RE: Questions: RE: Vanishing Act -- continued

[stephen.barr@sagepub.co.uk]

David

I appreciate that publishers have a role of assessing whether any
particular challenge is real and has adequate grounds, and should be
willing to stand their ground where the legal grounds for a complaint are
insufficient.  I do not though believe it is realistic to expect that
publishers could as a matter of standard procedure treat the law in the
way you recommend.  I also question whether the focus of the debate on
this list so far (about Elsevier's policies) is correct in assuming that
those policies are different, at least on the specific issue of withdrawal
on legal grounds, from those which would be applied by many learned
society publishers and university presses.

If the integrity of the academic record is a critical public good, then
legislators should be lobbied to create special protections for work which
is part of that record.  Publishers have to work within the law; if the
law was different, their policies would change.  Alternatively, the record
should be protected by other means, for example in the kind of distributed
archiving envisaged in the LOCKSS proposal.

Stephen


> -----Original Message-----
> From:	David Goodman [SMTP:dgoodman@phoenix.Princeton.EDU]
> Sent:	31 January 2003 19:07
> To:	liblicense-l@lists.yale.edu
> Subject:	Questions: RE: Vanishing Act -- continued
> 
> Stephen,
> 
> my reply, quite simply, is that I would expect the publisher to not
> withdraw the article and pay the damages if it eventually loses the case.
> My reason for this is that if the publisher acts otherwise, legal caution
> will surely induce him to to withdraw articles which might not be found to
> be in violation if the fullest possible vigorous defense were to be made.
> Indeed, you demonstrate this my saying it is the common practice to
> withdraw when the claim has "some" basis or "reasonable potential of
> success."  That is a standard I think unacceptable for academic material.