Main Index: AIP and APS Press Release (8/28/97)
AIP and APS Press Release
AIP and APS Prevail In Suit By Gordon & Breach
The freedom to provide academic libraries with information about the cost of scholarly journals was upheld by a federal judge in New York in a decision issued on Tuesday, August*26. Gordon & Breach Science Publishers S.A. (G&B) had claimed that the American Institute of Physics (AIP) and The American Physical Society (APS) would violate the Lanham Act by distributing to libraries certain information concerning the cost-effectiveness of physics journals. The court rejected all claims by G&B, stating that "[i]f G&B believes librarians will make more optimal decisions if they consider information other than that provided by the defendants, its solution is to augment rather than censor the available truthful information."
The suit involved a 1988 study by the late Henry H. Barschall, a physicist at the University of Wisconsin, and the distribution of the results of that study by AIP and APS. The Barschall Study showed that the physics journals published by AIP and APS were among the most cost-effective of all physics journals, as measured by cost per character and the frequency with which journals are cited. The study compared some 200 physics journals. At the same time, the Court observed, based on the data presented at trial, that "regardless of the measure used, G&B's journals consistently scored at the bottom" of a cost-effectiveness ranking. G&B brought suit to prevent dissemination of the results, claiming that the non-profit societies' efforts to publicize the study constituted false advertising. Judge Leonard B. Sand concluded, however, that "Barschall's methodology has been demonstrated to establish reliably precisely the proposition for which defendants cited it -- that defendants' physics journals, as measured by cost per character and by cost per character divided by impact factor, are substantially more cost-effective than those published by plaintiffs."
The Court noted that evidence submitted by the societies showed that G&B has engaged in an "aggressive corporate practice of challenging any adverse commentary upon its journals," citing threats and lawsuits against librarians, academics, and other non-profit societies. Judge Sand observed that "[t]his evidence persuasively demonstrated that the present suit is but one battle in a `global campaign by G&B to suppress all adverse comment upon its journals.'"
Judge Sand's ruling, following a seven-day trial in June, marked the culmination of the American portion of litigation by G&B against the societies in the United States, Germany, Switzerland, and France. The societies prevailed at every level of the German court system and have recently prevailed in Switzerland in a suit that is now being appealed by G&B. A French trial court found for G&B under strict French comparative advertising laws, and that suit is now on appeal.
Judge Sand's decision was welcomed by the defendants. Dr. Marc H. Brodsky, Executive Director of AIP, stated that "AIP is pleased the Court agreed with the obvious -- more information, not censorship, is the appropriate way to address important issues, such as the escalation of journal prices for libraries." Dr.*Thomas J. McIlrath, Treasurer of the APS, said that "The APS has always viewed itself to be in a partnership with libraries, and indeed other publishers, in the mission of promoting and disseminating the knowledge of physics. I am very pleased that the courts have recognized the legitimacy and integrity of what Professor Barschall and the Societies have done."
The case in the United States was initiated by G&B in 1993. AIP and APS have been defended by attorneys Richard Meserve and Jeffrey Huvelle of Covington & Burling, a major Washington law firm. Meserve, himself a physicist, said that "the two societies stood up to G&B's `global campaign' because of their commitment to the open exchange of ideas and information that is fundamental to scientific discovery."
For further information contact Marc Brodsky of AIP at 301-209-3131 or Thomas McIlrath of APS at 301-209-3220.