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Contracts and Practical Realities?

David Goodman wrote (in part):

>Electronic journals will in my eyes be unreliable until the same right
>exists. After we succeed in getting the version below adopted, I would
>propose "The publisher warrants that it will not remove material from the
>site except if legally required by the final judgment of a court of
>competent jurisdiction; the publisher further warrants that it will use
>every feasible legal effort to prevent the removal."

It strikes me that as we try to put more and more clauses into these
agreements, there are going to be unintended side effects.  I can think of
several cases where the clause above could cause serious problems:

1) where the content is intentionally versioned and older versions
removed;  e.g., first posting a preprint and then replacing it with the
edited, typeset, and proofed final version.  Is this sort of product
prohibited by this language?

2) where a figure or other piece of electronic content is has a QC problem
of some sort that was not caught and is later taken down and replaced with
a better rendition of the same intellectual content.  Is this "removal" .
.  . even for a few seconds?

3) where an author insists on including as an attachment to his or her
article a binary file (e.g. a spreadsheet) that is later discovered to
have a dangerous virus and has to be taken down and cannot be repaired

All of these are real problems.  How many pages of legal language would it
take to make sure that none of these constitute removing material?

Less easy to solve but also real world examples:

4) when an author doesn't realize that an article is going to be rapid
released and the article is posted before the big press conference; the
author demands that the article be taken down for a few days.  Similar
situation with patent deadlines.

5) an article makes it into print/online and it is discovered to have been
previously published in another journal and thus a copyright violation.
Would you need a court order to force you to do the right thing?

I'm not saying that there are easy answers to any of these problems, but
it is worth stopping to consider the practical realities of journal
publication and balancing those against the desired social good.  Setting
everything in the concrete of contracts may not necessarily be the best
solution . . . it certainly won't be the cheapest solution.

Evan Owens
Information Technology Manager, The University of Chicago Press
1427 East 60th Street, Chicago, IL 60637-2954
(773) 753 3375  Fax: (773) 753 3383