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Volume 10, No. 9—December 2000/January 2001  
Table of contents for this issue  

Persistent Suitor

FOR MORE THAN A DECADE, THE NEWARK-BASED commercial publisher Gordon & Breach (G&B) has pursued what some have described as a curious business plan: In essence, the company has been suing a portion of its core readership. Since 1989, G&B has alleged that two scientific societies, the American Physical Society (APS) and the American Institute of Physics (AIP), conspired to disparage G&B physics journals. But after successfully battling G&B's suits in numerous courts in four countries, the societies hold a different view of the affair. "This is really about freedom of speech," says Marc Brodsky, the AIP's executive director. Ken Frazier, director of libraries at the University of Wisconsin at Madison, concurs: "The G&B lawsuits are a direct assault on academic freedom and a gross violation of professional ethics." Frazier has called for the academic community to censure G&B, whose behavior he calls "despicable."

The saga began when a retired University of Wisconsin physicist, Henry H. Barschall, started looking into the pricing of physics journals. In 1988 he completed a comparative analysis of more than two hundred publications. The study appeared in the AIP's flagship magazine, Physics Today, and in the APS's Bulletin of the American Physical Society. Its conclusion? Nonprofit society-based journals offered work equal to or better than commercial journals, and at lower subscription prices. AIP and APS journals came out near the top of the study; G&B journals fared especially badly.

Both the AIP and the APS immediately cited the study in promotional materials. Barschall's work was also embraced by librarians, who had long complained of skyrocketing subscription rates among scientific journals. But soon enough, recalls Harry Lustig, APS treasurer from 1985 to 1996, G&B attorneys delivered a stern demand to the AIP and the APS: Publish an immediate and prominent retraction of Barschall's article. Otherwise, G&B attorneys warned, there would be litigation.

Rattled by the message and wishing to avoid legal difficulties, the AIP and the APS set out to resolve the matter, according to Lustig. "Our strategy was, and still is, to try to settle," Lustig says. "We offered Gordon & Breach the opportunity to publish their objections. But we said we would give Barschall a chance to examine and counter the statements of error if he felt these were wrong, which is what is done in scientific journals." Lustig says G&B attorneys refused this and other offers. Not surprisingly, Martin Gordon, founder of Gordon & Breach, describes the negotiations differently. "We tried to settle many times," he says, "and we tried to find an easy way to get a retraction or a correction of what they had done. They just refused." He adds: "They forced us to go to the suits."

In 1989, after nearly eight months of fruitless negotiations with the AIP and the APS, G&B attorneys launched a legal blitzkrieg throughout Europe. In the spring of 1989, G&B asked a Swiss court for an injunction preventing the AIP and Swiss libraries from distributing an issue of Physics Today that included a notice describing the negotiations with G&B. The court rejected G&B's request and even ordered the publisher to pay the libraries one hundred francs each. But this was just the beginning. In June 1989, G&B attorneys filed suit in Germany. Weeks later, they filed another suit in Switzerland, this time asking that Barschall face civil and criminal penalties for distributing his data. In September of 1989, they filed suit in France. And four years later, in September 1993, G&B tried its luck in the United States, suing under the Lanham Act, which prohibits the dissemination of false information in advertising.

Advertising? "The price survey's real intent was to compare APS and AIP journals in a favorable light against their competitors," explains Christopher Schneider, the president of G&B's marketing and advertising arm. In fact, say G&B officials, Barschall's article wasn't a price study so much as a flawed attempt to "deceive the market" into believing that rigorous statistical analysis has proven AIP and APS journals to be the best value. G&B officials have raised various concerns about Barschall's study. They say that he compared journals of different size and scope and they also question his use of citation counts to measure a journal's impact. And, say G&B officials, Barschall, then a member of the APS and a former editor of the APS journal Physical Review C, had a clear conflict of interest.

Do G&B officials believe that an eminent physicist, the AIP (an umbrella organization of ten scientific societies), and the APS (the world's largest organization of physicists, with more than forty-two thousand members) set out to discredit G&B's journals? "Yes," says Martin Gordon flatly. "Or maybe we were just the best target."

"Totally absurd," says Harry Lustig of Gordon's claim, noting that there was no explicit mention of G&B in Barschall's study. "No publisher was mentioned explicitly except in the tables, and the tables showed that G&B indeed is just about the poorest performer, price-wise. But there was no intention to single out G&B."

So why, then, would G&B spend millions of dollars and eleven years pressing a false-advertising claim against two nonprofit competitors? In a word, says Lustig, "intimidation." In New York federal court, the lead attorney for the AIP and the APS, Richard Meserve, asserted that G&B was using the legal system to discourage the distribution of price studies that would shed light on G&B's pricing practices. Meserve cited several examples of intimidation by G&B, ranging from actions against the American Mathematical Society, which also did a price survey that showed G&B journals among the highest priced, to threatening letters G&B sent to individual librarians who complained about prices. In his 1997 ruling, Judge Leonard Sand found Meserve's arguments compelling. Citing one of the defendants' briefs, he concluded that "the evidence persuasively demonstrated that the present suit is but one battle in a 'global campaign by Gordon & Breach to suppress all adverse comment upon its journals.'" Sand also found that although other methods could be used, Barschall's study "reliably" measured the cost-effectiveness of the journals it covered. Sadly, Barschall did not live to see his work vindicated. After devoting a great part of his retirement to fighting the G&B suits, he was struck with an aggressive form of cancer and died in February 1997.

G&B appealed Sand's ruling, but it was upheld by the Court of Appeals for the Second Circuit. More recently, G&B has also lost ground in France, where a Paris appeals court delivered the latest ruling against the publisher last June. "That was really a surprise decision," says G&B's Schneider, noting that G&B had prevailed in the initial French verdict. But G&B is not giving up. Schneider confirms that the company is appealing to the Supreme Court of France, and if the Supreme Court finds in favor of G&B, the litigation will have new life. "Past precedents in France are opposed to the decision made," he says.

"It's not unexpected," says current AIP executive director Marc Brodsky when told of G&B's decision to continue the suit in France. "Every opportunity they've had to appeal, they've done so." The AIP and the APS have already spent roughly three million dollars on the G&B affair. But Brodsky says the associations will continue to fight the suit for as long as necessary. "It's about the intellectual freedom to publish articles and let scientists have their say," he explains.

Has pursuing a course of continuous litigation against both the scientific and the academic library communities hurt business for G&B's journals? "Probably it has," Gordon admits. But, he adds, "it's impossible to see how it has. As you know, library budgets have been cut in the last few years."

Andrew R. Albanese

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