[NOTE: Frances Edwards, contact listed for the Gordon & Breach press release published in newsletter 191, is Corporate Communications Advisor for G&B. -Ed.]
After several questions raised to us, we'd like to clarify the background and reasons why we are appealing the recent decision by the U.S. District Court in New York not to grant us injunctive relief in Gordon and Breach v. American Institute of Physics/American Physical Society.
As in previous court decisions in other countries, the U.S. court acknowledged that G&B had shown there are superior procedures for determining a journal's cost-effectiveness. The judge also said that he would have "serious concerns" if AIP/APS were to assert that Barschall's methodology proved AIP/APS products superior in value or quality. Indeed, the court noted that "Defendants apparently now acknowledge that Barschall's analysis does not demonstrate abstract product superiority or quality."
Similarly, the German court previously stated that it is "highly questionable whether a sound conclusion about the cost-effectiveness of scientific journals can be derived from a statistical analysis of 'cost per character' in relation to the number of citations." The Swiss court also held that it is "quite questionable whether 'cost per character' can, in fact, make any statement at all about the scientific value of a physics journal and its significance to research and teaching."
In short, no court has ever held that the Barschall methodology is a valid measure of value, quality, or overall cost-effectiveness. In fact, the study's attempt at comparison was based on the formula: (Cost per Thousand Characters) divided by (SCI's Impact) to achieve the Cost/Impact figure that Barschall used to rank Publishers.
The gravest error was manifested in the divisor of the SCI Impact. 7 out of our 11 journals included in the survey do not have SCI Impact figures available, although they are cited journals. These 7 journals are not research journals, i.e. the type of journals not carried by SCI, yet they were included in the table ranking of publishers by Cost/Impact. This means that, for these seven journals, the Cost per Thousand Characters was divided by Zero, resulting in an obviously meaningless figure.
The French court found in favor of G&B, stating that AIP/APS, "by publishing in their journals articles which, in scientific guise, have as their goal the denigration of competing journals by representing them as more expensive and less influential than those published by themselves, committed acts of unfair competition by illegal comparative advertising, for which they must make reparation."
We'd like to offer our response to the questions about this case that have been raised many times in past years.
1. Why didn't G&B just publish its opinion, with its own supporting data, about Barschall's methodology, and let the readers of the survey decide on its validity? In other words, why can't we respond in an open forum of academic debate?
Opinion and supporting data, no matter how true, could not compete with the imprimatur of scholarly research afforded the Barschall study as a consequence of its publication in Physics Today as unbiased academic research. As decided by the French court, the Barschall study was in fact an advertisement for its journals published in the form of an unbiased academic research study. Documents presented in the U.S. court clearly show close collaboration between Barschall and the AIP/APS business officers to construct and publish the study during the years they were forced to increase their subscription rates and in time to enclose with subscription renewals. Unlike a normal academic study, Barschall's survey was never subject to peer review. All the courts clearly recognized that AIP/APS used the Barschall surveys for promotional -- that is, commercial -- purposes. This would be tantamount to a company like Kraft being made to be content simply to advertise its own response to an ad by, say, General Foods that included not only wrong data in its comparison of their products, but which was also presented as a health study authored by a renowned health specialist. The Lanham Act protects against this kind of unfair, false comparative advertising, and we are striving only for fair representation in any comparison that is targeted to our common market. Non-profit societies are not exempt from the Lanham Act when they promote their products.
2. Why did G&B find it so important to respond to the survey?
Upon its publication and distribution, there was immediate and widespread interest among many who expressed concern about pricing with reference to the Barschall study. We place great weight on the response from our subscribers, especially from the decision-makers of major academic institutions. We faced a mounting negative reaction resulting from a survey which we know to be a misrepresentation of the value of journals to our readers. In the past, we viewed the societies and commercial publishers as complementary to one another since their publications supported the general advancement of the physical sciences, and commercial publishers devoted their efforts toward creating the forums for new, smaller, areas of research that may ultimately expand to major disciplines like liquid crystal research. The survey created a false impression of the value of journals which we believe adversely affects the dissemination of scientific knowledge. We also saw the likelihood of acceptance by the distinguished membership of the AIP/APS of a methodology endorsed by the publishing division of its own society.
3. Will G&B address the complaint that it is trying to restrict adverse commentary on its pricing and publishing policies?
That our legal attempts at self-defense have been labeled by our opponents as litigious and an attempt to censure comment is purely self-serving and unworthy of those who favor a fair, yet competitive business climate. We have carefully restricted our complaints to those who have used wrong information and yet have urged boycotts against our publications based on this information. We had no other choice but to make clear that intentionally using this misinformation in this way is wrong, unfair, and, ultimately, illegal. We were obligated to protect our business, editors and employees, just as any business unfairly faced with boycotts would do. Moreover, the trial showed there were only a few such instances over a ten-year period, hardly constituting a pattern of suppressing comment. As we showed at the trial, in these instances G&B was correcting misinformation about its prices, as a result and impetus from its academic editors, not from a non-existent corporate policy to stifle debate.
Further Background:
Although this dispute began with the refusal of our request for correction of incorrect prices and page counts regarding our journals, it soon became a serious question about the methodology used in a study designed as an infomercial for society journals. This was immediately apparent by the inclusion of our 7 non-SCI journals in the ranking of publishers, as though they had SCI figures to use in the Cost/Impact formula, and, moreover, that this formula, touted as the most significant measure of the journal's cost-effectiveness, was based on SCI's impact factor when SCI covers only about 5% of the world's journals and does not calculate an impact factor for all journals that are covered.
Lastly, all experts at the trial testified that the only effective cost comparison was with similar journals covering the same audience, and that one couldn't compare a journal with broad coverage of many specialties against one which covers only one. If the competitive goal is realizing the demise of commercial journals, then there is no cost-effectiveness if a specialist must subscribe to thousands of irrelevant pages to get those few pages relevant to his/her area.
192.2 AIP AND APS RESPONSE TO G&B STATEMENT
Marc Brodsky, American Institute of Physics,
brodsky@aip.org; Thomas McIlrath, American Physical Society,
mcilrath@aps.org
After an extensive trial before Judge Leonard B. Sand in federal court in New York, all claims of error by Gordon and Breach Science Publishers ("G&B") concerning the Barschall survey were rejected and judgment was awarded to the American Institute of Physics ("AIP") and The American Physical Society ("APS"). The G&B statement reflects efforts to try to evade the finding that G&B's claims have been decisively shown to be entirely without merit. Indeed, the statement includes many extraordinary misstatements. We respond to a few here:
1. G&B claims that the AIP and APS observations about G&B's attacks on those who criticize its journals are "self-serving and unworthy of those who favor a fair, yet competitive business climate." In fact, however, the court, commenting on the evidence that "G&B has engaged in an aggressive corporate practice of challenging any adverse commentary upon its journals through threatened and actual litigation," found that "[t]his evidence persuasively demonstrated that the present suit is but one battle in a `global campaign by G&B to suppress all adverse comment upon its journals.'" The court made findings concerning a variety of circumstances in which G&B has threatened librarians, scholars, and other non-profit societies. In short, contrary to G&B's claims the record at trial showed many documented examples of G&B's efforts at intimidation.
2. G&B attempts in its statement to resurrect its claims of errors in the Barschall survey. But G&B had the opportunity to present its claims of error to the court and Judge Sand rejected them all, finding that "Barschall's methodology has been demonstrated to establish reliably precisely the proposition for which defendants cited it -- that defendants' physics journals, as measured by cost per character and by cost per character divided by impact factor, are substantially more cost-effective than those published by plaintiffs." (emphasis omitted) Indeed, the court found that "regardless of the measures used, G&B's journals consistently scored at the bottom" in terms of cost-effectiveness and that "[n]o evidence was received contesting [this] analysis."
G&B claims in its statement that the "gravest error" in the survey derives from the fact that 7 of the 11 G&B journals in the survey did not have "impact factors" (a measure of citation frequency published in the Science Citation Index) and that the cost-effectiveness ratio for these journals was thus calculated by dividing by zero, yielding an "obviously meaningless figure." But G&B's assertions bear no relation to Barschall's work. While it is true that 7 of the G&B journals in the survey did not meet the stringent standards for inclusion in the SCI database, Barschall did not calculate a cost-effectiveness ratio for these journals. G&B's claims otherwise are entirely false. Indeed, as noted by the court, "[p]laintiff made no serious effort to attack the data relied upon by Barschall or his method of calculation...." G&B's assertion that it was necessary to engage in litigation in order to correct errors thus rings hollow given the absence of any such evidence of errors at trial.
3. G&B claims in its statement that the Barschall study was "an advertisement for [AIP and APS] journals published in the form of an unbiased academic research," citing a French decision. What G&B does not tell the reader is that the French decision was issued in 1991 and is now being examined on appeal. Moreover, G&B does not inform the reader that Judge Sand held in 1994 that the articles published by AIP and APS were not advertisements, but rather were speech fully protected by the First Amendment. The court reaffirmed this decision in 1995 in responding to a G&B motion to reopen the issue, observing that "[p]laintiffs have failed to make [the necessary] showing and now seek back-door entry to revisit the issue ...." In short, G&B's disparagement of the AIP and APS is entirely misdirected.
4. G&B states that Judge Sand indicated that "serious concerns" would be present if the defendants were to assert that Barschall's methodology proves that their product is superior to plaintiffs." But this hardly represented a victory for G&B. The reason is that the court held that "plaintiffs adduce no evidence that defendants failed to qualify their claim precisely...." In short, not only was the survey itself fair and accurate, but all the defendants' references to the survey were found to be completely without reproach. In any event, witnesses for both G&B and the societies testified that APS and AIP journals are generally recognized as the premier journals in their fields.
The fact of the matter is that AIP and APS published an article on a matter of pressing concern to the scholarly community -- the escalating prices of journals -- and G&B could not tolerate the revelation of accurate information about its journals. The G&B statement unfortunately reveals that G&B intends to continue to ignore the court's wise advice: "If G&B believes that librarians will make more optimal decisions if they consider information other than that provided by defendants, its solution is to augment rather than censor the available truthful information."
We would be happy to provide a copy of Judge Sand's decision to any readers who are interested.
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Statements of fact and opinion appearing in the Newsletter on Serials Pricing Issues are made on the responsibility of the authors alone, and do not imply the endorsement of the editor, the editorial board, or the University of North Carolina at Chapel Hill.
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The Newsletter on Serials Pricing Issues (ISSN: 1046-3410) is published by the editor through Academic and Networking Technology at the University of North Carolina at Chapel Hill, as news is available. Editor: Marcia Tuttle, Internet: tuttle@gibbs.oit.unc.edu; Paper mail: 215 Flemington Road, Chapel Hill NC 27514-5637; Telephone: 919 929-3513. Editorial Board: Deana Astle (Clemson University), Christian Boissonnas (Cornell University), Jerry Curtis (Springer Verlag New York), Isabel Czech (Institute for Scientific Information), Janet Fisher (MIT Press), Fred Friend (University College, London), Charles Hamaker (Louisiana State University), Daniel Jones (University of Texas Health Science Center), Michael Markwith (Swets North America), James Mouw (University of Chicago), and Heather Steele (Blackwell's Periodicals Division). The Newsletter is available on the Internet, Blackwell's CONNECT, and Readmore's ROSS. EBSCO customers may receive the Newsletter in paper format.
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