[Xmca-l] Re: Publishers seek removal of millions of papers from ResearchGate

[Annalisa Aguilar]

Mike and Alfredo and beautiful readers and experienced thinkers,


     Respectfully, I am gently pushing back that indeed this forum is a publishing model (of many possible models), because we are indeed making our writing public (which by the way has a similar word stem) by writing the posts we do to XMCA.

     It is just that it is not the identical to the publishing model of Print, and so, we are essentially using an old word in a new way, but I would almost say its use is executed with a more faithful definition of the word "publish," as it is bypassing the process of the printing press with ink made from carbon and paper made from wood pulp, and its subsequent physical distribution through shipping to the reader and so on, which I imagine makes the rocks and trees happy, pixels being what they are.

     I suggest this means we reacquaint ourselves to the true meaning of the word, and extricate ourselves as having a limited meaning of "publish" with print and paper, and try an association with The Act of making our words known publicly, even as we are our own editors to one another.

     For the sake of this argument: didn't Martin Luther publish his theses when he nailed them to the door of All Saints Church in Wittenberg (on Oct 31 1517... hey that means the 500th anniversary of this event is in a few weeks, by golly)? This is not to note the content of the theses, but the act itself?


According to Wikipedia, that well-published sage declares:


     "The Latin Theses were printed in several locations in Germany in 1517. In January 1518 friends of Luther translated the Ninety-five Theses from Latin into German.Within two weeks, copies of the theses had spread throughout Germany; within two months, they had spread throughout Europe."

     Today this post will travel much faster than Martin Luther's Theses and to a larger world than his, but I feel he and I make the same gesture, we perform an act of speech, although in the form of text, publicly, with the intentions to better develop minds in our human society. Hope that that isn't too grandiose a statement to compare myself to Luther, but I think in some ways anyone who seeks interaction with others through writing, places us all on equal standing, and with the same potential of changing hearts and minds, as Luther did in his time. Really it depends upon the courage one has to speak one's mind and face the consequences of doing so, and not so much on whether a print publisher will object to lost revenue. Is that fair to say?
     The pesky part with which we have to contend in this Internet age, are the middlemen, such as gatekeepers and lawyers. We also must consider what is intellectual property, which, to me, then funnels to the questions of copyright and fair use.
     So that's the thread of my thinking on this.
     I'm curious how these things were dealt with at the time of the invention of the Printing Press and how it was that attribution was "policed." Maybe someone has something historical to say about that?

     I did also look at the wiki entry for Copyright - Fair Use and Fair Dealing and found there this text (here --> https://en.wikipedia.org/wiki/Copyright#Fair_use_and_fair_dealing )

     "The statute does not clearly define fair use, but instead gives four non-exclusive factors to consider in a fair use analysis. Those factors are:

  1.  the purpose and character of one's use
  2.  the nature of the copyrighted work
  3.  what amount and proportion of the whole work was taken, and
  4.  the effect of the use upon the potential market for or value of the copyrighted work."

     It seems to me if there is a way to justify, as has been shown in the music industry, that an artist or author can increase the "market for or value of the copyrighted work" by having a wider distribution, that will take care of #4. What academic does not want wider distribution? In my estimation, it is up to the print journals to figure out a way to innovate alongside or despite the distribution of digital media, instead of setting litigation fires against the distribution of journal articles as digital media. It seems that is what has happened in academic publishing.


This putting the genie back in the bottle is foolish.


The DMCA (https://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act) is one of many attempts to return the genie to the bottle, if it can be shown that "the manufacture, importation, or distribution of devices whose intended use, or only significant commercial use, is to bypass an access or copy control put in place by a copyright owner."


If only the inventors of the internet could be shown to have intentions to bypass access of copy controls. Or inventors of magnetic tape for that matter. It just seems silly.


So my question to Mike was asked with this in mind. Can it be said that as scholars sharing ideas  in peer review, which fulfills factors #1 and #2 above for fair use, could indeed override factors #3 and #4 for fair use?


For merits of argument only and respectfully asked, can't it be that posting a PDF of Cultural Psychology, by Mike Cole on the XMCA list, in its entirety, were it done in context of scholarly reference and for examination of its contents among a society of scholars, be enough of a safe threshold for fair use? Would it make Belknap Press (who published the print version of the book) or Mike be compelled sue the person who posted it? I don't know what that means, and it seems a grey area people don't really want to figure out.


In that same thinking, is the threshold less so, the same, or more so for a published article? Or how about a draft of a paper?

We are witnesses to the development of the Internet, which in the end bypasses the controls on copyright, and because it does, it seems we must then rely upon the factors of fair use. So I would think that posting the book in PDF online would be acceptable, as long as, if I were to post it, I was not saying I wrote the book, or that I wasn't selling the book to receive monetary gain, or that I wasn't intending to constrict the market in order to denigrate the book's value. Right?

Thinking out loud, but I hope not too loudly.

Kind regards,

Annalisa