By Cory Doctorow at 8:48 am Thursday, May 24
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Henry Farrell (George Washington University) and Cosma Rohilla Shalizi (Carnegie-Mellon/The Santa Fe Institute) have just posted a paper, "Cognitive Democracy," to Crooked Timber. Farrell and Shalizi argue that neither the "libertarian paternalist" idea of "nudging" people to good choices, nor the market-based approach of letting price signals steer our decisions produce the best possible outcome for all. They see, in the Internet, a means by which knowledge about the world can be shared widely and usefully, to help democracies function as systems for producing good outcomes for everyone.
Yet at first glance, this interchange of perspectives looks ugly: it is partisan, rancorous and vexatious, and people seem to never change their minds. This leads some on the left to argue that we need to replace traditional democratic forms with ones that involve genuine deliberation, where people will strive to be open-minded, and to transcend their interests. These aspirations are hopelessly utopian. Such impartiality can only be achieved fleetingly at best, and clashes of interest and perception are intrinsic to democratic politics.
Here, we concur with Jack Knight and Jim Johnson’s important recent book (2011), which argues that politics is a response to the problem of diversity. Actors with differing—- indeed conflicting—- interests and perceptions find that their fates are bound together, and that they must make the best of this. Yet, Knight and Johnson argue, politics is also a matter of seeking to harness diversity so as to generate useful knowledge. They specifically do not argue that democracy requires impartial deliberation. Instead, they claim that partial and self-interested debate can have epistemological benefits. As they describe it, “democratic decision processes make better use of the distributed knowledge that exists in a society than do their rivals” such as market coordination or judicial decision making (p. 151). Knight and Johnson suggest that approaches based on diversity, such as those of Scott Page and Elizabeth Anderson, provide a better foundation for thinking about the epistemic benefits of democracy than the arguments of Condorcet and his intellectual heirs.
We agree. Unlike Hayek’s account of markets, and Thaler and Sunstein’s account of hierarchy, this argument suggests that democracy can both foster communication among individuals with highly diverse viewpoints. This is an argument for cognitive democracy, for democratic arrangements that take best advantage of the cognitive diversity of their population. Like us, Knight and Johnson stress the pragmatic benefits of equality. Harnessing the benefits of diversity means ensuring that actors with a very wide range of viewpoints have the opportunity to express their views and to influence collective choice. Unequal societies will select only over a much smaller range of viewpoints—- those of powerful people. Yet Knight and Johnson do not really talk about the mechanisms through which clashes between different actors with different viewpoints result in better decision making. Without such a theory, it could be that conflict between perspectives results in worse rather than better problem solving. To make a good case for democracy, we not only need to bring diverse points of view to the table, but show that the specific ways in which they are exposed to each other have beneficial consequences for problem solving.
Cognitive Democracy
(via 3 Quarks Daily)
By Cory Doctorow at 9:18 am Monday, May 21
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Zeropaid's Drew Wilson has wrapped up his series examining 20 studies that looked at the impact of filesharing on the sales of entertainment products (previously). He's summed up his conclusions based on the project, comparing the entire corpus to the notorious "Phoenix study" that was used as "evidence" for SOPA:
Claim: One of the claims the Phoenix study that we picked up was that finding a legal framework to stop infringement online has proven to sell politically.
Fact: After our extensive review, we found that, even though there is fierce opposition towards laws such as SOPA and any form of graduated response, the problem isn’t actually political. The problem is that there is no scientific basis for laws such as a “graduated response” or censorship of the Internet. After we examined the studies, there was a general theme that the best approach to dealing with file-sharing was not legal enforcement, but rather, a change in a business model that’s adapted to today’s digital reality. If you wanted to find debate where there was no real consensus, then it’s exactly how the industry is suppose to adapt their business model to the digital environment. While many pointed to price point, some suggested trying to find other ways of selling music like what iTunes has done. In fact, one study suggested that enforcement does not bring back customers by itself, but rather, building a model that is actually palatable so the customers return to you more voluntarily. Even the most pro-enforcement study we came up with said that if you’re going to actually do something like litigation, build a better business model as well, but simply resorting to legal tactics against file-sharers is not necessarily a good idea.
Claim: Another claim the Phoenix study made was that (in the process of disagreeing that there is a difference between a physical stolen piece of property and an unauthorized download) there is no incentive for producers and artists to make music. In addition, because of the activities of file-sharing, there will be less creative works made available.
Fact:
Let’s cut to the chase. Part 8 of our series explicitly debunked the claim that file-sharing causes the decrease in quantity of music. The authors of that study explicitly state that they found no evidence of any kind that linked any decline in the quantity of music and file-sharing. If there was any decline that happened during the existence of file-sharing, the decline was merely a continuing trend since before Napster.
In addition, numerous studies point to the trend of an increase in profits for artists both before this series and during this series thanks to the sampling effect. In fact, the only evidence that file-sharing is even hurting artists at all points out that it’s only the super rich and super famous top acts in the entire industry that may suffer any sort of loss at all (as seen in part 19 of our series). Again, as far as our series and the previous studies are concerned, not true at all.
Claim:
File-sharing displaces legitimate sales. The evidence points to that.
Fact:
This is a classic case of error by omission. What we found in our investigation was that there are numerous reasons why music sales were in decline in the early 2000′s other than the existence of file-sharing. Explanations included an increase in other entertainment sectors, the unbundling of the music album and returning to the singles model (re: the comments of deadweight losses) and an increasing pressure of the consumers bottom line in the face of todays economic realities. So, judging by the evidence we’ve collected, the evidence does not point in the direction that file-sharing, in and of itself, displace sales, but rather, other factors would also play a role in displacement of sales.
Claim:
Since people can enjoy music that they downloaded, they are taking away from society and therefore placing a tax on society which means file-sharing must be stopped.
Fact:
This model, when compared to all of the models we’ve seen, is completely out to lunch. There’s been plenty of calculations and economic models and non of them say anything like this. The closest we can recall in our series was Part 5 in our series which used the flawed theory of 1 download means one lost sale. While the models suggest that consumers do get something out of downloaded material, the losses still only account for less than $2 per album.
There's lots more, and it's all worth reading. A great companion piece to TechDirt's The Sky is Rising.
What Filesharing Studies Really Say – Conclusions and Links
By Cory Doctorow at 10:00 am Friday, May 18
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Winston Hide, is an associate professor of bioinformatics and computational biology at the Harvard School of Public Health. He was also -- until recently -- the associate editor of the prestigious (and expensive!) Elsevier journal Genomics. In a column in The Guardian, he explains why he resigned from Genomics: people are dying because scientists in poor companies can't afford proprietary journals. He will devote his efforts to open access alternatives to Genomics from now on.
My work on biomedical research in developing countries has shown me that lack of access to current publications has a severe impact.
The vast majority of biomedical scientists in Africa attempt to perform globally competitive research without up-to-date access to the wealth of biomedical literature taken for granted at western institutions. In Africa, your university may have subscriptions to only a handful of scientific journals.
In reality, the modus operandi is "please can you send me a pdf". Alternatively some researchers spend part of their research grant to buy a subscription to the journal they need.
The majority of the science in Elsevier's journals is conducted at public expense, or with a large public subsidy. The peer reviewing process is also undertaken by publicly subsidized scientists whom Elsevier does not pay. The institutions that these scientists work for have to pay very large amounts of money in order to receive the journals their work contributes to.
I can no longer work for a system that puts profit over access to research
(via Copyfight)
By Cory Doctorow at 5:57 am Friday, May 18
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A campaign on Unglue.it is seeking to raise $7,500 to pay for a Creative Commons Attribution-only licensed edition of Oral Literature in Africa, an out-of-print classic on the subject that is widely sought by African libraries. Once the money is raised, they will produce the new edition and make it widely available.
First published in 1970 by Oxford University Press, this classic study has been hailed as "the single most authoritative work on oral literature”. It traces the history of story-telling in Africa, and brings to life the diverse forms of creativity across the African continent. Author Ruth Finnegan is thought to have “almost single-handedly created the field of ethnography of language” with this book, and it continues to be a go-to text for anyone studying African culture.
However, despite its enormous scope and popularity, Finnegan’s book is now out of print. It is particularly hard to find in Africa, where its original retail price was beyond the budget of most university libraries. The non-profit organization Open Book Publishers is endeavoring to make this definitive book freely available to African students and scholars — and indeed to any interested readers around the world. The Unglued Ebook will be particularly friendly to people in places with slow Internet connections: once a copy is downloaded, the book can be read offline.
This edition, developed in conjunction with Cambridge University’s World Oral Literature Project, will include a new introduction and extra digital material. When Finnegan’s book was first published forty years ago, the technology did not exist to include audio clips. Part of this Unglue campaign will involve the creation of a free online repository of Finnegan’s audio recordings of African story-telling, carefully collected during her fieldwork in the late 1960s. These clips, together with original photographs taken during her research, will become available for the first time to researchers everywhere — an invaluable resource to scholars of African literature and culture.
Oral Literature in Africa
(via Copyfight)
By Cory Doctorow at 3:44 pm Wednesday, May 16
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A paywalled paper in the Royal Society's journal Interface argues that the world's underground rail systems are all converging on an "ideal" form. The paper, "A long-time limit for world subway networks," shows that subway systems grow "organically," in response to the needs expressed by the cities above them over the course of decades, and reveal truths about the shape of cities. In Wired, Brandon Keim describes the findings:
Patterns emerged: The core-and-branch topology, of course, and patterns more fine-grained. Roughly half the stations in any subway will be found on its outer branches rather than the core. The distance from a city’s center to its farthest terminus station is twice the diameter of the subway system’s core. This happens again and again.
“Many other shapes could be expected, such as a regular lattice,” said Barthelemy. “What we find surprising is that all these different cities, on different continents, with different histories and geographical constraints, lead finally to the same structure.”
Subway systems seem to gravitate towards these ratios organically, through a combination of planning, expedience, circumstance and socioeconomic fluctuation, say the researchers.
World’s Subways Converging on Ideal Form
By Cory Doctorow at 1:09 am Friday, May 11
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A Google-commissioned legal paper on the constitutionality of regulating search results concludes that the such a regulation would violate the First Amendment. "First Amendment Protection for Search Engine Search Results" was written by eminent legal scholar Eugene Volokh and attorney Donald Falk, who argued that search-results are like the table of contents in a magazine, reflected protected expression in the form of editorial judgment.
In the case of a magazine, the articles are selected by a human editor. In the case of Google, the search results are selected by an algorithm, but the algorithm is created and managed by engineers who apply editorial judgment to the results. I absolutely agree with this conclusion.
However, I'm surprised to see Google in accord with me on this one. In all my discussions with googlers on this subject to date, I've always been told that search-results represent a kind of abstract "relevance," not anything as sticky and human as "judgment." It was as though Google's sorting algorithm provided a wormhole from the walls of Plato's cave straight into your browser.
Up until now, all the arguments against regulating search results I've heard have turned on this notion of search results being untouched by human hands. The reason that an unflattering "sucks" site appears at the top the search for a company's name is that the offending site is "relevant" according to some infallible mathematics of significance. To order Google to rearrange its search results is like ordering a parachute company to change the constant it uses in calculating gravity.
I've always hated this argument. Google regularly "tweaks" its ranking algorithm to provide "better, more relevant" results. These tweaks' success are measured by how "right" they appear, both to Google and to its users. They are, in other words, judgments.
I think that the editorial right to exercise judgment is much more widely understood than the sacred infallibility of robotic sorting. I certainly support it more. But I wonder if Google appreciates that it will now have to confront people who are angry about their search rankings by saying, "I'm sorry, we just don't like you very much" instead of "I'm sorry, our equations put you where you belong." And oy, the libel headaches they're going to face.
Here's Timothy B Lee reporting at Ars Technica:
The authors argue that this selection process is no different, constitutionally speaking, from a newspaper editor selecting wire stories to run, a guidebook deciding which attractions to feature, or a parade organizer choosing which floats to include. The courts have ruled that all of these editorial processes are fully protected by the First Amendment.
Moreover, the paper argues, the courts have held that First Amendment rights generally trump antitrust law—something of increasing concern to a dominant company like Google. "Antitrust law cannot be used to require a speaker to include certain material in its speech product," Volokh and Falk write. They point to a 1945 case in which the courts found the Associated Press had violated antitrust laws, but stressed that its ruling did not "compel AP or its members to permit publication of anything which their 'reason' tells them should not be published." Newspaper editors have the right to decide which stories should be included in their newspapers and which ones make the front page. This suggests that Google has similarly wide discretion to decide which links and other content will appear, and in which order, in response to any given search query.
Here's a quote from the paper itself:
In this respect, each search engine’s editorial judgment is much like many other familiar editorial judgments:
* newspapers’ daily judgments about which wire service stories to run, and whether they are to go “above the fold”;
* newspapers’ periodic judgments about which op-ed columnists, lifestyle columnists, business columnists, or consumer product columnists are worth carrying regularly, and where their columns are to be placed;
* guidebooks’ judgments about which local attractions, museums, stores, and restaurants to mention, and how prominently to mention them;
* the judgment of sites such as DrudgeReport.com about which stories to link to, and in what order to list them.
All these speakers must decide: Out of the thousands of possible items that could be included, which to include, and how to arrange those that are included? Such editorial judgments may differ in certain ways: For example, a newspaper also includes the materials that its editors have selected and arranged, while the speech of DrudgeReport.com or a search engine consists almost entirely of the selected and arranged links to others’ material. But the judgments are all, at their core, editorial judgments about what users are likely to find interesting and valuable. And all these exercises of editorial judgment are fully protected by the First Amendment.
That is so even when a newspaper simply makes the judgment to cover some particular subject matter: For instance, when many newspapers published TV listings, they were free to choose to do so without regard to whether this choice undermined the market for TV Guide. Likewise, search engines are free to include and highlight their own listings of (for example) local review pages even though Yelp might prefer that the search engines instead rank Yelp’s information higher. And this First Amendment protection is even more clearly present when a speaker, such as Google, makes not just the one include-or-not editorial judgment, but rather many judgments about how to design the algorithms that produce and rank search results that — in Google’s opinion — are likely to be most useful to users.
Scholar: regulating Google results would violate First Amendment
By Cory Doctorow at 11:38 am Wednesday, May 9
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Carl Pyrdum's 2010 essay on the internal logic of Gothic manuscript illuminations uses a delightful series of illustrations and sprites from Super Mario Brothers. History at its finest:
If you look carefully (the image above–and all the images in this post–should expand if you click it), you can see that the two initial capitals on the page form separate platforms, not quite touching. The uppermost capital provides support for two vine-like borders, one growing upward and another that downward toward the lower capital. And the vines in turn provide support for little birds who sit atop them.
If it turns out that the hound can leap, too, the rabbit still might be able to get away if he can convince Mario to give up one of his precious oak leaves. Flying creatures are allowed to ascend into the open white space of the medieval manuscript page, as this moth is doing in the top left margin of this very same page:
The poor insect enthusiast beneath can only gaze up wistfully at the moth, unable to get any higher on the page because he’s run out of platforms.
Now, this attention to gravity is a general tendency, not an ironclad rule. If you poke around Gothic manuscripts long enough you’ll find many exceptions, but probably a lot fewer than you might expect. In fact, I’ve found that the fancier the manuscript, the more consistently its artists tend to respect gravity’s role on the page. Deluxe manuscripts like the Yale Lancelot or the Bodleian Alexander are scrupulous about making sure everything is resting on something that’s attached to something that’s attached back to one of the anchor points. In fact, the better manuscripts purposefully play with the expectation of downward gravity, creating elaborate and fanciful connections between the objects on the page. Next time I get around to this subject, I’ll try to show you some of my favorite examples.
Gravity in the Margins (Mmm… Marginalia #55)
(via Making Light)
By Cory Doctorow at 6:17 pm Monday, May 7
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A post by Slashdot user Dangerous_Minds summarizes a series ZeroPaid's Drew Wilson, who has been examining 20 file-sharing studies from the decade-plus-long filesharing wars. Time and again, the studies show that the effect on markets is marginal, and that the big entertainment companies are opposed to file-sharing a means of suppressing competition and innovation:
While most writers would simply criticize the study and move on, Wilson took it a step further and looked in to what file-sharing studies have really been saying throughout the years. What he found was an impressive 19 of 20 studies not getting any coverage. He launched a large series detailing what these studies have to say on file-sharing. The first study suggests that file-sharing litigation was a failure. The second study said that p2p has no effect on music sales. The third study found that the RIAA suppresses innovation. The fourth study says that the MPAA has simply been trying to preserve its oligopoly. The fifth study says that even when one uses the methodology of one download means one lost sale, the losses amount to less than $2 per album. The studies, so far, are being posted on a daily basis and are certainly worth the read."
What Various Studies Really Reveal About File-Sharing
Noah Brewer just successfully defended his MA English thesis
Re-Makers: The Novel in Digital Collaborative Space at the University of Georgia. As the title implies, the piece is about
my novel Makers. It's a smart piece of work, and I'm both tickled and honored.
— Cory
By Cory Doctorow at 10:03 am Monday, Apr 30
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From "A Wearable Sensor for Unobtrusive, Long-term Assessment of Electrodermal Activity" (by Poh, M.Z., Swenson, N.C., Picard, R.W. in IEEE Transactions on Biomedical Engineering, vol.57, no.5), a chart showing a single student's electrodermal activity over the course of a week. Note the neural flatlining during classtime. As Joi Ito notes, "Note that the activity is higher during sleep than during class." He also adds, "Obviously, this is just one student and doesn't necessarily generalize."
A week of a student's electrodermal activity
(Thanks, Joi!)
David Weinberger
writes, "Harvard University has today put into the public domain (CC0)
full bibliographic information about virtually all the 12M works in its 73 libraries. This is (I believe) the largest and most comprehensive such contribution. The metadata, in the standard MARC21 format, is available for bulk download from Harvard. The University also provided the data to the Digital Public Library of America’s prototype platform for programmatic access via an API. The aim is to make rich data about this cultural heritage openly available to the Web ecosystem so that developers can innovate, and so that other sites can draw upon it. This is part of Harvard’s new Open Metadata policy which is VERY COOL."
— Cory
By Cory Doctorow at 5:00 pm Monday, Apr 23
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A paper in the Proceedings of the National Academy of Sciences reports on an experiment to test how pay-what-you-like pricing performs when compared with merchant-driven "discount" pricing, and suggests that people pay more when given the choice. Ironically, the paper isn't priced on a pay-what-you like basis (it's $10 for two days' access).
We investigate the role of identity and self-image consideration under “pay-what-you-want” pricing. Results from three field experiments show that often, when granted the opportunity to name the price of a product, fewer consumers choose to buy it than when the price is fixed and low. We show that this opt-out behavior is driven largely by individuals’ identity and self-image concerns; individuals feel bad when they pay less than the “appropriate” price, causing them to pass on the opportunity to purchase the product altogether.
Here's a summary from Science magazine:
...scientists tested pay-what-you-want (PWYW) pricing in three experiments. In the first, some boat tour riders were given the option to pay $15 for a photo of themselves, while others were asked for $5, and still others were asked for PWYW. More people bought photos under the $5 plan, about 64%, than when they could name their own price, about 55%. (Only 23% opted for the $15 photos.) Scientists think that when people have to decide on a fair price, fear of looking cheap keeps some from purchasing altogether, they report online today in the Proceedings of the National Academy of Sciences. In a second trial, researchers found that attendees at an amusement park paid five times more for a photo of themselves on a ride (such as the one above) under PWYW pricing if told that half the proceeds would go to charity. And in the third experiment, guests at a restaurant with PWYW pricing either paid someone directly for their meal or paid anonymously by slipping money into a box near the door on their way out. Customers paid about 13% more when they were anonymous than when they paid someone directly. In all cases, the team says, PWYW seems to work because we want to feel good about ourselves when doing it.
Pay-what-you-want, identity, and self-signaling in markets
(Thanks, Isaak!)
By Cory Doctorow at 1:45 pm Monday, Apr 23
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Henry sez, "Harvard Library's Faculty Advisory Council is telling faculty that it's financially 'untenable' for the university to keep on paying extortionate access fees for academic journals. It's suggesting that faculty make their research publicly available, switch to publishing in open access journals and consider resigning from the boards of journals that don't allow open access."
Harvard’s annual cost for journals from these providers now approaches $3.75M. In 2010, the comparable amount accounted for more than 20% of all periodical subscription costs and just under 10% of all collection costs for everything the Library acquires. Some journals cost as much as $40,000 per year, others in the tens of thousands. Prices for online content from two providers have increased by about 145% over the past six years, which far exceeds not only the consumer price index, but also the higher education and the library price indices. These journals therefore claim an ever-increasing share of our overall collection budget. Even though scholarly output continues to grow and publishing can be expensive, profit margins of 35% and more suggest that the prices we must pay do not solely result from an increasing supply of new articles.
The Library has never received anything close to full reimbursement for these expenditures from overhead collected by the University on grant and research funds.
The Faculty Advisory Council to the Library, representing university faculty in all schools and in consultation with the Harvard Library leadership, reached this conclusion: major periodical subscriptions, especially to electronic journals published by historically key providers, cannot be sustained: continuing these subscriptions on their current footing is financially untenable. Doing so would seriously erode collection efforts in many other areas, already compromised.
Faculty Advisory Council Memorandum on Journal Pricing
(Thanks, Henry!)
(Image: HBS Library, a Creative Commons Attribution (2.0) image from wagnertc's photostream)
By Cory Doctorow at 9:00 am Sunday, Apr 22
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In the Observer, John Naughton unloads both barrels on the "academic publishing racket" in which giant multinational publishers get free, state-subsidized research to publish, use free, state-subsidized labor for peer-review, require assignments of the scholars' copyrights as a condition of publication, then charge astounding sums to the scientists and academics they are "serving" for the right to read the work they're all engaged in producing.
But it's not just the exorbitant subscriptions that stink; it's the intrinsic absurdity of what's involved in the academic publishing racket. Most publishers, after all, have at least to pay for the content they publish. But not Elsevier, Springer et al. Their content is provided free by researchers, most of whose salaries are paid by you and me.
The peer reviewing that ensures quality in these publications is likewise provided gratis by you and me, because the researchers who do it are paid from public money. (One estimate puts the value of UK unpaid peer reviewing at a staggering £165m.) And then the publishers not only assert copyright claims on the content they have acquired for nothing, but charge publicly funded universities monopoly prices to get access to it.
The most astonishing thing about this is not so much that it goes on, but that people have put up with it for so long. Talk to university librarians about extortionist journal subscriptions and mostly all you will get is a pained shrug. The librarians know it's a racket, but they feel powerless to act because if they refused to pay the monopoly rents then their academics – who, after all, are under the cosh of publish-or-perish mandates – would react furiously (and vituperatively).
Which is why the recent initiative by a Cambridge academic, Tim Gowers, is so interesting and important. Professor Gowers is a recipient of the Fields medal, which is the mathematics equivalent of a Nobel prize, so they don't come more eminent than him. In a memorable blogpost, Gowers announced that henceforth he would not be submitting articles to Elsevier's journals and that he would also be refusing to peer-review articles for them. His post struck a nerve, attracting thousands of readers and commenters and stimulating one of them to set up a campaigning website, The Cost of Knowledge, which enables academics to register their objections to Elsevier. To date, more than 9,000 have done so.
Here's an interesting wrinkle I've encountered in a few places. Many scholars sign work-made-for-hire deals with the universities that employ them. That means that the copyright for the work they produce on the job is vested with their employers -- the universities -- and not the scholars themselves. Yet these scholars routinely enter into publishing contracts with the big journals in which they assign the copyright -- which isn't theirs to bargain with -- to the journals. This means that in a large plurality of cases, the big journals are in violation of the universities' copyright. Technically, the universities could sue the journals for titanic fortunes. Thanks to the "strict liability" standard in copyright, the fact that the journals believed that they had secured the copyright from the correct party is not an effective defense, though technically the journals could try to recoup from the scholars, who by and large don't have a net worth approaching one percent of the liability the publishers face.
Of course, to pursue this line, you'd have to confront the fact that academics are sharecroppers to their employers, and that the works they've published, posted to their websites, licensed for anthologies, etc, aren't theirs, which would have a lot of fallout beyond mere academic publishing circles. But it's still provocative to consider the possibility that the journals (and their enormous, conlgomerated parent companies) might owe something like 40 years' worth of the entire planet's GDP to a bunch of cash-strapped universities.
Academic publishing doesn't add up
By Cory Doctorow at 4:54 pm Wednesday, Apr 18
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On Freedom to Tinker, Andrew Appel has been expertly analyzing the copyright policies of several technical academic journals published by the likes of ACM and the IEEE. The scholars who contribute to these journals are calling for a change in their way of doing business, so that article authors get to retain their copyright. Appel lays out a compelling economic argument for scholars refusing to assign their copyrights to journals. In today's installment, Appel discusses a shift in ACM's publishing policy that ends the practice of authors modifying their contracts to reflect their preferences on terms of publishing; now ACM's office of Copyright and Permissions states that "ACM does not accept copyright Addenda that exceed the liberal rights retained by authors under ACM’s Copyright Policy and the exclusive grant of copyright to ACM as publisher."
Appel points out that in one area of academic publishing, conference proceedings, scholars hold the whip hand. That's because, once papers have been accepted for presentation at a conference, and the program fixed, the authors could collectively refuse to sign the default contract. This would require the publisher to either modify its policy to reflect the wishes of the (unpaid) contributors who make its conferences possible, or to scrap the entire bill and start over reviewing papers, with short time.
Suppose almost all the authors of the 40 accepted papers were to write the same modification into their copyright contract? The publisher could reject all those papers, but there’s a serious time constraint: the conference volume has to appear, and it has to appear NOW, with a short deadline. If the volume appears but missing three-fourths of its papers, then that conference is effectively dead, and may never recover in future years.
It’s not like a journal, where the publisher can just publish some other papers instead. The papers are accepted all at once by a program committee whose members are not employees of the publisher, who are not under a contractual obligation to the publisher, and who may sympathize more with the authors’ views about copyright than with the publisher’s. The publisher cannot simply substitute other papers.
This is a game of chicken that the publisher cannot win. If the authors feel strongly and get their gumption together, they will prevail. The best course for publishers is to avoid playing this game of chicken, by adjusting their copyright contracts to fit the progress of open-access policies in the 21st century. I believe that the good nonprofits (such as ACM and IEEE) are heading in this direction, and Usenix is already there.
Contract hacking and community organizing
