A Reply to Larry Lessig

I think I have earned a bit more of the benefit of the doubt than Professor Lessig is willing to muster. It should be no great surprise that there is far more to the "open access" story than his muckracking tale lets on.
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Congress is not perfect, and I respect Professor Larry Lessig's vigorous effort to change and improve it. Furthermore, as readers of the Huffington Post well know, I am firmly committed to tough oversight and great transparency in government, and I don't mind taking it as well as dishing it out. But Professor Lessig's recent comments on the the scientific publishing issue and my sponsorship of a bill on the subject simply cross the line. I would hope we could debate these matters, including both the substantive policy issue as well as the process/campaign donation subject, without tossing around unjustified allegations. Just as Congress needs some changing, perhaps our discourse does as well.

To hear Professor Lessig tell it, I introduced a bill that is utterly without merit and entirely the product of shady special interest dealing. Without any evidence to support his contention (other than my receipt of what can only be described as modest contributions from publishers), he labels my motivations for introducing this bill as "corrupt," accuses me of "shilling" for "Big Paper," and dismisses the whole thing as nothing more than a "money for influence scheme." This even though one of the very columns cited by Professor Lessig reviews the campaign financing at issue and concludes that "the numbers here are not large" and that "I don't think the numbers in the MAPLight report support Lessig and Eisen's contention that the bill is a 'money-for-influence scheme.'"

Apparently, on the basis of this one piece of legislation he dislikes, Professor Lessig is willing to wave away my forty years of fighting against special interests, including for example my authorship (along with then Senator Barack Obama) of an anti-lobbying law that established reform groups labeled a "landmark" law. I have supported public financing legislation favored by Professor Lessig since it was first proposed.

In fact, I would have responded to Professor Lessig's charge that I am beholden to corporate interests earlier this week, but I was busy fighting the mortgage lending industry to get my bill to provide bankruptcy relief to homeowners through the House of Representatives this week (I was also focused on securing the testimony of Karl Rove and Harriet Miers).

Professor Lessig may or may not know that, last year, the publishing industry supported a version of the "Orphan Works" legislation passed by the Senate that dealt with the use of copyrighted materials whose authors are difficult to locate. This may well be the industry's highest legislative priority within my Committee's jurisdiction. I refused to consent to move that bill through the House, however, because I did not think there had been adequate opportunity for all views to be heard. Would a craven shill for "Big Paper" do such a thing?

I think I have earned a bit more of the benefit of the doubt than Professor Lessig -- whatever his motives -- is willing to muster. And so it should be no great surprise that there is far more to the "open access" story than Professor Lessig's muckracking tale lets on.

First, there is a serious process issue at stake here. My bill would restore longstanding federal copyright policy in this area. It reverses a provision slipped into an appropriations bill in the middle of the night, with no consultation with the Committee which is actually supposed to write the law in this area, the Judiciary Committee, which I chair. Thus, Professor Lessig simply ignores that this so-called "open access" policy was not subject to open hearings, open debate or open amendment in Congress and itself represents the sort of process-compromised special interest provision that he generally rails against. Now the special interests here may be highly worthy, but an openness hawk such as Professor Lessig ought not countenance procedural gimmicks just because they yielded a favored result.

My bill lays down a marker indicating that issues this complex, with important values and convincing arguments on both sides, should not be decided by a few lawmakers without relevant jurisdictional expertise in the dark of night with no meaningful public scrutiny or input. Unlike the measure my bill would repeal, my bill is fully available to the public and has my name attached to it. If it moves through my Committee, which it has not yet, it will be subject to full public hearings - and open to criticism and improvement from all sides.

Second, on the narrow merits of the issue, Professor Lessig and proponents of "open access" make a credible argument that requiring open publishing of government-funded research information furthers scientific inquiry. They speak out for important values and I respect their position.

While this approach appears to further and enhance access to scientific works, opponents argue that, in reality, it reverses a long-standing and highly successful copyright policy for federally-funded work and sets a precedent that will have significant negative consequences for scientific research.

These opponents argue that scientific journals expend their own, non-federal resources to manage the peer review process, where experts review academic publications. This process is critical because it provides the quality check against incorrect, reckless, and fraudulent science and furthers the overall quality and vigor of modern scientific debate. Journal publishers organize and pay for peer review with the proceeds they receive from the sale of subscriptions to their journals, thereby adding considerable value to the original manuscripts of research scientists.

The policy Professor Lessig supports, they argue, would limit publishers' ability to charge for subscriptions since the same articles will soon be publicly available for free. If journals begin closing their doors or curtailing peer review, or foist peer review costs on academic authors (who are already pay from their limited budgets printing costs in some cases), the ultimate harm will be to open inquiry and scientific progress may be severe. And the journals most likely to be affected may be non-profit, scientific society based journals. Once again, a policy change slipped through the appropriations process in the dark of night may enhance open access to information, but it may have unintended consequences that are severe. This only emphasizes the need for proper consideration of these issues in open session.

I acknowledge that these are complex issues and that there are important values, strong arguments, and passionate supporters on both sides. And I look forward to the coming debate. But I hope as the discussion moves forward, we can focus on the merits. No one is well served by ad hominem attacks, baseless smears, or a distorted presentation of the facts.

6:02p to commenter MT: Thanks for catching the typo --JC

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