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Tuesday, October 03, 2006

SSRN and Law Review Copyright

Recently I realized that the law review of one of my forthcoming articles allows positing of my draft on ssrn until the day of publication, but requires removal of the draft once the volume is out. The policy is a new one and the law review had a lawyer recently redo some of their copyright agreements to account for this change.

I am wondering: A) how common is this requirement among law reviews? B) What is the logic behind it and should it make a difference to the author?

Posted by Orly Lobel on October 3, 2006 at 01:19 AM | Permalink


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Daniel -- which Top 20 Law Reviews don't keep copyright? Serious question, would be useful back pocket info in article bargaining.

Posted by: curious | Oct 4, 2006 8:09:00 PM

I always bargain for either retaining copyright in my work or in having the right to distribute my final works of scholarship in any manner I see fit, including SSRN. Most of the time, journals have been willing to agree. A little bargaining goes a long way.

Although journal editors often state that Westlaw/Lexis requires them to keep copyright or limit distribution, this is not true. It is hard for journal editors to argue that the need to keep copyright or limit distribution when many Top 10 and Top 20 journals do not do so.

So the moral of the story -- bargain hard. Propose a counter-contract. In many cases, preserving your rights in your work is as easy as asking for them.

Posted by: Daniel J. Solove | Oct 3, 2006 5:50:43 PM

At a glance, this appears to be the product of an over-eager attorney that may not fully understand the purpose of Law Review. As a member of the Michigan State Law Review, I consulted with (now former) Senior Articles Editor Brian Saxe regarding the redrafting of our own publication agreement. Rather than take the traditional legal approach (maximizing the rights of your client), I suggested to him that he instead think about the goals of the parties involved (improving access and fostering education, rather than merely profit). Unless I am mistaken, he took a different approach from most law reviews and, instead of providing an assignment of copyright to the L. Rev., he instead left ownership with the author (or school as the case may be) and retained only a non-exclusive right to publish. If I am mistaken, and the contract does provide an assignment, many rights to republish (with attribution to the original) are granted to the author.

This contract was praised a last year by Dan Hunter on openaccesslaw.org, which appears to be currently offline. A google cache can be found here.

Posted by: Patrick Anderson | Oct 3, 2006 2:54:04 PM

I pretty sure law reviews get paid by per view, not per cite (why would Lexis care if a book cited your law review's article?--Lexis gets paid when people access the article itself, so that is when Lexis pays law reviews). For academics for want to post on SSRN, how will law reviews continue to exist without Lexis/Westlaw money? Print copies are a loss for law reviews; the only way they make it is donations and Lexis/Westlaw money.

Posted by: former editor | Oct 3, 2006 2:48:12 PM

As the Senior Articles Editor for The George Washington Law Review, I can say that our policy is to encourage posting on SSRN. Like Professor Markel said, our citation count can only benefit from it.

I'm not sure if Lisa's comment on law reviews making money from Lexis and Westlaw on a "per-download" basis is correct. I don't know that one can "download" an article from either service (in the traditional sense), so it could be a per-print basis or a per-view basis. I was under the impression, however, that we make money on a "per-cite" basis (that is, every time we get cited, we get money), which is an added benefit of allowing authors to post on SSRN, if doing so really does increase citations.

Posted by: Mark Knights | Oct 3, 2006 9:00:02 AM

If you'd be so kind as to let us know which journal this is, I'll be sure to send future submissions elsewhere. Like you, I discovered belatedly that Tulane Law Review has a similar policy.

Posted by: Rick Bales | Oct 3, 2006 8:48:47 AM

I agree with the others. You should be able to post a (final or close to final) draft of the piece on SSRN even after the piece comes out. Tell the law review that if they're interested in maintaining or elevating their citation count, then that should cut in favor of ssrn, etc.

Posted by: Dan Markel | Oct 3, 2006 8:26:59 AM

I think Dan Hunter's article Walled Gardens surveys the issue. Froomkin has also started a wiki on law review copyright. There are some pieces in the Lewis & Clark open access symposium.

An interesting thought--how far will they push their derivative rights? Can you post old drafts?

This restriction of access is troubling, and will tend to cut legal scholarship off from other fields. I think scholars in economics, psychology, etc., would be very interested in your work, Orly, so I think it would be a deep disservice to have it locked up in proprietary databases rather than accessible via SSRN, Google, etc.

Posted by: Frank | Oct 3, 2006 8:20:43 AM

The law reviews make money from lexis and westlaw on a per-download basis, and they worry that posting a copy on SSRN after publication will stop people from getting it from lexis and westlaw. Fight it: Law reviews aren't in this business to make a buck from your writing. At least they shouldn't be.

Posted by: lawlawlisa | Oct 3, 2006 4:36:50 AM

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