The University of California recently received a takedown notice for 9 articles that had been uploaded by UC authors to eScholarship, UC’s open access repository.

• All 9 articles were published by the American Society for Civil Engineers (ASCE).
• None were recent articles covered by the new UC Open Access Policy. They were all uploaded between 2004 and 2008.
• All of them appeared to be the publisher-formatted PDFs. Authors signing ASCE’s unmodified publication agreement agree to only post an author’s version “after peer review and prior to copyediting or other ASCE production activities” to a repository. Additionally, authors posting their own versions are supposed to link to the final article’s location on ASCE’s site. Some of these articles had those links; others did not.
• The articles were from collections associated with three different campuses. Co-authors were at other campuses and non-UC institutions.

We removed the PDFs but kept the metadata intact. We then emailed the authors/submitters who had uploaded the articles to inform them about the DMCA takedown notices. When the author/submitter was no longer affiliated with UC, we copied UC co-authors, where available, in case the user’s email address was no longer working.

Avoiding a DMCA takedown notice

For any UC authors worried about receiving such a takedown notice, here are the tips we provided when we heard about the Elsevier notices some campuses were receiving last year:

• Post the correct version of your article.  Usually the author’s final version – after peer review but before the publisher formats it in the journal layout – is allowed for self-archiving, and this is the version the open access policy supports.  Relatively few publishers allow authors to post the published version of their article.
• UC faculty adopted an Open Access Policy on July 24, 2013. If you’re dealing with an article published after the policy passed – and if your journal does not ask you for a waiver or embargo – you are expected to post your article in UC’s eScholarship Repository and can make it available anywhere else you like. Make sure to use the author’s final version (see above).
• For articles not covered by the policy, read what you signed. You can also check the journal’s policy page, or the SHERPA/RoMEO database of journal policies. Often you can post the author’s final version, but you may need to wait until a year or two after publication.
• Compare the policies of different journals in your field. If you have multiple publishing options, opt for the ones that give you more control over your work, and not those that are going to send legal notices to your university. The University of California will keep this page updated with information about publishers that have agreed to respect authors’ rights, and how publishers are responding to the UC Open Access Policy.
• Get help understanding your options. UC Libraries staff are available to answer your questions.

DMCA details

Casual readers may want to stop here. For those of you follow the world of DMCA takedown notices, the two e-mails listing these nine articles (some twice) were received not from ASCE directly, but from Attributor, Inc., which is owned by Digimarc. If that sounds familiar, it’s the same organization that conducted similar work for Elsevier – see the Washington Post article or run a Google search for “Attributor Elsevier DMCA request.”

Strangely, rather than sending the notice to eScholarship’s registered DMCA agent, Attributor sent them to an anonymous e-mail address recently established for the UC Copyright educational site, causing delay of receipt. This was first time UC has received a takedown notice for content in eScholarship, and we’re planning on contributing it to the Chilling Effects project [EDIT, 7/18/2017: chillingeffects.org is now the Lumen database] so that other institutions who receive similar notices can find it and know they’re not the only ones.

Text of the message we sent to the authors/submitters who received a DMCA follows:

Dear Dr. [Last Name]:

We recently received a notification on behalf of the American Society for Civil Engineers (ASCE). This notification stated that the presence of your article “[Article Title],” (published in [year] and not covered by the new UC Open Access Policy) in eScholarship (UC’s open access repository) allegedly infringes ASCE’s rights under copyright law. Following the procedures of the Digital Millennium Copyright Act, we have removed the PDF from eScholarship. The information about the article is still available here:

[eScholarship link]

We would like to work with you to maintain the open availability of your work in eScholarship and have resources that can help with that listed below. Depending on your circumstances, you may have one or two options:

1) Upload another version of your article.  ASCE’s publication agreement states that authors may not upload the publisher’s formatted PDF to open access repositories like eScholarship. They can, however, upload their own earlier version, “the version submitted to ASCE after peer review and prior to copyediting or other ASCE production activities.” We will be happy to work with you to replace the removed article with this approved version together with a link to the published version at https://ascelibrary.org/. The article’s eScholarship URL will remain the same, and it will retain the information about how many times it has been viewed and downloaded so far.

2) Assert your right to post this version of your article.  If you believe that neither you, nor someone authorized to act on your behalf, signed an agreement transferring copyright to ASCE, or you had permission from ASCE to post the publisher’s formatted PDF, you can send us a counter-notification. Once we receive a valid counter-notification from you, we will forward the notice to ASCE. They may then seek a court order. If they do not, we will replace your article in eScholarship within 14 days.

More information about notice and takedown procedures generally is available at the Chilling Effects website.

UC Libraries have staff and resources that can help. If you have questions about this process or need any assistance, please contact [campus contact info] or help@escholarship.org.

Sincerely,

Laine Farley
Executive Director
California Digital Library

Tags: ASCE, Copyright, DMCA Takedown Notices, eScholarship