Wednesday, September 04, 2013

'Completely Wrong' but Not In Error


David Wiley writes,

"A careful reading of the post he links to, however, shows that this is completely wrong. The problems described in the post are the result of two issues: (1) Reusers of CC BY licensed research articles are not obeying the terms of the open license, and (2) There is some confusion regarding who should pursue legal action against those who are not obeying the terms of the license."

I'm not addressing (2) at all, save to observe that if it is a person pursuing legal action, they will most likely be crushed by a corporation. I don't think there's any dispute there.

With respect to (1) Wiley does not state exactly what "terms of the open license" are being violated. I argue "none" - which of course is my point, and leads to the "I told you so". But what terms does he think might be being violated? Reading the original post offers several possibilities:

- the suggestion that 'By' requires that the publisher be named (which in this case might be PLOS or whatever). But if you read https://creativecommons.org/licenses/by/3.0/legalcode section 4.b you see the wording of 'and/or' is being used, which has the logical status of 'OR' (as opposed to XOR, or exclusive OR). That means the condition is satisfied if ANY ONE of the disjuncts is satisfied. The author is named, and hence the disjunct is satisfied. So it's not this.

- the suggestion that the reprinted should have puublished the CC license URL, as indicated in section 4.a of the same license, where it says, "You must include a copy of, or the Uniform Resource Identifier (URI) for, this License with every copy of the Work You Distribute or Publicly Perform." This one is a bit trickier. CC-by is not viral; there is no 'share alike' clause attached. So presumably there is no requirement to license the reprinted version as CC-By. The wording of 4.a seems to suggest that the CC-by license *is* viral, "You may not offer or impose any terms on the Work that restrict the terms of this License or the ability of the recipient of the Work to exercise the  rights granted to that recipient under the terms of the License."

Now if he wants the basis of his response to me to be that CC-by is viral, or that CC-by is the same as CC-by-SA that's fine, but I think the statement of that argument should be clearer (minimally, the statement of that argument should exist).

- the suggestion that the use violates some additional license terms imposed by PLOS. But the document cited http://www.plos.org/about/open-access/license/ is not actually a 'PLOS license', it is a page that is 'about' the CC-by license, and could hardly be taken to define it. The BioMed Central license https://www.biomedcentral.com/authors/license isn't a CC license and thus outside the domain of this discussion.

Given all this, it is reasonable to believe that the reprinters thought they were working within the limitations of the CC-by license, that they were IN FACT working within the bounds of that license, and that therefore they were not, as he suggests, "not obeying the terms of the open license."

Maybe he meant something different, but it would be necessary for him to at least state what it was in order for me to evaluate the claim.

The second part of the post (presumably still showing I am 'completely wrong') asks, "How does adding the NC or SA clauses magically either (1) correct user behavior or (2) identify who should pursue legal remedies against those misbehaving users?"

I do not suggest that adding the 'NC' clause serves to identify who should pursue legal action, so any discussion of (2) is irrelevant. The NC cause does not suggest who should take legal action (though common sense would suggest that it is the copyright owner who should take legal action).

With respect to (1), I actually *did* offer an argument, but it is not restated nor refuted here. I argued (and maintain here) that the addition of the 'NC' clause creates risk. True, it doesn't prevent bad behaviour on the part of publishers. But it creates the greater possibility of a lawsuit if the publisher reuses the material, because the publisher is more clearly violating the license by offering the previously free material available for commercial sale for material gain.

This argument may not be persuasive to Wiley; I recognize that. But when I am called 'completely wrong' I think minimally there's an onus to acknowledge that I at least made the argument, and offer some sort of token refutation.

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