  • The Economics of Copyright report, a last hurrah of a now-suddenly-disbanded Strategic Advisory Board for Intellectual Property Policy (“Providing [UK] government with independent, strategic, evidence-based advice on intellectual property policy”… no longer needed by the new Tory-Lib government perhaps?)

In the New York Times, an article discusses how the “Venerable British Museum Enlists in the Wikipedia Revolution.’ Have you looked at what Wikipedia says about your project/museum/archaeological site/etc. as of late? If you think it is inadequate, consider doing what the BM is doing: collaborating with Wikipedia to ensure that its huge readership—admit it, it hasn’t been very long since you last consulted it too, right?—gets the correct information. After all, “‘[t]en years ago we were equal, and we were all fighting for position,’ Mr. Cock [BM webmaster] said. Now, he added, ‘people are gravitating to fewer and fewer sites. We have to shift with how we deal with the Web.’”

In other words, if you can’t beat ’em, join ’em. Once criticized as amateurism run amok, Wikipedia has become ingrained in the online world: it is consulted by millions of users when there is breaking news; its articles are frequently the first result when a search engine is used. This enhanced role has moved hand in hand with Wikipedia’s growing stability (some would say stagnation). With more than three million articles in English alone, there are fewer unexplored topics, and many of the most important articles have been edited thousands of times over a number of years. All of this means that in today’s Wikipedia there is renewed value in old-fashioned expertise, whether to provide obscure details to articles that have already been carefully edited or to find worthy topics that haven’t been written about yet. Mr. Cock, for example, estimated that there were thousands of British Museum objects (among the eight million total) that would be worth their own Wikipedia articles but don’t have them.

What unites them is each organization’s concern for educating the public: one has the artifacts and expertise, and the other has the online audience. Dividing them are issues of copyright and control, principally of images. Wikipedia’s parent, the Wikimedia Foundation, is strongly identified with the “free culture movement,” which generally holds that copyright laws are too restrictive. The foundation hosts an online “commons” with more than six million media files, photos, drawings and videos available under free licenses, which mean they can be copied by virtually anyone as long as there is a credit. That brought Wikipedia into a legal tussle with another prominent British institution, the National Portrait Gallery, when high-resolution copies of paintings from its collection were uploaded to the commons. A Wikipedia volunteer had cobbled the copies together from the gallery’s Web site, justifying his actions by noting that the paintings involved were no longer under copyright. Both the portrait gallery and the British Museum generate revenue by selling reprints and copies of pieces in their collections.

[note: follow-up in the next post]

There are more worrying developments for open source software. It is becoming a(n unintended?) target of zealots in the copyright-to-the-absurd, shortsighted entertainment industry. Behind the curve as such attempts may be, this industry has enormous cloud in the US Congress and parliaments and governments around the world. The esteemed BBC that has now introduced commercials before showing video content also blocks certain open source video software from accessing their videos: “… BBC … has enabled SWF Verification for its catch-up Internet-video service. … users of Open Source software (such as Xbox Media Center – or XBMC) can no longer access videos from BBC’s iPlayer.” (AfterDawn.com). According to ZDNet, “Andres Guadamuz, a lecturer in law at the University of Edinburgh in the UK, has carried out an investigation and discovered that a very influential lobby group is asking the US government to look at open source as being worse than piracy. The lobby group in question is the  International Intellectual Property Alliance (IIPA), a group of organizations that includes the MPAA and RIAA.” They quote from IIPA documents: “The Indonesian government’s policy… simply weakens the software industry and undermines its long-term competitiveness by creating an artificial preference for companies offering open source software and related services, even as it denies many legitimate companies access to the government market. Rather than fostering a system that will allow users to benefit from the best solution available in the market, irrespective of the development model, it encourages a mindset that does not give due consideration to the value to intellectual creations. As such, it fails to build respect for intellectual property rights and also limits the ability of government or public-sector customers (e.g., State-owned enterprise) to choose the best solutions.”

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