120.2 GORDON & BREACH LAWSUIT, Bob Michaelson
Christian Boissonnas, Cornell University, email@example.com.
Thank you, Marcia, for including the text of James Kels's letter in the last _Newsletter on Serial Pricing Issues_. Facts have been few and far between in this affair and any are much appreciated. Many of us are frustrated and don't know what to do because of our inabili- ty to gather reliable information that we can use in evaluating our options in what is an unprecedented situation. How many of us were around during the Abel debacle of twenty years ago? It is important, I think, to remember something that Ann Okerson said recently in a private communication to me and a few others. I mention this here with her permission. Ann said that NONE OF US SHOULD BE MAKING THE DECISION OF WHAT TO DO ALONE. We, in fact, have the considerable expertise of our staffs to draw from, and that of institutional staff (purchasing agents, lawyers,) not to mention those in our administrative hierarchies who need to understand and support the deci- sions we make. I, for one, am not so naive that I would attempt to make so significant a decision without involving my supervisor and library direc- tor. I submit that the only thing which is really not permissible is to just wish that things will turn out O.K. and not prepare contingency plans. The Kels letter does attempt to give us information that we need. Welcome though it is, it raises, at least for me, some questions the answers to which would be critical to my decision on whether to continue to use the services of Faxon or switch to another vendor. My first question is: who are the publishers involved? Is Elsevier writing only on its own behalf or on behalf of other involved publishers as well? The letter mentions no other publishers except in the third and fourth lines: "...1995 subscription payments for all publications handled by Faxon will be held until distributed to publishers; Faxon's existing debt to publishers will be retired...." If this covers all publishers and all have agreed to it, even if only in principle, we should know it. Secondly, the scenario presented in the letter just does not fit with what I have been told. The difficulty here is that I cannot say that what I have been told is true since no one who spoke or wrote to me did so for attribu- tion, and information from some principals in this affair has proved to be less than reliable. Nevertheless, here is generally what I, and others, think we understand. Faxon's debt to Elsevier for 1994 subscriptions ac- counted for about one third of its total debt to publishers. The proceeds of the sale to Swets and planned sale to EBSCO were insufficient to cover the debt to publishers. Unless other funds have been secured the math just doesn't seem to add up. The silence from other publishers, either confirm- ing or denying that the planned arrangements are satisfactory to them only increases the uncertainty. Thirdly, Kels's letter very specifically mentions the 1995 subscription year. What happens afterward? Librarians are generally unwilling to make decisions involving the choice of subscription agents for a single year. What happens in 1996 and beyond? Finally, what is the exact nature of the relationship between Elsevier and the other publishers on the one hand and Faxon on the other? Who will own, or be beholden, to whom? While I am willing to accept as a working hypothe- sis that it is in everyone's best interest for Faxon to survive, I am not necessarily willing to agree that this is true under all circumstances. Under the circumstances, librarians who are still on the fence are not helped much by this letter. At worst it creates the illusion that the situ- ation is under control, at least for 1995, and that is simply not good enough information for making informed management decisions. A friend of mine said, a couple of days ago, that this situation has dealt us important conflicts because of our desire to do the right thing. This friend was wondering how we, librarians, might use the recently developed ALCTS Acquisitions Section _Statement on Principles and Standards of Acqui- sitions Practice_ (see at the end of this message for the complete text of the Statement.) So I wondered too. I submit that by deferring making a decision regarding Faxon simply in the hope of things turning out right (in other words, absent real evidence that they will), librarians are putting themselves in jeopardy with respect to Principles 1, 2, 3, 11, and 12. I am not arguing here about the people who have evaluated the situation and have already made contingency plans. Whether they live to be thankful for their decision, or regret it, will be known soon enough. Let me expand on what I mean with respect to each Prin- ciple I cited above. -- Principle 1. They are not giving first consideration to their libraries, but to Faxon. The notion that by doing this they are helping their librar- ies just doesn't wash. Not only that, they are endangering the health of their principal asset: their staff who will have to pick up the pieces if things go wrong. The thinking that says that competition is good for us, therefore we should ensure Faxon's survival for all our benefits rests on untenable assumptions: One, that we are ever acting in concert when, in reality, we are always acting out of self interest. Maybe we shouldn't, but we are. If we weren't we wouldn't be so secretive about all of this. Two, competition will be harmed if Faxon disappears. That's unlikely given the number of businesses still around. In fact, it may very well cause some enterprising soul to enter the business. It wouldn't be the first time. Three, that there will continue to be enough serials business to keep all vendors in business. We know that this is just not true. Who, among us, expects to significantly add new subscriptions over the next five to ten years? Four, that a widespread defection from Faxon will bring other vend- ors to their knees. I would like to hear what the vendors have to say about that. After all, it is their knees. My guess is that they will be very happy to be going through hell until they satisfy the new demand in return for getting more accounts. The real question, here, is what will be the impact on service to their previous customers. I would expect that they will work very hard to insure that it's not negative. -- Principle 2. They are not striving to obtain the maximum ultimate value of each dollar of expenditure. If they were, they would be getting quotes from other vendors to ascertain the exact cost to them of switching versus dealing with an uncertain future. That, I submit, would be the responsible thing to do. -- Principle 3. They are not granting all competing vendors equal consider- ation. They are not regarding each transaction on its own merit. I view "transaction" here in a broad sense, such as a contract for handling sub- scriptions for one year, rather than each individual transaction. They are very much favoring one vendor over the others. -- Principle 11. They are not striving to establish efficient methods for the conduct of their office. If they were, they would be doing two things. One, is to negotiate with alternate vendors to change over as efficiently as possible. Two, they would be implementing the plans they should have developed following the failure of Abel 20 years ago to minimize the impact of such failures on their collections and staff. How many have done that? Be truthful now. At Cornell we haven't either. -- Principle 12. They are not counseling fellow acquisitions librarians in the performance of their duties. If they had, they would have reminded them about the above-mentioned Abel debacle, about contingency plans, and about the real nature of the relationship between a library and a subscription agent, which is not based on wishful thinking that things will be all right. Failure to abide by our own principles is a serious problem. It reinforces the commonly held view that we are well-meaning but naive and, in business matters, lightweights; it doesn't contribute much toward our goal of sell- ing the professionalism of acquisitions to our institutions. Neither does much for our self-esteem. I expect that some will disagree with the points I just made. Some may even be angered. Discussions about principles often have that effect. But, ultimately, there should be agreement on these points: Absent sufficient evidence, one person's conclusion that things will turn out O.K. is no better or worse than another's belief that the utmost skepticism is in order. Ultimately each of us must make up his or her own mind based on the information we have received and solicited. Whether we have done a suffi- cient job depends on how hard we have thought and how persistent we have been in our quest. The principals in this affair have certainly not helped their cause as their information has been insufficient and often contradic- tory. It is hard to imagine that candor would have been more destructive. We are left, at this point, uncertain about whom we can trust. ***** ***** ***** ***** ***** ALCTS Acquisitions Section's _Statement on Principles and Standards of Acquisitions Practice_. An acquisitions librarian: 1. gives first consideration to the objectives and policies of his or her library. 2. strives to obtain the maximum ultimate value of each dollar of expendi- ture. 3. grants all competing vendors equal consideration insofar as the estab- lished policies of his or her library permit, and regards each transaction on its own merits. 4. subscribes to and works for honesty, truth, and fairness in buying and selling, and denounces all forms and manifestations of commercial bribery. 5. declines personal gifts and gratuities. 6. uses only by consent original ideas and designs devised by one vendor for competitive purchasing purposes. 7. accords a prompt and courteous reception insofar as conditions permit to all who call on legitimate business missions. 8. fosters and promotes fair, ethical and legal trade practices. 9. avoids sharp practice. 10. strives consistently for knowledge of the publishing and bookselling industry. 11. strives to establish practical and efficient methods for the conduct of his or her office. 12. counsels and assists fellow acquisitions librarians in the performance of their duties, whenever occasion permits.120.2 GORDON & BREACH LAWSUIT
Bob Michaelson, Northwestern University, firstname.lastname@example.org.
[First posted on PAM electronic discussion group. Used with author's per- mission. -ed.] From _New York Times_, Science Times section (Tues., Aug. 16, 1994): (sum- mary rather than direct quotation) Federal Judge Leonard Sand ruled yesterday that Henry Barschall's articles in _Physics Today_ and in the _Bulletin of the APS_, ranking rival journals by price and value, were constitutionally protected free speech. Gordon & Breach and Harwood Academic Publishers [note -- as PAM members should real- ize these publishers are part of the same conglomerate] contended that the articles were promotional materials cloaked in the guise of academic inqui- ry and thus constituted misleading advertising. Judge Sand's ruling says "The articles examine an issue of considerable public significance, the dilemma facing scientific libraries that must cope with stagnant budgets and escalating subscription costs..." The fact that the AIP and APS "stood to benefit from publishing Barschall's results -- even if they intended to benefit -- is insufficient by itself to turn the articles into commercial speech." I hadn't realized that those publishers had even tried to bring suit in the U.S.; I had only heard about the European lawsuits.
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