After Being Sued To Block Sci-Hub; Swedish ISP Blocks Court's And Elsevier's Website In Protest

from the but-is-that-a-good-thing dept

Late last week, Torrentfreak had a fascinating story about Bahnhof's response to a court case demanding it block the site Sci-Hub due to demands from Elsevier that Sci-Hub was inducing infringement of academic papers. We've written in the past about Sci-Hub. Rather than an evil piracy site as Elsevier likes to imply, it is a very clever system to allow academics to share and access other academic works. Of course, Elsevier prefers to lock up academic research that it did not pay for, which is a travesty. And it has gone after Sci-Hub in multiple jurisdictions, and is constantly playing a form of Whac-a-Mole as Sci-Hub keeps on moving around (not to mention each attempt at taking it down only seems to add to Sci-Hub's popularity). In this case, Elsevier sought a blocking order in Sweden. The Swedish ISP, Bahnhof, which has spent years pushing back against copyright maximalist extremism, but without much luck.

In giving in to the block demand, however, Bahnhof went a step further. It also put up a "block" for any subscriber visiting Elsevier's sites or the court's sites:

These are not full "blocks" per se. After reading Bahnhof's protest message, you can then apparently click through to the original site.

I posted this on Twitter on Friday and it got a huge response, with many people cheering it on. I think many of them had an initial gut reaction that this was a clever (and somewhat amusing) way to protest what many people feel is an unjust blocking order by turning the tables on those who requested and approved the blocking order. Indeed, that was my instinctual reaction as well. But, I don't think we should be that celebratory about this.

For one thing, this is exactly the kind of thing that many of us warn about concerning a lack of net neutrality laws. In this case, many people support this because they all agree that Elsevier is being ridiculous and censorial here. But... it's not hard to imagine a different situation. How would people feel if an ISP were, say, putting up a similar block page for anyone trying to visit a union webpage of striking telco workers? Because that happened once in Canada. Then... it feels a bit more like a giant company using its market position to silence critics in its workforce. We shouldn't change our views on what is and what is not okay for an ISP to do based solely on whether or not we like who is put out by the decision.

Sweden doesn't currently have net neutrality rules as far as I can tell, though ironically it appears that Bahnhof sells a pro-net neutrality hoodie. But blocking sites -- even to make a good point in the ridiculousness of the site blocking order -- still goes against net neutrality and raises serious questions about whether anyone should want an ISP inspecting the sites that we go to and interjecting its own man in the middle attack to make a political message.

Suddenly... it doesn't look quite as clever in that light. I understand the value of protesting an unjust court ruling, and this certainly feels like just desserts for Elsevier and the court, but we should always see it as problematic when an ISP is getting between us and the sites we want to visit, even if it's for a good cause.

Filed Under: copyright, net neutrality, protest, site blocking, sweden
Companies: bahnhof, elsevier, sci-hub

Applicant For Major EU Open Access Publishing Contract Proposes Open Source, Open Data And Open Peer Review As Solution

from the Elsevier-not-invited dept

We've just written about growing discontentment among open access advocates with the role that the publishing giant Elsevier will play in monitoring open science in the EU. That unhappiness probably just went up a notch, as a result of the following development, reported here by Nature:

Elsevier last week stopped thousands of scientists in Germany from reading its recent journal articles, as a row escalates over the cost of a nationwide open-access agreement.

The move comes just two weeks after researchers in Sweden lost access to the most recent Elsevier research papers, when negotiations on its contract broke down over the same issue.

The open science monitoring project involving Elsevier is only a very minor part of the EU's overall open science strategy, which itself is part of the €80 billion research and innovation program called Horizon 2020. A new post on the blog of the open access publisher Hindawi reveals that it has put in a bid in response to the European Commission's call for tenders to launch a major new open research publishing platform:

The Commission's aim is to build on their progressive Open Science agenda to provide an optional Open Access publishing platform for the articles of all researchers with Horizon 2020 grants. The platform will also provide incentives for researchers to adopt Open Science practices, such as publishing preprints, sharing data, and open peer review. The potential for this initiative to lead a systemic transformation in research practice and scholarly communication in Europe and more widely should not be underestimated.

That last sentence makes a bold claim. Hindawi's blog post provides some good analysis of why the transition to open access and open science is proving so hard. Hindawi's proposed solution is based on open source code, and openness in general:

Our proposal to the Commission involves the development of an end-to-end publishing platform that is fully Open Source, with an editorial model that incentivises Open Science practices including preprints, data sharing, and objective open peer review. Data about the impact of published outputs would also be fully open and available for independent scrutiny, and the policies and governance of the platform would be managed by the research community. In particular, researchers who are currently disenfranchised by the current academic reward system, including early career researchers and researchers whose primary research outputs include data and software code, would have a key role in developing the policies of the platform.

Recognizing the flaws in the current system of assessment and rewards is key here. Open access has been around for two decades, but the reliance on near-meaningless impact factors to judge the alleged influence of titles, and thus of the work published there, has barely changed at all. As the Hindawi blog post notes:

As long as journal rank and journal impact factor remain the currency used to judge academic quality, no amount of technological change or economic support for open outputs and open infrastructure will make research and researchers more open

Unfortunately, even a major project like the Horizon 2020 open research publishing platform -- whichever company wins the contract -- will not be able to change that culture on its own, however welcome it might be in itself. Core changes must come from within the academic world. Sadly, there are still precious few signs that those in positions of power are willing to embrace not just open access and even open science, but also a radical openness that extends to every aspect of the academic world, including evaluation and recognition.

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Filed Under: eu, open access, open data, open peer review, open source, publishing
Companies: elsevier, hindawi

Elsevier Will Monitor Open Science In EU Using Measurement System That Favors Its Own Titles

from the conflict-of-interest?-I've-heard-of-it dept

Back in April, we wrote about a curious decision to give the widely-hated publisher Elsevier the job of monitoring open science in the EU. That would include open access too, an area where the company has major investments. The fact that the European Commission seemed untroubled by that clear conflict of interest stunned supporters of open access. Now one of them -- the paleontologist Jon Tennant -- is calling on the European Commission to remove Elsevier, and to find another company with no conflicts of interest. As Tennant writes in the Guardian:

How is it reasonable for a multi-billion dollar publishing corporation to not only produce metrics that evaluate publishing impact [of scientific articles], but also to use them to monitor Open Science and help to define its future direction? Elsevier will be providing data through the monitor that will be used to help facilitate future policy making in the EU that it inevitably will benefit from. That's like having McDonald's monitor the eating habits of a nation and then using that to guide policy decisions.

Elsevier responded with a blog post challenging what it calls "misinformation" in Tennant's article:

We are one of the leading open access publishers, and we make more articles openly available than any other publisher. We make freely available open science products and services we have developed and acquired to enable scientists to collaborate, post their early findings, store their data and showcase their output.

It added:

We have co-developed CiteScore and Snowball Metrics with the research community -- all of which are open, transparent, and free indicators.

CiteScore may be "open, transparent, and free", but Tennant writes:

Consider Elsevier's CiteScore metric, a measure of the apparent impact of journals that competes with the impact factor based on citation data from Scopus. An independent analysis showed that titles owned by Springer Nature, perhaps Elsevier’s biggest competitor, scored 40% lower and Elsevier titles 25% higher when using CiteScore rather than previous journal impact factors.

In other words, one of the core metrics that Elsevier will be applying as part of the Open Science Monitor appears to show bias in favor of Elsevier's own titles. One result of that bias could be that when the Open Science Monitor publishes its results based on Elsevier's metrics, the European Commission and other institutions will start using Elsevier's academic journals in preference to its competitors. The use of CiteScore creates yet another conflict of interest for Elsevier.

As well as writing about his concerns, Tennant is also making a formal complaint to the European Commission Ombudsman regarding the relationship between Elsevier and the Open Science Monitor:

The reason we are pursuing this route is due to the fact that the opportunity to raise a formal appeal was denied to us. In the tender award statement, it states that "Within 2 months of the notification of the award decision you may lodge an appeal to the body referred to in VI.4.1.", which is the General Court in Luxembourg. The notification of the award was on January 11, 2018, and it was exactly 2 months and 1 day later when the role of Elsevier as subcontracted was first publicly disclosed. Due to this timing, we were unable to lodge an appeal.

In other words, it was only revealed that Elsevier was the sub-contractor when it was too late to appeal against that choice. A cynic might almost think those behind the move knew people would object, and kept it quiet until it was impossible under the rules to appeal. Open science? Not so much…

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Filed Under: citescore, eu, eu commission, open access, open science
Companies: elsevier

Hated Science Publisher Elsevier To Help EU Monitor Open Science - Including Open Access

from the conflict-of-interest,-what-conflict-of-interest? dept

Techdirt has written many stories about the publisher Elsevier. They have all been pretty negative: the company seems determined to represent the worst of academic publishing. It's no surprise, then, that many academics loathe the company. Against that background, news that the EU "Open science Monitor" will use Elsevier as a subcontractor is surprising, to say the least. The official notice of the contract has some details of what the project involves:

the contractors will design, draft, execute and deliver a full-fledged monitoring system in order to determine open science scope, nature, impacts on science and scientific knowledge, and its socio-economic impacts. In turn, this will provide an evidence-based view of evolution of open science. It should be able to facilitate policy making.

One of the main academic participants in the project, the Centre for Science and Technology Studies at Leiden University -- which "stresses the importance of the collaboration with Elsevier" -- explains what is meant by open science in this context:

Open Science is an umbrella concept that embraces the ideas of different open movement such as open source, open access and open data, while embracing trends of open distributed collaboration, data-intensive science and citizen science. Governments are quickly moving towards the open science paradigm (see for instance the Dutch plan on Open Science), while asking for evidence about its reality and impact in the different domains.

An important element of Elsevier's contract will therefore be to help monitor open access. The core aim of open access is to make publicly-funded knowledge freely available to everyone, in a way that is as cost-efficient as possible given the limited resources that can be brought to bear on the problem. One of the issues with the current academic publishing system is the high level of costs for educational institutions, reflected in the level of profits notched up by companies like Elsevier. For many years these have typically been in the 35% to 40% range, well in excess of most other industries.

The fact that Elsevier will be paid to help monitor the dysfunctional publishing world it has helped to create and strives to sustain seems an insensitive decision. Moreover, the contract specifically calls for the "socio-economic impacts" to be evaluated in order to "facilitate policy making". This means that Elsevier will be providing data to guide EU policy decisions that it stands to gain from materially in significant ways. The obvious conflict of interest here should have disqualified the company immediately. But the main contractors seem to have no issues with ignoring this glaring problem, or with the fact that many EU researchers will regard Elsevier as the last organization on the planet that should be involved in any way.

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Filed Under: eu, locked up information, open access, open access monitor, paywalls
Companies: elsevier

New 'Coalition For Responsible Sharing' About To Send Millions Of Take-Down Notices To Stop Researchers Sharing Their Own Papers

from the how-responsible-is-that? dept

A couple of weeks ago, we wrote about a proposal from the International Association of Scientific Technical and Medical Publishers (STM) to introduce upload filtering on the ResearchGate site in order to stop authors from sharing their own papers without "permission". In its letter to ResearchGate, STM's proposal concluded with a thinly-veiled threat to call in the lawyers if the site refused to implement the upload filters. In the absence of ResearchGate's acquiescence, a newly-formed "Coalition for Responsible Sharing", whose members include the American Chemical Society (ACS), Brill, Elsevier, Wiley and Wolters Kluwer, has issued a statement confirming the move:

Following unsuccessful attempts to jointly find ways for scholarly collaboration network ResearchGate to run its service in a copyright-compliant way, a coalition of information analytics businesses, publishers and societies is now left with no other choice but to take formal steps to remedy the illicit hosting of millions of subscription articles on the ResearchGate site.

Those formal steps include sending "millions of takedown notices for unauthorized content on its site now and in the future." Two Coalition publishers, ACS and Elsevier, have also filed a lawsuit in a German regional court, asking for “clarity and judgement” on the legality of ResearchGate's activities. Justifying these actions, the Coalition's statement says: "ResearchGate acquires volumes of articles each month in violation of agreements between journals and authors" -- and that, in a nutshell, is the problem.

The articles posted on ResearchGate are generally uploaded by the authors; they want them there so that their peers can read them. They also welcome the seamless access to other articles written by their fellow researchers. In other words, academic authors are perfectly happy with ResearchGate and how it uses the papers that they write, because it helps them work better as researchers. A recent post on The Scholarly Kitchen blog noted:

Researchers particularly appreciate ResearchGate because they can easily follow who cites their articles, and they can follow references to find other articles they may find of interest. Researchers do not stop to think about copyright concerns and in fact, the platform encourages them, frequently, to upload their published papers.

The problem lies in the unfair and one-sided contracts academic authors sign with publishers, which often do not allow them to share their own published papers freely. The issues with ResearchGate would disappear if researchers stopped agreeing to these completely unnecessary restrictions -- and if publishers stopped demanding them.

The Coalition for Responsible Sharing's statement makes another significant comment about ResearchGate: that it acquires all these articles "without making any contribution to the production or publication of the intellectual work it hosts." But much the same could be said about publishers, which take papers written by publicly-funded academics for free, chosen by academics for free, and reviewed by academics for free, and then add some editorial polish at the end. Despite their minimal contributions, publishers -- and publishers alone -- enjoy the profits that result. The extremely high margins offer incontrovertible proof that ResearchGate and similar scholarly collaboration networks are not a problem for anybody. The growing popularity and importance of unedited preprints confirms that what publishers add is dispensable. That makes the Coalition for Responsible Sharing's criticism of ResearchGate and its business model deeply hypocritical.

It is also foolish. By sending millions of take-down notices to ResearchGate -- and thus making it harder for researchers to share their own papers on a site they currently find useful -- the Coalition for Responsible Sharing will inevitably push people to use other alternatives, notably Sci-Hub. Unlike ResearchGate, which largely offers articles uploaded by their own authors, Sci-Hub generally sources its papers without the permission of the academics. So, once more, the clumsy actions of publishers desperate to assert control at all costs make it more likely that unauthorized copies will be downloaded and shared, not less. How responsible is that?

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Filed Under: academic research, copyright, knowledge, sharing, takedowns
Companies: coalition for responsible sharing, elsevier, researchgate

Elsevier's Latest Brilliant Idea: Adding Geoblocking To Open Access

from the how-about-no? dept

We've just written about a troubling move by Elsevier to create its own, watered-down version of Wikipedia in the field of science. If you are wondering what other plans it has for the academic world, here's a post from Elsevier’s Vice President, Policy and Communications, Gemma Hersh, that offers some clues. She's "responsible for developing and refreshing policies in areas related to open access, open data, text mining and others," and in "Working towards a transition to open access", Hersh meditates upon the two main kinds of open access, "gold" and "green". She observes:

While gold open access offers immediate access to the final published article, the trade-off is cost. For those that can't or don't wish to pay the article publishing charge (APC) for gold open access, green open access -- making a version of the subscription article widely available after a time delay or embargo period -- remains a viable alternative to enabling widespread public access.

She has a suggestion for how the transition from green open access to gold open access might be effected:

Europe is a region where a transition to fully gold open access is likely to be most cost-neutral and, perhaps for this reason, where gold OA currently has the highest policy focus. This is in stark contrast to other research-intensive countries such as the US, China and Japan, which on the whole have pursued the subscription/green open access path. Therefore one possible first step for Europe to explore would be to enable European articles to be available gold open access within Europe and green open access outside of Europe.

Blithely ignoring the technical impossibility of enforcing an online geographical gold/green border, Hersh is proposing to add all the horrors of geoblocking -- a long-standing blight on the video world -- to open access. But gold open access papers that aren't fully accessible outside Europe simply aren't open access at all. The whole point of open access is that it makes academic work freely available to everyone, everywhere, without restriction -- unlike today, where only the privileged few can afford wide access to research that is often paid for by the public.

It's hard to know why Elsevier is putting forward an idea that is self-evidently preposterous. Perhaps it now feels it has such a stranglehold on the entire academic knowledge production process that it doesn't even need to hide its contempt for open access and those who support it.

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Filed Under: academic research, geoblocking, gold open access, green open access, open access
Companies: elsevier

Elsevier Launching Rival To Wikipedia By Extracting Scientific Definitions Automatically From Authors' Texts

from the don't-do-as-we-do,-do-as-we-say dept

Elsevier is at it again. It has launched a new (free) service that is likely to undermine open access alternatives by providing Wikipedia-like definitions generated automatically from texts it publishes. As an article on the Times Higher Education site explains, the aim is to stop users of the publishing giant's ScienceDirect platform from leaving Elsevier's walled garden and visiting sites like Wikipedia in order to look up definitions of key terms:

Elsevier is hoping to keep researchers on its platform with the launch of a free layer of content called ScienceDirect Topics, offering an initial 80,000 pages of material relating to the life sciences, biomedical sciences and neuroscience. Each offers a quick definition of a key term or topic, details of related terms and relevant excerpts from Elsevier books.

Significantly, this content is not written to order but is extracted from Elsevier's books, in a process that Sumita Singh, managing director of Elsevier Reference Solutions, described as "completely automated, algorithmically generated and machine-learning based".

It's typical of Elsevier's unbridled ambition that instead of supporting a digital commons like Wikipedia, it wants to compete with it by creating its own redundant versions of the same information, which are proprietary. Even worse, it is drawing that information from books written by academics who have given Elsevier a license -- perhaps unwittingly -- that allows it to do that. The fact that a commercial outfit mines what are often publicly-funded texts in this way is deeply hypocritical, since Elsevier's own policy on text and data mining forbids other companies from doing the same. It's another example of how Elsevier uses its near-monopolistic stranglehold over academic publishing for further competitive advantage. Maybe it's time anti-trust authorities around the world took a look at what is going on here.

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Filed Under: definitions, knowledge, open access
Companies: elsevier

Elsevier Continues To Build Its Monopoly Solution For All Aspects Of Scholarly Communication

from the but-can-people-be-bothered-to-support-open-alternatives? dept

Techdirt has just written about the amazing achievements of Sci-Hub, and how it now offers the vast majority of academic papers free online. One implication may be that traditional publishing, with high-cost journals hidden behind paywalls, is no longer viable. But as we noted, that doesn't mean that traditional publishers will disappear. For one thing, many are embracing open access, and finding it pretty profitable (some would say too profitable thanks to things like "double dipping".) But there's another way that academic publishers, particularly the biggest ones with deep pockets, can head off the threat to their profits from developments like Sci-Hub and open access: by diversifying.

Mike wrote about one example last year, when Elsevier bought the preprint service Social Science Research Network (SSRN), arguably the most popular repository of research in the fields of economics, law and the social sciences. Since SSRN deals in preprints, which can be freely downloaded, sites like Sci-Hub are no threat. Similarly, preprints are generally posted before submission to journals, and therefore can flourish whether or not those journals are open access. Now we have yet another significant move by Elsevier, reported here on the Scholarly Kitchen blog:

Elsevier announces its acquisition of bepress. In a move entirely consistent with its strategy to pivot beyond content licensing to preprints, analytics, workflow, and decision-support, Elsevier is now a major if not the foremost single player in the institutional repository landscape. If successful, and there are some risks, this acquisition will position Elsevier as an increasingly dominant player in preprints, continuing its march to adopt and coopt open access.

As that post explains, Bepress is not a publishing company, but seeks to provide key elements of the general infrastructure needed for scholarly communications. That includes things like repositories -- the stores of articles produced by researchers at an institution, or covering a specific field -- and "showcases". Bepress's product in this field is called Digital Commons. It claims to be:

the only comprehensive showcase that lets institutions publish, manage, and increase recognition for everything produced on campus -- and the only institutional repository and publishing platform that integrates with a full faculty research and impact suite.

It's a shrewd acquisition by Elsevier. It continues to move the company beyond the role of a traditional publisher into one that can offer a complete solution for the academic world, with products and services handling every aspect of scholarly work. By acquiring more and more parts of this solution, Elsevier can integrate them ever-more tightly, which will encourage users of one element to adopt others. If this process of integration can be carried out successfully, it will leave Elsevier with almost total control of the sector, beyond even today's already profitable position.

That may be great for Elsevier shareholders, but it limits choices for the academic community. Fortunately, there are ways to counter Elsevier's rise to monopoly power. Techdirt wrote about one of them last year, when a new open preprint repository for the social sciences, SocArXiv, was created soon after Elsevier bought SSRN. There are already a number of open source alternatives to Bepress products, and supporting those rather than moving to Elsevier-owned services is an obvious move for those in the academic community who wish to preserve their independence. The problem is that doing so is likely to require a certain amount of effort, and it may be that institutions, libraries and academics don't have the time or energy to do that, and they will simply sign up to Elsevier's monoculture without worrying too much about the long-term consequences.

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Filed Under: academic journals, open access
Companies: bepress, elsevier

Seeking Open Access Deal, 60 German Academic Institutions Ditch All Subscriptions With Elsevier

from the united-we-stand dept

In the struggle to provide open access to academic research, one company name keeps cropping up as a problem: Elsevier. Techdirt has written numerous stories about efforts to rein in the considerable -- and vastly profitable -- power that Elsevier wields in the world of academic publishing. These include boycotts of various kinds, mass resignations of journal editors, as well as access to millions of publicly-funded papers in ways that bypass Elsevier altogether.

Alongside these grassroots actions, some universities and research institutes have tried taking a different approach. They are making common cause by banding together in order to strengthen their negotiating hand with the global publishing giant. The aim is to get a better deal from Elsevier, particularly in terms of providing open access to papers. Last year, a group of universities in the Netherlands used this strategy with some success, as Science reports:

A standoff between Dutch universities and publishing giant Elsevier is finally over. After more than a year of negotiations -- and a threat to boycott Elsevier's 2500 journals -- a deal has been struck: For no additional charge beyond subscription fees, 30% of research published by Dutch researchers in Elsevier journals will be open access by 2018.

The Science article points out that this win had limited impact, because only about 2% of all academic papers are produced by Dutch authors. That makes the following move by the much larger German academic community of considerable importance:

The DEAL project, headed by HRK (German Rectors' Conference) President Prof Hippler, is negotiating a nationwide license agreement for the entire electronic Elsevier journal portfolio with Elsevier. Its objective is to significantly improve the status quo regarding the provision of and access to content (Open Access) as well as pricing. It aims at relieving the institutions' acquisition budgets and at improving access to scientific literature in a broad and sustainable way.

In order to improve their negotiating power, about 60 major German research institutions including Göttingen University cancelled their contracts with Elsevier as early as October 2016. Others have announced to follow this example.

According to the post, Elsevier made its first offer to the group, but it was considered inadequate, and so the German institutions have ditched all their subscriptions with the publisher. As they say:

All participants in this process are aware of the imminent effects this has on research and teaching. However, they share the firm conviction that, for the present, the pressure built up by the joint action of many research institutions is the only way to to reach an outcome advantageous for the German scientific community.

Let's hope they are able to preserve their united front in order to win open access to the articles their researchers publish. After all, a win for the DEAL project is also a win for the rest of us.

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Filed Under: germany, open access, publishing
Companies: elsevier

Stupid Patent Of The Month: Elsevier Patents Online Peer Review

from the my-peers-think-this-is-stupid dept

On August 30, 2016, the Patent Office issued U.S. Patent No. 9,430,468, titled; "Online peer review and method." The owner of this patent is none other than Elsevier, the giant academic publisher. When it first applied for the patent, Elsevier sought very broad claims that could have covered a wide range of online peer review. Fortunately, by the time the patent actually issued, its claims had been narrowed significantly. So, as a practical matter, the patent will be difficult to enforce. But we still think the patent is stupid, invalid, and an indictment of the system.

Before discussing the patent, it is worth considering why Elsevier might want a government granted monopoly on methods of peer review. Elsevier owns more than 2000 academic journals. It charges huge fees and sometimes imposes bundling requirements whereby universities that want certain high profile journals must buy a package including other publications. Universities, libraries, and researchers are increasingly questioning whether this model makes sense. After all, universities usually pay the salaries of both the researchers that write the papers and of the referees who conduct peer review. Elsevier's business model has been compared to a restaurant where the customers bring the ingredients, do all the cooking, and then get hit with a $10,000 bill.

The rise in wariness of Elsevier's business model correlates with the rise in popularity and acceptance of open access publishing. Dozens of universities have adopted open access policies mandating or recommending that researchers make their papers available to the public, either by publishing them in open access journals or by archiving them after publication in institutional repositories. In 2013, President Obama mandated that federally funded research be made available to the public no later than a year after publication, and it's likely that Congress will lock that policy into law.

Facing an evolving landscape, Elsevier has sought other ways to reinforce its control of publishing. The company has tried to stop researchers from sharing their own papers in institutional repositories, and entered an endless legal battle with rogue repositories Sci-Hub and and LibGen. Again and again, when confronted with the changing face of academic publishing, Elsevier resorts to takedowns and litigation rather than reevaluating or modernizing its business model.

Elsevier recently acquired SSRN, the beloved preprints repository for the social sciences and humanities. There are early signs that it will be a poor steward of SSRN. Together, the SSRN acquisition and this month's stupid patent present a troubling vision of Elsevier's new strategy: if you can't control the content anymore, then assert control over the infrastructures of scholarly publishing itself.

Elsevier filed its patent application on June 28, 2012. The description of the invention is lengthy, but is essentially a description of the process of peer review, but on a computer. For example, it includes a detailed discussion of setting up user accounts, requiring new users to pass a CAPTCHA test, checking to see if the new user's email address is already associated with an account, receiving submissions, reviewing submissions, sending submissions back for corrections, etc, etc, etc.

The patent departs slightly from typical peer review in its discussion of what it calls a "waterfall process." This is "the transfer of submitted articles from one journal to another journal." In other words, authors who are rejected by one journal are given an opportunity to immediately submit somewhere else. The text of the patent suggests that Elsevier believed that this waterfall process was its novel contribution. But the waterfall idea was not new in 2012. The process had been written about since at least 2009 and is often referred to as "cascading review."

The patent examiner rejected Elsevier's application three times. But, taking advantage of the patent system's unlimited do-overs, Elsevier amended its claims by adding new limitations and narrowing the scope of its patent. Eventually, the examiner granted the application. The issued claims include many steps. Some of these steps, like "receive an author-submitted article," would be quite hard to avoid. Others are less essential. For example, the claims require automatically comparing a submission to previously published articles and using that data to recommend a particular journal as the best place to send the submission. So it would be an exaggeration to suggest the patent locks up all online peer review.

We hope that Elsevier will not be aggressive in its own interpretation of the patent's scope. Unfortunately, its early statements suggest it does take an expansive view of the patent. For example, an Elsevier representative tweeted: "There is no need for concern regarding the patent. It's simply meant to protect our own proprietary waterfall system from being copied." But the waterfall system, aka cascading peer review, was known years before Elsevier filed its patent application. It cannot claim to own that process.

Ultimately, even though the patent was narrowed, it is still a very bad patent. It is similar to Amazon's patent on white-background photography where narrowed but still obvious claims were allowed. Further, Elsevier's patent would face a significant challenge under Alice v CLS Bank, where the Supreme Court ruled that abstract ideas do not become eligible for a patent simply because they are implemented on a generic computer. To our dismay, the Patent Office did not even raise Alice v CLS Bank even though that case was handed down more than two years before this patent issued. Elsevier's patent is another illustration of why we still need fundamental patent reform.

Reposted from the EFF's Stupid Patent of the Month series.

Filed Under: patents, peer review, stupid patents
Companies: elsevier