120.2 GORDON & BREACH LAWSUIT, Bob Michaelson
Christian Boissonnas, Cornell University, cmb3@cornell.edu.
Thank you, Marcia, for including the text of James Kels's letter in the
last _Newsletter on Serial Pricing Issues_. Facts have been few and far
between in this affair and any are much appreciated.
Many of us are frustrated and don't know what to do because of our inabili-
ty to gather reliable information that we can use in evaluating our options
in what is an unprecedented situation. How many of us were around during
the Abel debacle of twenty years ago? It is important, I think, to remember
something that Ann Okerson said recently in a private communication to me
and a few others. I mention this here with her permission. Ann said that
NONE OF US SHOULD BE MAKING THE DECISION OF WHAT TO DO ALONE. We, in fact,
have the considerable expertise of our staffs to draw from, and that of
institutional staff (purchasing agents, lawyers,) not to mention those in
our administrative hierarchies who need to understand and support the deci-
sions we make. I, for one, am not so naive that I would attempt to make so
significant a decision without involving my supervisor and library direc-
tor. I submit that the only thing which is really not permissible is to
just wish that things will turn out O.K. and not prepare contingency plans.
The Kels letter does attempt to give us information that we need. Welcome
though it is, it raises, at least for me, some questions the answers to
which would be critical to my decision on whether to continue to use the
services of Faxon or switch to another vendor.
My first question is: who are the publishers involved? Is Elsevier writing
only on its own behalf or on behalf of other involved publishers as well?
The letter mentions no other publishers except in the third and fourth
lines: "...1995 subscription payments for all publications handled by Faxon
will be held until distributed to publishers; Faxon's existing debt to
publishers will be retired...." If this covers all publishers and all have
agreed to it, even if only in principle, we should know it.
Secondly, the scenario presented in the letter just does not fit with what
I have been told. The difficulty here is that I cannot say that what I have
been told is true since no one who spoke or wrote to me did so for attribu-
tion, and information from some principals in this affair has proved to be
less than reliable. Nevertheless, here is generally what I, and others,
think we understand. Faxon's debt to Elsevier for 1994 subscriptions ac-
counted for about one third of its total debt to publishers. The proceeds
of the sale to Swets and planned sale to EBSCO were insufficient to cover
the debt to publishers. Unless other funds have been secured the math just
doesn't seem to add up. The silence from other publishers, either confirm-
ing or denying that the planned arrangements are satisfactory to them only
increases the uncertainty.
Thirdly, Kels's letter very specifically mentions the 1995 subscription
year. What happens afterward? Librarians are generally unwilling to make
decisions involving the choice of subscription agents for a single year.
What happens in 1996 and beyond?
Finally, what is the exact nature of the relationship between Elsevier and
the other publishers on the one hand and Faxon on the other? Who will own,
or be beholden, to whom? While I am willing to accept as a working hypothe-
sis that it is in everyone's best interest for Faxon to survive, I am not
necessarily willing to agree that this is true under all circumstances.
Under the circumstances, librarians who are still on the fence are not
helped much by this letter. At worst it creates the illusion that the situ-
ation is under control, at least for 1995, and that is simply not good
enough information for making informed management decisions.
A friend of mine said, a couple of days ago, that this situation has dealt
us important conflicts because of our desire to do the right thing. This
friend was wondering how we, librarians, might use the recently developed
ALCTS Acquisitions Section _Statement on Principles and Standards of Acqui-
sitions Practice_ (see at the end of this message for the complete text of
the Statement.) So I wondered too.
I submit that by deferring making a decision regarding Faxon simply in the
hope of things turning out right (in other words, absent real evidence that
they will), librarians are putting themselves in jeopardy with respect to
Principles 1, 2, 3, 11, and 12. I am not arguing here about the people who
have evaluated the situation and have already made contingency plans.
Whether they live to be thankful for their decision, or regret it, will be
known soon enough. Let me expand on what I mean with respect to each Prin-
ciple I cited above.
-- Principle 1. They are not giving first consideration to their libraries,
but to Faxon. The notion that by doing this they are helping their librar-
ies just doesn't wash. Not only that, they are endangering the health of
their principal asset: their staff who will have to pick up the pieces if
things go wrong. The thinking that says that competition is good for us,
therefore we should ensure Faxon's survival for all our benefits rests on
untenable assumptions: One, that we are ever acting in concert when, in
reality, we are always acting out of self interest. Maybe we shouldn't, but
we are. If we weren't we wouldn't be so secretive about all of this. Two,
competition will be harmed if Faxon disappears. That's unlikely given the
number of businesses still around. In fact, it may very well cause some
enterprising soul to enter the business. It wouldn't be the first time.
Three, that there will continue to be enough serials business to keep all
vendors in business. We know that this is just not true. Who, among us,
expects to significantly add new subscriptions over the next five to ten
years? Four, that a widespread defection from Faxon will bring other vend-
ors to their knees. I would like to hear what the vendors have to say about
that. After all, it is their knees. My guess is that they will be very
happy to be going through hell until they satisfy the new demand in return
for getting more accounts. The real question, here, is what will be the
impact on service to their previous customers. I would expect that they
will work very hard to insure that it's not negative.
-- Principle 2. They are not striving to obtain the maximum ultimate value
of each dollar of expenditure. If they were, they would be getting quotes
from other vendors to ascertain the exact cost to them of switching versus
dealing with an uncertain future. That, I submit, would be the responsible
thing to do.
-- Principle 3. They are not granting all competing vendors equal consider-
ation. They are not regarding each transaction on its own merit. I view
"transaction" here in a broad sense, such as a contract for handling sub-
scriptions for one year, rather than each individual transaction. They are
very much favoring one vendor over the others.
-- Principle 11. They are not striving to establish efficient methods for
the conduct of their office. If they were, they would be doing two things.
One, is to negotiate with alternate vendors to change over as efficiently
as possible. Two, they would be implementing the plans they should have
developed following the failure of Abel 20 years ago to minimize the impact
of such failures on their collections and staff. How many have done that?
Be truthful now. At Cornell we haven't either.
-- Principle 12. They are not counseling fellow acquisitions librarians in
the performance of their duties. If they had, they would have reminded them
about the above-mentioned Abel debacle, about contingency plans, and about
the real nature of the relationship between a library and a subscription
agent, which is not based on wishful thinking that things will be all
right.
Failure to abide by our own principles is a serious problem. It reinforces
the commonly held view that we are well-meaning but naive and, in business
matters, lightweights; it doesn't contribute much toward our goal of sell-
ing the professionalism of acquisitions to our institutions. Neither does
much for our self-esteem.
I expect that some will disagree with the points I just made. Some may
even be angered. Discussions about principles often have that effect. But,
ultimately, there should be agreement on these points: Absent sufficient
evidence, one person's conclusion that things will turn out O.K. is no
better or worse than another's belief that the utmost skepticism is in
order. Ultimately each of us must make up his or her own mind based on the
information we have received and solicited. Whether we have done a suffi-
cient job depends on how hard we have thought and how persistent we have
been in our quest. The principals in this affair have certainly not helped
their cause as their information has been insufficient and often contradic-
tory. It is hard to imagine that candor would have been more destructive.
We are left, at this point, uncertain about whom we can trust.
***** ***** ***** ***** *****
ALCTS Acquisitions Section's _Statement on
Principles and Standards of Acquisitions Practice_.
An acquisitions librarian:
1. gives first consideration to the objectives and policies of his or her
library.
2. strives to obtain the maximum ultimate value of each dollar of expendi-
ture.
3. grants all competing vendors equal consideration insofar as the estab-
lished policies of his or her library permit, and regards each transaction
on its own merits.
4. subscribes to and works for honesty, truth, and fairness in buying and
selling, and denounces all forms and manifestations of commercial bribery.
5. declines personal gifts and gratuities.
6. uses only by consent original ideas and designs devised by one vendor
for competitive purchasing purposes.
7. accords a prompt and courteous reception insofar as conditions permit to
all who call on legitimate business missions.
8. fosters and promotes fair, ethical and legal trade practices.
9. avoids sharp practice.
10. strives consistently for knowledge of the publishing and bookselling
industry.
11. strives to establish practical and efficient methods for the conduct of
his or her office.
12. counsels and assists fellow acquisitions librarians in the performance
of their duties, whenever occasion permits.
120.2 GORDON & BREACH LAWSUIT
Bob Michaelson, Northwestern University, rmichael@nwu.edu.
[First posted on PAM electronic discussion group. Used with author's per- mission. -ed.] From _New York Times_, Science Times section (Tues., Aug. 16, 1994): (sum- mary rather than direct quotation) Federal Judge Leonard Sand ruled yesterday that Henry Barschall's articles in _Physics Today_ and in the _Bulletin of the APS_, ranking rival journals by price and value, were constitutionally protected free speech. Gordon & Breach and Harwood Academic Publishers [note -- as PAM members should real- ize these publishers are part of the same conglomerate] contended that the articles were promotional materials cloaked in the guise of academic inqui- ry and thus constituted misleading advertising. Judge Sand's ruling says "The articles examine an issue of considerable public significance, the dilemma facing scientific libraries that must cope with stagnant budgets and escalating subscription costs..." The fact that the AIP and APS "stood to benefit from publishing Barschall's results -- even if they intended to benefit -- is insufficient by itself to turn the articles into commercial speech." I hadn't realized that those publishers had even tried to bring suit in the U.S.; I had only heard about the European lawsuits.
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