Elsevier sold me a Creative Commons non-commercial licensed article

http://rossmounce.co.uk/2015/03/06/elsevier-illegally-sold-me-a-creative-commons-non-commercial-licensed-article/

by simonster • 11 years ago

117 45 11 years ago

rossmounce.co.uk

simonster2• 11 years ago

Mirror: https://thewinnower.com/papers/elsevier-illegally-sold-me-a-...

legulere• 11 years ago

This doesn't need to be illegal. Creative Commons doesn't forbid dual licensing (content also being offered under another licence)

cstross• 11 years ago

In this case the license was Noncommercial no-derivatives. Wiley, the article's publisher, were obeying the license. Elsevier were not; why was a third party selling (commercially) an article they had no license to sell?

anfedorov• 11 years ago

It's possible that Wiley received one license while Elsevier received another. Just because one publisher got CC CN ND doesn't mean that's the only license that was ever granted.

simonster2• 11 years ago

It's possible the authors signed a contract that allowed commercial use by Wiley that somehow extends to Elsevier. (That seems a bit odd since they are competitors, but it's not outside the realm of possibility.) Even if that's the case and it's technically legal, it seems disingenuous to sell the article, since the authors presumably paid a fee to make it freely available to everyone.

gojomo• 11 years ago

Because the work can be multiply-licensed, even potentially by any one of the authors without the consent of the others, you can't really say what "the" (singular controlling) license was without research that excludes all the possibilities. You can only say what "a" license was.

(It's certainly possible Elsevier overstepped its rights… but no one making that allegation has yet supplied enough evidence to be sure that's what happened.)

TehCorwiz2• 11 years ago

Then the document they sold should have had the relevant commercial license text included. If the document still contained the CC text then they can't really use that defense can they?

icebraining2• 11 years ago

Yes, they can. They don't need to include their license with the work. When you buy a DVD, you don't get a copy of the licensing terms between the authors and the record company, either.

Just because the CC license was included, that doesn't mean Elsevier is distributing the work under it. And in fact, there's a simple explanation: it's a license for the reader.

anigbrowl4• 11 years ago

Just for accuracy's sake, it's not criminal unless you can show that it was both willful and netted more than $1000 in any 180 day period: http://www.copyright.gov/title17/92chap5.html#506

dragonwriter7• 11 years ago

it's not criminal unless you can show

And, only then if "you" are a federal prosecutor. But "illegal" doesn't just mean "criminal".

sp3322• 11 years ago

if the infringement was committed —

(A) for purposes of commercial advantage or private financial gain;

anigbrowl4• 11 years ago

That's cumulative with B or C.

mdbco• 11 years ago

It looks like the corresponding author of this article (Didier Raoult) is also the Editor-in-Chief of the the journal (Clinical Microbiology and Infection), so it seems entirely possible that he might have relicensed the article to Elsevier when the journal moved over there from Wiley. This would be permitted, since Creative Commons does allow for dual licensing.

delinka4• 11 years ago

In the case of the author licensing his work, he may license it in any way he wants, to as many entities as he wants and the licenses don't care and cannot disallow this.

Your comment reminds me of the people who complain that a software author released some code under GPL, then produced a second project based on their own GPL'd code without releasing the source of the second project.

dragonwriter7• 11 years ago

In the case of the author licensing his work, he may license it in any way he wants, to as many entities as he wants and the licenses don't care and cannot disallow this.

Actually, its quite possible for licenses (though probably not gratuitous licenses) to disallow this; a license can, for instance, by its terms be either completely exclusive or include some exclusionary provisions. In fact, such licenses are very important in quite a wide range of business scenarios.

btown• 11 years ago

It's also almost certain that somewhere in Elsevier's terms, they require a copyright license, and require the same of their member journals, which would mean by accepting any member journal's fine-print guidelines for publication, the authors granted a separate license to Elsevier to propagate, store, and resell the content. IANAL but I'd assume that Elsevier's lawyers aren't stupid.

czr80• 11 years ago

I was a bit confused as to how an article published by Wiley could even be on an Elsevier site, but it seems that the journal is transferring from Wiley to Elsevier. Guess they messed up the licensing when transferring the articles.

matthewmacleod2• 11 years ago

It's not illegal, though it may be copyright infringement. But it also may not be; the fact that something is licenced under CC-NC doesn't preclude it being licensed under other terms too.

The author is a frequent and vociferous critic of commercial publishing. I think we'd all like to see more open science, but I'm concerned that this sort of shallow and poorly-researched accusation is doing the cause more harm than good.

dragonwriter7• 11 years ago

It's not illegal, though it may be copyright infringement.

matthewmacleod2• 11 years ago

Sorry, that wasn't a clear sentence. I should have said "It's not [necessarily] illegal [to sell a work licensed CC-NC]"

shakethemonkey2• 11 years ago

Copyright infringement is a civil tort, not necessarily illegal. The law defines infringement but does not prohibit it, but merely provides mechanisms of civil remedy.

Fair use is not infringement.

You may be thinking of criminal copyright infringement. That is a different matter entirely and would fall under what people consider as "illegal."

marincounty• 11 years ago

Why do I feel like this happens a lot?

I know a lot of individuals that scan documents, manuals, defunct school books and sell them on Ebay. They just scan the document, and state they own the copyright. They don't just claim ownership to the scanned usually PDF; they claim they own the original copyright.

There's a Seller on Ebay who digitized Chicago School of Watchmaking(old trade school closed down in 60's, or 70's?). He's been selling it for years. If he sees competition from other sellers, or free versions online he claims copyright infringement to Ebay, and to "offending" domain owners. Ebay takes down alleged copy written item, and website owners usually cave in too. (It's not easy to verify older copy written material.)

I wonder if it's a crime to state copyright ownership on a piece of work if the original owner of copyright died, and didn't transfer the copyright? Or, the work was never copy-written?

icebraining2• 11 years ago

Copyright law itself creates strong incentives for copyfraud. The Copyright Act provides for no civil penalty for falsely claiming ownership of public domain materials. There is also no remedy under the Act for individuals who wrongly refrain from legal copying or who make payment for permission to copy something they are in fact entitled to use for free. While falsely claiming copyright is technically a criminal offense under the Act, prosecutions are extremely rare. These circumstances have produced fraud on an untold scale, with millions of works in the public domain deemed copyrighted, and countless dollars paid out every year in licensing fees to make copies that could be made for free. Copyfraud stifles valid forms of reproduction and undermines free speech.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=787244

stox• 11 years ago

He holds copyright to the container in which he put the scans. He also holds copyright to the pattern of bits he scanned. If the free, and/or competitive versions, are copies of his scans, he is correct. He does not hold copyright to the words which his pattern of bits might conveniently translate to.

http://chart.copyrightdata.com/Colorization.html

incompatible• 11 years ago

Scanning doesn't generate a new copyright, in the USA at least, since it's not considered "creative" enough. See for example http://www.likelihoodofconfusion.com/who-owns-the-copyright-...

spiritplumber• 11 years ago

Notify the author and coordinate action with them (legal, social, military, up to you). Ultimately it's their call.

rossmounce• 11 years ago

Update: Another day, another Elsevier website illegally selling articles https://thewinnower.com/papers/another-day-another-elsevier-...

Elsevier sold me a Creative Commons non-commercial licensed article

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