Assume Sincerity and Principles
Monday, March 9th, 2009 by Patrick Ross
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John Conyers, first and foremost, is a great friend to artists and creators. He is also a great man who has accomplished marvelous things in his many decades as a public servant. But just the other day he was attacked by two people who in a better world would correctly view him as a compatriot in freedom and transparency. These two individuals accused Chairman Conyers of selling himself, and the Chairman has been forced to respond.
This is where online “debate” has brought us, to the point where the leader of a major House committee — a man who has been a champion of civil rights and civil liberties — has to take the time to post a blog(!) defending himself from corruption charges because groups who agree with him on an issue have given him $9,000.
Here is what Lawrence Lessig and Michael Eisen wrote in a Huffington Post blog entry titled “Is John Conyers Shilling for Special Interests?” regarding the fact that the $9,000 in donations was twice that received by those not co-sponsoring Conyers’ bill:
This is exactly the kind of money-for-influence scheme that constantly happens behind our backs and erodes the public’s trust in government.
I’ll address the bill in question in a minute, but Conyers’ post centers on the corruption charge, and that’s key.
That kind of accusation, in a well-read forum such as the Huffington Post, is reckless and irresponsible. As a journalist I received nine awards for investigative journalism, one a first-place award from the Society of Professional Journalists for an investigation involving 70,000 donations to presidential primary campaigns in 2004. (Try reading that many individual donation forms without your eyes falling out.) Transparency is important and I felt good about bringing to light connections between politicians and donors. But I also knew that one can’t assume a politician acts a certain way because of donations, and had I drawn such an assumption in my reporting on that series, I not only would have gone without an SPJ award, I would have been fired.
Of course, law professors can’t be fired for writing a blog entry.
Here’s part of the response by Chairman Conyers:
To hear Professor Lessig tell it, I introduced a bill that is utterly without merit and entirely the product of shady special interest dealing. Without any evidence to support his contention (other than my receipt of what can only be described as modest contributions from publishers), he labels my motivations for introducing this bill as “corrupt,” accuses me of “shilling” for “Big Paper,” and dismisses the whole thing as nothing more than a “money for influence scheme.” This even though one of the very columns cited by Professor Lessig reviews the campaign financing at issue and concludes that “the numbers here are not large” and that “I don’t think the numbers in the MAPLight report support Lessig and Eisen’s contention that the bill is a ‘money-for-influence scheme.’”
Apparently, on the basis of this one piece of legislation he dislikes, Professor Lessig is willing to wave away my forty years of fighting against special interests, including for example my authorship (along with then Senator Barack Obama) of an anti-lobbying law that established reform groups labeled a “landmark” law. I have supported public financing legislation favored by Professor Lessig since it was first proposed.
Professor Lessig has a history of this, by the way. When he considered last year running for the U.S. House seat vacated by the death of Congressman Lantos, he announced his potential candidacy by posting an online video in which he accused beloved activist and state legislator Jackie Speier, with absolutely no foundation, of corruption. Fortunately the absurd charge had no effect, and Ms. Speier was elected to the seat by a huge margin.
In the Internet age, it seems to be fair game to throw out an accusation and expect the one you’re accusing to defend himself or herself. That is what happened here; apparently Chairman Conyers felt leaving the blog unanswered, to remain on the Internet forever, wasn’t an answer. (Note, that hateful post won’t go away, will be found by Google searches far into the future, and the post has no indication anywhere on the page that Chairman Conyers has responded.)
Professor Lessig and Mr. Eisen have a right to their opinions. They feel Chairman Conyers’ bill, HR-801, fails to meet the openness test they associate with research at least partially funded by the federal government. I disagree. I support
Chairman Conyers’ effort, and feel it isn’t appropriate for the federal government to use publishers and their peer reviews as a quality-control mechanism, outsourcing work without payment.
If NIH were serious about making sure federally funded research were made public, they would allow every grant recipient to upload their papers the moment they were written. NIH obviously recognizes their site would be so littered with poor scholarship that no one would use the site; the trust wouldn’t be there. They want to appropriate the peer-review trust without doing it themselves.
I believe Chairman Conyers is sympathetic with this argument, but I know he takes issue with the fact that copyright owners saw their rights diluted without say of his committee. He writes this:
First, there is a serious process issue at stake here. My bill would restore longstanding federal copyright policy in this area. It reverses a provision slipped into an appropriations bill in the middle of the night, with no consultation with the Committee which is actually supposed to write the law in this area, the Judiciary Committee, which I chair. Thus, Professor Lessig simply ignores that this so-called “open access” policy was not subject to open hearings, open debate or open amendment in Congress and itself represents the sort of process-compromised special interest provision that he generally rails against. Now the special interests here may be highly worthy, but an openness hawk such as Professor Lessig ought not countenance procedural gimmicks just because they yielded a favored result.
When Professor Lessig said he was leaving the debate over copyright to crusade against corruption instead, he suggested that his point of view wasn’t being heard because of “a kind of corruption of the political process.” Apparently if he could get rid of money in politics, his views could get heard. Fair enough. But as the Chairman suggests, one man’s corruption is another man’s principle.
Professor Lessig likes to cite his friendship with Barack Obama. I know the two used to work together, and the President seems like the type of person who is happy to call many people his friend (the GOP tried unsuccessfully to hold one such friendship against him in the campaign). President Obama during the campaign restricted the type of campaign donations he would accept, although he also recognized that the free market can be superior to public funding when he opted out of the federal financing system for the general election.
One thing that is certain about President Obama, however, is that he recognizes that in any policy debate, people will have differences of opinion, and there is nothing insidious about that. Someone can disagree with you without being corrupted. The President seems to approach every discussion and every debate with an assumption that the person on the other side is sincere and principled.
We need a lot more of that in our society, and a lot less of assumptions the other way.
I wish Professor Lessig luck with his anti-corruption crusade — and after nearly two years still await his actual departure from the copyright debate — but I hope that he will learn that someone can disagree with him without that person being bought.
March 9th, 2009 at 9:47 pm
“If NIH were serious about making sure federally funded research were made public, they would allow every grant recipient to upload their papers the moment they were written. NIH obviously recognizes their site would be so littered with poor scholarship that no one would use the site; the trust wouldn’t be there.”
You’re attacking a strawman - no one has advocated this, least of all NIH. As Lessig and Eisen’s article said, even the publishing houses generally put the papers up on the web after some time has elapsed. You’re suggesting that if delayed free access is good, immediate free access is better, which is not necessarily true. Naturally, neither you nor Chairman Conyers actually responded to Lessig and Eisen’s argument that the current system, in which you can pay for early access but the public eventually gets the benefit of their tax dollars, strikes a fair balance and works fine. Do you have data that suggests otherwise? Obviously not.
And although I know you are shocked, shocked, that anyone would accuse a powerful and long-serving Congressman of having been influenced by campaign donations - come on, Patrick. It’s reality. And it doesn’t make Conyers a criminal, it makes him a human being. And it’s completely fair to point out, especially when the Congressman can’t seem to come up with a rational explanation for his position.
March 10th, 2009 at 11:47 am
“I support Chairman Conyers’ effort, and feel it isn’t appropriate for the federal government to use publishers and their peer reviews as a quality-control mechanism, outsourcing work without payment.”
What about the publishers who pay nothing for the content? Who is the free-loader now?
Peer reviews cost the publisher very little, if anything. All reviews are performed by volunteers and usually even the editing and coordinating is volunteer work. The publishers have a role, to be sure — distributing the content is not free, but the original NIH policy allowed room for the publisher to recoup these costs. In fact, it is not unusual for the author to have to pay to have the work published (IEEE requires this).
If the publishers don’t want to be beholden to open-access rules, they are free to not accept federally-funded work. The market will sort that out.
March 10th, 2009 at 12:49 pm
Interesting, Lewis. You actually make a compelling argument as to why the NIH policy is poor public policy.
“Peer reviews cost the publisher very little, if anything.” Let’s assume there are no costs in time, effort or money in the peer review process. If that is the case, it makes no sense for NIH to outsource that valuable service against the publishers’ will. They should do it in-house.
NIH could encourage all scientists who received a portion of their funding from NIH to submit papers directly to the agency. The agency could conduct these costless peer reviews and post the papers. Then there are no copyright concerns for publishers because they’re not in the loop.
You may welcome that, but I would think many in the scientific community would be troubled. We have seen how politicized science can become. Do we really want an administrative agency determining what is good science? Do we want peer review established and supervised by a government agency that, like any government agency, is subject to regulatory capture by special interests?
What we see here is that NIH is appropriating without permission more than just the peer review process. They are appropriating the expertise, scholarship and credibility that publishers have established over the years, in some cases over more than a century. That would seem to be of some value; if it wasn’t, NIH wouldn’t be taking it.
You may support the ends — more works available for free other than having to read them at a library — but the means are very troublesome.
March 10th, 2009 at 2:31 pm
That administrative agency already decides who gets a government grant and who doesn’t - isn’t that where the politicizing would happen? Why is the process any more politicized with an open access policy in place?
Name one scientific publisher who’s been put out of business by the NIH policy.
March 10th, 2009 at 2:40 pm
“Let’s assume there are no costs in time, effort or money in the peer review process. If that is the case, it makes no sense for NIH to outsource that valuable service against the publishers’ will. They should do it in-house.”
Fair enough. By the same token, the publishers should be more than willing to fund research in-house instead of freeloading off the taxpayers.
“You may welcome that, but I would think many in the scientific community would be troubled. We have seen how politicized science can become. Do we really want an administrative agency determining what is good science?”
By the very granting of the funding, the agency has already made that call, so what you imply is that the government shouldn’t be in the business of handing out research grants at all. There are many compelling arguments to be made in that direction, but I suspect it is outside our scope here.
“What we see here is that NIH is appropriating without permission more than just the peer review process. They are appropriating the expertise, scholarship and credibility that publishers have established over the years, in some cases over more than a century. That would seem to be of some value; if it wasn’t, NIH wouldn’t be taking it.”
Perhaps, but “expertise, scholarship and credibility” are not property in any meaningful sense, copyright, tangible, or otherwise. It may have value, but in this case “appropriating” is is clearly not theft.
What we do see here is the publishers appropriating taxpayer-funded work without any clear return (forcing the taxpayers to pay again to read doesn’t count). That *is* theft.
March 11th, 2009 at 2:50 am
Academic publishers don’t pay authors, editors or reviewers, making the following statement a bit ironic:
“it isn’t appropriate for the federal government to use publishers and their peer reviews as a quality-control mechanism, outsourcing work without payment.”
The statement is also not true. Taxpayers pay dearly. When it comes to academic publishing, publishers spend millions, taxpayers spend billions:
1. Taxpayers subsidize the research. The federal government is the single largest source of research funding, spending around $50 billion. States add another ~$8 billion. NIH alone spends $30 billion. Federal, state and local tax incentives also subsidize private research.
2. Taxpayers subsidize journals’ labor. Publishers don’t pay authors, editors, or reviewers. These academics are the people who do the actual work of quality control, and they work for free. Publishers get this free labor because institutions of higher education pay the academics a salary. Federal, state, and local taxes give those institutions hundreds of billions of dollars each year.
3. Authors pay publishers to be published. The authors’ payments to the publisher are frequently made by the taxpayer-supported academic institutions.
4. Taxpayers subsidize the purchase of journals. Publishers sell to large, tax-subsidized academic institutions.
5. Tax breaks subsidize non-profits which pay for original research and journal administration. For example, the American Heart Association funds original research, runs 5 journals, and is a 501(c)3 tax exempt organization. By the way, the AHA, not the publisher, pays for the administration of its peer review process.
Taxpayer contributions dwarf the publishers’ costs. How much do publishers pay for publication and peer review? The Professional/Scholarly Publishing division of the American Association of Publishers, claims “hundreds of millions”. That is, less than a billion. And with total revenues of $7-8 billion (according to the PSP), publishers couldn’t begin to foot the research bill.
Academic publishers are only profitable because taxpayers spend billions subsidizing them.
“… [NIH is] appropriating the expertise, scholarship and credibility that publishers have established over the years, in some cases over more than a century. That would seem to be of some value; if it wasn’t, NIH wouldn’t be taking it.”
Academics, not publishers, have the credibility and expertise. Academics create the scholarship - they do all the writing, editing, and reviewing.
Peer review is done primarily by academics, not publishers. Academics assign articles to reviewers, review the articles, submit detailed technical critiques, review revisions and resubmissions, and make the decisions on which articles to publish. Academics have the years of highly specialized education and training. When it comes to peer review, publishers are more like middle management.
Frankly, a lot of that middle management can be and is handled by software. And physical journals with their long turn around times are ill-suited for writing which is valuable for its novelty. Electronic is faster and cheaper. We shouldn’t write copyright laws to preserve inefficient and outdated systems.
May 27th, 2009 at 8:40 am
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