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Friday, July 15, 2016

SSRN postings and copyright

The following was sent by Stephen Henderson (Oklahoma) to the Law Prof Listserv; it is reposted here with his permission. It is one experience and could be unique, but it presents something to watch for.

It appears that the corporate takeover of SSRN is already having a real impact.

When I posted a final PDF of an article for which not only do my co-author and I retain the copyright, but for which the contract also includes _explicit_ permission to post on SSRN, I received the typical happy “SSRN Revision Email” saying all was well.  Only when I went to take a look, I found there was no longer any PDF to download at all—merely the abstract.  So, download counts are gone, and no article.  Not the former working version nor the final version.  And then in the revision comments, I found this:

It appears that you do not retain copyright to the paper, and the PDF has been removed from public view. Please provide us with the copyright holder's written permission to post. Alternatively, you may replace this version with a working paper or preprint version, if you so desire. Questions and/or written permissions may be emailed to support@ssrn.com, or call 1-877-SSRNHELP (877-777-6435 toll free) or 1-585-442-8170 outside the US.

So, not only have they completely changed their model, but—at least to me—they gave no effective notice, and they pull papers without asking.  Nobody bothered to _ask_ whether I had permission; they simply took down every version of the article and said nothing.  Alas.  And when I called customer support and someone called back, I pointed out that some profs have hundreds of articles posted for which SSRN doesn’t hold the copyright agreements.  “Are you going to take all those down too?,” I asked.  The answer, in essence, “Those were posted in error.”  Unbelievable.

Of course, for years they have insisted on maintaining “citation counts” for legal papers despite knowing their algorithms don’t work for papers with footnotes as opposed to endnotes.  So, I suppose one should not expect much.  But this is new and much worse.  So, be wary, and long live Bepress Digital Commons!

Posted by Howard Wasserman on July 15, 2016 at 01:16 PM in Howard Wasserman, Teaching Law | Permalink

Comments

Does he provide a name of the article?

Posted by: Joe | Jul 15, 2016 2:36:53 PM

My post was his full email, cut-and-pasted.

Posted by: Howard Wasserman | Jul 15, 2016 2:43:44 PM

I had the exact same thing happen with Big Data's Disparate Impact (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2477899). The star footnote even states that my coauthor and I retain the copyright and it's under a Creative Commons license. Multiple people have asked for the paper in the last two days. No notice or anything. This is outrageous. I emailed SSRN about 36 hours ago and no response.

Posted by: Andrew | Jul 15, 2016 2:52:34 PM

Restored! I called them. They said they previously "weren't enforcing their copyright policy correctly" and now have started to. They have a backlog of complaints, which is why they did not respond to the email. Their position is if a journal has any copyright, joint or whole, and if it is under a noncommerical CC, they need to take it down without written proof. They say that they are "just looking out for the authors," because they are a commercial use and authors can get in trouble. (Color me skeptical.) But that's the issue.

Posted by: Andrew | Jul 15, 2016 3:28:19 PM

I am depublishing every single article from SSRN immediately. Please join me. Only a swift community response will deter these people.

Posted by: Paul Gowder | Jul 15, 2016 3:46:47 PM

Paul is right. If anything, he understates the case. There's no longer a point in deterring SSRN. Its new owners at Elsevier have made their true colors clear, and we as a community canot afford to centralize our scholarly communications in the hands of for-profit publishers.

It is time to depublish all of our articles from SSRN and walk away completely. It doesn't matter if they reverse course now. We can't trust them in the long run. It's time to walk away from SSRN.

Posted by: James Grimmelmann | Jul 15, 2016 4:19:30 PM

In response to Joe, the name of the article doesn't much matter now, because thanks to some angry emails to top SSRN folks, they jumped on it and fixed this for me (just as they have since also done for Andrew). I appreciate that. But it hardly eliminates the problem, though again in fairness we have had some email correspondences regarding how they could improve their processes. Whether they will...I am very skeptical based on history.

Posted by: Stephen Henderson | Jul 15, 2016 4:36:24 PM

Coincidentally (I promise), an open alternative has just come online. Join me in moving over to SocArXive!

https://socopen.org/2016/07/09/announcing-the-development-of-socarxiv-an-open-social-science-archive/

Posted by: Brandon Butler | Jul 15, 2016 4:57:22 PM

Stephen, thanks so much for highlighting this behavior by SSRN. My co-author and I had essentially the same thing happen to us today with this piece: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2629373## It's a paper that was just published in Supreme Court Review, which is a Green Open Access journal (see here: http://sherpa.ac.uk/romeo/search.php?source=journal&sourceid=3878&la=en&fIDnum=%7C&mode=simple). So last week we asked to replace the earlier working paper version with the final published version. Today - Poof! PDF disappeared, no explanation from SSRN that something may be amiss, downloads now impossible. Surely this turn of events is greatly advancing the cause of social science research.

Posted by: Lior Strahilevitz | Jul 15, 2016 5:14:31 PM

I appreciate the responses -- my question arose since I checked the author's SSRN page and could download the most recently edited article.

Posted by: Joe | Jul 15, 2016 5:32:53 PM

Anybody who bought Elsevier's line that "both existing and future SSRN content will be largely unaffected" following the sell-off should now wake up. Elsevier is aggressive in enforcing copyright, and have the resources and scale to be able to make extreme judgements on what constitutes copyright violation and then to put the burden of proof on individual researchers to show otherwise. Fortunately (as if by magic) an open alternative has just appeared in SocArXiv! Exodus anyone?

Posted by: Tony-Ross Hellauer | Jul 15, 2016 5:47:38 PM

I'm waiting on socarxiv until they get their upload process working properly (if anyone from the organization is reading, I am happy to help make that happen in any way I can), in the meantime, I've switched to a combination of zenodo, philpapers, and my personal site.

Posted by: Paul Gowder | Jul 15, 2016 7:55:56 PM

Andrew writes (fourth comment) "They said they previously "weren't enforcing their copyright policy correctly" and now have started to."

I assume this is a typo for "They said they previously "weren't enforcing their copyright policy INcorrectly" and now have started to."

Posted by: Mike Taylor | Jul 18, 2016 6:49:06 AM

^forgot to account for double negative? Andrew said it correctly the first time.

Posted by: anony | Jul 18, 2016 8:43:48 AM

i'm lost. SSRN was always largely made up of pre-prints. you have scant anecdotal evidence of them being overly vigorous with some actually published articles, and then anecdotal evidence that, when presented with clear proof that the author has copyright, SSRN reposts the papers.

is that a disaster and augur of terrible things to come, or a minor workflow issue?

i am an academic and do not work for any publisher, commercial or otherwise, but I find the response to things like this verging on hysteria. is there even a whisper of SSRN backing away from its primary function to date, the hosting of article pre-prints?

a lot of the people on this blog are lawyers. Legally speaking, do I really have the *right* to post someone else's copyrighted material without the copyright holder's approval?

This seems like an incredibly minor issue that is being blown way out of proportion and that, other than what we already knew--Elsevier vigorously enforces its copyrights--tells us very little. Elsevier might well have sent its attorneys after SSRN (and any new projects) when authors post material to which Elsevier owns the copyright, and they would still have been taken down, even if SSRN were still a stand-alone organization. We might not like that Elsevier owns the copyright, but the fact that it enforces its own contracts is something it has to do. Fight that, but don't get bent out of shape about very thin evidence that a good resource has been destroyed.

Posted by: anon | Jul 18, 2016 10:58:58 AM

anon, three things to note:

(1) This is not the first time that SSRN has had trouble with a conflict between its goals as a for-profit platform and its users' goals in distributing scholarship. I'm old enough to remember the time SSRN started watermarking its own URLs on all uploaded papers, the time SSRN prohbited authors from indicating in their papers other places the papers could be found, and the time SSRN started selling printed copies of authors' papers on an opt-out basis. So this news comes against the backdrop of a long history of problematic behavior.

(2) The Authors Alliance reached out to SSRN and Elsevier with a set of eminently reasonable copyright principles. The response was telling: they "would not commit to adopting even one of our principles."

(3) The removed papers were not removed at the request of journals or other interested parties. Instead, SSRN actively sought them out at its own instance. The law could not be clearer that they are not required to do so. Section 512 gives online hosts like SSRN immunity from copyright infringement for user-posted material, and that immunity is not conditioned on "a service provider monitoring its service or affirmatively seeking facts indicating infringing activity."

SSRN still mostly "works"; there are papers, they can be downloaded. But the writing on the wall is clear; SSRN cannot be trusted in the long run with our collective scholarly heritage. No centralized service, and especially no for-profit one, should have that kind of power. It is time for us to put our work elsewhere and to take SSRN out of its privileged place in the cycle of scholarly communication.

Posted by: James Grimmelmann | Jul 18, 2016 1:46:19 PM

Late last week, one of our authors raised concerns about their submission to SSRN. One of our staff reviewed the PDF, and then removed it before ascertaining the author had permission to post it. This was a mistake as the author did have the correct permissions, and we reposted it immediately upon being notified. Some have taken this mistake to suggest there has been a copyright policy change resulting from our recent acquisition by Elsevier. This is not true.

We have always worked to improve our processes, but mistakes do happen. While we worked to improve our compliance part of our submission process, we fell short in thinking through the communications with the authors, which resulted in some authors receiving confusing and contradictory emails about their submissions. We believe that up to 20 papers may have been affected. Nothing has changed in regard to our policies since being acquired by Elsevier. We regret the inconvenience and confusion that we caused.

Posted by: Gregg Gordon | Jul 18, 2016 5:11:28 PM

Gregg, SSRN representatives are telling faculty in response to these problems that "For faculty posting final papers, they will need to start adding a statement in the footnotes that they have a clear copyright and creative commons open access permissions. Or they can email their agreements to SSRN, and they will keep it on file and make sure the papers get approved."

Neither of these have ever been the practice before. Are you saying these statements are untrue? Or are you (once again) "mistaken" in your claim that "nothing has change in our policies"?

Posted by: Dan Burk | Jul 18, 2016 5:28:42 PM

For me, the key quote of Gregg Gordon's reply here is this: "While we worked to improve our compliance part of our submission process..."

SSRN is taking on for itself the role of the copyright police. This is what you'd expect from a traditional publisher, and is not surprising now that it's owned by one.

But this is the web, and the web has the DMCA, which says that online intermediaries who host user content (like SSRN's academic articles) don't have to affirmatively police themselves. Instead, they just have to act on specific takedown requests. In fact, they don't need to have a "compliance part of [their] submission process" at all.

That is the standard SSRN -- or its non-profit open-access successor -- should use.

Posted by: Ansel Halliburton | Jul 18, 2016 6:38:34 PM

I am baffled by the kerfuffle as well. Unless we don't care about copyright? Is that the subtext: we think copyright is a nuisance where scholarship is concerned? I find outrage a bit odd. The fact that they aren't required to take these steps is . . . somewhat beside the point. The DMCA just provides a safe harbor, it does not change the essence of the underlying conduct, which either is, or isn't, infringement.

What exactly is the burden being placed on me as a scholar, now? I need to show that I retain copyright or have permission to post from the copyright holder? Why is that a problem? I have difficulty seeing the problem without a subtext of "sharing good, copyright bad."

Posted by: F | Jul 18, 2016 7:48:59 PM

"What exactly is the burden being placed on me as a scholar, now?"

Good question. That's the problem. We don't know.

1) Copyright vests in the author.

2) In at least six cases that we know of in the past few days, SSRN has assumed that the author did not have the copyright, and removed materials without notice, demanding that the author prove copyright ownership and/or permissions, even when the materials displayed a clear notice as to the author's copyright.

3) There was no demand by a publisher or other potential copyright claimant that SSRN do this.

4) There is no threat of liability that would prompt SSRN to do this (James Grimmelmann's point).

5) This has never been past practice, despite Gregg Gordon's claim that "nothing has changed."

6) If "nothing has changed" then SSRN seems to have a problem communicating the lack of change to their representatives and staff.

So far as I am concerned, it is not a question of outrage, it is a question of inconvenience. I post to SSRN because it is reasonably convenient. There are a lot of other places I can post my work instead. If SSRN is going to demand that I jump through a bunch of hoops to justify distribution of my own work, I will simply put it elsewhere. I feel absolutely no obligation to go to any extra work to supply Elsevier with free content.

Posted by: Dan Burk | Jul 18, 2016 8:11:24 PM

Somewhat different issue, but SSRN is also not very good. Law schools should redirect the money they're spending on SSRN's expensive email updates into a non-profit, open-source, open-access system that's much better -- and cheaper in the long run.

Posted by: Ansel Halliburton | Jul 18, 2016 8:33:06 PM

Fair enough. Numbers 3-5 don't move me, and number 6 strikes me as not really relevant to my decision-making. As for # 2, that's six out of how many, I wonder? In any case, I guess I don't find it all that inconvenient to include information about the copyright when I post things. The amount of time that takes for a single article can't be more than I have spent commenting on this thread. Post elsewhere, absolutely, but I don't know that this is such a Huge Massive Inconvenience in the end. More intrigued by Ansel's comment, that it is "not very good" - assuming this is not a reference to the present controversy, what are its shortcomings? Does this have something to do with the interface or the search function? Are others better? (Is there reason to think that being "non profit, open source, open access" would lead to being better on these particular attributes? Wondering if you are mixing issues a bit.)

Posted by: F | Jul 19, 2016 11:05:53 AM

"In any case, I guess I don't find it all that inconvenient to include information about the copyright when I post things."

You regularly send your publication agreements to repositories for review when posting your work? Where? I am not aware of any other repository that asks for this when an author posts his/her own work, as SSRN now seems to want.

I'm not quite certain what you mean that numbers 3-5 "don't move you." Number 5 suggests that Mr. Gordon is simply not being truthful. Numbers 3 and 4 indicate that there is no legitimate reason for SSRN to reverse the usual presumption, by demanding the author prove ownership. This will become a major annoyance, for example, in cases where there is no written publication agreement and the author is required to prove a negative; i.e., that s/he hasn't assigned the rights elsewhere.

That is why the burden of demonstrating ownership is normally on the party claiming the author no longer holds copyright. But here there aren't any such parties, and no good reason for SSRN to demand such proof.

Posted by: Dan Burk | Jul 19, 2016 7:42:02 PM

In reply to F: Yes, I am mixing issues. I did say "Somewhat different issue". However, this different issue is relevant to the discussion of whether authors should leave SSRN and build an alternative.

When I say SSRN is "not very good", I mean:

1. Usability is bad.
2. It's slow, bloated, and ugly.
3. Browsing and discovery is poor.
4. "eJournals" are just expensive email updates that could be largely, or entirely, automated and made free or nominal-cost.
5. Want to do some research on legal scholarship as a whole? Tough luck, because you can't get any bulk data. I found exactly one paper like this, and it was authored by SSRN staff who had insider access. A truly open access repository would enable this kind of research.
6. It counts citations poorly.
7. SSRN arbitrarily censors papers from search results *if they don't like them*. (This is in addition to, and separate form, the current copyright issues.) Try finding James Grimmelmann's "SSRN Considered Harmful" using the search tool. The paper is still there, but it's invisible to search.
8. There has been very little innovation or improvement over the years. Building a new site on an open source foundation means that innovation is easier. If you have an idea for a new feature, like a new measure of scholarly impact, you can hire a programmer or write it yourself, and submit a patch. You can't do that with SSRN.

Posted by: Ansel Halliburton | Jul 19, 2016 8:57:58 PM

SSRN sent me the exact same response when I questioned why they did not post three articles I submitted last week. They also denied any change in policy (although clearly they have a new policy). They also failed to ask me any questions or notify me before pulling down the full text postings. I am sorry to hear that the problems I encountered are part of a much larger issue.

Posted by: Cynthia Alkon | Jul 20, 2016 12:58:34 PM

Elsevier is a massive for-profit company with a terrible reputation for customer support, reactionary policies toward copyright and fair use, and pricing mechanisms that border on (read, leap far over the line of) price gouging. Just google elsevier criticism. What in the world did we expect?

Posted by: Hither and anon | Jul 21, 2016 11:35:33 AM

Yes, at least for good law articles, there are other alternatives to SSRN, and not only on law journals.

Posted by: Lawrence Leymonth | Oct 16, 2017 5:50:42 PM

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