American Chemical Society goes after ResearchGate for copyright infringement

The American Chemical Society (and Elsevier) filed suit in the federal District Court of Maryland on 2 October 2018 asserting copyright infringement by the German entity ResearchGate.

The complaint is available on the internet.

There are a variety of issues.

As a condition of publishing, the American Chemical Society ["ACS"] requires authors to execute an assignment of copyright. Sometimes, authors will modify the agreement to allow use for "advertising" the authors or the institutions of the authors. Sometimes, authors, who do not modify, are not fully aware of the restrictions imposed by the standard ACS form. ResearchGate apparently gets some of its copies from websites into which authors have posted copies of their articles.

As to publication requirements on papers arising from federally-funded research, note the policy impacting papers arising through funding by
the National Science Foundation [NSF]:



NSF's policy on public access to copyrighted material (Public Access Policy) reflects the Foundation's commitment to making certain that, to the extent possible, the American public, industry and the scientific community have access to the results of Federally funded scientific research. Pursuant to this policy, grantees must ensure that articles in peer-reviewed scholarly journals and papers in juried conference proceedings:

are deposited in a public access compliant repository (as identified in the Public Access Policy);
are available for download, reading, and analysis within 12 months of publication;
possess a minimum set of machine-readable metadata elements as described in the Public Access Policy; and
are reported in annual and final reports with a persistent identifier.
Either the final printed version or the final peer-reviewed manuscript is acceptable for deposit. NSF’s Public Access Policy applies to awards, funded in whole or in part, as a result of proposals submitted, or due, on or after January 25, 2016. NSF’s Public Access Policy may be viewed at: http://www.nsf.gov/news/special_reports/public_access/index.jsp.


If the ACS policy sounds vaguely familiar, look back to a post on IPBiz in the year 2006:



Journal publication, pubmedcentral and the ACS , including the text:


In context, Nally is complaining about posting of scientists' final, peer-reviewed articles on an internet website (pubmedcentral) within 12 months AFTER publication in the journal.

I could not help thinking about Dan Hunter's article, Walled Gardens, 62 Wash & Lee L. Rev. 607, which complained about the requirement of some law reviews that articles which had been pre-published on an internet website to be removed from the website BEFORE publication in the journal.

The common theme is the perceived undesirability, by the journals, of information being made available on the internet. The noncommon theme is the timing. The SCIENCE journals have the expectation of presenting the information FIRST, and worry about the impact of later publication. The LAW journals do not care that the information has been presented somewhere else first, but don't want someone to access the information (presented elsewhere first) AFTER they decide to publish it LATER.



See also the 2004 post
American Chemical Society suing Google over google scholar?