Volume 29, Number 1 January 2001The APS in an Age of Litigation Harry Lustig
Read as an invited paper at the March 2000 meeting of the American Physical Society in a session "Physics and the Law" arranged by the Forum on Physics and Society. Most of the material is adapted from the author’s article in the American Journal of Physics For the first eighty-seven years of its existence, the APS had never been involved in a lawsuit. Since 1987, the Society defended itself in the courts in four cases. All of the litigation was connected with publishing. Two plaintiffs sued the Society for not publishing their work, one sought to punish APS for publishing an author’s work, and in one case, a third party attempted to compel the Society to reveal the identity of a referee of a manuscript that was not accepted for publication.
In spite of the fact that the Physical Review almost certainly provides more opportunities to appeal the recommendations of referees and the decisions of editors than any other journal, there have been aggrieved authors before and since. A few have turned nasty--for example, editors and the Society were accused of being part of a Jewish conspiracy to prevent the dissemination of a refutation of Einstein’s relativity. Some have implicitly or explicitly threatened lawsuits, but before 1987, none of these threats ever materialized.
In 1987, the APS was notified that it was the defendant in a federal suit seeking damages of $44,500,000. The plaintiff, who had very limited training in physics, alleged that the Society had deprived her of seven Nobel prizes by rejecting a manuscript that she had submitted to the Physical Review. She claimed that her invention, the "Qaddafi Field", encompassed and replaced all the fundamental laws of physics. (She is also reported to have said the APS had tried to poison her coffee and had killed Physical Review D editor Dennis Nordstrom for having promised to accept her manuscript. Her estranged husband reported that she was carrying a gun.) The courts were able to deal swiftly with the case, although the plaintiff, who represented herself, did try to pursue her complaint all the way to review by the Supreme Court. This bizarre and depressing case had perhaps one redeeming aspect: it showed that every citizen who feels aggrieved can access our judicial system.
The other instance in which the APS was accused of improperly refusing to publish an article presented quite a different issue. Physical Review A had accepted an article by a University of Maryland research associate, Thomas Kiess, for publication. When his colleagues found out about it through prepublication of the abstract, they complained that the work had been done collaboratively with them, and that publishing the article without recognition of them would be improper. The editors of the Physical Review decided to suspend publication unless and until the matter could be resolved. Kiess thereupon sued his collaborators and the APS, claiming that the refusal by the Physical Review to proceed with the publication of his manuscript after he had received notification of its acceptance, constituted a breach of contract . The APS responded that there was no contract, that the Physical Review’s letter of acceptance contained conditions that were never satisfied, and that even if the parties had created a contract, there was no breach because the journal had not refused to publish the manuscript. The court agreed and dismissed the case against the APS. Again in 1987, the APS was served with a subpoena by attorneys for Arco Solar, the defendant in a patent infringement case brought by Solarex Corporation and RCA Corporation. Arco Solar sought the name of a referee for a manuscript that described results that could improve amorphous silicon p-n junctions. The manuscript was submitted to Physical Review Letters but was rejected for publication based on the strength of one of the two referees’ reports. The report requested that more experiments were required and that the article was better suited for the Physical Review. The other referee had recommended publication and had revealed his name and his action to the authors. As an element of its defense strategy, Arco Solar wanted to maintain that the submission constituted "prior art" which invalidated the patent at issue. The idea was to try to claim that the negative referee had disclosed the new process to colleagues and, perhaps, to other competitors. In order to pursue this theory, Arco Solar needed to know the identity of the referee. While willing to turn over the referee’s opinion and all other documents connected with the case, the APS remained true to the common practice in scientific publishing and declined to reveal the name of the referee. APS’s attorney, Richard A. Meserve, argued that non-disclosure was essential to the preservation of the peer-review process. (Meserve is a physicist and was a lawyer until late 1999 when he became head of the Nuclear Regulatory Commission. He has successfully represented the Society in all the cases described here.) The US Magistrate who heard the case found unequivocally in favor of APS, observing that "...the Society had demonstrated a strong interest in preserving the confidentiality of its reviewer’s identity", and the District Court and the Court of Appeals affirmed the ruling. The decision, while not establishing an absolute right to keep the names of referees confidential, nevertheless provided a presumptive precedent for it. David Lazarus, APS’s quondam editor-in-chief, had the satisfaction of being able to report on theoutcome in Physics Today.
The most vexing litigation against APS, directed against AIP and an individual APS member, by the Gordon & Breach publishing group and its several companies, has, at this writing, for more than a decade. It has its origins in two articles by H. H. (Heinz) Barschall of the University of Wisconsin, one written with a collaborator, which reported the cost per printed character, the impact, and the cost-effectiveness of more than 200 physics journals from nearly sixty publishers . The cost per printed character (perhaps better "price per printed character") is the amount paid by an American library for an annual subscription to a journal divided by the total number of characters published in that journal during the year. (In order to neutralize the effect of variations in typography and page size, Barschall used characters rather than pages, in the denominator.) The impact is the average number of times that articles from a journal were cited during the two years following their publication, as determined by the Institute for Scientific Information. It was Barschall’s innovation also to obtain and report the quotient of the price per character divided by the impact, resulting in the cost-effectiveness, Barschall’s study showed that the Gordon & Breach journals were by far the most expensive and least cost- effective in the survey - not only when compared to those of not-for-profit societies such as APS and AIP, but also to those of other commercial publishers. This result was not explicity pointed out in the articles, however, readers could calculate that there was a factor of eighty difference between the journal with the highest price per character on the list, Gordon & Breach’s Physics and Chemistry of Liquids, and that with the lowest, the American Astronomical Society’s Astrophysical Journal. With the impact figured in, the cost-effectiveness difference between these two journals became a factor of 409.
The officers of the two societies and Barschall were surprised to receive complaints from lawyers for Gordon & Breach against the articles and a demand, under threat of litigation, for the publication of a prescribed retraction and an apology. Barschall and the societies checked the allegations of error and concluded that they were either without foundation or insignificant. Nevertheless, Physics Today offered Gordon & Breach space for a statement setting out its objections to the Barschall articles, subject only to allowing the author to respond to allegations of error. This offer was summarily rejected. This offer for resolving the complaint was maintained by APS and AIP during the many years of the ensuing litigation.
As to the threats of a lawsuit, the officers of the societies found it hard to believe that the accuracy of Barschall’s study and the action of the societies in publishing it would even be considered by the courts on their merits. Wasn’t there a constitutionally guaranteed right of free speech and publication? In 1989, when suits were launched in Germany, Switzerland, and France against Barschall, APS, and AIP, the defendants had to contend with the fact that free speech protection was not as strong in those countries as in the United States. "Unfair competition" laws significantly restricted the right, even truthfully and accurately, to compare the prices and quality of products. The suits demanded retractions and the publication of prescribed apologies in the Bulletin and in Physics Today, injunctions against the publication of any further studies by Barschall or by anyone applying similar methodologies, and damages.
Even in the face of the strict laws, but at great effort and expense, Barschall and the Societies won their cases in Germany (as early as 1991 after unsuccessful appeals by Gordon & Breach all the way to the federal supreme court [Bundesgericht]) and in Switzerland. In France, in the face of a law that Gordon & Breach would interpret to forbid any comparison of the prices of products that are not completely identical, the trial court found against the defendants. After several see-saw actions, the Court D’Appel, on 21 June 2000, dismissed the G&B complaints against the societies and Barschall’s heirs (Barschall had died on February 4, 1997) one by one, finding that the articles were neither denigrating, misleading, nor in other way in violation of French law. At this writing is not clear whether G&B will be allowed to file yet another appeal before the Court de Cassation.
APS and AIP had another unwelcome surprise when, on September 23, 1993, Gordon & Breach filed suit in the United States under a statute called the Lanham Act, which regulates advertising, stating that "commercial speech" must not be false or misleading. The pursuit of the litigation in the US exceeded, in effort and cost, even the burdensome activities in Europe. Dozens of briefs and counter-briefs were filed and motions were made; hundreds of documents were produced, and more than a score of witnesses were examined by deposition or at trial.
In August of 1994 the Federal District Court for the Southern District of New York issued its first substantive decision. He dismissed the Lanham Act claims against Physics Today and the Bulletin because, as scholarly publications, they enjoyed the protection of the First Amendment to the US Constitution. The matter did not rest there, because Gordon & Breach asserted that "secondary uses" (which included the distribution of a draft to some librarians at a convention and the favorable mention of the Barschall findings in the 1988 annual presidential letter to the membership by APS President Val Fitch, which included the phrase "tell your librarian about it" ) had been made of the articles, and the judge ruled that these uses of the survey should be subject to examination under the Lanham Act.. The ruling opened the way to "discovery" of documents from APS’s, AIP’s and Barschall’s files, which were used by the plaintiffs to try to make a case that the research and publication of Barschall’s findings resulted from a conspiracy between the authors and the societies to hide the alleged commercial intent of the undertaking. The allegation of a conspiracy was based largely on the fact that before the initiation of the survey there had been some consultation between Barschall and APS and AIP officials about whether a survey would be useful, and while it was in progress, some correspondence about Barschall’s work. During one of these exchanges the APS treasurer made the suggestion that Barschall might explicitly mention the favorable results for the societies’ journals. The suggestion was rejected. The reason put forward by Gordon & Breach for the societies’ allegedly enlisting Barschall in a marketing effort was their need to maintain library subscriptions in the face of sharply increased prices. While it is true that prices had to be raised, in the face of declining numbers of subscriptions and of income from page charges, most of the increase was necessitated by the steep increases in the numbers of articles submitted and published. The societies clearly welcomed the news that, in spite of the increases, their journals were still extremely cost-effective. Some in AIP and APS did see an advantage in publicizing the results among librarians while others saw their value in justifying the painful price increases that were necessary to keep the journals solvent. After a seven day trial in June of 1997, Barschall’s methodology was deemed sound and the results free from errors. The court also found that the Gordon & Breach complaint that Barschall did not examine or report on the costs to them of producing their journals was irrelevant. More significantly, the court gave credence to the societies’ discovery, during the long years of litigation, that "the evidence persuasively demonstrated that the present suit is but one battle in a ‘global campaign by G&B to suppress all adverse comments upon its Journals’ ". APS and AIP were able to document ten instances of (mostly successful) attempts at intimidation, including of librarians, professors and research scientists in the US and abroad. In January of 1999 the U.S. Court of Appeals for the Second Circuit rejected Gordon & Breach’s appeal of this decision.
Except for one possible final appeal by G&B in France, this appears to be the end of the case. APS and AIP can celebrate not only their victory (tempered only by the fact that Barschall, did not live to see it) but also their steadfastness and willingness, in the face of a large drain of money. The credit for this persistence belongs not only, or even primarily to the determined operating officers (in the case of AIP, first Kenneth Ford and then Marc Brodsky), but to the Council and Executive Board of APS and the Governing Board of AIP. On the many occasions on which the case came before these bodies for discussion and decision, in the face of some sentiment to settle it, even on restrictive and dangerous terms, the representatives of the membership stood firm. Among the APS presidents during the period, Burton Richter and Kumar Patel should be singled out for their steadfast leadership; in the AIP, Hans Frauenfelder led the Governing Board in refusing to abandon the case, except on honorable terms. Although, the case had no broad economic implications for AIP and APS, the societies pursued it as a battle in defense of truth, free expression and the competence and integrity of a valued member.
Harry Lustig Professor of Physics and Provost Emeritus City College of the City University of New York Treasurer Emeritus of the American Physical Society Adjunct Professor of Physics at the University of New Mexico. References/Footnotes
armd@physics.wm.edu |