Re: L.Rev (C) Release

On 10/29/99, Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> On Wed, 27 Oct 1999, Richard Schafer <schafer[_at_]mail.utexas.edu> wrote:
> >
> > Although I can't speak for that particular journal, as a former journal
> > editor I can make some guesses:
> >
> > 1. Journals really want to be the first to publish articles. We
> > would refuse out of hand any submission that had ever been
> > published elsewhere, including on a website.
> >
> *********
>
> This is very interesting, since I and virtually everyone else I know put
> up draft working papers on the Web in order to get comments on our work.
> In fact, there is an organization (SSRN) which has over 11,000 draft
> papers on the Web at last count.

To follow up just a bit, the empirical study that Mark and I did on 8 years of patent validity litigation was available on SSRN in preliminary draft form, and the entire draft manuscript was downloaded 300 times. This, in turn, led to numerous suggestions, a number of which we incorporated and caused the ultimate product to be much better. It was then published in print by the AIPLA Q.J., which was able to publish a significantly better print version than if we had not subjected the draft to criticism and comment as we did. Similar results occurred as a result of a presentation of the draft paper at a Stanford conference. Law journals have every right to expect that they have the right to publish the first print version, and the *license* (not assignment) they receive should honor that right and give them assurances that they have the first print rights, as well as a license giving them a right to sublicense to Lexis, Westlaw, and other electronic databases. That license, including the right to sublicense, should be exlusive to the print journal for a reasonable period beyond their first print edition, and they should continue to have a nonexclusive right to continue doing similar things into the future. But the license should not remain exclusive for more than a reasonable time after the journal's first print version. This really gives the journal everything it needs, but permits the authors to retain rights which reasonably should be theirs.

John Allison
<allisonj[_at_]mail.utexas.edu> Received on Fri Oct 29 1999 - 22:53:29 GMT