Scientific Societies and Non-infringement

["Karl A. Kocher" <kakocher@ucdavis.edu>]

The following disclaimer appears with a great many electronic journals
published by scientific societies:

This publication is provided "as is" without warranty of any kind, either
expressed or implied, including, but not limited to, the implied
warranties of merchantability, fitness for a particular purpose, or
non-infringement.

In plain English:

	We don't guarantee this publication is worth paying for, is 
	of any use, or that we even have any right to publish it.

Explicit disclaimers avoid liability at law.  After 338 years of
scientific journal publication, one may well wonder how much real risk
inheres in selling subscriptions without an explicit denial of
merchantability and fitness to a purpose, but complying with legal
formalities is probably reason enough to do so.  On the other hand,
however legally reasonable, a totally unqualified denial of
non-infringement seems inappropriate.

In the prepublication process, editors and reviewers confirm the author's
claims of both originality and indebtedness, while the editorial staff
documents those claims with copyright assignment and permission forms.
Given the effort expended to recruit and retain editors and referees and
the respect accorded them, no one would seriously believe societies intend
to express the disparaging lack of confidence in their abilities or
diligence that such an unqualified denial of non-infringement would imply.

Without a warranty of non-infringement from the authors, publication would
not occur in the first place and journals expect to defend their assigned
rights against infringement by others. A society's own unwillingness to
warrant non-infringement might be labeled hypocritical, but hypocrisy is
not a crime and Kant's categorical imperative isn't incorporated in the
(less than completely) Uniform Commercial Code.

Publicly supported universities are commonly required by counsel to obtain
an explicit warranty that licensed content is non-infringing together with
an offer of indemnification. The LibLicense site states that "the single
most important promise the licensee should expect from the licensor is a
guarantee that the licensor has the necessary rights and permissions to
license the digital information to the licensee."  Elsewhere commentary
notes

"The licensor should guarantee that it has the appropriate authority to
provide access to information owned by licensor. Additionally, the
licensor should be willing to pay any expenses the licensee incurs if the
licensor is not properly authorized to license the software or database or
some part of it infringes another's rights."

The number of unqualified disclaimers appears to have been increasing. The
Shop for Journals group and Highwire Press are to be commended for an
effort to find a more appropriate statement of expectations:

WARRANTY: Publishers affirm they have obtained any and all necessary
permissions to license Journal content, and that use of such content by
Authorized Users in accordance with these guidelines shall not infringe
the copyright of any third party.

While short of the offer of indemnification that university corporate
counsel would prefer, it is more seemly.

Litigious as American society is thought to be, it is only natural for
scientific societies to fear the consequences of assuming liability. One
might ask how realistic the fear actually is.  Warranting non-infringement
specifically for the content of a journal would seem to pose far less risk
than warranting non-infringement with respect to software or internet
commerce.  As in the case of contributors, one expects that societies
attempt to obtain warranties and offers of indemnification from those on
whom they rely, reducing their own level of risk in the process.  If
scientific societies are unwilling to extend warranties to those who pay
for their publications, does that suggest that not charging (Open Access)
publication should become their safer, preferred course?

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