Eminent Open Access: A Little Thought Experiment

Terrible ideas and brilliant ones can be surprisingly difficult to tell apart.

More often than not they tend to be terrible. So, from a purely statistical perspective, what you’re about to read is likely a horrible idea. That fact notwithstanding, in the great tradition of selfishly publishing less than half-baked ideas on my blog so that I can benefit from readers’ comments and feedback, I present the following little thought experiment for your enjoyment.

Some Context

In which I present a view only slightly more strident than my actual feelings

Every day it becomes more obvious that we are deliberately slowing the advance of science and the useful arts, the pace of that innovation which we so fastidiously revere, for the sole purpose of propping up the expired business models of academic journal publishers.

But we may have finally seen the nail that will seal academic journal publishers’ coffins. Via Stephen Downes yesterday, here’s an article about how to use Tor with Sci-Hub in order to privately and securely read research articles you don’t have legal permission to access. The “you’re not allowed to read this research” genie seems to be completely out of the bottle. The Library Loon shares thoughts about the countermeasures journal publishers will undoubtedly begin to employ against Sci-Hub and, consequently, all other readers of their articles – making them even less useful to scholars, researchers, and other readers than they currently are. It sounds like Napster and the turn of the century music wars all over again.

At least when the music industry began suing downloaders, they could pretend they had artists’ financial interests in mind. But given the thorough intellectual raping and pillaging journals commit against academic authors, stripping them of essentially every right contractually assignable, there will be no sympathy for the journals as their end game plays out. Who exactly are the little guys the journals are fighting to protect as they sue researchers for illegally reading articles that advance their cancer research? Who will the public side with here? Was there ever a worse PR disaster waiting to happen?

If it were ever broadly understood by the public, even the current state of academic journal publishing would be a PR disaster. Let’s be clear – for many decades the academic author never even had a choice. If she hoped to keep her job, she was forced to give away – literally give away – any and all rights to her own work so that journals could charge outrageous sums of money to prevent most people from reading it. Adding insult to injury, the journal then also charged the author to purchase back copies of her own words, which of course were no longer hers but now the sole ‘property’ of the publisher. (And did I mention she also has to serve as a volunteer reviewer for the journal in order to meet her service obligations to earn tenure?) Today, authors have the privilege of not only doing all the research, writing all the words, and being volunteer review labor for the journal, but if they want to retain control over their writing they can also pay the journal $1500 – $3000 per article they publish. Makes you want to write more, doesn’t it?

The entire system is morally compromised and morally compromising. Here’s a modest proposal to speed academic journal publishers’ demise, ease the pain of their passing, and put innovation back on the fast track.

The Thought Experiment

In which I attempt to strain the reader’s willful suspension of disbelief

Strong copyright advocates have long claimed that creative works are “property” and therefore should be afforded all of property’s protections and other considerations under the law (plus whatever additional concessions they could wring out of the hapless congresspersons they lobby). Let’s play that idea out for a moment. Adapting language from Wikipedia for the sake of expediency:

Eminent domain is the power of a state or a national government to take private property for public use. The property may be taken either for government use or by delegation to third parties, who will devote it to public or civic use. The power of governments to take private real or personal property has always existed in the United States, as an inherent attribute of sovereignty. This power reposes in the legislative branch of the government and may not be exercised unless the legislature has authorized its use by statutes that specify who may use it and for what purposes. The legislature may take private property by passing an Act transferring title to the government. The property owner may then seek compensation by suing in the U.S. Court of Federal Claims… Its use was limited by the Takings Clause in the Fifth Amendment to the U.S. Constitution in 1791, which reads, “… nor shall private property be taken for public use, without just compensation.” The Fifth Amendment did not create the national government’s right to use the eminent domain power, it simply limited it to public use.

Think about it for a moment. What privately held property could possibly benefit the public more than the scholarly record? The accumulated knowledge of the researchers of the last 100 years or so (i.e., research articles still under copyright of disseminators as opposed to authors)? Has there ever been a better public use argument for taking private property under the government’s eminent domain power? Honestly, what is the benefit of a road somewhere compared to the scholarly record?

As the Fifth Amendment notes, the law requires “just compensation” when private property is taken in this manner. That would undoubtedly be a large sum of money in this case. Where would it come from? Probably from the budgets of libraries across the country that are already paying outrageous fees to lease temporary access to intentionally crippled digital versions of research articles.

This could be a win-win:

  • Publishers, who are under incredible pressure from alternative distribution models, legitimate open access programs, and guerilla open access initiatives like Sci-Hub, get a major golden parachute for their shareholders.
  • The full scholarly record goes immediately into the public domain, benefiting everyone.
  • Libraries continue to pay out of their acquisitions budgets for some period of time, but now they’re paying for something that is actually usable by students, faculty, scholars, and others.
  • The hundreds of millions of people whose tax dollars supported much of this research, but who have never had a chance to see the results of the work they funded, finally get what they paid for.

Now, you may be asking yourself ‘can “intellectual property” be taken under eminent domain?’ Here’s a lengthy excerpt from a Chapman Law Review article (with a link to an apparently legal copy of the entire article) that makes the case – An Eminent Consequence: Why Copyrights Could Become Subject to Eminent Domain. Reader beware: This is a single article by a single author (who I don’t know), and clearly this is not the definitive word on the matter. However, the argument is intriguing, and the eminent domain taking of the scholarly record by the government appears to be theoretically possible.

There would, undoubtedly, be significant logistical obstacles to overcome in implementing such a plan. (For example, if a foreign publisher’s copyright is formally recognized in the US, does the US government have jurisdiction to seize it under eminent domain?) A plan like this would be anything but simple or straightforward. But think of the benefit to society it could create… Imagine the revolutions in scientific discovery that would be enabled by unimpeded, cross-disciplinary, automated text-mining – something utterly impossible under the current publisher regime. Imagine the increased rate of innovation that would emerge as more and more people had access to cutting-edge knowledge, increasing our ability to solve ever larger and more complex problems at home and abroad. Imagine the humanitarian impact of thousands of volunteers in Wikipedia-like projects freely translating these research results into languages spoken in the developing world. Imagine shaking up the antiquated tenure and promotion policies at universities! (Ok, I admit it – that last suggestion strains my authorial credibility.) As Dr. Seuss might say, you could imagine until your imaginer gets sore and not even have scratched the surface of the possibilities.


Well, there you have it. When you play out this little thought experiment, where does it take you? Does it catalyze a global increase in innovation and quality of life? Does it cause the zombie apocalypse that ends human society? Something in between?

3 thoughts on “Eminent Open Access: A Little Thought Experiment”

  1. I like it. But it looks like the winners are the publishers who get the parachute. The scholars are still in the same position of providing their labor for free. Or am I missing something?

  2. Academic writers are compensated by getting the **chance** to advancing their careers (promotion) and securing greater employment security (tenure). They can also attract grant funding which provides more certain and immediate remuneration. Academic publishers claim to add value to these works by selecting them for publication (validation) and making editorial improvements.
    The odd thing here is that institutions of higher education (IHEs) pay academic salaries in exchange for the teaching, research and service that produces these works. The IHEs then outsource the evaluation of the work to academic publishers using the ‘publish or perish’ engine to drive the heard to market. Finally, the IHEs (usually through their libraries) purchase those same works via subscription and other means.
    Stated more simply, IHEs pay people to produce written work, compel those people to transfer the work to third parties without compensation and then purchase the ‘improved’ version of those works back from those third parties. Isn’t that terribly odd in the digital age?
    Some of the elite IHEs have what they call a University Press which dis-inter mediates the academic publisher to some degree. Could this model not be built upon and scaled to serve the entire research community? IHEs have created all sorts of organizations to deal with meta-issues such as this. Why not an IHE-sponsored organization for digital publishing that cuts out this costly and inefficient middle-men who feel the need to impose artificial scarcity to keep their shops running and maintain their salaries?
    If this could be done, there would be no need to use imminent domain and no need to haggle in the courts over whether compensation is just or not.

  3. This is fascinating on so many levels. I agree that journal pricing is a racket and that it’s disingenuous for a de facto monopolist to hide behind “what the market will bear.” If our main goal is to maximize social value, then eminent domain makes sense.

    But here’s the thing: Eminent domain only applies to things that already exist, e.g. a house that’s in the path of a new highway. However, if a developer thought there was a high probability that the government would swoop in and take over the building, then he probably wouldn’t build it in the first place.

    And that’s where I find the OER conversation a bit misguided: It seems to prioritize downstream use of resources more than their initial creation. I’m the founder of a small math curriculum company. A few years ago we got a grant from an OER-inclined foundation to create math projects. The program officer wanted us to license them under the least restrictive Creative Commons license (CC-BY), but I insisted we include the non-commercial restriction (CC-BY-NC). My reasoning was simple: Pearson had a much better distribution channel than we did. Unless we could box them out, then they’d be able to use our own materials to put us out of business. Faced with that prospect, why would we create them in the first place?

    Of course, academic journals aren’t in the business of content creation but rather content re-distribution, so my anecdote isn’t entirely apropos here. Still, I think it serves as a cautionary tale when it comes to the larger question of OER and eminent domain: The more valuable the resource is, the more compelling the eminent domain argument will be…and the less likely the author will be to create it. Of course, this Catch-22 may not matter to people who think that all content is the same, that content is a “commodity,” and that we can just crowd-source our way to a solution. However, I’d argue that when it comes to instructional materials, this approach doesn’t work. Indeed, instead of demonstrating the power of the masses, I think efforts such as Curriki, OER Commons, and the original BetterLesson make clear just how difficult curriculum development is…and just how important it is to incentivize experienced experts to do it. (I know how haughty it sounds for a curriculum developer to say this, and so I’ll reframe: Do you think Vienna could have crowd-sourced the Marriage of Figaro? If not, do you think Mozart would have written it under the specter of imperial acquisition?)

    Which is all to say: I don’t think Ayn Rand had much of a social conscience, but I don’t think she was totally wrong, either. Eminent domain may sound like a great way to maximize public value…until you consider what John Galt was cooking up. I share your frustration with copyrights and paywalls, but I promise you that Mathalicious wouldn’t have been created without them.

    Fortunately, it was created. It exists. And it’s good. So good, in fact, that I think it *should* be a public resource. You want the government to be able to liberate private resources? You want there to be a mechanism for retroactive OER-ing? I do, too. And I’m trying. Want to help?

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