Uddin v. Elsevier: Peculiar By Design?

By Megan Bean (Copyright & Information Policy Specialist, Assistant Professor of Practice, Mississippi State University Libraries)

This commentary addresses the Uddin v. Elsevier lawsuit, focusing on its “Unpaid Peer Review Rule” prong and how the incentives of class action have shaped the case. Moreover, the plaintiffs have framed the issue as a dispute solely between scholars and publishers. But this excludes the universities and government funders that have hitherto financed the bulk of academic publishing and may bear the indirect costs of this litigation. Only time will tell the impact of this massive class action, which could shift the dynamics of scholarly publishing during a time of turbulence.

State of the Case

Since the initial flurry of discussion about Uddin v. Elsevier soon after its filing in the fall, most onlookers have quieted into a wait-and-see mode. This makes sense: a class action lawsuit of this scale tends to move at a glacial pace, and there’s nothing new to report. Those of us watching from afar will get to witness the filings picking up pace during the summer, with the Defendants’ motions to dismiss due by May 5th. Barring any extensions, we can expect the back and forth of the opposition and replies to wrap up by August 6th. The motion to dismiss process is timed for the case to have an opportunity to disappear in part or in its entirety at this early stage, before all involved have invested significant time and resources in what could be a lengthy and costly discovery and litigation process.

This lull is a good moment to point out the incentives at play and the voices that are pointedly missing from the litigation. In this commentary, I’m going to focus my attention on the prong of the complaint that I find most interesting and far-reaching: the “Unpaid Peer Review Rule,” along with the particularities of Uddin v. Elsevier.

Class Action Fundamentals

First, let’s pause to note the class action nature of this case. Our legal system uses the lure of giant potential payoffs to incentivize plaintiff class action attorneys to be on the lookout for their next big lawsuit. I wish I knew the backstory of how this case came into being, but I feel confident that it wasn’t initiated by the first named plaintiff, Lucina Uddin. It’s unlikely that Uddin knocked on doors until she found an attorney who sympathized with her qualms and was willing to take on her case. She was more likely head-hunted as having the right specs to represent the class of publishing scholars: Uddin has published over 175 academic articles and “provided peer review services for over 150 journals, including journals owned by each of the six Publisher Defendants: Elsevier, Wolters Kluwer, Wiley, Sage, Taylor & Francis, and Springer.”

Per the Lieff Cabraser website, this plaintiff firm has a track record of bringing class action cases against universities. While hanging around academia, I’m sure there were plenty of opportunities to hear disgruntled faculty bemoaning the injustices and monopolist tensions of the scholarly publishing ecosystem. The class action lawyers’ task was to line up the optimum deep pocket defendants, find a viable legal theory for their case, and seek out a handful of scholar plaintiffs to represent the huge class.

By the November 15th Amended Class Action Complaint, the class representatives were rounded out with three more “Scholar Plaintiffs.”

Presumably, the added academics were also vetted for their likeability and ability to fill strategic gaps in the claims, adjusted to tell the optimum story. It’s also customary to offer representative plaintiffs a larger piece of the ultimate class action award pie: additional compensation to recognize their time and service to the case.

Herding Academic Cats

It’s especially amazing to see how with one case filing, Uddin has been able to shepherd all publishing scholars into a single class, with the plaintiff attorneys acting as their legal voice and puppet master. For under the U.S. class action laws, the plaintiff class is an automatic “opt-in” format. Any class member could later ask to opt out, but there are logistical obstacles and little incentive to do so. Few scholar authors could afford to bring a lawsuit on their own. Opting out would amount to a self harming symbolic protest; after exiting the class, the former member would have no voice in the outcome and miss the chance to receive their sliver of any eventual proceeds.

Once the judge certifies the class, the plaintiff attorneys get to advocate on behalf of all publishing academics, whatever their individual thoughts about the scholarly publishing world. What power!

The “Scheme” as Described is not the “Schol Comm Dilemma”

I’m here to join in the chorus of others who have observed that the complaint’s articulation of the “Publisher Defendants’ Scheme” comes across as… weird.

The plaintiff attorneys have borrowed snippets of familiar language used to describe the Schol Comm Dilemma, but they’ve harnessed it to different ends. They’ve voiced the shocking heart of the problem: how taxpayer money has been hemorrhaging towards mega-publishers that “have sustained profit margins that far exceed the most successful corporations in the economy.” It feels as if the plaintiff attorneys smelled blood, found deep pockets, and pulled language from decades of others’ railing about academic publishing. But in order to shape a cognizable case with these plaintiffs and these defendants, they haven’t told the story as I understand it. The complaint does not directly address the fundamental Schol Comm Dilemma horror of how modern academia feels as if it is now at the beck and call of giant corporate interests.

[Sidebar: The tale would be familiar to any readers here, but here’s my newcomer’s vast simplification on how we got to this point. First, journal consolidation led to the amassing of many copyrighted article mini monopolies, hidden behind ever-pricier paywalls. And then heavyweight distribution networks loomed as the next threat, harnessing publishing and readership data to make their business models indispensable to the academic P&T process. All this has driven up overall costs, funneling more and more taxpayer money into the hands of mega corporations. The pre-digital publishing world may have been relatively inefficient, but at least those journal business models seemed aligned with the public interest values of academia, with the copyright safety valves of first sale and fair use protected by libraries’ owning physical journal copies. And importantly, back in that halcyon pre-digital world, there was a thriving academic publishing ecosystem, with many more small publishers able to take part in the competitive marketplace.]

The origins of the Schol Comm Dilemma lie in the peculiarity of how academic norms differ from one’s usual expectations for copyright law: in other comparable workplaces, the copyright in articles published by full-time faculty employees would have been treated as work-for-hire: intellectual property owned and managed by the employer universities. If universities had been the ones managing their faculty employees’ copyrights and scholarly publishing contracts all along, I imagine today’s scholarly publishing marketplace would better reflect the priorities of academia.

Instead, university Schol Comm advocates and government funders have attempted to use their limited influence to counter the broken publishing marketplace, finding ways to slow the monopoly forces and retain some scraps of academia’s public interest values. Given the individual publishing contracts that underlie it all, it’s been a real challenge to herd those faculty cats: educating faculty about their author rights, getting faculty and institutional buy-in for rights retention and Open Access Policies, and attaching open access requirements to research output from publicly funded grants. These efforts have tried to shelter academia from the harms of capitalism run awry, but it often feels as if they’ve only built speedbumps against everstrengthening market forces.

Note that antitrust class action lawsuits are supposed to remove market hindrances. By design, Uddin is here to increase the efficiency of capitalism by removing those speedbumps.

Universities are Shut Out of this Lawsuit

There are many oddities with this case but, for me, the primary strangeness comes from the convenient removal of universities from the equation. The complaint proposes that academic publishing is an exclusive relationship between scholars and publishers, and that a lawsuit with just these parties can resolve the antitrust problems plaguing the industry. This excludes those who have traditionally paid for the lion’s share of the rising publishing costs: government funders and universities (backed by taxpayer dollars). Are universities destined to be the real losers here?

If publishers lose or settle this lawsuit, surely they’ll pass those charges along to their university customer base. And in addition to indirectly footing the bill for this expensive litigation, will universities find themselves also now paying the pass-on costs for paid peer review? It feels like no matter what, the funders lose.

I can see at least two additional reasons why universities were left out of the case: (1) Lieff Cabraser is accustomed to suing universities and seeing them as the “bad guys”; it’s difficult to switch sides to lobby on behalf of those you have long viewed as your opponents. (2) If individual academics are hard to herd, just try herding universities, each with their own general counsel and the means to hire skilled outside law firms. In any litigation with such high stakes, universities would want to exert control. I can’t imagine these large and powerful entities allowing themselves to be automatically “opted in” to a plaintiff class, with a random entrepreneurial firm serving as their united voice and binding them to the outcome.

So it’s not an obvious conspiracy to leave out universities (and their take on how to protect academia and the public interest). But nonetheless, universities and government funders now have no obvious say in the outcome, which could include an injunction dictating the future business model of scholarly publishing.

Curious Timing

It’s worth reminding us all that for the plaintiffs, the perfect class action case is not one where the parties fight to the bitter end, reaching the jury trial called for in the complaint. Ideally, the plaintiff attorneys want to motivate the defendants to settle long before expensive litigation eats up too much of their potential future winnings.

What if to reach that earlier settlement, the plaintiffs can promise the publisher defendants something they might actually want? They have devised a negotiation table where publishers can speak directly to a few representative professors, while shutting out the clamor and obstructions of universities and government funding agencies. Could this case offer commercial academic publishers the “global peace” of an unfettered capitalistic model?

Filed just a few months before the tumult of 2025, Uddin seems to have eerily provident timing. At this existential crossroads, political and financial pressures appear to be aligning to shrink the role of academic institutions. Publishers are looking at the likelihood of smaller streams of funding from federal grants and library budgets. To keep their business models viable in the face of a turbulent forecast, there might be increased mutual incentives for both faculty and commercial publishers to minimize the policy input of increasingly powerless university middlemen. (Those universities may also be busy just trying to survive.)

Could this case be timed to offer a neutral “the litigation made us” pathway towards paid peer review? And if this revised funding model impacts the whole industry, what might be the outcome?

Academics could be cast even more as independent contractors, with potential value beyond their university employment. By reviewing X times, they could publish Y times. If publishers have enough capital on hand, they could tweak the ratio as needed to keep journal content flowing. Assuming Open Access is the dominant publishing model, the largest publishers would continue to shift their business towards the selling of data from their network platforms. Continuing academic P&T demands and research would presumably continue to drive the market for the data-driven networks. Depending on the going price for reviewing, some academics might be able to turn reviewing into a serious moonlighting gig, augmenting their salaries or even becoming free agents, paying the rent in between academic jobs.

This whole case could be following the 2025 playbook. Just let government step aside so that capitalism can work without obstruction. But will it be in the mutual interests of the named parties in this case to settle on this model? And what about the broader competitiveness of the marketplace: how might all this impact the smaller academic publishers?

As we all know, Uddin is a super complicated case, with many elements at play. but the factors addressed here — and the missing voice of universities in the case — seem to call out for additional attention. And now we sit on the sidelines to watch how it plays out.