Licit versus Illicit Publication

This article is an extended comment on one aspect of Julie Ann Dawson's article, entitled "Publishing versus Credible Publishing," posted on July 31.

Introduction

In her article, Ms. Dawson discussed, among other things, her belief that the publishing industry actually defines, and must be allowed to define, what constitutes "publication" of a written work. Her main conclusion on this issue was that anyone who would legitimately claim to be "published" must either have the imprimatur of a recognized print publisher or be ready to act like a legitimate publisher by investing $100,000 or more up front in his or her work.

However, after some reflection on my own experiences as an Internet author, and more recently as an author of a book pseudo-published in print form, I must disagree with Ms. Dawson in part on this point, because I believe her analysis did not go far enough. I have come to the conclusion that the relevant distinction is not one merely of industry definition ("published" versus "unpublished"), but a substantive distinction involving the  distribution of power, profits, honors and career rewards in the academic and publishing worlds. It is a distinction between licit and illicit publication. Therefore, I do not believe that an author who spends $100,000 self-publishing and promoting his or her own work, without first obtaining the blessing of some recognized institution or publisher, would be recognized in the publishing world as having been "published." He or she might act like a publisher, but the publication would remain illicit.

The legal term "licit," from the Latin "licere," has among its primary definitions, "not forbidden by law; permitted; legal; licensed; permitted by positive act of an authority." The term "illicit" has exactly the opposite meaning, generally: forbidden, unlicensed, illegal, not granted permission by some positive act of an authority. The most common popular use of these terms insists that any sexual activity outside of marriage is "illicit" because it is consummated without the permission implied by a marriage license (which is granted by the state in a positive exercise of its authority).  Similarly, some drugs, even drugs that are "legal" in the sense of not being positively prohibited by law, are nonetheless considered "illicit" if used without a prescription issued by a physician (again, permission granted by the positive act of an authority). I would argue that the same kind of analysis operates in the academic and publishing worlds—that is, that real, recognized "publication" requires a positive grant of permission by an academic or publishing institution, and that all other attempts at publication are treated as "illicit" and subject to being ignored or being confiscated.

My Experience in Academe

I spent an inordinate portion of my lifetime in graduate school, and earned three advanced degrees—an M.S. in Biochemistry, an M.A. in History, and a law degree.  So I am familiar with the ways of the academic world.  

In Biochemistry, as in science generally, the list of recognized peer-reviewed publications in which graduate students  were expected to perform their literature searches was pretty well established, and no one would have thought to stray outside it, at least not without instructions from one's major professor to do so.  In History, the range of acceptable secondary sources was somewhat broader, and included many sources like biographical publications and state and local historical society publications which could be cited (with some reservations) even though they were not, strictly speaking, peer reviewed.   Historical writing could also be based on primary source documents—documents which are a part of the historical event or process studied rather than scholarly comment about it.   However, all acceptable historical sources, other than primary sources, had one thing in common—they were published by some recognized organization or academic commercial publisher.

Lawyers and legal scholars are even stricter about the authority of their sources than are physical scientists and historians.  Of course, there is an easily explainable reason for this—the law is an entirely man-made field of knowledge.  At least by most sane theories of knowledge, science and history deal with objective facts and processes that humans cannot change, but only observe, organize, explain and possibly exploit.  By contrast, if one sets aside the debate regarding whether the concept of "natural law" was properly discarded by the adoption of legal positivism by American courts and law schools a century ago, in the United States the law is exactly what the courts say it's, no more and no less.  Congress, and the fifty state legislatures, may add to or change what the courts do, within constitutional limitations defined by the courts, but the judiciary has the last word.   The Law is people making rules, not bound by any external objective truth.  All that matters in legal scholarship is the authority of the human being quoted.

It should be understood that my long sojourn in the academic world occurred while the Internet was still in its gestation and early infancy, so the question of how to handle electronically published sources never arose during my academic career.   However, for the last sixteen years, I have been employed as a research paralegal by a small law firm that has a major specialization in products liability and toxic tort defense.  In this field, the question of how to handle non-peer-reviewed and electronic scientific and medical publications frequently arises.  In general, how lawyers in the products liability field regard such publications depends upon whether they represent plaintiffs or defendants.  Plaintiffs' attorneys tend to argue that all publications are equal, such that even one non-peer-reviewed or electronic case report in which the author suggests that the chemical at issue in the lawsuit might have caused another person an injury similar to the plaintiff's injury is sufficient to conclusively prove that their client's injury was probably caused by that chemical (and they will find properly-qualified experts who will so testify).  On the other hand, defense counsel will insist upon the application of certain tests the courts have developed for the foundation of scientific evidence.  In this regard, there are two different lines of authority, and most jurisdictions follow one of them.  The older line of authority (the Frye test), looks only at whether the evidence presented is of a type "generally accepted in" the relevant scientific community—i.e., it looks at the recognized authority of the authors who published the underlying papers. Peer-reviewed publication is a major factor in determining general acceptance under the Frye test.  The newer line of authority (the Daubert test) also gives a great deal of weight to "general acceptance,"  but breaks peer-reviewed publication out of "general acceptance" as a separate factor to be considered in its own right, and looks at several other factors as well.   Non-peer- reviewed publications, and online publications without the imprimatur of some major institution, generally do not fare well under either the Frye test or the Daubert test. 

Thus, my entire academic experience, including my last sixteen years in a job that requires application of legal and scientific literature, suggests that the academic world will tend to ignore any publication not authorized by its own internal processes, by some recognized publisher, or both.  

My Experience as a Web Author

For the last twelve years, I have been an active web author.  I have posted several web sites, and numerous web pages, most of them dealing with Christian unity or some aspect of Christian theology (a list may be found at Christian-oneness.org ).  This experience as a web author has convinced me that recognized academics and licit publishers not only officially ignore illicit publications, but also claim the right to confiscate anything of value they may unofficially find in them.

The discussion of my experience as a web author should start with the observation that the content of most of my web pages—theology—is more like science or history than it is like law.  That is, at least for an author who believes in God (as most theologians do), theology is the study of an external, objective reality which does not depend upon what people think about it.  If God is real, He is who He is, is not changed by our opinions of Him and does not cease to exist merely because we collectively declare Him dead.  Thus, it cannot properly be said that the truth of a theological statement depends on the authority of the human speaker.  A truth about God spoken by an untrained person with a psychiatric hospitalization record and twenty felony convictions remains true, in spite of the apparent disqualification of the speaker.  By the same token, a falsehood about God spoken by the recognized leader of a major mainline denomination with the concurrence of the full faculty of all of the denomination's seminaries remains false, despite the apparent great weight of human authority that supports it.  Following the same reasoning, if what I have published is true, it does not lose its truth merely because I lack credentials and have published it illicitly.  Thus, it's possible that the material I have published illicitly may in fact contain much useful truth.     

Indeed, over the years I have received several inquiries from theology graduate students at various institutions, stating that they have found my writings useful in preparing their own theses or dissertations and asking me to give them citations to where I have (licitly) "published" this material, so that they may properly cite it.  In subsequent e-mail correspondence, each has explained to me that their major professors, or the style sheets they must use in preparing their papers, will not permit citations to most Internet sources.  They have explained that they may only cite "legitimately" published sources.  (This agrees, of course, with my observations from my own academic career).  For their purposes, "publication" requires either publication in print or publication on the website of a recognized educational institution or a recognized journal in the field.  However, they were not allowed to cite material from websites without any official imprimatur.

Though it took me awhile to understand exactly what these graduate students were telling me, I now understand that they were telling me that they were permitted to use my ideas to whatever extent they were helpful, they simply were not permitted to give me any credit for them unless they could do so in a technically proper citation.  Since I am not a recognized authority in the field and did not publish my ideas in a licit publication, they could not cite my work.  In other words, my illicit publication of my ideas is treated in the academic world as giving persons legitimately operating in that world free license to confiscate anything of value they may find in my illicit publications and to use it as their own.          

All of this raises some interesting copyright questions.  As Ms. Dawson pointed out in her article, even if someone has quoted extensively the exact words of my websites without citation in their licitly-published work, my copyright damages would likely be limited by my choice to post the material for free on the Internet.  However, a much more interesting question might be raised about the rights of a licit publisher that publishes a work of a licit author who quotes an illicitly published work without citation.  I am careful to register my copyrights in my web material periodically, so I can prove creation dates.  Nevertheless, since I have come to understand what the theology graduate students were saying, I have had the fear that the licit publisher of a work that quotes my work (without citation) might someday sue me for infringing its rights under its copyright assignment from its "legitimate" author. In other words, I have had some fear that the confiscation of my illicitly published material by licit publishers might be enforceable against me under copyright law.  Moreover, in any such suit, regardless of whether copyright law would objectively support the rights of the later-in-time licit publisher over the earlier illicit author, economics would in nearly every case favor the licit publisher (who is, by definition, a moneyed institution or a publishing business).  The possibility of a suit in which a "legitimate" publisher proves its client's "right" to confiscate my material by driving me into the ground with litigation costs certainly is something to be considered!

My Experience as Author of an Illicitly Published Book

Last December, Lauston Stephens and I published a book, "Our Oneness in Christ" ( see www.ianbjohnson.com).  We had some months previously submitted our book to what we thought was a legitimate publisher, and it was accepted.  We thought at the time that everything was legitimate (or, more accurately, licit), because the publisher accepted our manuscript and published it without asking us to pay anything for publication—i.e., the publisher took some risk.  This was not a "vanity" publisher that required authors to pay to self-publish their works.  However, it did not take us long after publication to discover that our publisher is in a class of publishers—"POD" (print on demand) publishers—that the industry considers illicit.  "POD" is, in fact, considered self-publishing or "vanity publishing," even when no payment is required from the authors, because a POD publisher does not take a financial risk on the same order of magnitude as a traditional publisher (Ms. Dawson explains this in her article). 

In the eight months since our book was published, I have donated copies of the book to a number of academic libraries and have requested numerous reviews.  The libraries at all of the academic institutions from which I graduated have rejected the book, without explanation, although three other institutions—one public university and two seminaries—have accepted it into their collections.  My own local public library, though initially very excited to be receiving a copy of a book by a real "local author" (Topeka, Kansas, doesn't have many), has since declined to shelve the book, apparently on the grounds that I'm a long-time resident but not really an "author."  Furthermore, since publication we have received only a single review.  That review, written by Dr. Bruce Cook of ReserveBooks.com, is very positive.  Dr. Cook praises our book, saying that it "breaks new ground in the increasingly important struggle for unity among Christian believers" and that the book may initiate "the most significant new movement in the Christian church since the Reformation."  (Dr. Cook's full review may be found at www.reservebooks.com/reviews/oneness.htm ).  However, what Dr. Cook failed to notice is that the book was published illicitly, by unknown and unapproved authors with a POD publisher.  Ms. Dawson is probably quite correct in predicting that publication under these circumstances will limit its effectiveness.  It probably is true that, if, in fact, the ideas in our book start the "most significant movement in the Christian church since the Reformation," they will do so only by being noticed and confiscated by some recognized, licit Christian author.

Conclusion

My experiences in academe, as a web author and as an author of a book published by POD publisher all appear to support my conclusion that the real issue involved in self-publishing is not so much one of credibility as one of institutional permissions.  It is a distinction between licit and illicit publication.  Illicit publications will not be credible, no matter how good they may be, because they came to market by an unapproved channel.  Moreover, illicitly published material may well be considered subject to confiscation—use without credit—by recognized authors publishing material through the approved channels.    

However, I will be thrilled if the comments this article draws prove me wrong!  I would love my extreme pessimism to prove incorrect.