Elsevier sold me a Creative Commons non-commercial licensed article | Hacker News Reader

Elsevier sold me a Creative Commons non-commercial licensed article

rossmounce.co.uk

117 pointssimonster45 comments

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.

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.

> 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.

If only the owner of the copyright can claim infringement (as is the case in the US), then the point is moot. Is J. Doe going to sue herself for violating a license by releasing under another license?

One can contractually agree to make some else the exclusive source for something while retaining the copyright. In which case, if you then offer it to someone else then that "exclusive" party can sue you for breach of contract. Of course this has nothing to do with any of the open source or CC licenses.

Now we're off into contract law instead of copyright law.

Licenses are contracts. That's what a license is.

> If only the owner of the copyright can claim infringement (as is the case in the US), then the point is moot.

An exclusive license is a transfer of those rights under copyright to which it is exclusive from the licensor to the licensee. So the licensee would be, for the rights in question, the copyright holder, even if they were not the creator and the holder of the remainder of rights under copyright (see 17 USC Sec. 101, 201).

Right. The "owner of the copyright" doesn't have to be the original author.

Kind of. More that individual rights can have ownership transferred too, separately from each other and the original copyright, and any owner of the rights can claim infringement of the rights they own.

> Actually, its quite possible for licenses (though probably not gratuitous licenses) to disallow this;

No, it's not. Licenses do not restrict rights of the copyright holder, ever. They are a (conditional) usage license for people that are NOT the copyright holder.

EDIT: Yes, if the author is no longer the copyright holder, then this can occur - but this would certainly be a very strange and misleading way to describe that scenario.

> No, it's not. Licenses do not restrict rights of the copyright holder, ever.

Sure they can. You can definitely give someone an exclusive license, typically for a set period of time. You have agreed by contract not to license to anyone else, even though you are still the copyright holder. A license is simply a kind of contract, and you can contractually agree to whatever you want -- unless restricted by law otherwise, and there are certainly restrictions on legal contracts, but exclusive licenses are not at all unusual and entirely legal. Presumably you were compensated adequately for giving up (usually temporarily) the ability to license to anyone else.

Of course, open source styles of licenses including CC, are never exclusive, because this sort of license is offered to the public at large. When you CC-license, or GPL-license, or apache-license your work, you're are offering the work to the public at large under that license, that's what those kinds of licenses are for.

But traditional licenses are usually offered to a particular party, and they certainly can be exclusive.

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.

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

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?

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.

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.

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.)

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?

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.

Good point. That explanation would put the article's premise on shaky ground.

How can one verify that a vendor has been licensed to sell a work if they don't include their license with the author?

Maybe a street vendor has been licensed to sell the just-appeared-in-theater movie that they are selling?

It seems someone who acquires a work has no responsibility (or most of the time, ability) to verify a proper license.

> How can one verify that a vendor has been licensed to sell a work if they don't include their license with the author?

One generally is not expected to, unless one is the author or author's representative, in which case one doesn't need the vendor to provide the license agreement.

> Maybe a street vendor has been licensed to sell the just-appeared-in-theater movie that they are selling?

A more valid analogy here would be "maybe the multiplex cinema selling movie tickets has been licensed to screen the just-appeared-in-theater movie that they are showing".

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

> it's not criminal unless you can show

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

if the infringement was committed —

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

That's cumulative with B or C.

I don't think so. The syntax is (A); (B); or (C).

Yeah, you're right - I guess I misread it when I reopened the page again earlier.

No, a series separated by commas or semicolons and a conjunction between the penultimate and the final item is equivalent to the same series with that conjunction between each item, so the "or" between B and C means that the sequence is A or B or C, not A and (B or C).

You're right, I reread it in a hurry and projected my original reading onto it by mistake. Sorry for the confusion.

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

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?

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

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

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-...

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.

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.

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

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

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."

> Copyright infringement is a civil tort, not necessarily illegal.

Civil torts are illegal, even though they are not criminal.

> The law defines infringement but does not prohibit it, but merely provides mechanisms of civil remedy.

That is incorrect, the law prohibits torts like infringement as much it prohibits criminal offenses. (It may do so by simply specifying the consequence of violation of the prohibition without separately stating the prohibition independently, but this is typical of criminal laws as well -- which are often phrased as "whoever does <prohibited act> shall be punished with <punishment>", so if we accepted the prohibition/consequence distinction for torts, we'd have to do so for crimes as well, and say crimes are not "illegal".)

> Fair use is not infringement.

Sure, but that's a non-sequitur.

> You may be thinking of criminal copyright infringement.

No, I'm just not falsely limiting "illegal" to "criminal".

Sorry, civil torts are most definitely not illegal. By "illegal" one means prohibited or punishable by the state. They are not.

Copyright infringement is defined in 17 USC 501. Nowhere is ordinary infringement prohibited, but civil remedies are provided in 17 USC 502-505. There are many circumstances under which civil claims may not be pursued, but also much lower standards of proof.

17 USC 506 makes willful infringement punishable under certain specific circumstances, which are a small subset of infringements.

> No, I'm just not falsely limiting "illegal" to "criminal".

Neither was I.

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

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

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