November 17, 2017

Report: Louisiana State University is Suing Elsevier For Breach of Contract

UPDATE: May 3, 2017 We’ve added a comment about the lawsuit from Elsevier and a blog post by ARL’s Krista Cox with additional background. They’re both found at the bottom of this post.

The news about the lawsuit filed on Feb. 27, 2017 comes today via an announcement from the Association of Research Libraries (ARL).

The complaint was filed in the Parish of East Baton Rouge (19th District Circuit Court, State of Louisiana). Primary documents are linked at the bottom of this post.

Here’s a portion of the news release written by ARL’s Director of Public Policy, Krista Cox.

Louisiana State University (LSU) filed a lawsuit on February 27, 2017, against international science publisher Elsevier B.V. for breach of contract resulting from the publisher’s exclusion of the LSU School of Veterinary Medicine from accessing content licensed by the LSU Libraries. In filing the lawsuit, LSU exercised sound financial stewardship of its public resources.

According to the LSU Libraries, Elsevier blocked access in January 2017 to its research materials from the Internet protocol (IP) ranges that correspond to the LSU School of Veterinary Medicine. The LSU Libraries’ license with Elsevier provides for unlimited, simultaneous access by all LSU faculty, staff, and students of the main campus in Baton Rouge, including the School of Veterinary Medicine. LSU requested that access be restored, and Elsevier refused.

LSU’s complaint states, “Elsevier is well aware that LSU, like other universities, is heavily reliant upon the various types of research and educational content for which Elsevier enjoys monopolistic market powers

Elsevier is unfairly abusing its leverage to coerce LSU into paying additional and unnecessary subscription fees for research and educational content that LSU has already contracted for.

Background

After the School of Veterinary Medicine’s separate contract with Elsevier expired in 2016, the school’s users continued to access content through coverage of the LSU Libraries’ current license with the publisher. In the fall of 2016, veterinary school users began to experience difficulties accessing the LSU Libraries’ Elsevier resources. The LSU Libraries found that Elsevier had selectively blocked/removed the School of Veterinary Medicine IP ranges that were listed in the LSU Libraries’ license. Since omitting the veterinary school IP ranges was in contravention of that license, the LSU Libraries contacted Elsevier IT customer service and requested that the ranges be activated. Elsevier complied.

The LSU Libraries then made a routine request to license 19 additional veterinary titles that the School of Veterinary Medicine needed. Elsevier presented the LSU Libraries a quote of around $35,000 to add these titles to the LSU license. (The LSU Libraries’ license costs more than $1.5 million per year and covers 35,000 users.) LSU immediately accepted the price and requested an invoice. Soon after, Elsevier stopped the purchase and refused to sell these titles pending renegotiation of the LSU Libraries’ license.

Throughout the rest of 2016, Elsevier repeatedly threatened to block the School of Veterinary Medicine’s IP addresses if the LSU Libraries did not renegotiate its license to pay more money for access by the 650 people associated with the veterinary school. The LSU Libraries refused to renegotiate its license with Elsevier because the existing license already covered all users from the School of Veterinary Medicine. During the first 10 days of January 2017, Elsevier again began blocking the veterinary school IP addresses.

LSU counsel sent a letter to Elsevier on January 18, 2017, requesting that Elsevier restore access for the School of Veterinary Medicine by January 27. Elsevier failed to respond until March 2, three days after LSU filed litigation, and then only continued to propose business solutions forward through renegotiation of the existing license.

A letter from Elsevier to LSU dated April 22 proposed that LSU purchase an additional $170,000 of journal subscriptions and increase its payment for the “Freedom Collection” by $30,000.

Elsevier has not accepted service of process for the lawsuit through the Louisiana long-arm statute nor at the Elsevier corporate office in New York City. Since Elsevier is headquartered in the Netherlands, LSU is attempting to effect service of process through the Hague Service Convention.

Direct to Primary Documents

Direct to Full Text Complaint (Louisiana St. University v. Elsevier)
45 pages; PDF.

Direct to Letter (a Proposal) From Elsevier to LSU (April 22, 2017)
2 pages; PDF.

We will update this post with additional documents, comments, etc. as they become available.

Response to Lawsuit From Elsevier

What is happening is that LSU is asking us to add a previously separately-contracted school, along with its associated users, into an existing contract without having to pay for it. The current LSU central campus contract does not include the LSU School of Veterinary Medicine, nor was any “merger” negotiated. LSU informed Elsevier that it didn’t want to renew the Vet Med contract as of January 2017, to which we obliged. We then offered a commercial option to combine the contracts, and the figure we offered to add more users and content to the central campus represented a substantial discount from the prior fee, but LSU declined. We regret this hasn’t yet been settled commercially but look forward to further discussions to resolve the matter.

The point related to accepting service is mischaracterized, as we never refused service. For starters, LSU does not need us to accept service, they were free to serve us formally any time they wanted to. But for them to do that would entail extra time and expense on their part. To help them avoid that time and expense we would be willing to accept service, but we wanted first to seek a commercial resolution.  These types of discussions are quite common.

See Also: Louisiana State University Files Suit Against Elsevier; Elsevier Has Not Accepted Service
Blog post by Krista Cox, Director of Public Policy Initiatives at ARL.

Viewpoints

LSU v Elsevier – Paying Twice (or More) for Scholarship? (via Scholarly Communications @ Duke)
Comments about lawsuit by the Director of Copyright and Scholarly Communications, Duke University Libraries, David Hansen, J.D.

Gary Price About Gary Price

Gary Price (gprice@mediasourceinc.com) is a librarian, writer, consultant, and frequent conference speaker based in the Washington D.C. metro area. Before launching INFOdocket, Price and Shirl Kennedy were the founders and senior editors at ResourceShelf and DocuTicker for 10 years. From 2006-2009 he was Director of Online Information Services at Ask.com, and is currently a contributing editor at Search Engine Land.

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