Few enterprises generate as much frustration among their suppliers and consumers as the scientific publishing industry. The business model is so unfair it’s comical:

  • Governments, foundations, universities and private companies provide grants to researchers for scientific research;
  • Researchers spend weeks, months, and sometimes years drafting papers based upon the results of their research;
  • The papers are submitted to the publishers;
  • The publishers send the papers out to other researchers, who peer review the papers free of charge;
  • The publishers pick the best papers and publish them in their journals, without paying the authors;
  • The publishers charge governments, foundations, universities, private corporations, and researchers to access the papers.

As PZ Myers says, “This is not to deny that the professionals who publish and edit at Nature Publishing Group aren’t an essential part of the institution of publishing, but honestly, science journal publishing has the most incomprehensibl[y] screwed up model for making money that you can find just about anywhere.” In England, free participation in the peer review process amounts to a subsidy to the industry worth nearly a quarter-billion pounds a year; in the United States, the subsidy is likely equal or greater. The peer review process is so unfair to the researchers that alternative models were explored recently in, ironically, a Nature Chemical Biology editorial.

The grip of the top scientific journals, though, is like the weather: everybody talks about it, but nobody does anything about it. While there are dozens of journals out there, there are only a handful of prestigious journals. If you’re a researcher trying to make an impact and win the Nobel Prize, what are you going to do? Not publish your groundbreaking work in Nature?

It seems the University of California is asking its researches to do just that:

The University of California system has said “enough” to the Nature Publishing Group, one of the leading commercial scientific publishers, over a big proposed jump in the cost of the group’s journals.

On Tuesday, a letter went out to all of the university’s faculty members from the California Digital Library, which negotiates the system’s deals with publishers, and the University Committee on Library and Scholarly Communication. The letter said that Nature proposed to raise the cost of California’s license for its journals by 400 percent next year. If the publisher won’t negotiate, the letter said, the system may have to take “more drastic actions” with the help of the faculty. Those actions could include suspending subscriptions to all of the Nature Group journals the California system buys access to—67 in all, including Nature.

The pressure does not stop there. The letter said that faculty would also organize “a systemwide boycott” of Nature’s journals if the publisher does not relent. The voluntary boycott would “strongly encourage” researchers not to contribute papers to those journals or review manuscripts for them. It would urge them to resign from Nature’s editorial boards and to encourage similar “sympathy actions” among colleagues outside the University of California system.

The threat is significant. As the letter from the University of California points out,

UC Faculty and researchers author a significant percentage of all articles published in NPG journals and are a major force in shaping the prestige of its publications. In the past six years, UC authors have contributed approximately 5300 articles to these journals, 638 of them in the flagship journal Nature. Using NPG’s own figures, an analysis by CDL suggests that UC articles published in Nature alone have contributed at least $19 million dollars in revenue to NPG over the past 6 years—or more than $3 million dollars per year for just that one journal. Moreover, UC Faculty supply countless hours serving as reviewers, editors, and advisory board members.

It’s enough to make me wonder if the University of California’s threat of a boycott is too significant.

The primary enforcement mechanisms for antitrust violations in the United States are two sentences in the Sherman Act:

[Section 1] Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. …

[Section 2] Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony …

The Sherman Act has produced almost as many court opinions (over 17,200) as there are protein-coding genes in the human genome (under 25,000). I won’t pretend that I can decode for sure if anything about the Nature Publishing Group / University of California standoff violates either of those two sentences or their progeny of opinions; you often have to get to the Supreme Court before you know if a given antitrust claim is viable or not. Sometimes you have to get to the Supreme Court just know if a particular antitrust claim is subject to the “per se” rule — which prohibits certain conduct regardless of its effect — or the “rule of reason,” which looks to the anticompetitive effects of the conduct before deciding whether or not it violates antitrust law.

But a few issues come to mind.

First, the University of California certainly thinks Nature is a monopoly — they use the word in their letter — and NPG’s copyright policy suggets why:

NPG does not require authors of original (primary) research papers to assign copyright of their published contributions. Authors grant NPG an exclusive licence to publish, in return for which they can reuse their papers in their future printed work without first requiring permission from the publisher of the journal. For commissioned articles (for example, Reviews, News and Views), copyright is retained by NPG.

When a manuscript is accepted for publication in an NPG journal, authors are encouraged to submit the author’s version of the accepted paper (the unedited manuscript) to PubMedCentral or other appropriate funding body’s archive, for public release six months after publication. In addition, authors are encouraged to archive this version of the manuscript in their institution’s repositories and, if they wish, on their personal websites, also six months after the original publication.

In one sense that’s just creative accounting — NPG doesn’t own the copyright for research papers, but they own an exclusive license to publish the work thereafter, and so control how and when the paper can be used. (A “personal website” of a researcher is typically where papers go to die; if the paper isn’t in a journal, it won’t be found.)

Nature, though, isn’t the only journal in town; in addition to other paid journals, there are now dozens of open-source scientific journals out there, and their legitimacy is increasing every day. But the Nature journals are among the most prestigious, particularly in biology and its subfields. NPG thus publishes the journals everyone wants to be in and everyone needs to read.

Does that make it a monopoly in the market of scientific publishing? Maybe so. Problem is, being a monopoly isn’t illegal; what’s illegal is being a monopoly and abusing that position to increase or to maintain monopoly power. As described by the Court of Appeals for the D.C. Circuit in the Microsoft case:

Section 2 of the Sherman Act makes it unlawful for a firm to “monopolize.” 15 U.S.C. § 2. The offense of monopolization has two elements: “(1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.” United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966).

US v. Microsoft Corp., 253 F. 3d 34, 50 (D.C. Cir. 2001)(emphasis added). The issue here would be whether Nature did anything to acquire or to maintain its monopoly power. Raising rates on the University of California to an unaffordable level seems contrary to such a plan; most monopoly claims are brought by competitors who claim that the monopolist has either engaged in predatory pricing or has otherwise precluded competition. Here, the problem isn’t that there’s no competition, it’s that the competition isn’t as prestigious.

Second, looking on the other side of the dispute, an agreement among University of California researchers not to submit ~800 papers a year to, or to peer review many times that many papers in, Nature journals may well be a “conspiracy in … restraint of trade or commence.”

It does not matter, for example, that goal and likely effect of the proposed boycott is to benefit consumers in the end by driving subscription prices down:

The Supreme Court’s treatment of monopsony cases strongly suggests that suppliers (under Southwestern Bell’s theory of the market, the location owners) are protected by antitrust laws even when the anti-competitive activity does not harm end-users. In its leading monopsony case, the Supreme Court stated:

It is clear that the [anti-competitive buyer’s price-fixing] agreement is the sort of combination condemned by the [Sherman] Act, even though the price-fixing was by purchasers, and the persons specially injured under the treble damage claim are sellers, not customers or consumers.

. . . .

The statute does not confine its protection to consumers, or to purchasers, or to competitors, or to sellers. Nor does it immunize the outlawed acts because they are done by any of these. The Act is comprehensive in its terms and coverage, protecting all who are made victims of the forbidden practices by whomever they may be perpetrated.

Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219, 235-36, 68 S.Ct. 996, 92 L.Ed. 1328 (1948) (citations omitted).

Telecor Comm. v. Southwestern Bell, 305 F.3d 1124, 1134 (10th Cir. 2002).

Thankfully for the University of California, it’s unlikely that the proposed boycott is a per se violation of antitrust laws, given the Supreme Court’s disfavor of per se antitrust claims in the context of boycotts:

[T]he specific legal question before us is whether an antitrust court considering an agreement by a buyer to purchase goods or services from one supplier rather than another should (after examining the buyer’s reasons or justifications) apply the per se rule if it finds no legitimate business reason for that purchasing decision. We conclude no boycott-related per se rule applies and that the plaintiff here must allege and prove harm, not just to a single competitor, but to the competitive process, i. e., to competition itself.

Nynex Corp. v. Discon, Inc., 525 US 128, 135 (1998). Then again, the above might protect the University of California’s refusal to purchase the Nature journals, but encouraging their researchers not to participate in the journals is another matter entirely. Moreover, though it’s a lot harder to win a “rule of reason” case, it’s not impossible, and a court could find that the University of California researchers conspired to restrain trade in scientific publications.

Sure, the University of California has a number of defenses, including their comparatively small role in the overall scientific publishing market. Moreover, the State of California is almost certainly immune from monetary antitrust damages under the Eleventh Amendment and Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001), but immunity for the researchers — i.e., the ones actually carrying out the boycott — isn’t nearly as clear. Just last week the Ninth Circuit again considered the circumstances under which a state agency may be liable under antitrust laws. It’s not as blanket an immunity as many think. (See more on antitrust immunity here and in California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97 (1980).)

Perhaps the bigger question is if Nature Publishing Group has the guts to go down that road — suing your largest supplier and consumer isn’t the best business model — but my suspicion is that they would at least consider it.  They may see the writing on the wall, just as other publishing and media companies do. Record and film companies, for example, haven’t hesitated in suing their customers.

That possibility is almost too unfair to believe: the University of California likely has no legal recourse against the Nature monopoly, while the monopoly might have recourse if the free labor calls it quits. But that’s the product of one hundred years of antitrust law evolution in the hands of pro-corporate courts. As Justice Holmes, who shaped many of these antitrust laws, said: “this is a court of law, not a court of justice.”