Elsevier illegally sold me a Creative Commons non-commercial licensed article

[Update 2015-03-13: I have blogged further about this here and provided a recap here. This post has been viewed over 10,000 times. Clearly some people want to sweep this under the carpet and pretend this is just ‘a storm in a teacup’ but it did happen and people do care about this. Thanks to everyone who spread the word.]

Today, Elsevier (RELX Group) illegally sold me a Creative Commons Attribution-NonCommercial-NoDerivatives licensed article:

Colson, P. et al. HIV infection en route to endogenization: two cases. Clin Microbiol Infect 20, 1280-1288 (2014).

I’m really not happy about it. I don’t think the research funders will be happy about it either. Especially not the authors (who are the copyright holders here).

Below is a screenshot of how the content was illegally on offer for sale, for $31.50 + tax.

2015-03-06-175622_1286x907_scrot

To investigate if it really was on sale. I decided to make a test purchase. Just to be absolutely sure. Why not? The abstract looked interesting. The abstract was all I was allowed to read. I wanted to know more.

Below is the email receipt I received confirming my purchase of the content. I have crudely redacted my postal address but it’s otherwise unaltered:

receipt

So what’s the problem here?

The article was originally published online by Wiley. As clearly indicated in the document, the copyright holders are the authors. The work was licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International license (CC BY-NC-ND 4.0).

The terms of this widely used license clearly state: “You may not use the material for commercial purposes.

Wiley respect this license. They make this content freely available on their website here. The authors, or their research funder or institution probably paid Wiley money to make sure that the article could be made freely available to the world.

But tonight, Elsevier were selling it to me and all the world via their ScienceDirect platform.
This is clearly an illegal copyright infringement.

I have tweeted Elsevier employees @wisealic & @TomReller to see how I can get a refund for my purchase at the very least. This article should never have been on sale.

I have also contacted the corresponding author (Didier) to see what his thoughts are.
I do hope the authors will take legal action against Elsevier for their criminal misdeeds here.

Showing 4 Reviews

  • Placeholder
    Andrew Gray
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    1

    Speaking as someone who personally believes strongly in the value and importance of open access - and does not believe hybrid OA is the best tool we have for it - I am still somewhat taken aback by the rhetoric used here. Calling for legal action and criminal sanctions as a way to report what is essentially a software bug?

    It's abundantly clear (to me, at least) that this is a systems mistake by Elsevier. A hybrid journal with ~30 OA articles was moved from one publisher to another; someone simply ingested it into the new publishing system without checking the metadata properly (or, given the rarity of hybrid journal transfers, they may not even have thought a check was needed). The specific license of the articles is more or less irrelevant to what happened - though, yes, of course an article with a CC-BY-NC license should not have been sold.

    Problems like this do happen - and given the way hybrid OA is being shoehorned into existing systems, are almost bound to happen. They're *errors*, and the response to an error is to tell someone so they can fix it, not to assume conspiracy and immediately publish about their "criminal misdeeds". This is as true in scientific publishing as it is in any other part of science.

    This review has 1 comments. Click to view.
    • Hontas%20 farmer
      Hontas Farmer

      Question, suppose this was an action taken by SCRIP a house often tarred by Beall's list. Would you try to defend them for selling articles that were published OA?

  • Hontas%20 farmer
    Hontas Farmer
    Originality of work
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    0

    This article gets right to the point and makes it pretty clear that Elsevier was selling something that they weren't supposed to be.  The license that this article was sold under explicitly prohibits this type of redistribution.      These are the words of the relevant CC license. 

    • No additional restrictions — You may not apply legal terms or technological measures that legally restrict others from doing anything the license permits.

    So as you see there is no license given for this sort of transaction and if the author wants to protect their rights they should sue Elsevier for royalties. 


    Royalties are what authors get in any other publishing process.  If readers are paying then authors should get royalties even ...no...especially in academic publishing. 




    This review has 1 comments. Click to view.
  • Placeholder
    David Fiander
    0

    From the Wiley Copyright and Open Access Licences page: "Use of Wiley Open Access articles for commercial, promotional, or
    marketing purposes requires further explicit permission from Wiley
    and will be subject to a fee."

    So, Elsevier paid for a commercial redistribution license for the paper, added some mark-up to that license fee, and quite legally, and very happily, charged you for it.

    This review has 3 comments. Click to view.
    • Placeholder
      Matthew Menzenski

      That doesn't make any sense. If an author publishes an article under an explicitly non-commercial, no-derivatives license, how can Wiley then sell Elsevier a commercial redistribution license for that paper? Surely that constitutes a violation of both terms of the license.

    • Hontas%20 farmer
      Hontas Farmer

      So publisher A can charge $$$ or $$$$ for an article justifying that by saying it is to make the article free forever. Then Publisher A can sell the article to publisher B (No matter the terms of the license) and that's OK. To me that sounds a bit dishonest?

    • Hontas%20 farmer
      Hontas Farmer

      As a matter of fact according to the relevant license.. NonCommercial — You may not use the material for commercial purposes.
      NoDerivatives — If you remix, transform, or build upon the material, you may not distribute the modified material.
      No additional restrictions — You may not apply legal terms or technological measures that legally restrict others from doing anything the license permits.

  • Placeholder
    Jeffrey Beall
    Originality of work
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    -3

    I think you are taking an honest mistake and trying to turn it into something much worse than it really is. You say, "I do hope the authors will take legal action against Elsevier for their criminal misdeeds here." This is an outrageous and false accusation. No criminal act was committed. If anything, this was at worst a minor civil infraction, not a criminal one.

    Why are you so transfixed on Elsevier? OA zealots like you are so hung up on a single publisher when there are dozens of predatory publishers that are truly hurting and defrauding honest researchers. I think it's negligent to focus on this tiny honest mistake when predatory publishers are threatening to bring down the entire scholarly communication system.

    This review has 2 comments. Click to view.
    • Hontas%20 farmer
      Hontas Farmer

      Is it not at least mildly dishonest for OA publishers to charge money to the authors so the article can be free to read forever then charge people to read it?

      • Hontas%20 farmer
        Hontas Farmer

        I would add one more thing. Why call this person a zealot of OA. Wiley and Elsevier also publish some OA journals and charge a very large sum for the service. Isn't it all the worst if they are involved in shenanigans>

    • Placeholder
      Kelly Smith

      Mega publishers like Elsevier take advantage of authors by charging them OA fees for individual articles while continuing to sell the journals in which those "OA" articles are published to Libraries for exorbitant fees. To then also charge customers for OA licensed material is not an "honest mistake." Out of control subscription journal prices are a bigger threat to the scholarly communication system than fake scam-artist "publishers." We can educate faculty how to avoid the scam artists, but there's no way for us to avoid the ballooning journal prices that eat up our entire collections budgets.

      • Placeholder
        Jeffrey Beall

        Well, you done an excellent job of repeating the hackneyed dogma, but you haven't done any real thinking. Publisher's big deal packages with differentiated pricing have enabled libraries of all sizes to make more journals than ever before available to their patrons. What price increases have occurred are due chiefly to the expansion of science (nanoscience, genomics, etc.) and to the increase in the number of researchers needing to publish to certify themselves. I realize it's easy to blame decreased library budgets on a couple successful publishers, but it is not honest. Tell the whole story. Stop telling half-truths. Do some real analysis instead of repeating the dogma and then waiting for applause.

License

This article and its reviews are distributed under the terms of the Creative Commons Attribution 4.0 International License, which permits unrestricted use, distribution, and redistribution in any medium, provided that the original author and source are credited.