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Copyright Transfer Agreement

By louridas in News
Fri Jun 02, 2000 at 06:18:10 PM EST
Tags: Freedom (all tags)
Freedom

I had a paper published in an academic journal; prior to publication, I had to sign a copyright transfer agreement, which, among other things, prohibits making the paper available on a public server. Wishing to put the paper on the web, I resorted to putting it on my home page, but with a twist: it is encrypted. Interested readers are free to download it, but they have to send me an e-mail to send them back the key to unlock it. Do you think this can legally stand? Any relevant experience, or any opinions on the matter? The details are here.


The exact wording of the copyright form is that copies are allowed provided they are "not offered for sale and are not distributed in a systematic way outside of their employing institution (e.g., via an e-mail list or public file server)". But then it goes on to say that "posting of the article in a secure network (no t accessible to the public) within the author's institution is permitted". I proceeded under the assumption that an encrypted channel does constitute a secure network, and that my home page might reside on a public file server, but the encrypted contents are not made public in a systematic way.

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Copyright Transfer Agreement | 33 comments (33 topical, editorial, 0 hidden)
"...not offered for sale and are no... (none / 0) (#9)
by _cbj on Fri Jun 02, 2000 at 01:48:51 PM EST

_cbj voted 1 on this story.

"...not offered for sale and are not..." Well there you go, don't put a price on it and anything else is irrelevent.

... (none / 0) (#12)
by homeless on Fri Jun 02, 2000 at 02:00:19 PM EST

homeless voted 0 on this story.

Your argument centers, unfortunately, around a rather tenuous definition of "secure network" which I don't think would hold up in court. As well, the license forbids the systematic distribution of the work via email; you can argue that sending a key isn't systematic if you do it manually for every request, but on both points I believe you're on shaky ground. You may be semanticly correct, but the courts usually don't have patience for such things. Unless you're a billion-dollar company, of course. IANAL, nor am I all that awake.
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'SYN! .. SYN|ACK! .. ACK!' - the mating call of the internet --Bert Hubert

Re: ... (none / 0) (#21)
by louridas on Fri Jun 02, 2000 at 08:18:58 PM EST

That was the thinking: that /I/ and not an automatic bot processes each request; as for whether the "secure network" argument would up in court, it is usually the case that cryptographic arguments do not decide cases; they fall back to common law (see Anderson's "Liability and Computer Security - Nine Principles". Now, then, suppose somebody places locked safes with known contents where anybody who is interested can pick them up; but only after asking will they be send the key to open it. Do you freely distribute the contents? I think you only distribute the safe.

[ Parent ]
Re: ... (none / 0) (#29)
by homeless on Sat Jun 03, 2000 at 04:58:48 PM EST

You're not freely distributing the contents of the work in question, granted. However, I still don't think you're getting around the copyright issue- as a counter analogy, say you're a Windows developer and you make copies of Win98 available on a web site, and only send the license key to those who ask for it. Are you only distributing the CD itself, or are you redistributing the OS?

----------------------------------
'SYN! .. SYN|ACK! .. ACK!' - the mating call of the internet --Bert Hubert
[ Parent ]
Keep doing what you are doing and i... (none / 0) (#1)
by mattc on Fri Jun 02, 2000 at 02:10:16 PM EST

mattc voted 1 on this story.

Keep doing what you are doing and if they find out and get angry just take it off the web site. It is easier to apologize than it is to ask permission. :-)

The reason they don't want you to give it out is so schools are forced to pay $$$ for a copy of the academic journal if they want to read it (this is usually the case, anyway). If people can just download it freely off the web then the journal won't make as much money.

The only problem I see is the phras... (none / 0) (#4)
by Ozymandias on Fri Jun 02, 2000 at 02:19:05 PM EST

Ozymandias voted 1 on this story.

The only problem I see is the phrase:

"within the author's institution"
Even if your site is located on a server within your institution, the people viewing it are not.
- Ozymandias
An interesting attempt, to be sure.... (3.00 / 1) (#11)
by genehack on Fri Jun 02, 2000 at 02:28:38 PM EST

genehack voted 1 on this story.

An interesting attempt, to be sure.

As an academic myself, I've run up agaanist the same issue a couple of times, and gritted my teeth and signed when I had too. I did see (somewhere on the 'net) someone saying that if you write something along the lines of "I reserve the right to re-distribute this work via my personal web site" on the form, and then delay sending it back in until the last possible moment, the publishers usually let it pass.

Re: An interesting attempt, to be sure.... (none / 0) (#23)
by louridas on Fri Jun 02, 2000 at 08:25:10 PM EST

Perhaps the problem lies with the academic journal institutions; some are clearly more open to electronic distribution than others. For instance ACM has no problem; but other publishers, and this probably has to do with where they come from, do have a problem. There was an interesting article in The Economist a couple of weeks back.

[ Parent ]
Re: An interesting attempt, to be sure.... (none / 0) (#28)
by genehack on Sat Jun 03, 2000 at 11:00:59 AM EST

Perhaps the problem lies with the academic journal institutions; some are clearly more open to electronic distribution than others.

From my point of view, it's currently more split on the basis of field of study. Physics, computer science, and math fields have had electronic archives of papers for a number of years (or archives of very late state pre-prints, which are basically the same thing). The bio-sciences, on the other hand, are just starting to try to work this out (see the PubMed Central flap), and it's causing a lot of static (again, see the PubMed Central flap).

[ Parent ]

In the text you link to it also say... (3.00 / 1) (#10)
by Anonymous Zero on Fri Jun 02, 2000 at 02:31:20 PM EST

Anonymous Zero voted 1 on this story.

In the text you link to it also says: ...and further that posting of the article as published on a public server can only be done with Elsevier's written permission. ...so why not just ask them if you can put this paper on your web site? If they are reasonable about it I'm sure they'd let you provided you add some copyright text to the article. If they refuse then I would make some noise I were you.

Most copyright and disclaimer texts are boilerplate lawyer-speak added to protect said publication and its trademarks. Sometime copyrights and disclamiers can seem unreasonable but it wouldn't hurt to simply ask the parties concerned if what you're doing violates the spirit of the agreement.

Re: In the text you link to it also say... (none / 0) (#22)
by louridas on Fri Jun 02, 2000 at 08:22:39 PM EST

I am already obligated to put a copyright notice on the paper---which I did. Now about my asking them; I would not like to think I am cheating them, I am just trying to make something a bit more practical.

[ Parent ]
Interesting... (none / 0) (#14)
by extrasolar on Fri Jun 02, 2000 at 02:34:14 PM EST

extrasolar voted 1 on this story.

Interesting

Good idea, but I feel the courts mi... (none / 0) (#7)
by hooty on Fri Jun 02, 2000 at 02:42:38 PM EST

hooty voted 1 on this story.

Good idea, but I feel the courts might have a problem with it....

Hmmm. I think I would have tried to... (none / 0) (#2)
by Skippy on Fri Jun 02, 2000 at 03:01:16 PM EST

Skippy voted 1 on this story.

Hmmm. I think I would have tried to work around the copyright transfer. I imagine that in the interest of getting your (I assume) quite good content that the journal would have waived the requirement. Or perhaps you could have offered not to make the information publicly available for a particular time period so that people would still purchase their journal (I'm sure that's the reason for the clause prohibiting you from making it available publicly).

As for the arrangement you have made, I don't think it would last for a second if put to a legal test. As always, IANAL and YMMV.
# I am now finished talking out my ass about things that I am not qualified to discuss. #

Hrm, don't think it'll generate muc... (none / 0) (#5)
by SgtPepper on Fri Jun 02, 2000 at 03:21:01 PM EST

SgtPepper voted -1 on this story.

Hrm, don't think it'll generate much debate, it seems clear that the authour is in the right. Now if the publication goes after him, /that'll/ be a story :)

I get the impression that the inten... (none / 0) (#8)
by Rasputin on Fri Jun 02, 2000 at 04:16:01 PM EST

Rasputin voted 1 on this story.

I get the impression that the intent is to make the article freely available only within the author's employing institution. Everybody else would have to buy the journal to read it. It would depend on the specific wording of the transfer agreement, but these things are usually fairly tightly worded.
Even if you win the rat race, you're still a rat.

I think you're just playing a game ... (3.00 / 1) (#13)
by plastic on Fri Jun 02, 2000 at 04:28:12 PM EST

plastic voted 1 on this story.

I think you're just playing a game of words here that would not stand up in court. What you are really saying here is 'I proceeded under the assumption that an encrypted document residing on a public server constitutes a secure network', which is incorrect. It's not how the information is presented (i.e. English, French, substituting all the e's for x's), but rather how the information is transmitted that counts here. Now, if you required someone to authenticate with a name and password before downloading the document via SSL, then it's no longer a public server, unless you make the name and password publicly available. Or is it? Of course, the best thing to do here would have been to refuse to sign the agreement instead of trying to squirm around it after the fact.

Re: I think you're just playing a game ... (3.00 / 1) (#20)
by louridas on Fri Jun 02, 2000 at 08:12:18 PM EST

The reason for the assumption is that encryption is not always used to transmit a secret. It can (and in some protocols is) used to establish a communication channel; of course whether this wins in a court process is another matter; Anderson's "Liability and Computer Security" is quite illuminating in this aspect.

[ Parent ]
My gut feeling is that you can't do... (none / 0) (#6)
by jackyb on Fri Jun 02, 2000 at 05:03:51 PM EST

jackyb voted 1 on this story.

My gut feeling is that you can't do this. It allows you to make copies for personal acquaintances or colleagues but I can't see how casual emails from interested parties could fall under this category. Why the encryption, anyway; you could just tell people that you will email them the article on request. No difference. :)

Re: My gut feeling is that you can't do... (none / 0) (#19)
by louridas on Fri Jun 02, 2000 at 08:08:00 PM EST

In fact sending copies after an e-mail request is fairly standard academic practice; usually all solicitations for published material are honoured by the authors, provided they do have the material available.

[ Parent ]
Hm, I think that, as long as you ke... (5.00 / 1) (#3)
by fluffy grue on Fri Jun 02, 2000 at 06:05:56 PM EST

fluffy grue voted 1 on this story.

Hm, I think that, as long as you keep the decryption key available only on a per-request basis, that you have a legal leg to stand on, even if you use weak encryption (nudge nudge, wink wink, *cough*ROT13*cough*).

In the meantime, copyright transfer sucks. :(
--
"Is not a quine" is not a quine.
I have a master's degree in science!

[ Hug Your Trikuare ]

Crypto is not relevant here (none / 0) (#15)
by Decklin Foster on Fri Jun 02, 2000 at 07:13:28 PM EST

#include <ianal.h>

I think that the encryption is just a distraction here. What you are doing, (assumin you use strong crypto and don't mail out the key in cleartext) is exactly equivalent to emailing the paper to anyone who requests it in email. So, you should be asking yourself if *that* is allowed.

Re: Crypto is not relevant here (none / 0) (#18)
by louridas on Fri Jun 02, 2000 at 08:04:28 PM EST

My understanding of the copyright agreement is that it is, as it is done in a personal, and not in a systematic basis.

[ Parent ]
Be upfront ...Deception is not a good start (none / 0) (#16)
by kefaa on Fri Jun 02, 2000 at 07:26:00 PM EST

Consider the value a journal brings if everything they publish is found on the net. They are merely trying to protect their value in the market, much like you.

I would suggest you try the following:
Option 1 - Get permission. That seems to be the easiest.
Option 2 - Link to the journal, if possible
otherwise, stick to your agreement.

Integrity is more important than self promotion. You should be proud to be published, even if we have to buy the journal to see it.




Re: Be upfront ...Deception is not a good start (none / 0) (#17)
by louridas on Fri Jun 02, 2000 at 08:02:34 PM EST

I wouldn't think it is a matter of deception. Consider if a reader asked me for a copy: I would be perfectly entitled to send her back an electronic one. The only thing that really changes is that I now send the key instead of the copy per se.

[ Parent ]
Systematic? (none / 0) (#24)
by Logos on Fri Jun 02, 2000 at 11:08:21 PM EST

I've been a lawyer, but am not any longer, so take what I say with a bag o salt. As others have mentioned, crypto is a red herring --- systematic is the key. Think about it from a functional perspective: what is this provision trying to do? It seems pretty clear that this provision is about controlling distribution of the content enough to ensure that people who are interested in the article go to the journal to read it. If you have an automated system, sending out keys to anyone who emails the right address, then you have the *capacity* to undermine the goal of this provision. On the other hand, if you are replying by hand, this kind of personal attention is not likely (even in an electronic age) to reach enough people to undermine circulation of the journal. Note: I agree with the first post - why not take this to the journal first? No reason not to clear this personally, rather than tempt legal fate.

Re: Systematic? (none / 0) (#27)
by louridas on Sat Jun 03, 2000 at 05:46:36 AM EST

Exactly---I am replying by hand. As I have said in some other comments here, the only real difference is that I am turning a small request (for the paper) from the interested readers and a large reply from me (the paper) to a pull by the readers and a short reply from me (the key). Why didn't I contact the publishers first? I guess because I am wary of pre-emptive backslash.

[ Parent ]
Missing the point...You've made an agreement! (1.00 / 1) (#25)
by SwellJoe on Sat Jun 03, 2000 at 03:03:41 AM EST

By signing the agreement, you gave your word that you would follow it to the letter and intent. If you wish to do something other than live up to your end of the agreement, you need to contact the people you made the agreement with and work with them to renegotiate that agreement.

You're asking the wrong question. You should have asked last week, or the week before, or whenever you signed this agreement. And your question should have been: "Should I sign this agreement which restricts my publication rights of my article?"

I don't see that there is any question at this stage in the game. You've got a contract, and you are legally (and morally, in my opinion) bound to uphold it.

Sorry to be so blunt, but the issue isn't really debatable on the grounds of "I think I've found a loophole". Even if you had, the intent of the agreement was clear...good faith suggests you should follow it even if there is a loophole.

And that's all I have to say about that.

Re: Missing the point...You've made an agreement! (none / 0) (#26)
by louridas on Sat Jun 03, 2000 at 05:35:41 AM EST

You are quite right. I signed the agreement, and I knew very well what I was signing. But I did not then take to looking for loopholes and evade the letter, or what's more, the spirit of the agreement. I am not giving the paper away to everybody for free; I am giving the everybody to those who ask for it; and this the agreement permits me to do. It is just that it is more convenient to me to mail only a key than the whole paper every time somebody asks for it. In fact there would be an easier way to get around the agreement, if I wanted to do something like that: post the paper unecrypted in a public server, make a change or two and then sign the agreement. But this would be really tweaking the rules.

[ Parent ]
copyright and availability (none / 0) (#30)
by gdwyer on Sun Jun 04, 2000 at 05:52:43 PM EST

I agree with many others that you should ask. The encryption makes no difference.

Why not just post that the paper's available by e-mail and that you will send it to anyone who asks? The journal would like it if you post the abstract.

I have signed similar agreements and, as your quote of the agreement indicates, I don't even think about the occasional request for a copy. There's nothing systematic about it and people generally ask only if they don't have the journal, their library doesn't have it and their interlibrary loan works poorly.


Re: copyright and availability (none / 0) (#31)
by louridas on Mon Jun 05, 2000 at 02:10:36 AM EST

Sending the article via e-mail is what I have been doing. As I explain in other comments I have posted here, the real difference is that this arrangement just makes my life a bit easier: instead of sending the whole file to interested readers, I only have to send a key---in essence, the readers get to do some of the work.

[ Parent ]
Rewrite it (none / 0) (#32)
by bill_mcgonigle on Mon Jun 05, 2000 at 02:01:53 PM EST

The copyright applies to the text, not the concept. The article is theirs, the ideas/research/conclusions are yours. Rewrite the thing and make it available on your website.

Re: Rewrite it (none / 0) (#33)
by louridas on Mon Jun 05, 2000 at 07:09:29 PM EST

This would be a solution. People in the academia, however, need to have access to the original paper---consider the PhD pages to be filled, for example, by quoting verbatim.

[ Parent ]
Copyright Transfer Agreement | 33 comments (33 topical, 0 editorial, 0 hidden)
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