You Get What You Pay For

Be careful about provoking scientists.  They can be persistent.

The issue I’m writing about today was first raised a quarter century ago when Henry Herman (“Heinz”) Barschall published two papers in Physics Today about the cost of academic journals.  He performed analyses of various physics journals at the time, based on some widely used metrics that attempt to quantify the “value” of a journal in terms of its reach and citation frequency.  His analyses showed that according to his criteria, physics journals published by the American Institute of Physics (“AIP”) and by the American Physical Society (“APS”), two not-for-profit academic societies devoted to physics in the United States, were more cost effective than other journals, particularly journals produced by commercial publishers.  Copies of his articles can be found here and here.

His articles prompted a series of litigations in the United States and Europe alleging that they amounted to little more than unfair advertising to promote the academic-society journals that Barschall was associated with.  At the time, he was an editor of Physical Review C, a publication of the APS, and the magazine Physics Today where he published his findings was a publication of the AIP.  (In the interest of disclosure, I was also previously an editor of an APS publication and also recently published a paper in Physics Today.  I have also published papers in commercial journals.)  The academic societies ultimately prevailed in the litigations.  This was relatively easily accomplished in the United States because of the strong First Amendment protection afforded to publication of truthful information, but was also accomplished in Europe after addressing the stronger laws that exist there to prevent comparisons of inequivalent products in advertising.  A summary of information related to the litigations, including trial transcripts and judicial opinions can be found here.

The economics of academic-journal publication are unique, and various journals have at times experimented with different models in order to address the issues that are particular to the publication of academic journals.  They have as their primary function to disseminate research results and to do so with a measure of reliability that is obtained by their use of anonymous peer review.  Despite their importance in generating a research record and in providing information of use to policymakers and others, such journals tend to have a small number of subscribers but relatively large production costs.  Consider, for instance, that Physical Review B, the journal I used to work for and one of the journals that Barschall identified as most cost-effective, currently charges $10,430 / year for an online-only subscription to the largest research institutions, and charges more if print versions are desired.

While commercial journals have generally relied upon subscription fees to pay their costs, academic-society journals have been more likely to keep subscription fees lower by imposing “page charges” that require the authors to pay a portion of the publication costs from their research budgets.  The potential impact on their research budgets has sometimes affected researcher decisions about where to submit their papers.  More recent variations on economic models distinguish among subscribers, charging the highest subscription rates to large institutions where many researchers will benefit from the subscription, and charging lower subscription rates to small institutions and to individuals.  All of these economic models have needed to compete more recently with the growing practice of posting research papers in central online archives, without fee to either researcher or reader.  The reason that traditional journals still exist despite the presence of these online archives is that they provide an imprimatur of quality derived from their use of formalized peer-review considerations that are still relied on by funding bodies and other government agencies.

As reported this weekend in The Economist, Cambridge University mathematician Timothy Gowers wrote a blog post last month that outlined his reasons for boycotting research journals published by the commercial publisher Elsevier.  A copy of his post can be read here.  The post has prompted more than 2700 researchers to sign an online pledge to boycott Elsevier journals by refusing to submit their work to them for consideration, by refusing to referee for them, and by refusing to act as editors for them.  My objective is not to express an opinion whether such a boycott is wise or unwise.  The fact is that journals compete for material to publish and for subscriptions.  While they accordingly attempt to promote distinctions that make them more valuable than other journals, they are also affected by the way their markets respond to those distinctions.

What is instead most interesting to me in considering the legal aspects of this loose boycott is the extent to which it is driven by a general support among commercial publishers for the Research Works Act, a bill that was introduced in the U.S. Congress in December and that would limit “open access” to papers developed from federally funded research.  The Act is similar to acts that have been proposed in 2008 and 2009.  Specifically, it would prevent federal agencies from depositing papers into a publicly accessible online database if they have received “any value-added contribution, including peer review or editing” from a private publisher, even if the research was funded by the public.

The logic against the Act is compelling:  why should the public have to pay twice, once to fund the research itself and again to be able to read the results of the research it paid for?  But this logic is very similar to the arguments raised decades ago against the Bayh-Dole Act, which allowed for patent rights to be vested in researchers who developed inventions with public funds.  The Bayh-Dole Act also requires the public to pay twice, once to fund the research itself and again in the form of higher prices for products that are covered by patents.  Yet by all objective measures, the Bayh-Dole Act has been a resounding success, leading to the commercialization of technology in a far more aggressive way than had been the case when the public was protected from such double payments — and this commercialization has been of enormous social benefit to the public.

The Bayh-Dole Act has been successful because it provides an incentive for the commercialization of inventions that was simply not there before.  This experience should not be too quickly dismissed.  In the abstract, the Research Works Act is probably a good idea because it provides an incentive for publishers to provide quality-control mechanisms in the form of peer review that allows papers to be distinguished from the mass of material now published on the Internet without quality control.  This is worth paying for.  But the Act also has to be considered not in the abstract, but instead in the context of what not-for-profit academic societies are already doing in providing that quality control.

The ultimate question really is:  Are commercial publishers providing a service that needs to be protected so vitally that it makes sense to subject the public to double payment?  The history of the Bayh-Dole Act proves that the intuitive answer of “no” is not necessarily the right one.  But what the commercial publishers still need to prove in convincing the scientific community that the answer is “yes” is, in some respects, no different than the issue Heinz Barschall raised 25 years ago.

A Thing of Immortal Make

Today, the President signed the America Invents Act, bringing about the most significant changes to U.S. patent law in more than half a century.  While most commentary centers around the shift by the U.S. to join the rest of the world’s “first to file” system — in which priority for a patent goes to the one who wins the race to the Patent Office instead of the one able to prove he invented something first — I want to focus on a more obscure provision of the Act.

Bear with me while I begin with Greek mythology.  Homer described the Chimera in the Iliad:  “a thing of immortal make, not human, lion-fronted and snake behind, a goat in the middle, and snorting out the breath of the terrible flame of bright fire.”  A monstrous creature, the sight of which foretold any variety of natural disasters, the Chimera was ultimately defeated by Bellerophon, who shot her from the winged horse Pegasus.

One of the achievements of modern biological research has been the ability to create fusions of different organisms by combining embryos from different species — “interspecies chimeras.”  The cells intermix and the organism continues to include cells from different species as it grows.  One of the more famous interspecies chimeras is the “geep,” an organism created in 1984 by scientists who fused a sheep embryo with a goat embryo, and which successfully grew to adulthood.  By any measure, the geep is a peculiar-looking creature, with portions of its skin covered in hair (that grew from the goat embryo) and portions covered in wool (that grew from the sheep embryo).  Ever since their creation, many have debated whether their legitimate scientific value outweighs the very common initial reaction that they are too bizarrely unnatural.

The World's First Geep

Shortly after the cloning of Dolly the sheep in 1997, when public attention was focused on the ability of biologists to circumvent natural processes in the creation of lifeforms, Stuart Newman, a professor at New York Medical College in Valhalla, New York, submitted a patent application for a human-nonhuman chimera.  A copy of the application can be found here and makes for interesting reading (perhaps unusually so for a patent application).  Dr. Newman has always been clear on his motivations for filing such a patent application, asserting that he never had any intention of producing humanzees, bahumans, or any other type of human-nonhuman chimera.  Rather, he was concerned by the legal environment in which the Supreme Court appeared to be giving real effect to the desire expressed by Congress in 1952 that a patent be available for the invention of “anything under the sun that is made by man.”  Indeed, I commented several months ago here that roughly 12% of each of our bodies is estimated to be subject to some form of patent coveage.

Dr. Newman’s motivations in wishing to provoke a thorough consideration of the merits of allowing patents on scientifically engineered metahumans are best expressed with his own words:

As a scientist who came of age in the 1960s, I had witnessed the damage that could be wrought by using the products of research and technology without appropriate constraints.  The list is long….  My objective in filing the application was to help alert a wider public to what was coming down the road in terms of human applications of developmental biology.  In a society with democratic values it should be inarguable that those who pay for scientific research and will eventually experience its effects should be informed of what is in store while there is still a chance to discuss its objectives and influence its course.  As a researcher myself, moreover, I was not oblivious to the possibility of a backlash against my field if it was seen to have violated the social trust.

Dr. Newman’s expectations about the line of biological development in this area were correct.  In 2003, the first human-nonhuman chimera was created by Chinese scientists, in that instance between humans and rabbits (embryos were allowed to develop only for several days before being destroyed).  This has been followed by creations of chimeric human-sheep, human-pig, human-mouse, and other human-nonhuman embryos.

Dr. Newman’s patent application was never granted.  Indeed, it precipitated the very debate he hoped it would.  In April, 1998, Commissioner of Patents Bruce Lehman took the highly unusual (and perhaps legitimately criticized) step of announcing to the public that the application would never be allowed, disdaining it as an attempt to patent “half-human monsters.”  That has been the effective policy of the Patent Office ever since, which has asserted that “[i]f the broadest reasonable interpretation of the claimed invention as a whole encompasses a human being, then a rejection … must be made.”  Indeed, since 2004, this policy has received a measured support from Congress, which has passed the so-called Weldon Amendment every year as a rider to the Commerce, Justice, and Science Appropriations bills:  “None of the funds appropriated or otherwise made available under this Act may be used to issue patents on claims directed to or encompassing a human organism.”

But the Weldon Amendment has been limited to the channeling of federal research funds.  Today, with enactment of the America Invents Act, the U.S. government has gone farther by declaring that “[n]otwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.”  It is worth noting that this is generally consistent with the approach taken by other countries, and that this provision of the Act removes not only human-nonhuman chimeras from being patentable, but also affects other areas of research involving human embryos and fetuses.  While the Act does not make it unlawful for researchers to investigate human-nonhuman chimeras, the result remains important since it removes one of the primary legal mechanisms that would make such research profitable.

The last time Congress overhauled the patent system in 1952, it proudly and poetically declared its intention to allow patents on “anything under the sun that is made by man.”  Today, it limits that a little, but in a way that few find objectionable.

The $62,500 Question

Hammurabi was a ruler of ancient Babylon who perhaps had many achievements, but the one that we remember most is his code of laws.  A black stone monument on which the Code of Hammurabi was inscribed was found in the Persian mountains in 1901 and is currently housed at the Louvre in Paris.  At the time, the concept of the Code was revolutionary:  proclaim publicly what the laws are ahead of time, and publish them so that everyone might see them and know what behavior is expected. 

The Code of Hammurabi is also famous for embracing the principle of lex talonis, setting the punishment for putting out the eye of an equal to be having ones own eye put out and setting the punishment for knocking out the teeth of another man to be having ones own teeth knocked out.  The principle of an “eye for an eye and a tooth for a tooth” later found its way in some form into almost every judicial text, including such religious texts as the Old Testament book of Exodus and the Quran as well as in secular legal systems in such civilizations as Rome.  The concept still exists today in that punishments are generally expected to “fit the crime.” 

So how do we explain last week’s verdict assessing damages against Jammie Thomas-Rasset of $1.5 million for illegally downloading 24 songs from the Kazaa web site sometime in 2007 and violating the copyright of those who owned the songs?  After all, the cost of all 24 songs on legal sites is probably in the ballpark of a measly $50.  She is ordered to pay an average of $62,500 each for songs that most of us pay only a dollar or two for. 

The fact is that advances in technology have very much changed the way in which all forms of artistic expression are sold.  The sale of music was perhaps the first, with albums of music almost being a thing of the past in the reality of how music is sold.  But the increasing publication of electronic books and the new mechanisms for distributing video content will likely see copyright holders trying to extend the principles being laid down now in the music industry. 

Many see little harm in lifting a song here or a video there, and it is this view that is at the heart of the damages award in the Thomas-Rasset case.  In most cases, the damages that are assessed in civil cases are equal to the actual amount that a person lost as a result of the wrongful action.  In the case of downloading songs in violation of a copyright, such actual damages would be small and this concerned Congress when it was considering so-called “statutory damages” for copyright infringement.  Statutory damages may be assessed no matter what the actual value of the loss resulting from the infringement.  As Congress explained in its deliberations over the Digital Theft Deterrence and Copyright Damages Improvement Act in 1999, 

Many computer users are either ignorant that copyright laws apply to Internet activity, or they simply believe that they will not be caught or prosecuted for their conduct.  Also, many infringers do not consider the current copyright infringement penalties a real threat and continue infringing, even after a copyright owner puts them on notice that their actions constitute infringement and that they should stop the activity or face legal action. 

So the level of statutory damages was set at a level designed to get people’s attention:  between $750 and $30,000 (per work) when the infringement is non-willful and up to $150,000 when the infringement is willful.  They appear to have succeeded; the verdict in the Thomas-Rasset case has people’s attention. 

The case is also interesting because of its history.  The RIAA has maintained that it has been willing to settle the case for $5000, an amount that Thomas-Rasset finds unreasonable.  But in the first trial in 2007, she was found to have willfully violated the copyrights and was ordered to pay $222,000 — $9250 per song.  But the judge ordered a new trial because of an error in giving jury instructions, resulting that time in an order to pay $1.92 million — $80,000 per song — an amount that the judge described as “monstrous and shocking.”  At the time, he reduced the total award to $54,000, but a third trial resulted when the RIAA rejected the reduced amount. 

Is the award excessive?  It seems to be, but I was not on the jury and did not hear all the facts; all I really know about the case is what I have read in the newspapers and in the public briefs for the case.  What I do know is that as technology continues to advance and as books and videos are increasingly made available electronically, it is important to be aware that copyright-infringement issues are not theoretical.  Organizations that represent writers, artists, and composers see these technological advancements as a threat to the livelihoods of their members and actively work to ensure that penalties will be meaningful.