Main Index: Trial Testimony June 9, 1997
1
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 GORDON & BREACH SCIENCE
PUBLISHERS S.A., STBS., LTD.
4 and HARWOOD ACADEMIC
PUBLISHERS GMBH,
5
Plaintiffs,
6
v. 93 CV 6656 LBS
7
AMERICAN INSTITUTE OF PHYSICS
8 and THE AMERICAN PHYSICAL
SOCIETY
9
Defendants.
10
------------------------------x
11
June 9, 1997
12 10:10 a.m.
Before:
13
HON. LEONARD B. SAND
14
District Judge
15
16
17 APPEARANCES
18 ORANS, ELSEN & LUPERT, LLP
Attorneys for Plaintiffs
19 BY: LESLIE A. LUPERT
ROBERT L. PLOTZ
20 PETER E. SEIDMAN
21 COVINGTON & BURLING
Attorneys for Defendants
22 BY: RICHARD A. MESERVE
JEFFREY G. HUVELLE
23 SUSAN L. BURKE
24
25
2
1 THE COURT: Good morning. You may be seated.
2 I think there are some preliminary matters.
3 There is a motion to change the identification of the
4 plaintiff.
5 MR. LUPERT: That is correct, your Honor.
6 THE COURT: Is there any objection to that
7 motion?
8 MR. MESERVE: Your Honor, we had consented to --
9 I was talking to Mr. Lupert about that and we had told him
10 two things. First, we would like to have a stipulation that
11 the amendment of the names of the plaintiffs would be
12 preclusive on the entirety of the Gordon & Breach
13 enterprise, and he has filed a stipulation that serves that
14 end.
15 THE COURT: Yes.
16 MR. MESERVE: We had also asked your Honor for
17 assurances from Mr. Lupert that discovery responses in this
18 case reflect the new entities.
19 These apparently corporate rearrangements as best
20 we can tell were made in 1994, and I have not yet heard from
21 Mr. Lupert on that, on the latter point, as to whether the
22 discovery responses we've gotten in this case have
23 encompassed these new entities.
24 MR. LUPERT: It was intended to include that
25 stipulation, as well.
3
1 MR. MESERVE: With that assurance, your Honor, we
2 are prepared to consent to the amendment of the complaint.
3 THE COURT: Motion granted on consent.
4 Anything else by way of preliminary matters?
5 (Pause)
6 THE COURT: Off the record.
7 (Discussion off the record)
8 THE COURT: All right. There was a stipulation
9 that was filed by the defendants with reference to intent to
10 make further use of the methodology. Is that the --
11 MR. MESERVE: Yes, your Honor, we had observed
12 that a large number of the transcript designations in the
13 exhibits that have been filed by the plaintiffs related to
14 whether the Barschall survey would have been circulated but
15 for the complaints that had been made by Gordon & Breach,
16 and so there would be no doubt about that matter, we had
17 filed a stipulation that was intended to say that, yes, but
18 for their complaints, there would have been a distribution
19 of the Barschall survey to interested persons, including
20 librarians. And we are also prepared to stipulate that one
21 of the purposes of any such distribution could be seen to be
22 commercial advertising and promotion.
23 My clients had other purposes in mind, as well,
24 but we were trying to simplify the trial and to minimize the
25 issue and so we are prepared to stipulate that one of the
4
1 purposes of that circulation would satisfy one of the issues
2 that the plaintiffs believe they need to establish in this
3 case.
4 THE COURT: Does that take the issue out of the
5 case?
6 MR. LUPERT: That is a question I think that is
7 put to Mr. Meserve. We found the stipulation to be
8 confusing in two respects. Obviously we very much would
9 like to streamline the trial, as well, Judge. We need to
10 prove, according to your Honor's prior rulings, secondary
11 uses, and we also have to prove a threat of repetition in
12 the future. And in order to prove a threat of repetition in
13 the future, it would be necessary for us to put in evidence
14 of what happened in the past, because it is directly
15 relevant to the question of conduct in the future.
16 THE COURT: Mr. Meserve is not saying that they
17 would stipulate that they would intend to use it in the
18 future.
19 MR. LUPERT: Would that suffice for a ruling from
20 the court that in fact if we prove the other element in the
21 case, which is the falsity of the methodology, that an
22 injunction would issue?
23 THE COURT: It goes to one issue and it would be
24 relevant to that one issue. As I understand it, the issue
25 is whether there is a need for injunctive relief because
5
1 there is indeed a threat of repetition.
2 I understood the substance of the proposed
3 stipulation is we concede that we would repeat, and,
4 therefore, there is no need for the plaintiff to prove a
5 risk of repetition. Is that accurate?
6 MR. MESERVE: Your Honor, so it would be
7 completely clear, the stipulation had to do with the 1988
8 survey and what we would have done, and we are agreeing that
9 but for their complaints they would have been circulated to
10 librarians. That survey is a 1988 survey. It served no
11 purpose for any commercial use now. In fact the plaintiffs
12 are seeking an injunction to bar a hypothetical future use
13 of a hypothetical future survey.
14 THE COURT: Using the same methodology? What
15 they are really seeking, as I understand it, is an
16 injunction against any future commercial use embodying the
17 methodology in the Barschall surveys.
18 MR. MESERVE: That is what they are seeking.
19 THE COURT: Is that accurate?
20 MR. LUPERT: That is accurate, Judge.
21 MR. MESERVE: And my clients have not undertaken
22 a survey that includes any Gordon & Breach journals. They
23 did undertake one for their own internal purposes in the
24 interim, since the 1988 survey, and they have no current
25 plans to undertake a survey or to use a survey for
6
1 commercial purposes.
2 They have said, and I'm saying to the Court, that
3 they do not want to be precluded in the future if they were
4 to conduct a survey, to be able to use it for commercial
5 purposes. They believe they should have that right. They
6 have not made a decision as to whether they will do that.
7 THE COURT: I think we have to be more concrete.
8 The plaintiffs contend that there is a significant danger of
9 repetition of such magnitude as to meet the standards for
10 injunctive relief. Is that a conceded issue or a disputed
11 issue?
12 MR. MESERVE: I believe, your Honor, that it is
13 our intention here to take that issue out of the case, and
14 so, your Honor, that is a conceded issue.
15 MR. LUPERT: This really will have some impact on
16 the trial. If you will bear with me for just a second so
17 that the plaintiffs can make sure that they really
18 understand what this is really all about. It really is a
19 very important point to us.
20 THE COURT: Do you want to take a few moments?
21 Do you want a recess?
22 MR. LUPERT: I would like to talk to Mr. Meserve
23 about what he is going to be doing.
24 THE COURT: One other matter. And that is, I
25 notice that there are a number of people in the courtroom.
7
1 Are any of them fact witnesses and is there any request that
2 witnesses be excluded from the trial?
3 MR. MESERVE: We have two expert witnesses who
4 are present in the courtroom. And we have Dr. Brodsky, who
5 is a party representative, who is at the counsel table.
6 MR. LUPERT: We have in the courtroom, so that I
7 can introduce them, your Honor, this is Martin Gordon, who
8 is the principal of the plaintiff companies, and sitting
9 immediately to his right is Roger Green, who is a senior
10 executive of one of the companies, and immediately to
11 Mr. Gordon's left is Gloria Korenberg, who is also an
12 officer. One of them is clearly going to testify.
13 Mr. Gordon is the party representative and Mr. Green may
14 testify on rebuttal, if it is necessary. Frankly, I don't
15 have any objection to witnesses being here. It is not that
16 kind of a case in my view. Mr. Meserve, if you agree, I
17 won't make an issue of it.
18 MR. MESERVE: If you don't mind, your Honor, we
19 are going to be conferring in any event on the other issue,
20 would you mind if I confer with my co-counsel on that point?
21 THE COURT: Let's take a recess. Advise
22 Mr. Kenneally when you are ready to proceed.
23 MR. LUPERT: Thank you, Judge.
24 (Recess)
25 THE COURT: All right. This is out of hand.
8
1 We'll start the trial. We'll leave this issue unresolved.
2 You can discuss it at lunch, you can discuss it at 4:30, but
3 the trial should begin.
4 MR. LUPERT: I had sent my colleague to get the
5 counsel for the defendants. We had drafted something. I
6 think they were just taking a look at it.
7 (Pause)
8 THE COURT: The plaintiff may call its first
9 witness.
10 MR. LUPERT: Is the court indicating it would
11 like to dispense with opening statements?
12 THE COURT: That is what the court is indicating.
13 MR. LUPERT: Our first witness would be
14 Dr. George Taylor. My partner, Mr. Plotz, will handle that
15 examination.
16 MR. MESERVE: Your Honor, there was one other
17 issue that you had asked us to deal with while you were
18 gone, which is whether we would invoke the rule with regard
19 to fact witnesses, and we would like to invoke the rule.
20 THE COURT: Who is this that you want excluded
21 from the courtroom?
22 MR. MESERVE: Mr. Gordon is a party witness and
23 he obviously can stay.
24 THE COURT: Yes.
25 MR. MESERVE: I believe that Mr. Lupert suggested
9
1 that there are two other witnesses, Ms. Korenberg and
2 Mr. Green, who have never been designated as witnesses, who
3 he has implied may be called on rebuttal.
4 MR. LUPERT: Miss Korenberg won't be called as a
5 witness. Mr. Green possibly may testify as a rebuttal
6 witness. He is the single corporate official.
7 THE COURT: I will permit him to remain in the
8 courtroom.
9 MR. LUPERT: Thank you, judge.
10 GOERGE WILLIAM TAYLOR,
11 called as a witness by the plaintiffs,
12 having been duly sworn, testified as follows:
13 DIRECT EXAMINATION
14 BY MR. PLOTZ:
15 Q. Dr. Taylor, what is your profession?
16 A. I am an electrical engineer.
17 Q. What is your area of expertise?
18 A. Ferroelectricity.
19 Q. What is your educational background?
20 A. I have a bachelor of engineering degree with
21 first class honors. I have a doctor of philosophy in
22 electrical engineering. I have a doctor of engineering.
23 And I have an honorary doctor of science degree.
24 Q. Since the completion of your education, could you
25 just very briefly describe what you have done and how you
10
1 have been employed since then?
2 A. I worked for seven years at RCA's research
3 laboratories in Princeton, New Jersey. I then started a
4 company in the area of liquid crystal displays and
5 electronic watches. This company was sold to Fairchild
6 Semiconductor in the mid-'70s. I then had a consulting
7 company called Princeton Resources, which operated for about
8 20 years doing all types of consulting work in high
9 technology areas but largely focused on materials,
10 ferroelectric and related materials, and applications of
11 these materials, and most recently I have started a new
12 company called Ocean Power Technologies, which is devoted to
13 developing a new method of generating low-cost clean
14 electricity from ocean waves using ferroelectric polymers.
15 Q. Are you the editor of any journals?
16 A. Yes. I am the founding editor of the
17 International Journal of Ferroelectrics, and also of the
18 related journals, Ferroelectrics Letters and Integrated
19 Ferroelectrics.
20 Q. When was the journal Ferroelectrics founded?
21 A. The journal Ferroelectrics was founded in 1970.
22 Q. Are you a member of any professional societies?
23 A. Yes, I am a member of the American Physical
24 Society. I am a member of the Institute of Electrical and
25 Electronic Engineers. I am a member -- I am a fellow of the
11
1 British Institute of Electrical Engineers. And I am a
2 fellow of the Institute of Engineers of Australia.
3 Q. Dr. Taylor, just so we have some context here,
4 could you, in as lay terms as possible, just briefly
5 describe what ferroelectrics is?
6 A. Ferroelectrics are a class of materials which are
7 dielectric in nature. They are materials which have a
8 reversible polarization. This polarization relates to the
9 way the electrical dipoles exist inside the material. But
10 perhaps to put it in perspective, a very broad class of
11 materials are dielectric materials. Dielectric materials,
12 one class of materials, semiconductor materials are second
13 class magnetic materials or third class, and there are other
14 classes of materials. Focusing on the dielectric materials,
15 dielectric materials break down first into two categories,
16 pyroelectric materials and nonpyroelectric materials. The
17 pyroelectric materials, in turn, breakdown into
18 piezoelectric materials and nonpiezoelectric materials. The
19 piezoelectric materials then break down again into
20 ferroelectric materials and nonferroelectric materials. So
21 ferroelectric materials are a small section of this very
22 broad category of dielectric materials. But they are a very
23 important group because they have very outstanding
24 properties, which make them very interesting from a physics
25 viewpoint and make them very interesting from an
12
1 applications viewpoint.
2 Q. I'll come to that in a moment, but I wanted to
3 ask you first whether there is a broad branch of physics
4 that ferroelectrics belongs to?
5 A. Ferroelectrics fits under -- above the dielectric
6 category which I just explained. Above that is solid state
7 physics.
8 Q. And is another term for that is condensed matter
9 physics?
10 A. Condensed matter is another term which is a
11 little broader than solid state physics because it covers
12 certain types of liquids and certain types of gases.
13 Q. Do you have an idea of roughly how many people in
14 the world focus their work in ferroelectric materials?
15 A. I would think in the neighborhood of 2,000 people
16 at the moment. But there are certain countries like China
17 and India where there are ever increasing numbers of people
18 working in these materials.
19 THE COURT: When you say working in these
20 materials, were you talking about researchers or lab
21 technicians, or what does that encompass?
22 THE WITNESS: Yes, I am talking about
23 professional researchers. These would be physicists,
24 chemists, ceramicists, electrical engineers, electronic
25 engineers, not the supporting staff.
13
1 Q. And what are some of the practical applications
2 that the work in ferroelectric materials has?
3 A. Ferroelectric materials have been utilized for
4 approximately 50 to 70 years, and there are literally
5 hundreds of applications. They are used for sensors. They
6 are used to sense pressure and temperature. More exotic
7 forms of these would be, infrared cameras for night vision
8 use ferroelectric materials. They are used in the memory,
9 computer memories. The latest generation of semiconductor
10 chips have a thin layer of ferroelectric which provides a
11 permanent memory for the information without the need for
12 electrical power supply.
13 They are used for electronic displays. The most
14 suitable liquid crystal displays that we use in our portable
15 television and in our computer displays are ferroelectric
16 liquid crystals.
17 Q. You testified a few moments ago that you were the
18 co-founder of the Journal of Ferroelectrics. Who founded it
19 with you?
20 A. A friend of mine, Dr. Isaiah Lefkowitz, and
21 myself discussed the founding of the journal in 1969, one
22 year before the first issue came out.
23 Q. What was the reason that the two of you decided
24 to start this journal?
25 A. We both worked in the field, and we realized that
14
1 the articles on ferroelectricity were spread over many, many
2 journals in many, many countries. There was no one journal
3 which had any significant percentage of its articles devoted
4 to ferroelectricity. Because the field was very widespread
5 over many countries, we felt that it would make sense to
6 form a journal which would focus on this very important --
7 that small field.
8 Q. What were some of the journals at that time that
9 published articles in ferroelectrics?
10 A. The physics journals, the ceramics journals,
11 certain chemical journals, certain engineering journals.
12 These were journals, not only American journals but journals
13 of the National Physical Society, physical societies in
14 other parts of the world, and other disciplines, so there
15 were many, many places where ferroelectric-related articles
16 would appear.
17 Q. When you decided to start the journal, what did
18 you do?
19 A. We -- Dr. Lefkowitz and myself spoke with people
20 in the ferroelectrics community in different -- in the
21 United States and overseas to gauge their opinion about this
22 process. There has always been a reluctance in my opinion
23 in the scientific community to start a new journal unless
24 there is a very good reason to do so, because there has been
25 a very large number of journals and for this reason one
15
1 doesn't want to start a new journal unless there is a real
2 need for it. But it became very clear after we discussed
3 with probably 50 people that everybody felt that it made a
4 lot of sense to have some focal central point for articles
5 on ferroelectrics.
6 Q. Who were some of the people with whom you
7 discussed the project?
8 A. I discussed it with Professor Von Hippel, who is
9 a very eminent physicist at MIT. Previous to that he had
10 worked in Germany as a young physicist. I discussed it with
11 Professor Cochran who is the head of the physics department
12 at Edinburgh University in Scotland. Also I discussed with
13 the Japanese community, and with the Russian community,
14 Professor Smolensky at the Ioffe Institute in Petersberg,
15 Professor Takagi Nagoya University in Japan. These were
16 some of the people that I discussed it with, and with
17 Lefkowitz, of course, I jointly discussed it.
18 Q. As a result of these discussions --
19 A. As a result of these discussions, we felt it was
20 a good idea to start a specialist journal in ferroelectrics.
21 Q. So what was your next step?
22 A. The next step was to decide on how to proceed
23 with the publication, and Dr. Lefkowitz was friendly with
24 several senior scientists at Brookhavens who had --
25 Q. Is that Brookhavens National Labs?
16
1 A. -- Brookhavens National Labs on Long Island, who
2 had been involved with Gordon & Breach in publishing
3 specialized journals.
4 Q. And is that how you came to Gordon & Breach?
5 A. This is correct.
6 Q. Had you had any prior relationship with Gordon &
7 Breach?
8 A. Not.
9 Q. What was the way that you brought your project or
10 your proposed project to Gordon & Breach?
11 A. Well, that is going back 28 years, but my memory
12 of it is that we wrote a letter to Gordon & Breach, and this
13 was followed up by a meeting with Mr. Martin Gordon.
14 Q. What happened as a result of that meeting?
15 A. As a result of that meeting, the eventual outcome
16 of course was the formation of the journal. But during the
17 course of the meeting with Mr. Gordon, we discussed the --
18 what the policy would be concerning the journal. We felt --
19 Dr. Lefkowitz and myself felt it was very important that the
20 scientific community in the form of ourselves, as the
21 potential editors, and our very eminent editorial board
22 should control the policy of the journal, and Mr. Gordon
23 agreed with that, that Gordon & Breach would not have any
24 say in the editorial policy of the journal.
25 Q. What was the policy insofar as the scheduled
17
1 publication?
2 A. Initially, it was decided that we would publish
3 one volume per year, and one volume would be divided into
4 four issues.
5 Q. Did that change?
6 A. I'm sorry.
7 Q. I'm sorry. Did that change over time?
8 A. Yes. As the journal grew, as it became clear
9 that it was serving a good purpose and people wanted to
10 publish their articles, each year the journal grew in the
11 number of volumes. And a very important point was that
12 there was no limitation from Gordon & Breach in terms of the
13 number of volumes that we could publish. The only criteria
14 which was our criteria, as the editors, was that the quality
15 of the journal be maintained, that we have very good
16 articles that were thoroughly refereed.
17 Q. Are you familiar with the term "flow system"?
18 A. Yes.
19 Q. What is that?
20 A. This is essentially what I just described, the
21 policy of the Gordon & Breach journals, at least concerning
22 ferroelectrics, and I believe the other journals, that there
23 not be a set number of issues or volumes per year but the
24 demand of the scientific community for publication should be
25 satisfied by publishing as many as are required.
18
1 Q. Now, your first issue came out in 1970?
2 A. Yes.
3 Q. Who was on your board at that time? Who are some
4 of the people?
5 A. The people on the board at that point were -- we
6 had about three people from the Soviet Union, Professor
7 Shuvalov, Academician Smolensky, Professor Shuvalov,
8 Professor Fritkin.
9 We had from Japan Professor Nakamura, Professor
10 Abe, Professor Hashino. From the United States, we had
11 Professor Cross, Professor Onsager, Dr. Silverman. From
12 India, we had professor Subbarao. From Europe, we had
13 Professor Cochran. We had Professor Bertaut from France.
14 We had Professor Muser from Germany. We had a total of 40
15 people, I believe --
16 THE COURT: Four-0.
17 THE WITNESS: Four-0, yes.
18 Q. Now, you've mentioned people from many different
19 countries.
20 A. Yes.
21 Q. Was there a reason that your board consisted of
22 researchers from many different countries?
23 A. Yes. The research on ferroelectric materials and
24 their applications was indeed being done in these many
25 countries. I think in the early editorial boards, we had
19
1 people from at least ten countries.
2 Q. Let me just show you what has been marked as
3 Plaintiff's Exhibit 730A.
4 A. Yes.
5 I wonder if I could have some water. Is that
6 possible?
7 Q. Sure.
8 And I ask you if you can identify that exhibit.
9 A. This exhibit is from the first issue, volume 1,
10 No. 1, of ferroelectrics published in early 1970, and it
11 lists the editors and the editorial board and the editorial
12 policy. It lists four forwords by Von Hippel, Cochran,
13 Catalge and Smolensky, and it has the first pages of the
14 articles that were published in that first issue.
15 MR. PLOTZ: The plaintiffs offer 730A.
16 THE COURT: Received.
17 (Plaintiff's Exhibit 730A received in evidence)
18 A. And it also has on the back inside cover, which
19 includes the notes for the contributors and the subscription
20 rates.
21 MR. LUPERT: Excuse me, I was interrupted. We
22 had put together a set of exhibits for the court. I don't
23 know if they have actually been provided to the court as of
24 this point. We had intend today do that at the opening and
25 it slipped our minds.
20
1 THE COURT: I don't have it.
2 MR. LUPERT: At the next break, if you would,
3 we'll provide a full set to the Court.
4 Q. Dr. Taylor, you testified a few minutes ago that
5 since this first issue in 1970 the journal has grown. Have
6 other journals -- let me start again.
7 Have you been involved in starting other related
8 journals with Gordon & Breach?
9 A. Yes. Ferroelectrics Letters was started in
10 the -- I think 1981 or 1980, about then, and Integrated
11 Ferroelectrics was started about 1992.
12 Q. What is Ferroelectric Letters?
13 A. Ferroelectrics Letters is a journal which is
14 published about every six weeks. It is designed to give
15 very fast publication of new areas where the area may not
16 have been researched to its fullest, but it allows the
17 researchers to get credit for their work. A good example
18 might be the discovery of a new ferroelectric material. So
19 the -- there would be perhaps a six-page article where the
20 inventors or the researchers would describe their new
21 material, but would not have gone into great detail about
22 all the properties of the material. It would just establish
23 that this material for the first time had been discovered to
24 be ferroelectric.
25 Q. Were Ferroelectrics Letters previously included
21
1 within the general journal?
2 A. They were for about one year, and at that point
3 it was felt by myself -- Dr. Lefkowitz had died at that
4 stage -- it was felt by myself and after consultation with
5 the editorial board at Ferroelectrics that it made sense to
6 separate these short reports from the longer articles in
7 ferroelectrics.
8 Q. What was the reason for that?
9 A. Just to allow for faster publication.
10 Q. The other journal you just mentioned was
11 Integrated Ferroelectrics. What is that?
12 A. Integrated Ferroelectrics is a new application of
13 ferroelectric materials where the ferroelectric material is
14 formed as a thin film and is then coupled with -- mostly
15 with semiconductor devices. I mentioned earlier what is
16 called a nonvolatile memory chip which, because of the
17 ferroelectric film, you don't need to sustain the
18 information with an external battery.
19 And we had begun to publish articles on this
20 topic in ferroelectrics earlier, but because of the
21 technical importance and commercial importance of this area,
22 there were suddenly many more articles than had appeared
23 previously, and there were several conferences on this
24 subject, and it seemed a good idea to, once again, to
25 separate it into a specialized journal which would deal with
22
1 Integrated Ferroelectrics. This is the integration of
2 ferroelectrics with other materials.
3 Q. Focusing again on the journal, Ferroelectrics,
4 what types of articles does it publish?
5 A. It publishes theoretical articles, experimental
6 articles, and applications.
7 Q. Could you just very briefly describe what you
8 mean by "theoretical papers"?
9 A. Theoretical papers deal with the explanation of
10 the ferroelectric phenomena, why do certain materials have
11 this reversible electrical polarization, and that's a very
12 general area, but many different ferroelectric materials
13 behave differently from other groups, and, therefore, it's
14 necessary to explain this theoretically.
15 Q. And how about experimental papers?
16 A. Experimentally -- experimental papers deal with
17 the actual measurements of the material to measure its
18 properties and to understand its properties.
19 Q. And finally, what about applied papers?
20 A. The applied papers deal with how these materials
21 can be used in devices and systems.
22 Q. Does ferroelectrics normally publish review
23 articles?
24 A. Occasionally.
25 Q. What do you mean by "occasionally"?
23
1 A. I would think no more than one or two percent of
2 all the papers published in ferroelectrics are review
3 papers.
4 Q. And just so we're clear on terminology, what is a
5 review paper?
6 A. A review paper is a paper that is written by an
7 expert, somebody who has spent a good amount of his time and
8 has worked in a special area of, in our case,
9 ferroelectrics. He writes the review article identifying
10 the most important parts of that area that he has worked in,
11 and it is designed to be read by people working in
12 ferroelectrics who may not have a full understanding of this
13 particular specialty within ferroelectrics.
14 Q. And what about conference proceedings? Does
15 Ferroelectrics publish conference proceedings?
16 A. Yes, Ferroelectrics publishes conference
17 proceedings.
18 Q. Could you just describe what's involved in
19 publishing those proceedings?
20 A. Typically, the organizers of a ferroelectrics
21 conference will write to me and ask whether we -- the
22 journal would be interested in publishing the proceedings of
23 their conference, and then I make a decision, possibly
24 consulting with many of the editorial board members or other
25 people in the ferroelectrics community as to whether such
24
1 proceedings would be of interest to the ferroelectrics
2 community. Usually a guest editor is appointed by the
3 organizing committee subject to my approval, and we have set
4 up very strict rules as to how the papers must be prepared.
5 And by this, I mean that we insist that the articles that
6 are published in the proceedings receive the same refereeing
7 procedures, the same review procedures, as regular papers
8 published in the journal.
9 Q. Now, you mentioned review procedures. What are
10 you referring to?
11 A. In order to make sure that the articles are of
12 the highest quality, we follow the standard scientific
13 procedure of a peer review where we would have two referees
14 chosen by the editor, or in the case of a guest editor,
15 chosen by the guest editor. The manuscripts are then -- a
16 manuscript is then sent to each of those referees. The
17 referee then reports on the standard form what his opinion
18 of the paper is and whether it should be published as is,
19 whether it should be rejected, or whether it could be
20 improved by revisions.
21 Q. Who does the refereeing for the journal?
22 A. A lot of people. They include the editorial
23 board members, but they go well beyond that. It is a case
24 of finding and selecting people who are experts in the
25 subject of the paper that is to be reviewed.
25
1 Q. What is the rejection rate for the journal
2 Ferroelectrics?
3 A. On the average, over this long period of time of
4 27 years, about one third of all papers are accepted in
5 their first form, about one third go through revisions
6 before they are accepted, and one third are rejected, either
7 initially or after some revisions which are still not
8 satisfactory.
9 Q. Have you served as a referee for other journals?
10 A. Yes.
11 Q. What are some of those journals?
12 A. I serve as a referee for the Journal of Applied
13 Physics.
14 Q. Who publishes that?
15 A. The American Physical Society. The American
16 Ceramic Society Journals I have refereed for. I have
17 refereed for many of the European Physical Society journals.
18 I have refereed for the IEEE transactions.
19 Q. What is IEEE?
20 A. IEEE is the Institute of Electrical and
21 Electronic Engineers.
22 Q. That is another society?
23 A. That is another society that I am a member of
24 also.
25 Q. Do you know about how many subscribers there are
26
1 to the journal, ferroelectrics?
2 A. About 400, to the best of my knowledge.
3 THE COURT: You said before that there were 2,000
4 people who were professional researchers.
5 THE WITNESS: Yes.
6 THE COURT: Is that today?
7 THE WITNESS: Well, as I said, in India and
8 China, the numbers are growing very fast. But if I go back
9 five years, I would say 2,000 is a pretty accurate number.
10 THE COURT: The journal is published only in
11 English?
12 THE WITNESS: Yes.
13 THE COURT: Would you make an estimate as to the
14 number of English-speaking professional researchers engaged
15 in this area?
16 THE WITNESS: I think the -- of the 2,000,
17 probably the large majority of those do speak English,
18 either native-speaking English, or it is pretty much the
19 general language of science.
20 Q. Doctor, are many of the authors who contribute to
21 ferroelectrics from non-English-speaking countries?
22 A. Yes.
23 Q. That includes Russia, Japan?
24 A. Russia, Japan, China, India, Brazil, all the
25 European countries.
27
1 Q. And their articles are in English?
2 A. Yes. That is one of the -- probably the biggest
3 chores that I have is dealing with articles where the
4 English is not satisfactory and one then has to go back and
5 forth with the authors on the English.
6 Q. About what percentage of the ferroelectrics
7 articles that are published anywhere are published in your
8 journal?
9 A. It was in, up to five years ago, probably as high
10 as 35 percent of all articles on ferroelectrics were
11 published in the journal Ferroelectrics. It's probably gone
12 down to somewhere between 25 and 30 percent currently.
13 Q. Is there a way that you know these percentages?
14 A. Yes. The journal Ferroelectrics publishes
15 approximately twice every year a bibliography of all
16 articles on ferroelectrics that are published in all
17 journals in the world. So, therefore, we know on an annual
18 basis how many articles have been published around the world
19 and we know of course how many are published in the journal
20 ferroelectrics. That's the basis for the bibliography.
21 Q. I'm going to hand you what has been marked as
22 Plaintiffs' Exhibit 730B, which is volume 77 of
23 Ferroelectrics, and ask you if that contains such a
24 bibliography.
25 A. Yes, it contains two bibliographies.
28
1 Q. The first one starts at about page 167, is that
2 correct?
3 A. Yes.
4 Q. What bibliography is that?
5 A. This is the bibliography that's prepared
6 approximately every six months by Professor Toyota. It is
7 entitled "The Bibliography of Ferroelectrics."
8 Q. Now, if you turn to page 235, is there another
9 bibliography that starts there?
10 A. Yes.
11 Q. What bibliography is that?
12 A. This is Professor Sidney Lang's bibliography,
13 which is entitled bibliography of piezoelectricity and
14 pyroelectricity.
15 Q. And that compiles different articles from what is
16 in the first one?
17 A. It overlaps. As I mentioned earlier,
18 ferroelectrics is a subsection of dielectrics and a
19 subsection of piezoelectrics and pyroelectrics. Piezo and
20 pyrolectric materials are very closely related to
21 ferroelectric. So the readers of the journal appreciate the
22 fact that there are the two bibliographies.
23 Q. And about what proportion of that journal that
24 you have in front of you, how much a percentage of that does
25 the bibliography take?
29
1 A. In it this particular issue, the -- well, I would
2 say the two bibliographies together combine to about 50
3 percent of this issue.
4 Q. What is the purpose of publishing these
5 bibliographies?
6 A. As a service to researchers around the world,
7 they have in one place all the articles that are published
8 in their field.
9 Q. Do you know if those bibliographies are used?
10 A. Extensively. Researchers tell me every time I go
11 to a conference and meet people how useful they find the
12 bibliographies.
13 Q. Do you know if anyone cites to it in their
14 research?
15 A. Excuse me?
16 Q. Does anyone cite to the bibliography in their
17 research?
18 A. Yes. I have seen citations to the bibliography
19 quite often, but of course there is also the citation to
20 articles within the bibliography. So I cannot tell, when
21 articles are cited, whether the citation came about via the
22 bibliography or not. But in both cases it happens. The
23 bibliography as a whole is cited but obviously in more
24 instances the individual articles are cited.
25 Q. What are some of the other journals that publish
30
1 the 70 to 75 percent of ferroelectrics articles that your
2 journal does not publish?
3 A. They are numerous. Would you like me to try and
4 list a few?
5 Q. Just list a few.
6 A. OK. In no order, no prescribed order.
7 Helvetica Physica, which is the Swedish -- excuse
8 me -- the Swiss physics journal; the Krystallographica,
9 which is a Russian journal; the Japanese Journal of Applied
10 Physics; the Journal of the American Ceramic Society; the
11 IEEE Transactions on Ultrasonics, Ferroelectrics and
12 Frequency Control; the Journal of Applied Physics; various
13 sections of the Phys. Rev.
14 Q. Is that the Physical Review?
15 A. Physical Review.
16 Q. Published by the American Physical Society?
17 A. Published by the American Physical Society. That
18 is just a few of the journals.
19 Q. Do any of these journals cover a percentage of
20 the ferroelectrics literature similar to your journal?
21 A. No. If we say that Ferroelectrics publishes
22 around 30 percent as a round number, the other 70 percent is
23 distributed very widely and I doubt if there is any one
24 journal that publishes more than 2 percent on a regular
25 basis more than 2 percent of the total.
31
1 Q. Do those other journals that you just mentioned
2 cover areas other than ferroelectrics?
3 A. Yes.
4 Q. Now, what do you do, as editor of ferroelectrics,
5 to attract articles?
6 A. In the early years, I spoke to people,
7 researchers, to encourage people to consider publishing in
8 ferroelectrics, but within one or two years that was no
9 longer necessary, the journal took a life of its own and
10 people became aware of the journal and sought to publish
11 their articles in the journal, so there was no need for any
12 intensive or extensive promotion on my part.
13 THE COURT: Are authors compensated?
14 THE WITNESS: No.
15 Q. Do you consider that the journal has had an
16 impact in the scientific community?
17 A. Yes, I think it has had a very large impact
18 because it has focused the area of ferroelectricity, where
19 before it was a very diffuse area, and as a result of that
20 there as been a lot of interaction between workers in
21 different countries, researchers in different countries,
22 being aware and being able to easily access the work of
23 their colleagues in other places.
24 Q. Has your journal been involved in sponsoring
25 ferroelectrics conferences?
32
1 A. Yes. Gordon & Breach has, and the journal
2 Ferroelectrics, have sponsored many, many conferences. This
3 sponsorship has included financial grants to the conferences
4 and support of the publication of the proceedings.
5 Q. What factors do you consider important in
6 determining whether or not the journal has an impact in the
7 community?
8 A. I think there are a number of issues that are
9 involved in determining the impact on the community. One of
10 them, of course, is the quality of the papers. The papers
11 must be of the highest quality. And, therefore, since we
12 know of no better way than the peer reviewing process, we
13 insist on very strong peer refereeing. The speed of
14 publication is an extremely important area, particularly
15 when you have a fast-moving field, which applies to most of
16 the papers in ferroelectrics.
17 If the researcher cannot get his publication
18 quickly, then there is a lot of value lost to the researcher
19 in terms of his reputation, but also on the other side, if
20 the article is not published quickly, there may be a group
21 in another part of the world that is wasting their time
22 doing research because somebody else has already done this
23 research and the work is not being published. So it serves
24 a very important -- speed is a very critical factor in terms
25 of impact.
33
1 Q. And how speedily does your journal, in general,
2 try to get papers out?
3 A. We try to get them out as quickly as possible.
4 And typical average time is between 6 and 12 months from the
5 time the paper has first been received. If a paper has to
6 go through extensive reviewing, of course it takes longer,
7 because you have to go back and forth between the author and
8 the referees, but six to twelve months is typical.
9 Sometimes we're faster. Sometimes, for different reasons,
10 we're slower.
11 Q. Besides the quality of papers and the speed of
12 publication, are there other factors that you consider
13 important in determining the impact of the journal on the
14 community?
15 A. That the research work, for example, becomes a
16 field which may have important commercial application.
17 Taking the example of the liquid crystal work, the
18 ferroelectric liquid crystal work, the impact that that has
19 as a driver of technology has been incredible, and
20 Ferroelectrics has been the journal which has spearheaded
21 the publication of papers in that area. So I consider that
22 a very important impact issue.
23 Q. Are you familiar with the survey that was
24 conducted by Professor Barschall and was published in 1988?
25 A. Yes.
34
1 Q. Let me just hand you what has been marked as
2 Plaintiff's Exhibit 3, which is a copy of "Physics Today" of
3 July 1988.
4 MR. PLOTZ: Your Honor, I don't know if you have
5 a copy, but I can hand up a copy.
6 THE COURT: Thank you.
7 Q. Let me ask you, Dr. Taylor, to turn, if you
8 would, to page 58, which consists of table 1.
9 A. Yes.
10 Q. Now, there are several -- table 1 consists of a
11 list of journals divided into different categories. Do you
12 see that?
13 A. Yes.
14 Q. And just leaving the first two aside and looking
15 at the atomic physics, condensed matter physics, nuclear
16 physics particle physics, applied physics and
17 instrumentation --
18 A. Yes.
19 Q. Are those branches of physics that you recognize?
20 A. They are branches that I recognize, but these are
21 subjective classifications. One can come up with a dozen
22 other ways to classify physics, to break physics up into
23 smaller sections.
24 Q. Well, just taking your Journal of
25 Ferroelectrics --
35
1 A. Yes.
2 Q. -- which does not appear in this particular
3 table, what category would ferroelectrics come in among the
4 six that are listed here?
5 A. Some of the major categories it would come under
6 would be condensed matter physics, applied physics and
7 instrumentation. And occasionally there are papers that
8 deal with some the other topics, too, but those three are
9 areas under which ferroelectric articles could appear.
10 Q. Now, looking at the category of condensed matter
11 physics in table 1, are you familiar with any of the
12 journals listed there?
13 A. Yes.
14 Q. Do you know whether the journals listed here
15 cover specialization similar to ferroelectrics or broader
16 areas?
17 A. There is only one that I'm familiar with that I
18 would classify as a specialized journal. That's the Journal
19 of Magnetics and Magnetic Material.
20 Q. And would you classify any of the journals as
21 being broad in scope, covering more than a single specialty?
22 A. Yes. Most of the other journals are very broad
23 in scope.
24 Q. Do you know whether the general journals of the
25 American Physical Society -- which I think you said were
36
1 several sections of the Physical Review, is that correct?
2 A. Yes.
3 Q. Is that Physical Review A, B, C and D?
4 A. Yes.
5 Q. Do those journals cover more than one area of
6 specialization?
7 A. Yes.
8 Q. Which one would ferroelectrics fit into?
9 A. It can fit into -- you could have ferroelectric
10 articles in most of the physical review sections. And, in
11 fact, you find such to be the case.
12 Q. Have you ever become aware, during the time you
13 have been editor, of anyone urging authors not to contribute
14 to Ferroelectrics on account of the price of the journal?
15 A. Yes, I know of two occasions, one in 1990 and one
16 in 1996.
17 Q. Let's focus in first on the 1990 incident.
18 How did you become aware of that?
19 A. One of my editorial board members, who is also an
20 associate editor of the journal, Professor Sidney Lang, sent
21 me a copy of a letter that he had received from Dr. Etzold
22 of IBM.
23 Q. Let me hand to you what has been marked as
24 Plaintiff's Exhibit 550.
25 What is Exhibit 550?
37
1 A. 550 is the copy of the letter that Professor Lang
2 sent from -- or received from Dr. Etzold and which he sent
3 on to me.
4 Q. What did you understand -- who is Dr. Etzold?
5 A. Dr. Etzold is a -- or was a research scientist at
6 IBM, and had recently been appointed an associate editor of
7 the IEEE Transactions on Ultrasonics, Ferroelectricity and
8 Frequency Control.
9 Q. What was Dr. Etzold -- what was he doing in this
10 letter?
11 A. The purpose of the letter, as he states in the
12 letter, is to encourage people to publish in the UFFC
13 transactions and not to publish in Ferroelectrics.
14 Q. Did he have a basis for that, a stated basis?
15 A. His argument was that the price of Ferroelectrics
16 was too expensive.
17 THE COURT: I note it says the cost is very high
18 from 1990, $8,220. Is that the subscription cost in 1990?
19 THE WITNESS: I believe so.
20 Q. What did you do upon receipt of this letter?
21 A. I met Dr. Etzold at a conference at the
22 University of Illinois shortly afterwards, and I had a long
23 discussion with him, where I told him that I felt that his
24 letter was -- did not address the -- all the issues
25 involved. The transactions that he had become the associate
38
1 editor of published a very few numbers of papers on
2 ferroelectrics. Ferroelectrics was solely devoted -- the
3 journal Ferroelectrics was solely devoted to ferroelectrics.
4 So if a subscriber to the UFFC transactions was solely
5 interested in ferroelectrics, he would only get a very small
6 percentage of the articles that he was purchasing which
7 dealt with the subject that he was interested in, whereas,
8 if he purchased the journal Ferroelectrics, he would get --
9 all the articles would be on ferroelectrics.
10 So I discussed with him how one might evaluate
11 the cost effectiveness of the two journals and determine
12 that the cost effectiveness of -- based on that criteria,
13 that for a researcher that was interested in ferroelectrics
14 and not interested in the other parts of that journal,
15 ultrasonics and frequency control, it was about six or seven
16 times more cost effective to buy the journal Ferroelectrics.
17 And I felt that if he was going to encourage people to
18 publish in the UFFC transactions, it was necessary to point
19 this out.
20 It was also necessary to point out the speed of
21 publication. The UFFC transactions typically takes two to
22 three times longer to publish any article, be it on
23 ferroelectrics or anything else. And the third area which I
24 pointed out to him was that the number of articles that the
25 UFFC was allowed to publish by their own policy was strictly
39
1 limited because of page limitations. The number of pages
2 and therefore the number of articles were limited.
3 Plus, there were other factors involved in
4 comparing the two journals, one being that one journal made
5 no page charges to the authors; the other journal, the UFFC
6 transaction, charged about $100 a page for an author to
7 publish --
8 THE COURT: Charged the author?
9 THE WITNESS: The author or the author's
10 institution.
11 THE COURT: Is charged $100, right? I asked you
12 earlier whether there was compensation and you said no.
13 THE WITNESS: No.
14 THE COURT: Now you are also telling me that
15 there is a charge to the author or the author's --
16 THE WITNESS: Not in the case of the journal
17 Ferroelectrics, but in the case of this --
18 THE COURT: The UFFC?
19 THE WITNESS: The UFFC transactions, yes.
20 BY MR. PLOTZ:
21 Q. Could you just describe for Judge Sand what page
22 charges are?
23 A. The societies of journals, certain societies,
24 including the American Physical Society and the IEEE, in
25 order to reduce their publication costs, ask the author or
40
1 the author's institution to support the publication by
2 paying so much per page.
3 Q. And just to be clear, your journal does not do
4 that?
5 A. And ferroelectrics does not do that.
6 Q. Do you know whether any Gordon & Breach journals
7 do that?
8 A. I believe no Gordon & Breach journals do that.
9 And the other aspect that I discussed with
10 Dr. Etzold, which I felt that he had been unfair in not
11 mentioning this in this letter that he had circulated, was
12 that ferroelectrics was -- the journal Ferroelectrics was
13 very much an international journal. The IEEE transactions
14 and its subscribers are largely -- excuse me -- the people
15 who write articles for the IEEE transactions and the
16 subscribers to the transactions are -- the majority of them
17 are American, whereas in the case of ferroelectrics the
18 Americans are not the majority.
19 Q. In your view, what is the significance of that
20 last point?
21 A. That the journal Ferroelectrics is able to
22 publish research from all over the world, and, therefore,
23 the readers of Ferroelectrics get a much broader
24 understanding of what is going on in the world, whereas the
25 UFFC transactions is more limited in that respect.
41
1 Q. You testified a few moments ago that in your
2 conversation with Dr. Etzold you pointed out that for a
3 researcher in ferroelectrics, a subscription to your journal
4 would be more cost effective than a subscription to the UFFC
5 transactions.
6 A. Yes.
7 Q. What was your standard or basis for making that
8 statement?
9 A. I calculated, over a three-year period, the --
10 what it would cost to subscribe to Ferroelectrics, what it
11 would cost to subscribe to the UFFC Transactions. I then
12 divided those two numbers, those three years of subscription
13 costs, by the numbers of articles on ferroelectrics in each
14 of the two publications. And if my memory serves me right,
15 the cost of the -- for the UFFC transactions was about $40
16 per article, whereas the cost in the journal Ferroelectrics
17 was about $6 or $7 an article.
18 Q. Let me show you what has been marked as
19 Plaintiffs' Exhibit 555, and ask you what that is.
20 A. After I met with Dr. Etzold, I put into writing
21 the discussion that I had had with him, the points that I
22 had made to him, as a counter to the letter that he had
23 circulated.
24 Q. And is one of the points this calculation that
25 you just described?
42
1 A. Yes. This is on the second page, under the
2 subheading "Cost Effectiveness."
3 Q. And does this reflect that you calculated that it
4 would have cost a ferroelectrics person $3.50 per article to
5 subscribe to your journal and $11 for a ferroelectrics
6 person to subscribe to UFFC transactions?
7 A. Yes. That is based on an individual subscription
8 in both -- comparing the individual subscription for both
9 journals, yes.
10 Q. And above that is your calculation for library
11 subscribers?
12 A. Yes.
13 Q. And that shows a per ferroelectrics article cost
14 of $7 for your journal and $46 for the other journal?
15 A. Yes.
16 Q. And is that what you were referring to --
17 A. Yes.
18 Q. Now, at the time that you talked to Dr. Etzold,
19 had you done this calculation?
20 A. No. Well, let me -- this is a long time ago. It
21 was Dr. Etzold's letter that caused me to -- his letter to
22 Sidney Lang and to other people that caused me to think
23 about this, and whether I had done the calculation exactly
24 when I met with Dr. Etzold or whether it was a few weeks
25 later, I can't remember.
43
1 THE COURT: To whom did you send this letter?
2 THE WITNESS: This letter was not distributed.
3 THE COURT: It was not distributed?
4 THE WITNESS: Not.
5 THE COURT: I see. You prepared this for
6 possible distribution but did not in fact distribute it?
7 THE WITNESS: Exactly.
8 THE COURT: And this was sometime in 1990?
9 THE WITNESS: Yes.
10 Q. Did you tell anyone at Gordon & Breach about this
11 letter from Dr. Etzold?
12 A. Yes.
13 Q. Do you remember who you told?
14 A. I believe I spoke to several people, which would
15 have included Pat Bardi, who was the vice president of
16 Gordon & Breach and in charge of editorial matters.
17 Q. Do you know what happened, if anything, between
18 Gordon & Breach and Dr. Etzold after that?
19 A. Yes. There were discussions which resulted in a
20 letter of retraction by Dr. Etzold being circulated to all
21 the people that he had written to in the first place, in
22 which in this letter of retraction he apologized and
23 basically said that the points that I had made were correct,
24 that there were other factors involved. One couldn't just
25 simply look at the subscription price and draw the
44
1 conclusion that he did.
2 Q. Let me hand you Plaintiff's Exhibit 551 and ask
3 you to take a look at that.
4 THE COURT: Let's take a five-minute recess
5 before we start that.
6 (Recess)
7 THE COURT: Professor Taylor, you said that
8 Dr. Etzold had sent a retraction letter?
9 THE WITNESS: Yes.
10 THE COURT: Is that in the record.
11 MR. PLOTZ: I just handed it up, your Honor.
12 That is Exhibit 551, your Honor.
13 BY MR. PLOTZ:
14 Q. Actually, Doctor, let me have you identify
15 Exhibit 551.
16 A. Yes, 551 is a -- three letters, one of which is
17 a -- the retraction letter, which is addressed to Professor
18 Alex Muhler, who is on our editorial board and is also a
19 Nobel laureate, who happens also to work for IBM, or worked
20 for IBM in Zurich in those days.
21 The other letters are letters addressed to
22 Mr. Gordon, which are apologies.
23 Q. And one of those letters is from Dr. Etzold?
24 A. One of those letters is from Dr. Etzold and the
25 other is from IBM.
45
1 Q. Now, you testified there was a later incident
2 involving a situation where someone was urging authors not
3 to write for your journal on the basis of its price?
4 A. Yes. In August '96 --
5 Q. Before you get to that, I just want to go back to
6 something and just have you clarify it.
7 Could you look at, just briefly again, at Exhibit
8 3, which is the Barschall article.
9 A. Yes.
10 Q. At table 1, which you were looking at --
11 A. Yes.
12 Q. One of the journals under "Condensed Matter
13 Physics" is a journal called The Physics and Chemistry of
14 Liquids, a Gordon & Breach journal?
15 A. Yes.
16 Q. Are you familiar with that journal?
17 A. No.
18 Q. So you don't know whether or not that is a
19 specialized or general journal?
20 A. No, I don't know if it is specialized.
21 The one that I know is specialized is the Journal
22 of Magnetism and Magnetic Materials published by North
23 Holland.
24 Q. Let's return to this second incident that we
25 began to discuss. Could you describe what happened on this
46
1 later occasion?
2 A. Yes.
3 Q. First of all, when did this happen?
4 A. In August of '96, the ferroelectrics committee of
5 the IEEE, of which I have been the secretary of this
6 committee for 20 or more years, organizes every two or three
7 years a conference on the applications of ferroelectrics.
8 And the day before the conference began, our committee held
9 a regular committee meeting and to this meeting Dr. Vig from
10 the IEEE was invited --
11 Q. Who is Dr. Vig?
12 A. Dr. Vig is the vice president of the IEEE society
13 entitled the Society of Ultrasonics, Ferroelectrics and
14 Frequency Control. This society has three component
15 committees, of which the ferroelectrics is one of those
16 committees.
17 Q. And do you know where he works?
18 A. He works at U.S. Army research office in Fort
19 Monmouth, New Jersey.
20 Q. Continue with what happened at this meeting.
21 A. Dr. Vig, after we had completed our normal
22 committee business, Dr. Vig asked to speak to the committee,
23 and there were several topics that he spoke about, and one
24 of these was a statement to the effect that the members of
25 our ferroelectrics committee should publish all their
47
1 ferroelectrics articles in the transactions of the
2 ultrasonics ferroelectrics and frequency control, the UFFC
3 transactions. The reasons he said that this was necessary
4 were that the ferroelectrics was too expensive and
5 subscriptions were being canceled by certain libraries.
6 Q. Did he say how expensive the journal was?
7 A. He said about $40,000, four-zero thousand.
8 THE COURT: What was $40,000?
9 THE WITNESS: He claimed that the subscription
10 price to ferroelectrics was $40,000, and this was too
11 expensive.
12 Q. Did you say anything at this meeting?
13 A. Yes. I said --
14 Q. What did you say?
15 A. -- that this number was grossly exaggerated, it
16 was considerably less than this, and that the number of
17 subscriptions to my knowledge, of Ferroelectrics, had not
18 significantly decreased in recent years.
19 Q. What happened after this meeting?
20 A. I should say that before the meeting concluded,
21 Professor Cross, who is the chairman of the ferroelectrics
22 committee, told Dr. Vig that his comments were not
23 appropriate, his criticism of the journal Ferroelectrics was
24 not appropriate, and that both journals served a very useful
25 purpose. And, in fact, neither I nor any editorial board
48
1 member of ferroelectrics over the 27 years that the journal
2 Ferroelectrics is published has ever criticized any other
3 scientific journal nor have we encouraged people not to
4 publish in other scientific journals and to publish in
5 ferroelectrics. I personally think that this is a very bad
6 situation where you set up a fight among scientists when
7 both journals, and many other journals, serve very good
8 purposes --
9 THE COURT: How large is that committee?
10 THE WITNESS: The committee is about 20 people.
11 THE COURT: That were present at the time?
12 THE WITNESS: Yes.
13 A. In some ways his comments and his actions
14 reflected what Dr. Etzold had said six years previously, and
15 what is also in my opinion very disappointing is that the
16 journal Ferroelectrics has always had a very good
17 relationship with the UFFC transactions, and, in fact, in
18 the past we have co-published proceedings --
19 THE COURT: I was wondering about co-publication.
20 THE WITNESS: Yes.
21 THE COURT: Is the choice of the publication
22 always mutually exclusive?
23 (Pause)
24 Is it ever case that the same article will appear
25 with everyone's consent in more than one publication?
49
1 THE WITNESS: It's very rare, because an article
2 should only be published in one place, unless there is some
3 very extenuating circumstance.
4 In the case of the co-publication, which took
5 place between the two journals, of a particular proceedings,
6 the reason why both journals decided that this was an
7 exception that was worth doing was related to this question
8 of internationality, that the UFFC transactions was only
9 distributed primarily in the United States, and the feeling
10 was that Ferroelectrics, because of its international
11 distribution and publication, would extend the readership of
12 the proceedings of this conference.
13 THE COURT: Are there, in the scientific
14 community, the equivalent of what in the lay community might
15 be thought of as something like a Reader's Digest? Are
16 there publications which are solely re-print publications?
17 THE WITNESS: Not that I know of. There are
18 copyright issues involved and, therefore, editors of all
19 reputable scientific journals that I know will not publish
20 an article unless the author will state that this article is
21 not being published elsewhere.
22 THE COURT: All right.
23 BY MR. PLOTZ:
24 Q. In fact, Dr. Taylor, had your journal,
25 Ferroelectrics, promoted the conference at which Dr. Vig
50
1 made his statements?
2 A. Yes. Ferroelectrics -- excuse me, not
3 Ferroelectrics -- Gordon & Breach had paid for a booth at
4 the conference that followed after this committee meeting.
5 Is this the question you -- yes.
6 Q. That is responsive, but let me ask you something
7 else.
8 A. Yes.
9 Q. Let me show you Plaintiffs' Exhibit 730C, which
10 is volume 174, numbers 1 through 2, of your journal
11 Ferroelectrics and direct your attention near the back of
12 the journal and ask you whether that is a call for papers
13 for this very conference.
14 A. Yes. One of the services that Ferroelectrics
15 does for the ferroelectrics community is to advertise
16 conferences that are being held in the area of
17 ferroelectrics anywhere in the world, and I guess it's a
18 measure of our openness and willingness to cooperate with
19 the IEEE that we gladly advertise their conference, the one
20 that occurred in August of '96.
21 Q. That call for papers was for papers that would
22 ultimately be published not in your journal but in the UFFC
23 transactions?
24 A. Conceivably, yes, but as it turned out the UFFC
25 society does not publish the proceedings of the -- of their
51
1 conference on applications of ferroelectrics, which makes
2 Dr. Vig's request for people to stop publishing in
3 Ferroelectrics rather strange, because the IEEE could easily
4 publish, if they wanted to, many of the papers that were
5 given at the IEEE conference on applications of
6 ferroelectrics, but because of their budgetary
7 considerations and because of the number of pages they are
8 able to publish, they do not publish the articles from their
9 ferroelectrics conferences.
10 Q. Between 1990, when Dr. Etzold wrote his letter,
11 and 1996, when Dr. Vig made the comments at the meeting, had
12 the UFFC transactions expanded its coverage of the
13 ferroelectrics field?
14 A. Hardly at all. And I imagine this is why Dr. Vig
15 was so strongly promoting the UFFC transactions --
16 MR. HUVELLE: Your Honor, I think we are into the
17 range of speculation here.
18 THE COURT: Sustained. I take it you are going
19 to be counsel in cross-examination of this witness?
20 MR. HUVELLE: Yes, your Honor.
21 THE COURT: Sustained.
22 Q. Let's go back to the conference.
23 Following this meeting at which about 20 people
24 were present that you just described, were any further
25 comments about the journal Ferroelectrics made at that
52
1 conference?
2 A. Yes, I made the --
3 (Pause; Mr. Huvelle rose)
4 THE COURT: The fact that he rises doesn't mean
5 that you have to be speechless.
6 THE WITNESS: He scares me.
7 THE COURT: You have to be speechless when the
8 Court is talking or when the Court says "sustained."
9 MR. HUVELLE: Your Honor, I appreciate the rare
10 instance of respect that I get occasionally. I thought that
11 the witness was about to go into a subsequent statement
12 that, according to my understanding from the deposition, was
13 not made in his presence.
14 MR. PLOTZ: That is true, and I am offering it to
15 give background to what comes next.
16 THE COURT: It is too abstract. Let me hear the
17 question. If there is an objection, then, please, give me
18 an opportunity to rule before you respond.
19 OK. What is the question?
20 BY MR. PLOTZ:
21 Q. The following day, Dr. Taylor, was there a
22 general session of this conference?
23 A. Yes.
24 Q. The following day after the meeting that you have
25 testified about?
53
1 A. After the committee meeting on the Sunday, the
2 conference started on the Monday, the three-day conference
3 started on the Monday.
4 Q. And about how many people attended that
5 conference?
6 A. There were about 300 to 400 people.
7 Q. Did Dr. Vig speak at that conference?
8 A. I understand he spoke at the opening session. I
9 arrived -- I live in Princeton, so I did not stay at the
10 conference, and I arrived about a half an hour after the
11 conference had begun. But I was told that he made some
12 opening comments at the conference.
13 Q. Were you told those opening comments, in part,
14 related to the journal Ferroelectrics?
15 A. I was told this, yes.
16 Q. What did you do, if anything, following the
17 conference in relation to Dr. Vig's statements?
18 A. I spoke to the chairman of the ferroelectrics
19 committee, Professor Cross, and voiced my dismay at this
20 open attack on what I had considered a good relationship
21 between the IEEE and the journal Ferroelectrics, and
22 Professor Cross agreed with me. I also brought it to the
23 attention of Gordon & Breach.
24 Q. Do you know whether Gordon & Breach got into
25 contact with the IEEE about this incident?
54
1 A. Yes, they did.
2 Q. Let me hand you what has been marked as
3 Plaintiffs' Exhibit 552, and ask you if you can identify
4 that?
5 A. This is a letter written by Gordon & Breach's
6 attorneys to the IEEE concerning Dr. Vig's comments.
7 Q. Following -- well, did you review this letter
8 before it was sent?
9 A. Yes, I did.
10 Q. Did you review it for the accuracy of its factual
11 statements?
12 A. Yes.
13 Q. Were you satisfied --
14 A. I did not draft the letter in its entirety
15 because it obviously deals with legal issues as well as the
16 factual issues of what Dr. Vig said.
17 Q. But as to the factual statements in the letter,
18 did you review the letter for its accuracy?
19 A. Yes.
20 Q. And do you know whether that letter was sent?
21 A. I believe it was sent.
22 Q. Do you know what, in general, happened following
23 the mailing of that letter?
24 A. Yes. I was told that there were discussions
25 between the IEEE's attorneys and Gordon & Breach's attorneys
55
1 about a possible way to resolve the problem.
2 Q. Do you know if this problem has been resolved?
3 A. No, to my knowledge it has not been.
4 MR. PLOTZ: Can I have just one moment, your
5 Honor?
6 THE COURT: Yes.
7 (Pause)
8 MR. PLOTZ: I have no further questions, your
9 Honor.
10 THE COURT: Very well.
11 CROSS-EXAMINATION
12 BY MR. HUVELLE:
13 Q. Dr. Taylor, do you spend approximately 10 to 15
14 hours per week on your editorial duties for Gordon & Breach?
15 A. Yes.
16 Q. You are not an employee of Gordon & Breach, are
17 you?
18 A. No.
19 Q. Do you receive approximately $70,000 to $100,000
20 gross per year in compensation from Gordon & Breach?
21 A. In recent years, because of the number of journal
22 volumes that are published, it has reached this number, yes.
23 Q. Do you know what your compensation was in 1987?
24 A. It was much less than that, and I don't remember.
25 Q. Am I correct in understanding that you have
56
1 exclusive responsibility for the editorial functions with
2 respect to the journal Ferroelectrics?
3 A. Yes.
4 Q. And that Gordon & Breach does not get involved in
5 the editorial process?
6 A. Yes.
7 Q. Do you know whether they see a proof of the
8 articles before they are actually published?
9 A. The in-house editor of ferroelectrics receives
10 copies of the page proofs of the articles.
11 Q. And is it true that in your 28 years -- 27 years
12 editing the journal, that it has been your experience that
13 Gordon & Breach does not provide you with feedback of a
14 substantive nature with respect to those articles which you
15 send to them in proof form?
16 A. I think I understand your question, but perhaps
17 you could elaborate on it a little bit.
18 Q. When you send the page proofs to Gordon & Breach
19 prior to publication --
20 A. I do not send them. The printer sends them.
21 Q. When they are sent --
22 A. Yes.
23 Q. -- am I correct in understanding that Gordon &
24 Breach does not send to you feedback of a substantive nature
25 regarding the articles that are to be published?
57
1 A. That's correct.
2 Q. And is it true that you are the one who
3 determines whether there are a sufficient number of pages
4 collected to justify the publication of a new issue?
5 A. Yes.
6 Q. And am I correct in understanding that, in
7 contrast to the editorial side of the business, where you
8 run the show, that in terms of the business side of the
9 journal Ferroelectrics, you know very little?
10 A. Correct.
11 Q. You have testified that, as of a couple of years
12 ago, I believe, that you understood there were 400
13 subscribers worldwide to the journal Ferroelectrics, is that
14 correct?
15 A. That's my knowledge -- limited as it is.
16 Q. And am I correct that you do not know the number
17 of subscribers to the journal Ferroelectrics in the year
18 1987?
19 A. Not exactly, no.
20 Q. Is it true that you do not know if the number of
21 subscribers to the journal Ferroelectrics has radically
22 increased or decreased during the last 17 years?
23 A. I do not have any direct evidence as to what has
24 happened. I do know that the American Physical Society has
25 published articles -- since I am a member, I read some of
58
1 these journal articles that show that all journal
2 publications, all journal subscriptions for the APS journals
3 and therefore I think the articles suggested that throughout
4 the scientific community their number of subscriptions has
5 shown a decline over the last 20 or so years. That's my
6 only knowledge of this.
7 Q. But you have no idea of what year the journal
8 Ferroelectrics had the greatest number of subscribers, do
9 you?
10 A. No.
11 Q. And you know very little -- I'm sorry.
12 Do you know the number of university libraries
13 that subscribe to the journal Ferroelectrics?
14 A. No.
15 Q. Do you know the number of university libraries in
16 the United States that subscribe to the journal
17 Ferroelectrics?
18 A. No.
19 Q. And would your answer be the same for both of
20 those questions as to the year 1987?
21 A. The first -- the last two questions applied to
22 currently, is that correct?
23 Q. Is it true throughout the history of the journal
24 Ferroelectrics that you do not know, at any time, what the
25 number of university libraries subscribe to Ferroelectrics?
59
1 A. That is correct.
2 Q. And is it true that you have never asked Gordon &
3 Breach for subscription data?
4 A. I think, in the early days, I was interested from
5 the viewpoint of making sure that all the potential
6 subscribers or all potential institutes that would want to
7 read the journal were covered, and in those early years I
8 talked to Gordon & Breach about mentioning, has anybody at
9 Gordon & Breach contacted university A to find out if they
10 are taking a subscription or want to take a subscription. I
11 was interested in it from a promotional viewpoint.
12 Q. But since 1980, for example, you have never asked
13 for subscription data from Gordon & Breach?
14 A. No.
15 Q. And is it your understanding that -- is it your
16 belief that the company would be reluctant to share that
17 data with you?
18 A. I would think so, because it's very sensitive
19 data and it is data that even as an editor, as being an
20 editor for a long time, that kind of data getting into the
21 wrong hands represents a very significant commercial
22 problem.
23 THE COURT: Giving it to you wouldn't be the
24 wrong hands, would it?
25 THE WITNESS: I am not an employee of Gordon &
60
1 Breach, and one could imagine the scenario where I might
2 decide that I want to be the publisher of my own journal,
3 and knowing the subscription list would be valuable
4 information.
5 THE COURT: Isn't the composition of your
6 subscribers relevant to editorial judgments? For example,
7 if 90 percent of your subscribers were commercial
8 organizations such as IBM and 10 percent were university
9 libraries, would that impact on the editorial judgment as to
10 how much space to devote to commercial applications as
11 distinguished from pure theory?
12 THE WITNESS: No, it would not be an issue for
13 ferroelectrics, because our only criteria about space is
14 that the articles be good and pass the refereeing process,
15 be significant articles, and then we will publish them.
16 Now, if we happen to find that we were getting the majority
17 of our articles on applications, so be it, we would publish
18 all those articles. Or if in another year all the articles
19 tended to deal with basic research papers, we would publish
20 all those, provided they had gone through the refereeing
21 cycle.
22 Q. Is it true that you have no involvement in
23 pricing issues relating to the journal Ferroelectrics?
24 A. That's true.
25 Q. You have no idea of whether Gordon & Breach
61
1 considers the journal Ferroelectrics to be profitable?
2 A. I have no idea.
3 Q. You have no idea of what the profit margin is for
4 the company on that journal?
5 A. No idea.
6 Q. It could be 20 percent, 40 percent, you don't
7 know?
8 A. It might be a loss, I don't know.
9 Q. And it is true, is it not, that not many
10 scientists read the Ferroelectrics journal, is that correct?
11 A. I think to the contrary, a lot of people read it.
12 Q. Is it true that in many universities in the U.S.
13 there would be no professor or instructor with a research
14 interest in ferroelectrics?
15 A. Yes.
16 Q. And that ferroelectrics is, in your own words, a
17 very small scientific area?
18 A. Yes.
19 Q. And it is quite diffuse in the sense that there
20 might be one person at one university who is interested in
21 it and no one at the next two universities with an interest
22 in this subject?
23 A. Yes.
24 Q. Is it your opinion that there are no other
25 scientific journals that compete with Ferroelectrics?
62
1 A. Yes.
2 Though perhaps we should define the word
3 "compete." Perhaps I said yes too quickly here. Perhaps
4 you could elaborate on what you mean by "compete."
5 Q. Do you recall in your deposition I asked you if
6 there were any journals that competed with Ferroelectrics?
7 A. And I think I elaborated in that answer to that
8 question as to why I did not consider the other journals to
9 be competitors.
10 Q. I was not asking you for the reasons why. I was
11 asking whether it is your opinion that no other journals
12 compete with Ferroelectrics?
13 A. OK. Let me ask a legal question. Is the Judge
14 and the Court aware of what I said in my deposition
15 concerning the word "compete"?
16 Q. Your attorney is, and he will have the
17 opportunity to go back to that.
18 Let me ask you about your testimony regarding
19 percentage of articles on the subject of ferroelectrics that
20 appear in your journal Ferroelectrics, do you recall that
21 testimony?
22 A. Yes.
23 Q. And I believe that you said that some years ago
24 the percentage was 35 percent appearing in your journal,
25 Ferroelectrics?
63
1 A. Yes.
2 Q. Can you give us the time period that you believe
3 that 35 percent figure applies?
4 A. I think 35 percent plus or minus 5 percent,
5 because it obviously can vary from year to year.
6 Q. Right.
7 A. I would say that that number in general was true
8 from the time the journal began in 1970 through until maybe
9 five years ago, where the numbers may have started -- the
10 percentage may have started to decrease from where it had
11 been previously.
12 Q. So the 35 percent figure in your mind applies to
13 the period 1984, '85, '86, '87 that we are dealing with?
14 A. Yes, 30 to 35 percent, yes.
15 Q. Am I correct that in forming your opinion as to
16 this percentage, that what you have done is to look at the
17 index by Professor Toyota that appears in your own
18 ferroelectrics journal?
19 A. Yes.
20 Q. And what you've done is to go through and count
21 the number of articles --
22 A. Yes.
23 Q. -- cited --
24 A. Yes.
25 Q. -- in that index --
64
1 A. Yes.
2 Q. -- or listed in that index that come from
3 Ferroelectrics itself?
4 A. Yes.
5 Q. As compared to the total number of articles?
6 A. Yeah, the numerator is the number of articles in
7 the journal Ferroelectrics, and denominator is the annual
8 number from Toyota's bibliography.
9 Q. And have you actually done that calculation?
10 A. I did it. I did it at the time of Etzold's -- in
11 1990. I have not done it on a regular basis since then.
12 Q. And counsel referred you to a copy of your
13 journal in which such an index appeared.
14 A. Yes.
15 Q. And that was an index for the second half of
16 1985, is that correct?
17 A. It typically runs -- the bibliography runs a year
18 or a year and a half behind the issue of the journal that it
19 appears in. Is that your question?
20 Q. Right. But you have the journal right there.
21 A. Do I have the journal?
22 Q. I think you do. It may be on your left.
23 A. Yes.
24 (Pause)
25 Q. Does that index cover the second half of 1985?
65
1 A. Yes.
2 Q. And could you briefly look at volume 74, nos. 1
3 and 2, which is Defendant's Exhibit VVVVV?
4 A. Yes, 1 and 2, right.
5 Q. And is this the index for the first half of 1985?
6 A. Yes.
7 Q. This same index by Professor Toyota?
8 A. Yes.
9 Q. And you would expect ferroelectrics to appear
10 about 35 percent of the times in those indexes?
11 A. Well, I said approximately.
12 Q. Approximately?
13 A. It varies from year to year, yes.
14 Q. And would Phys. Rev. be likely to appear at all
15 as a publisher of articles in Ferroelectrics?
16 A. Could you remind me what the full title of Phys.
17 Rev. is?
18 Q. I think it is the condensed matter.
19 A. Yes.
20 Q. It would be likely to appear?
21 A. Yes.
22 Q. And I take it that in your view Professor
23 Toyota's index is the definitive place to look in terms of
24 classification?
25 A. Everybody in the ferroelectrics community has
66
1 accepted that.
2 Q. So if he says it's ferroelectrics, it's
3 ferroelectrics?
4 A. I am not sure I understand what the question --
5 Q. You accept his classification of an article as
6 being in the area of ferroelectrics as a --
7 A. Well, if you read the subtitle to his
8 bibliography, it says "Ferroelectrics and Related
9 Materials." And that is also the title of the journal
10 itself, Ferroelectrics and Related Materials. So --
11 Q. So you agree?
12 A. No -- well, I'm not sure. I'm just pointing out
13 that you are saying, any article in here must be a
14 ferroelectrics article. I'm saying that it's defined as a
15 bibliography of -- in its subtitle, it is a bibliography of
16 ferroelectrics and its related material.
17 Q. We are not asking you for 100 percent precision,
18 but when you make a statement regarding the percentage of
19 ferroelectrics articles that appear in the journal
20 Ferroelectrics, am I correct in understanding that Professor
21 Toyota's listing of ferroelectrics articles is an
22 appropriate place to look?
23 A. Yes.
24 Q. Let me ask you about the ferroelectrics articles
25 that appear in other journals.
67
1 A. Yes.
2 Q. And I take it that when you are asked to referee
3 for other journals, often it is with respect to an article
4 in the area of ferroelectrics?
5 A. Yes.
6 Q. So you've seen those articles?
7 A. Sure.
8 Q. As a referee, quite apart from your own
9 involvement as a researcher in the area, is that correct?
10 A. Yes.
11 Q. And am I correct in understanding that in your
12 view there are no differences in the character or nature of
13 the ferroelectrics articles that appear in these other
14 journals as compared to the ones that appear in your
15 journal, Ferroelectric?
16 A. Could you repeat that question, please?
17 Q. Is it true that in your view there is no
18 difference in the character or nature of the ferroelectric
19 articles that appear in the other journals publishing such
20 articles, as compared to Ferroelectrics itself?
21 A. Provided those other journals are what I would
22 consider to be high-quality journals. There are some
23 journals in the world which may have articles that I
24 would -- because they are in those journals, I would not
25 consider them to be of the same quality that would go into
68
1 Phys. Rev. B, for example.
2 Q. And there is no doubt that the journals published
3 by APS and AIP are high-quality journals?
4 A. Yes, they are.
5 Q. And is it also true --
6 THE COURT: One of the things which an author
7 does -- a good author does -- is consider the level of
8 sophistication and knowledge of the reader. And I take it
9 that the thrust of the question was, or an implication in
10 the question was, whether in the articles that appear in
11 your journal there is an assumption of higher knowledge or
12 sophistication or an interest in the subject matter which is
13 different from that which the author assumes in articles
14 which appear in more generalized publications?
15 THE WITNESS: I understand what you are saying.
16 But the -- as the counsel just said, I referee articles on
17 ferroelectrics subjects for other scientific journals, and I
18 would say that I see no difference of the type that you are
19 discussing.
20 I mean, there are some popular journals, like
21 Scientific American or Nature -- or not Nature so much, but
22 Scientific American, in which there are articles which are
23 written in a very broad basis so a lot of people can
24 understand them. But if we exclude that type of article, I
25 would say the articles that appear in other learned journals
69
1 are very similar in their quality to the articles that
2 appear in Ferroelectrics.
3 Q. And am I correct that there is no difference that
4 you see in the degree of specialization of the articles on
5 ferroelectric subjects that appear in the other journals as
6 compared to your journal, Ferroelectrics?
7 A. That's correct.
8 Q. And as you referee for other journals, am I
9 correct in understanding that you see articles that you
10 would say, gee, I wish we had that for publication in
11 Ferroelectrics?
12 A. Sometimes I see that. Sometimes I see articles
13 which I am very glad didn't come across my desk as an editor
14 because the quality is bad and the paper is rejected.
15 Q. And you might reject it?
16 A. Yes.
17 Q. And you would reject it for the other magazines?
18 A. Yes.
19 Q. For the other journals, too?
20 A. Absolutely.
21 Q. But at least there would be some that you would
22 be proud to have in Ferroelectrics --
23 A. Yes.
24 Q. -- that appear in other journals?
25 A. Yes.
70
1 Q. And what percentage of ferroelectric articles do
2 you believe appear in the APS journal, Physical Review B?
3 A. I don't know. I have not calculated how many
4 articles appear in Phys. Rev. B on ferroelectrics.
5 Q. And you don't have an opinion?
6 A. I have an opinion, which I stated earlier, that
7 the -- I don't believe there is any other journal, including
8 Phys. Rev. B, that publishes more than a couple of percent
9 in any one year of ferroelectric articles. I mean a couple
10 of percent of the total worldwide articles on
11 ferroelectricity.
12 Q. Could I ask you to look at one of the -- an
13 additional journal, an issue of Ferroelectrics from 1987.
14 A. Yes.
15 Q. Could you look at the inside flap. Does it state
16 that the journal publishes four issues per volume?
17 A. Yes.
18 Q. And six volumes per year?
19 A. Which page is this under? The inside front
20 cover?
21 Q. Right. I think I need to withdraw the latter
22 question, though.
23 Does it state that it publishes four issues per
24 volume?
25 A. Yes.
71
1 Q. And do you recall that in 1987 you were
2 publishing six volumes per year?
3 A. I cannot be specific, but I think that was about
4 the right number.
5 Q. And does it state that the subscription price per
6 volume for a university library is $290?
7 A. Yes, including postage.
8 Q. Does it also state that it is published -- that
9 it is printed in the United States of America?
10 A. Yes.
11 Q. And does it at the bottom of the inside flap of
12 the front cover state the date of publication?
13 A. Yes.
14 Q. And does it state, on the outside binder, the
15 number of pages contained in the volume?
16 A. Yes.
17 Q. Can you tell us what an issue is? It states
18 "four issues per volume."
19 A. Yes. The average number of pages per volume is
20 around 350, and if the flow of the papers is such that you
21 can divide the 350 pages into four parts, each part is
22 nominally therefore about 90 pages. But because of the --
23 in order to achieve the fastest possible publication we
24 don't necessarily wait until we have one part, one part, one
25 part and publish. We may combine them together and have
72
1 four parts published at the same time or three parts
2 published at the same time. There is great flexibility in
3 this to make sure that we get the fastest publication.
4 Q. So when you state that there are four issues per
5 volume, that does not mean that you send out four separate
6 issues per volume?
7 A. Sometimes -- sometimes we do, sometimes we don't.
8 Q. And in 1987, volume 71, it reads, nos. 1, 2, 3
9 and 4, which I have in my hand --
10 A. Yes.
11 Q. This would be an example --
12 A. -- of putting the four parts into one cover.
13 Q. So this is one volume?
14 A. Correct.
15 Q. That costs $290?
16 A. That is the list price advertised on the inside
17 front cover. I don't know what discounts or what other
18 factors are involved in the actual pricing of the journal.
19 Q. It is the price stated in the journal?
20 A. The listed price, yes.
21 Q. And the number of pages is about 302?
22 A. Yes.
23 Q. And is it true that in each and every volume of
24 Ferroelectrics, that the number of pages include many blank
25 pages?
73
1 A. Sometimes no blank pages, sometimes a small
2 percentage of blank pages, the reason being that in order to
3 arrange for authors to receive free reprints, it's more
4 economical from the printing process to start each new
5 article on the right-hand page, which means that the
6 preceding article, if it doesn't have an even number of
7 pages, will finish with a blank page. So it is a random
8 question -- I mean it is a random statistical issue of how
9 many blank pages there are in a particular volume or a
10 particular issue.
11 Q. Roughly, every other article should end with a
12 blank page?
13 A. That's if you believe in probability, yes.
14 Q. You would be the expert on that.
15 A. No, no, I'm not. I'm not a mathematician.
16 Q. Isn't it also true that in this volume, ending on
17 page 302, the last article ends on page 296?
18 A. The last article finishes on 296, which is
19 followed by an author index on page 297.
20 Q. But the journal states that there are 302 pages,
21 is that correct?
22 A. Yes.
23 Q. Am I correct in understanding that the six
24 volumes published in 1987, which I have in my hand, the
25 total cost for the six volumes is $1,740?
74
1 A. If you multiply the list price by six, yes.
2 THE COURT: What year was that?
3 MR. HUVELLE: 1987.
4 Q. And then in subsequent years it went up?
5 A. Yes. Just like your salary and my salary went
6 up.
7 Q. And it now costs more than $15,000 a year?
8 A. I don't know. Which type of subscription are you
9 discussing? Individual? A university library? Or
10 corporate?
11 Q. A university library.
12 A. I don't know. I would have to look at the issue
13 and read off the list price off it. I don't remember these
14 numbers because, as I said, I'm not involved in the
15 commercial side of it.
16 Q. The price of $1,740 for these journals, that's
17 the lower price for university libraries, is it not?
18 A. Yes.
19 Q. It is not the corporate rate?
20 A. There is also a lower price for individuals, even
21 lower price than that number.
22 Q. And if someone subscribes to the journal back in
23 1985/'86, you agree to pay a per volume price for the year,
24 is that correct?
25 A. I don't know how the journal was marketed,
75
1 whether it was marketed on a so many volumes a year or
2 whether it was marketed on a curve, whether the invoices
3 were sent out as a per volume or whether they were sent out
4 as blocks -- a block of volumes. I am not familiar with the
5 details of the billing.
6 Q. Am I correct in understanding that as a result of
7 the flow system, that you might anticipate that there would
8 be six volumes per year, total cost $1,740, but, in fact,
9 you might publish ten volumes?
10 A. In that particular year, we did not. But what
11 you are saying is theoretically possible.
12 Q. And in that case, the total cost, or total price,
13 would then be high?
14 A. I think -- high is a --
15 Q. Higher, it would be higher by four times $290?
16 A. Once again, I cannot give you a definite answer
17 on that because I don't know what the marketing discounts
18 were that might have applied. I know that publishers often
19 group together journals and sell the journals at a discount
20 if the subscriber buys other journals at the same time. I
21 think the APS does this themselves.
22 Once again, I just want to repeat that I am not
23 the person to ask about pricing issues because I'm not
24 involved in the commercial aspects of the journal.
25 Q. All you know is the price of $290 as stated in
76
1 the journal itself?
2 A. As a list price, yes, including airmail delivery,
3 which can be quite expensive, by the way.
4 Q. And it was printed in the United States in 1987,
5 according to the journal?
6 A. Yes -- '87 -- yes, '87, yes.
7 Q. And in 1987, there was no airmail service within
8 the United States, is that correct?
9 A. I don't know. I believe there was airmail.
10 Q. Do you know that?
11 A. I'm not an expert on postal rates, either. But
12 my memory -- I'm pretty sure there was airmail inside the
13 United States.
14 Q. Let me ask you about the IEEE Transactions
15 journal on ultrasonics. Did I get the title right?
16 A. You got one third of the title.
17 Q. Am I accurate as to the one third I stated?
18 A. The first third you were right.
19 Q. If we may dispense with the second two thirds?
20 A. Certainly.
21 Q. Thank you.
22 That brings us to the dispute with Dr. Etzold of
23 IBM, is that correct?
24 A. Correct.
25 Q. And Dr. Etzold -- you got a copy of Dr. Etzold's
77
1 letter --
2 A. Yes.
3 Q. -- that Dr. Lang had sent to you?
4 A. Yes.
5 Q. And Dr. Etzold had expressed outrage at the high
6 price of the Ferroelectrics journal?
7 A. Yes.
8 Q. And you did a calculation and determined that for
9 the three-year period prior to the date of this incident,
10 which I believe was in 1990, that the subscription price for
11 Ferroelectrics was $9,120?
12 A. I would have to look at it, but I believe that's
13 what I said -- here it is.
14 Yes, $9,120 for three years.
15 Q. And that's for --
16 A. Covering volumes 71 to volume 100.
17 Q. That is for an academic library?
18 A. A university library, yes.
19 Q. And for this same period, the subscription price
20 for the IEEE journal was $507?
21 A. The subscription price -- stated subscription
22 price to a university library for the IEEE was $507 for
23 three years.
24 Q. Just for clarification, the IEEE journal is not
25 published by APS or AFP, is it?
78
1 A. That's correct.
2 Q. I take it that in your view it would not have
3 been fair simply to compare the overall price of the IEEE
4 journal, $507, to the price of Ferroelectrics, $9,120?
5 A. It would not have been fair if the reader of both
6 journals was only interested in the topic of ferroelectrics.
7 Q. And so you did a cost effectiveness analysis, did
8 you not?
9 A. Yes.
10 Q. And is it your testimony that that analysis that
11 you performed was a fair and reasonable analysis of the
12 relative value of these two journals?
13 A. Yes, for somebody who is interested solely in
14 ferroelectric articles.
15 Q. And you took the total number of papers appearing
16 in the IEEE journal that were devoted to ferroelectrics?
17 A. I took the number that the IEEE themselves
18 identified as being ferroelectric articles.
19 Q. And you then divided that into the total
20 subscription price?
21 A. Yes.
22 Q. And you got a cost per ferroelectrics article?
23 A. Yes.
24 Q. And you did the same as to the ferroelectrics
25 journal?
79
1 A. Yes.
2 Q. But you included all the articles, because they
3 all deal with ferroelectrics?
4 A. Well, we are comparing subscribing to
5 ferroelectrics as opposed to subscribing to the UFFC
6 transactions, yes.
7 Q. But the number you divided into the subscription
8 price was the total number of articles?
9 A. Yes.
10 Q. And you did it this way because you were looking
11 at it from the point of view of an individual who was only
12 interested in ferroelectrics articles?
13 A. Yes.
14 Q. And I take it if someone was interested in all of
15 the articles in the IEEE journal, then you would take the
16 total number of articles in the IEEE journal and divide that
17 into the price to get a per article cost?
18 A. There would be no purpose to doing that, because
19 the people who work in frequency control, which is the last
20 third of the title of that transaction, generally are not
21 people who are interested in ferroelectrics.
22 Q. And you calculated a price per ferroelectrics
23 article for your ferroelectrics journal?
24 A. Yes.
25 Q. And you did the same for IEEE, a price per
80
1 article?
2 A. For the ferroelectrics articles.
3 Q. For the ferroelectrics articles?
4 A. Yes.
5 Q. Would I be correct in understanding that you
6 would get essentially the same result in terms of comparison
7 between the two articles if instead of calculating the
8 dollar cost per article you had looked at the dollar cost
9 per page of the articles devoted to ferroelectrics?
10 A. No, I don't think so. I think you would have to
11 -- if you want to do it on a per-page basis, you have to
12 measure the number of pages of ferroelectrics articles in
13 both journals.
14 Q. Right. Would you also have to take into account
15 whether the pages were approximately the same size?
16 A. If that is your measure of -- if you want to
17 count the number of printed characters, for example, which I
18 don't think is a particularly comprehensive way of judging
19 the value, which is what we are talking about -- cost
20 effectiveness -- one could do that.
21 Q. It's a cumbersome process, isn't it, to count the
22 characters?
23 A. Well, not that cumbersome. You simply take an
24 average page and you count the number of characters on that
25 page and then you multiply by the number of pages, that is
81
1 correct.
2 Q. If the ferroelectrics articles in the journal
3 Ferroelectrics and the ferroelectrics articles in the IEEE
4 journal had the same number of characters, you would get the
5 same result as what you got?
6 A. Yes. Yes.
7 Q. So it's just a different way of doing the
8 analysis?
9 A. Yes. But it's like -- it's almost like counting
10 the -- when you start to get into that kind of detail, it's
11 like counting the number of angels on a pinhead. The real
12 issue is not the length of the article, it's the question of
13 the quality of the article. And ferroelectrics has made a
14 point of deciding what length of the article is not in order
15 to fill out pages or, on the other hand, to restrict the
16 cost of publication by having less pages but simply to
17 determine by the referees, for the referees to determine if
18 a paper is too long or too short. In other words, there is
19 no point in publishing articles that are too long. It is
20 wasting the reader's time.
21 Authors are requested to make their arguments
22 concise, and, therefore, I don't think your concept of
23 measuring the numbers of characters in an article as a way
24 of determining its worth is the end-all of judging the value
25 and the worth of an article.
82
1 Q. But it is a possible way?
2 A. It's a possible way, yes.
3 Q. And you have no reason to think that the length
4 of the ferroelectrics articles that appear in your journal
5 Ferroelectrics differs from the length of ferroelectric
6 articles that appear in the other reputable journals?
7 A. I don't know. The reason is that I have never
8 looked at the articles in that way. I've never used that
9 criteria. So I can't answer that.
10 I do know that the -- that some of the other
11 journals, including the IEEE, do put a very strict page
12 length irrespective of the quality of the paper. It may be
13 a very good paper but the author is restricted in the length
14 of his article and also there is a financial penalty for
15 having a long article because the -- his institution then
16 has to pay more page charges.
17 So, for example, I know that people from Eastern
18 Europe, where hard currency is very critical, are forced to
19 reduce the size of their articles below what they would like
20 them to be, because they just don't have the money to pay
21 page charges.
22 Q. Isn't it true in science, as it is in law, that
23 sometimes a restriction on how much you can write actually
24 increases the quality of the article?
25 A. Sometimes yes, sometimes no. If you have a very
83
1 complicated topic in law, I'm sure you can't do it in one
2 page; I'm sure it takes a lot of pages to make the points.
3 Q. In your opinion, Dr. Taylor, do the articles that
4 appear in Ferroelectrics contribute to subsequent research
5 by practitioners in the field?
6 A. Yes.
7 Q. And is it your expectation that those subsequent
8 researchers would rely on material that they learn from your
9 ferroelectrics journal, would cite the journal in their own
10 articles?
11 A. Sometimes yes, sometimes no.
12 Q. Would this same answer apply to other journals
13 that these authors would rely on?
14 A. I don't know.
15 Q. Are you familiar with the ISI --
16 A. Yes.
17 Q. -- organization? That's the organization that
18 compiles and makes available data on citations and
19 scientific journals, is that correct?
20 A. Yes.
21 Q. And the journal Ferroelectrics has been accepted
22 by ISI as one of the journals that's worthy of inclusion in
23 their analyses, is that correct?
24 A. I believe so.
25 Q. And that's not true of all scientific journals,
84
1 is it?
2 A. That's correct.
3 Q. You have to meet a certain threshold in terms of
4 quality and reliability?
5 A. Yes.
6 Q. But during the 1987 period, the ferroelectrics
7 journal did appear in ISI, is that correct?
8 A. Yes.
9 Q. And then in 1993, about, it was dropped by ISI,
10 wasn't it?
11 A. It was dropped for one year, and I forget which
12 year it was. I think it was later than '93.
13 Q. And that was over a concern regarding the
14 regularity of publication by the ferroelectrics journal?
15 A. I don't believe so. I think there was some
16 confusion as to why it was dropped. One statement was made
17 that it was a question of regularity. But if you look at
18 the regularity numbers, the journal has been extremely
19 regular and publishes monthly.
20 Q. But one of the people who made the statement that
21 it was over regularity, that that was the issue, was you in
22 your deposition?
23 A. Somebody told me that. But when I went back to
24 look at the regularity, the regularity was as good them as
25 it is now and as it was in 1990. So for some other reason,
85
1 I can only assume, or some misunderstanding by the person at
2 ISI, it was stated to me that it was a question of
3 regularity. But when I looked at the -- after I heard this
4 and went back and looked at the regularity, the regularity
5 was quite good.
6 Q. Have you also seen correspondence suggesting that
7 the reason for it being dropped was its declining impact
8 factor numbers?
9 A. No, and it is now -- it was reinstated after one
10 year, so I think if that was the reason, whatever changes in
11 impact factor occurred would not have been dramatically up
12 or down in the course of twelve months.
13 Q. And you were very pleased when it was reinstated?
14 A. I was pleased, yes.
15 THE COURT: Approximately how much longer do you
16 have?
17 MR. HUVELLE: I don't have very much, but I do
18 have to look for one document. So if we were going to take
19 a lunch break --
20 THE COURT: How long is your redirect?
21 MR. PLOTZ: Very short, your Honor.
22 THE COURT: We will take the luncheon recess.
23 We will resume at 2 o'clock.
24 (Luncheon recess)
25
86
1 A F T E R N O O N S E S S I O N
2 2:15 p.m.
3 THE COURT: Good afternoon. I'm sorry for the
4 delay.
5 GEORGE WILLIAM TAYLOR,
6 Resumed, and testified further as follows:
7 THE COURT: Mr. Taylor, I have been wondering
8 about, over lunch, hasn't the Internet and the Web and these
9 other devices, hasn't that impacted significantly on what we
10 have been talking about?
11 THE WITNESS: Not yet.
12 THE COURT: Not yet?
13 THE WITNESS: Not yet. I think it's a -- my
14 opinion is that it's -- this is for scientific journal
15 publication generally you mean?
16 THE COURT: Yes.
17 THE WITNESS: Yes. I think the jury is not in as
18 to what's going to happen with that. Because peer review is
19 a very important part of scientific publication, and if
20 people can put their articles up on the Web without them
21 having been refereed or reviewed, then there are some
22 questions as to how good the article might be.
23 THE COURT: But if an organization wishes to
24 disseminate information to an audience as small as 400
25 subscribers, is not some type of electronic communication
87
1 the more efficient and expeditious manner of doing this?
2 THE WITNESS: I think it may well be. The exact
3 way it will work is probably still to be sorted out. In
4 fact, we have just established a Web site for
5 ferroelectrics, at least at some level of communication, and
6 we are about to begin what we call our first virtual
7 conference on ferroelectrics, where we will try to
8 experiment with some of the procedures that might ultimately
9 be the way to go. Yes.
10 MR. HUVELLE: Thank you, your Honor. I will just
11 have about five minutes, I believe.
12 CROSS-EXAMINATION (Resumed)
13 BY MR. HUVELLE:
14 Q. Dr. Taylor, you spoke before about the desire on
15 your part to ensure that articles are published rapidly --
16 A. Yes.
17 Q. -- in the journal Ferroelectrics.
18 Am I correct in understanding that underneath the
19 title of each article is listed the date on which the
20 article was received by the editor?
21 A. Yes.
22 Q. One can compare that date to the publication date
23 on the bottom left-hand corner of the inside of the front
24 cover?
25 A. Yes. There is also a variation on that, and that
88
1 is, if the article has had to be revised, there may be under
2 the title of the article also the date that the article was
3 received in final form, at which point it then went to the
4 printers to be typeset.
5 Q. If we could just quickly look at a couple of
6 examples. In Volume 73 --
7 A. 73? 74.
8 Q. 74, No. 3.
9 A. 75, No. 3.
10 Q. That's what I meant.
11 A. I understood.
12 Q. Could you look at page 345.
13 A. 345. Yes.
14 Q. What is the date on which that article was
15 received by the editor?
16 A. The date that the article was received by, the
17 guest editor in this case, Dr. Betz, was December 10, 1985.
18 Q. And that was an article that was, or a paper,
19 that was presented at a conference held in 1984?
20 A. Correct.
21 Q. And then that edition of Ferroelectrics
22 containing articles from that 1984 conference was published
23 in, what? October 1987?
24 A. Correct.
25 Q. Can you look at the other issue that I gave you,
89
1 which I think is Volume 74 --
2 A. Yes.
3 Q. -- nos. 1 and 2.
4 A. Yes.
5 Q. Can you look at page 3.
6 A. Yes.
7 Q. What is the date on which that article was
8 received?
9 A. It was initially received on the 24th of June
10 '85, and in final form 30th -- 20th of July, 1986.
11 Q. When was it published?
12 A. And it was published in July of '87.
13 Q. In that case, was it received by you as editor?
14 A. This one was received by me, yes.
15 Q. Could you look at page 69.
16 A. 69. 69 is in the middle of an article.
17 Q. Sorry, 61.
18 A. 61.
19 Q. When was that article received?
20 A. 29th of March, 1986.
21 Q. Let me ask you about your compensation.
22 A. Yes.
23 Q. Are you paid on a royalty basis?
24 A. I am paid on -- for so -- for every volume that
25 is published.
90
1 Q. Previously, were you paid on a percentage basis?
2 A. Yes.
3 Q. Was that 10-percent of the subscription income?
4 A. Yes.
5 Q. And so in 1987, for example --
6 A. Right.
7 Q. -- that would be -- one would need to calculate
8 the number of subscriptions at an individual price, which
9 was $145, the number of subscriptions at a university price,
10 which is $290, and then the number of subscriptions at a
11 corporate price, which was $475, I believe?
12 A. Yes.
13 Q. Is that correct?
14 A. Yes.
15 Q. And you do the multiplication and the addition?
16 A. Right.
17 Q. And then take 10-percent of that?
18 A. Right.
19 Q. And for what period of time were you calculated
20 on such -- were you compensated on such a royalty basis?
21 A. Well, that -- if that's what you mean by
22 "royalty," this is the way the compensation is -- has always
23 been, on this basis, from the beginning.
24 Q. Are you given information that allows you to
25 determine whether you have been compensated properly?
91
1 A. I have the right, if I want to exercise it, to go
2 and see the books of Gordon & Breach.
3 Q. Including the number of subscriptions in each of
4 those categories?
5 A. I presume so. I have never done this. So I
6 don't know.
7 Q. You just accept the check --
8 A. But in the contract -- in my contract, I'm
9 entitled, if I disagreed with the compensation, to look at
10 the books of Gordon & Breach.
11 Q. But you have never done that?
12 A. I have never done it.
13 THE COURT: You had three subscriptions, right?
14 Do you get a breakdown or do you just get a check?
15 THE WITNESS: I get a -- I get a check, with the
16 total -- with the total amounts involved. There are three
17 different journals, so --
18 THE COURT: So you don't know when you get a
19 royalty check what the number of subscribers is in each
20 category?
21 THE WITNESS: I get a -- I get the amount of
22 money in each category, not the number of subscribers.
23 THE COURT: Then it's simple division, then,
24 isn't it? You get the amount of money in each category and
25 you know what the subscription rate for that category is,
92
1 and it's just simple division --
2 THE WITNESS: Less whatever discounts are
3 involved. It's -- yes. Yes.
4 Q. And you have never done the division?
5 A. Never bothered to do it in detail. I mean, I've
6 looked at it in general but never bothered to calculate it.
7 MR. HUVELLE: Your Honor, with respect to the
8 exhibits relating to Dr. Vig, we also have an exhibit that
9 includes two additional letters that were part of the back
10 and forth. That is Defendants' Exhibit TTTTT, five T's, and
11 I think there was an objection to two of those letters.
12 THE COURT: Well, you are offering it?
13 MR. HUVELLE: I would like to offer it.
14 THE COURT: But not through this witness?
15 MR. HUVELLE: Well, yes, I --
16 THE COURT: Does this witness have any knowledge
17 of this? Does he know?
18 MR. HUVELLE: I can -- this includes the
19 correspondence that he has identified.
20 THE COURT: Yes. So it includes two additional
21 documents?
22 MR. HUVELLE: Right. Which are the response --
23 there is an exchange of letters. They put in one side of
24 the letter, and I just want to put in the response letter or
25 the letter to which it responded.
93
1 THE COURT: The response from?
2 MR. PLOTZ: It's from the lawyer for the IEEE,
3 and we do object to that.
4 MR. HUVELLE: Well, they put in the letter from
5 Mr. Lupert to IEEE, and then they object to the response to
6 Mr. Lupert's letter.
7 MR. PLOTZ: Well, Mr. Lupert's letter was a
8 letter that this witness reviewed and -- was able to
9 identify and reviewed for accuracy. The letter from the
10 lawyer for IEEE is double hearsay. It provides an account
11 of events told to that lawyer by someone else who has not
12 been deposed and is not a witness in this case. And we
13 object on the grounds of hearsay.
14 MR. HUVELLE: Well, your Honor, we are offering
15 it as part of the sequence.
16 THE COURT: I don't know what rule of evidence
17 that is. Did you ever see that? Show Mr. Taylor that
18 letter.
19 MR. HUVELLE: Yes.
20 BY MR. HUVELLE:
21 Q. Can you look at the exhibit that I have placed in
22 front of you, which is TTTTT?
23 A. Yes.
24 Q. The first letter is a letter dated September 24,
25 1996 from Mr. Lupert; is that correct?
94
1 A. Yes.
2 Q. Attached to that is a proposed IEEE statement; do
3 you see that?
4 A. Yes.
5 Q. Is it correct that Mr. Lupert drafted that
6 statement?
7 A. Well, I don't know whether Mr. Lupert drafted it.
8 Q. You did not?
9 A. No.
10 Q. Did you review Mr. Lupert's letter? Have you
11 seen it before?
12 A. I think I've seen it before, yes.
13 Q. And the next document is a letter dated October
14 16, 1996, again from Mr. Lupert to Sandra Edelman?
15 A. Yes.
16 Q. Do you see that?
17 A. Yes.
18 Q. Have you seen that letter before?
19 A. I can't remember whether I have seen that letter.
20 Q. Can you look at the third one, the October 21,
21 1996 --
22 A. Yes.
23 Q. -- letter to Mr. Lupert? Is this the letter that
24 responds to the substance of the September 24 letter?
25 A. Well, that's what it says in the first two lines,
95
1 that it's in response to the September 24th.
2 Q. Have you had a chance to look at it?
3 A. No, and I don't know whether I have looked at it
4 before, so shall I read it and --
5 Q. If you could quickly look at it.
6 A. Yes.
7 Q. And then tell us whether, at the time shortly
8 after it was written, were you given an opportunity to
9 review it?
10 (Pause)
11 A. I can't be sure whether I have seen it. I may
12 have seen it, because many of the points are repetitive of
13 what was said earlier.
14 Q. Many of the points respond to --
15 A. Responding to the -- I saw the September 24
16 letter, so -- I can't be categorical either way whether I
17 saw it or whether I didn't.
18 Q. You may have seen it?
19 A. I may have seen it, I may not.
20 Q. And it takes issue with some of the assertions in
21 Mr. Lupert's letter?
22 MR. PLOTZ: Your Honor, at this point I am going
23 to renew my objection. Whether or not Dr. Taylor saw this
24 at the time, this is a letter from a lawyer for an
25 organization and a person who is not here. It is double
96
1 hearsay. This is one of the so-called unclean hands
2 incidents on which the defendants have the burden of proof.
3 And it seems to me that if they wanted to prove
4 what happened there, they needed to -- or the other side's
5 version of what happened there, they need to call a witness
6 who can testify not on a hearsay basis. This is double
7 hearsay. This isn't even the person who was present at the
8 meeting who is writing this letter. This is that person's
9 lawyer. There are ways that they could have tried to prove
10 this, but they haven't done it.
11 MR. HUVELLE: We will pursue some of those other
12 ways at a later time and not waste any more time on that,
13 your Honor.
14 BY MR. HUVELLE:
15 Q. With respect to the exchange with Dr. Etzold, do
16 you recall seeing any letters from Gordon & Breach or its
17 attorneys to Dr. Etzold or IBM attorneys? I don't mean this
18 morning. I mean ever.
19 A. No. I did not. Or I don't recollect having
20 received any.
21 Q. Let me ask you now about the exhibit, Plaintiffs'
22 Exhibit 555, which is the draft letter that you wrote --
23 A. Yes.
24 Q. -- but apparently did not distribute --
25 A. Right.
97
1 Q. -- and which reflects the points that you made in
2 your conversation with Dr. Etzold.
3 A. Yes.
4 Q. In particular, I want to draw your attention once
5 again to the analysis of cost effectiveness that you
6 generated in connection with that letter.
7 A. Yes.
8 Q. Is it true that in your view, your cost
9 effectiveness analysis demonstrated unequivocally that
10 Ferroelectrics was a better bargain than IEEE Transactions?
11 A. "Unequivocal" is a very strong word, and there is
12 a certain level of statistics involved in taking any
13 particular time period and making calculations of this kind.
14 What I was doing in this letter, in this draft letter and in
15 my conversations, was pointing out that there were many
16 factors involved in comparing a journal, and this was one of
17 the factors that I considered. I also considered other
18 factors in my conversations with Dr. Etzold and which are
19 reflected in this letter.
20 So I think "unequivocal" is a strong word,
21 because that means that, in every year and in every volume,
22 I'm going to come up with the same answers. And that is
23 obviously not the case. Each year, each volume is going to
24 be a little different.
25 Q. Could I ask you to look at your deposition
98
1 transcript.
2 MR. HUVELLE: Your Honor, I have a so-called
3 scrunch version.
4 Q. Could you turn to page 82.
5 A. Yes.
6 Q. Line 14.
7 A. Right.
8 Q. Let me ask you if this was your testimony:
9 "Q. But did you agree with the" -- we're
10 referring to Dr. Etzold's letter in which he described
11 Ferroelectrics price as being high.
12 "Q. But did you agree with the
13 characterization of this subscription price as being high?
14 "A. No, I don't believe the price was high if
15 one takes into effect the value of the journal. I mean,
16 there are two related issues. You cannot deal with a number
17 and say it's high or low. It's a question of what it is
18 worth. Is it valuable?"
19 Was that your testimony?
20 A. Yes.
21 Q. And then can you look at the next question:
22 "Q. When you consider its value in connection
23 with its price --
24 "A. Yes.
25 "Q. -- what would you look at?
99
1 "A. I think it's very good value, and I
2 believe my letter, if I can remember what I argued and
3 possibly put into writing to Etzold, was I showed very
4 unequivocally that, in terms of the price per
5 Ferroelectrics' paper, it was much better value than the
6 journal he was promoting, the IEEE Transactions on
7 Ferroelectrics, Ferroelectrics and Frequency Control."
8 Was that your testimony, sir?
9 A. Yes.
10 Q. Thank you.
11 MR. PLOTZ: Dr. Taylor, let me just ask you if
12 you were then asked:
13 REDIRECT EXAMINATION
14 BY MR. PLOTZ:
15 Q. (Reading)
16 "Q. Is that why you thought his statements
17 were inappropriate?
18 "A. I thought they were inappropriate in the
19 sense they were unbalanced. He did not give both sides to
20 the question. He did not discuss both sides of the issue.
21 He discussed one side only.
22 "Q. And both sides, the other side being?
23 "A. The other side being that on one hand you
24 had a ferroelectrics journal that was devoted to
25 ferroelectrics, did not make any page charges, allowed for
100
1 very fast publication, gave free reprints, free color
2 plates, other issues, and if you worked out the price per
3 article on ferroelectrics or per page of ferroelectrics
4 articles, it turned out to be many times less than if you
5 took the price of UFFC Transactions and determined how many
6 articles there were on ferroelectrics on that and worked out
7 the price per ferroelectric article. That was the type of
8 imbalance that I objected to.
9 "And also the other side of the coin was that one
10 is an international journal, and the other journal, while it
11 likes to term itself international, it's -- the people who
12 publish in it and the people who subscribe to it are largely
13 in the United States."
14 Did you also testify to that at your deposition?
15 A. Yes.
16 Q. And is it fair to say, Dr. Taylor, that in your
17 view, in judging the relative value of journals, that price
18 is but one of many factors to consider?
19 A. Yes.
20 Q. And are some of the other factors those that were
21 just discussed in your deposition testimony?
22 A. Yes.
23 MR. HUVELLE: Your Honor, it's leading testimony.
24 THE COURT: You agree it is a little bit of
25 leading?
101
1 MR. PLOTZ: I think it was. I think it was. I'm
2 sorry.
3 A. I think in my letter, draft letter to Etzold, all
4 these other issues were described. We have been focusing
5 only on the cost effectiveness.
6 MR. HUVELLE: Your Honor, I don't believe there
7 is a question for me to object to.
8 THE COURT: Sustained.
9 BY MR. PLOTZ:
10 Q. Now, Dr. Taylor, in cross examination, one of the
11 questions you were asked was whether it was true that many
12 universities don't have anyone who does ferroelectrics
13 research; do you recall that?
14 A. Yes.
15 Q. In your view, should a library of that university
16 subscribe to ferroelectrics?
17 A. No. That would be bad value for them, because
18 very -- nobody by your definition would be interested in
19 reading the Journal.
20 Q. You were also asked whether you considered there
21 were other journals which compete with Ferroelectrics. Do
22 you view Ferroelectrics, the journal, as being in
23 competition with other journals?
24 A. In one sense, there is no competition because
25 there is no other specialized journal which is solely
102
1 devoted to ferroelectrics. On the other side, there are 20,
2 30, 40 other scientific journals around the world that
3 publish from time to time articles on ferroelectrics. So in
4 that sense, they are competing with Ferroelectrics.
5 Q. And among those are certain journals published by
6 the APS?
7 A. Yes.
8 Q. I believe you testified that the level of
9 specialization in the ferroelectrics articles published in
10 those other journals is comparable to the level of
11 specialization in your journal?
12 A. Yes. In the best journals, they are comparable.
13 Q. But those -- the other journals which cover
14 ferroelectrics cover other areas as well, though?
15 A. Yes.
16 Q. You were asked some questions relating to the
17 subscription price of ferroelectrics in 1987 and, you
18 recall, there were six volumes of $290 each?
19 A. Yes.
20 Q. How many volumes does Ferroelectrics publish now?
21 A. It was 15 volumes in 1996, and it will be 15 or
22 16 volumes in '97.
23 Q. So Ferroelectrics is publishing more material
24 now?
25 A. More material.
103
1 Q. Is there a reason for that?
2 A. Yes.
3 Q. What's the reason?
4 A. The reason is that the journal has fully
5 established itself as the archival journal of record around
6 the world, and therefore people working in the field seek to
7 publish their articles in Ferroelectrics.
8 Q. In answer to one of the questions on cross, you
9 stated that, in your view, counting characters was not the
10 best way for determining the value of the journal. Why not?
11 A. Because sometimes a very good article can be
12 written in a few pages. Sometimes a mediocre article can
13 occupy ten pages. So it's not a good way to measure the
14 value -- the scientific value and contribution of a paper.
15 Q. You also testified that sometimes articles will
16 be cited in the future and sometimes not. Why might an
17 article not be published -- not be cited, rather?
18 A. If the article, for example, is an article
19 describing a new ferroelectric material which has great
20 commercial significance, there may be the original article
21 and then afterwards an industrial company may pick up on
22 this and begin to commercialize products based on that
23 material, and therefore at that point there may be very
24 little further publication on that particular material
25 because the commercial company will not want to reveal what
104
1 it's doing and what its results are.
2 Q. You were shown a few copies of Ferroelectrics and
3 asked to comment on the speed of publication as to two or
4 three different articles.
5 A. Yes.
6 Q. Have you, in the recent past, reviewed issues of
7 Ferroelectrics throughout the whole span of its existence to
8 determine what the general speed to publish has been in the
9 Journal?
10 A. Yes.
11 Q. What did you find?
12 A. The average is six to twelve months, but there is
13 always going to be examples outside that average. And it's
14 in both directions. And the volume that was presented to me
15 was unfortunate that that -- there were long delays in that
16 particular volume. I explained in my deposition the reasons
17 for that, that the guest editor, despite the fact that I
18 repeatedly requested him to accelerate his editorial work,
19 he was changing jobs inside the company, and he's doing this
20 on a volunteer basis, so there's -- these delays do occur
21 from time to time.
22 But I think if you look carefully over extended
23 numbers of papers over several years, this was an
24 unfortunate exception and far from the general rule. The
25 general rule is six to twelve months.
105
1 Q. I have nothing further.
2 THE COURT: Anything further of this witness?
3 MR. HUVELLE: No, your Honor.
4 THE COURT: Thank you. You may step down.
5 (Witness excused)
6 THE COURT: Plaintiff may call its next witness.
7 MR. PLOTZ: Plaintiff next calls Bruce Kingma.
8 Your Honor, as a matter of housekeeping, can we
9 assume that the exhibits that have not been objected to are
10 received or should we be formally offering them? Because
11 there are a number of exhibits with Dr. Taylor that fall
12 into that category, and I would, if I need to offer them, I
13 will offer them.
14 THE COURT: Why don't you prepare a list of all
15 exhibits to which there is no objection and mark that list
16 as an exhibit and then we will receive that and do it in one
17 fell swoop.
18 MR. HUVELLE: Fine. Thank you.
19 MR. PLOTZ: That's fine.
20 BRUCE ROBERT KINGMA,
21 called as a witness by the plaintiff,
22 having been duly sworn, testified as follows:
23 DIRECT EXAMINATION
24 BY MR. PLOTZ:
25 Q. What is your field?
106
1 A. Economics of information.
2 Q. How are you currently employed?
3 A. I'm an associate professor at the State
4 University of New York at Albany.
5 Q. What is your appointment there?
6 A. I --
7 Q. Where do you hold an appointment?
8 A. I hold a joint appointment in the Department of
9 Economics and in the School of Information Science and
10 Policy and in the Ph.D. program in Information Science.
11 Q. What is your educational background?
12 A. I have an undergraduate degree from the
13 University of Chicago in economics. I have a bachelor -- I
14 have a -- sorry -- I have a masters and Ph.D. in economics
15 from the University of Rochester.
16 Q. Have you taught since the time you got your
17 Ph.D.?
18 A. Yes.
19 Q. Where have you taught and what have you taught?
20 A. I have taught economics at Texas A&M University.
21 I have also taught economics in the economics of information
22 at the State University of New York Albany. I have also had
23 a couple of visiting appointments at Case Western Reserve
24 University and Cleveland State University.
25 Q. Do you have a principal area of research?
107
1 A. Yes.
2 Q. What is that?
3 A. The economics of information and the economics of
4 non-profit management.
5 Q. Could you explain what you mean by the "economics
6 of information?"
7 A. Yes. The economics of information is looking at
8 the markets, information marketing, and describing the
9 economic problems and issues in those markets, how
10 information affects markets, and also how information is
11 bought and sold in markets.
12 Within that, I concentrate on the economics of
13 library management.
14 Q. What courses have you taught at SUNY Albany?
15 A. I teach a class in the economics of information.
16 I also taught classes, undergraduate classes, in public
17 finance. And I teach a pro seminar class in the Ph.D.
18 program on information policy. I have also taught a class
19 on statistics and research methods in the Library of Science
20 Program.
21 Q. What types of issues are covered in your courses
22 on information policy and management?
23 A. We look at all kinds of management and policy
24 issues. It starts by looking at the economics of
25 information markets and how those markets behave, how
108
1 information looks in those markets and the unique
2 characteristics of the economics of information.
3 We go on to look at library management issues
4 such as journal collection, library user fees, access versus
5 ownership, the economics of interlibrary loan, a number of
6 other issues, to explain simply the economics of information
7 and how it affects those types of markets.
8 Q. Are you a member of any professional societies?
9 A. Yes.
10 Q. What are they?
11 A. I'm a member of the American Library Association,
12 the American Society for Information Scientists, the
13 American Economic Association, and the Association of
14 Researchers on Non-Profit Organizations and Voluntary
15 Action.
16 Q. Have you ever served as a journal referee?
17 A. Yes, I have.
18 Q. In what area?
19 A. In economics, in -- for journals like Economica,
20 Journal of Public Economics, Annals of Public and
21 Cooperative Economics, Non-profit Management Leadership,
22 Non-profit Voluntary Sector Quarterly.
23 Q. Have you written in the area of economics and
24 information?
25 A. Yes.
109
1 Q. What in general have you written? What are the
2 areas that you have written about?
3 A. I have most recently written quite a bit on
4 access versus ownership, the economics of purchasing journal
5 subscriptions versus acquiring them through interlibrary
6 loan. I have also written on the impact of photocopying on
7 journal pricing, have written -- have written two books and
8 edited a third relating to economics of library management
9 topics.
10 Q. Have you participated in conferences on this
11 issue?
12 A. Yes.
13 Q. What are some of those conferences?
14 A. I most recently participated in a conference
15 sponsored by the North American SERIALIST interest group
16 just a week ago on access versus ownership in library
17 consortia. I have also participated in conferences
18 sponsored by the Association of College and Research
19 Libraries North Eastern Chapter, the SUNY Library
20 Association, giving presentations on the economics of
21 library management, specifically on access versus ownership
22 issues.
23 Q. Are you familiar with the surveys done by
24 Professor Barschall?
25 A. Yes.
110
1 Q. Let me hand Plaintiffs' Exhibits 2 and 3 to you
2 and ask if you can identify them?
3 MR. PLOTZ: Does the Court have those exhibits?
4 THE COURT: I am getting it. I don't have two.
5 I have them now.
6 Q. What are Exhibits 2 and 3?
7 A. These are the two articles written by Professor
8 Barschall, one appearing in Physics Today and the other
9 appearing in the Bulletin of the American Physical Society,
10 the second actually coauthored with Arrington, purporting to
11 show the cost effectiveness of physics journals.
12 Q. Have you been asked to render an expert opinion
13 on these surveys?
14 A. Yes, I have.
15 Q. Can you describe in general what it is that
16 Barschall did in conducting these surveys?
17 A. Yes. He developed what he calls a cost-
18 effectiveness measure of physics journals, which is actually
19 a cost-per-character-per-impact measure, involving looking
20 at the journal prices from a variety of sources for each
21 physics journal, using methodology to count characters and
22 pages and dividing the prices by those characters, that
23 character measure, and then dividing that by the impact
24 measure taken from the science citation index.
25 He takes that measure and then ranks journals
111
1 according to it and subsequently takes that and also ranks
2 publishers in Table 2 on page 59 of Physics Today.
3 Q. You referred to an impact number from the Science
4 Citation Index. What is that number?
5 A. The impact number -- the impact measure from the
6 Science Citation Index for a given year, for example, 1986,
7 which is the year that Professor Barschall used, takes the
8 number of publications in a journal in '84 and 1985, the two
9 previous years to that, looks at the number of citations
10 they received in 1996, and then divides by what is called
11 the number of source items, in other words, the number of
12 articles that were published in that journal in 1984 and
13 1985.
14 Q. Do you have an opinion as to whether Barschall's
15 survey reliably measured the cost effectiveness of journals?
16 A. Yes.
17 Q. What is that opinion?
18 A. I think it's a poor measure of the cost
19 effectiveness of journals. It makes mistakes in comparing
20 different journals that shouldn't be compared and has a
21 methodology that I disagree with.
22 Q. What disciplines are relevant to examining the
23 issue of cost effectiveness of journals?
24 A. Economics and information science.
25 Q. How is information science relevant?
112
1 A. Information science is the study of the
2 production and use and dissemination and organization,
3 cataloging and archiving of information. As part of that,
4 information science looks at journals -- journal use and
5 cataloging and the decision within libraries to subscribe to
6 journals.
7 Q. How is economics relevant?
8 A. Economics is the study of markets, the study of
9 how markets behave, the demand/supply of markets, and
10 clearly this is an issue in which we are looking at a
11 particular market and management choices in that market by
12 librarians. Economics becomes directly relevant in order to
13 accurately measure the costs and the benefits or
14 effectiveness in this market.
15 Q. Who makes acquisition decisions at a library?
16 A. Within each library there is a librarian or a
17 series of librarians that make those decisions about which
18 journals and other materials to purchase.
19 Q. What factors must a librarian consider in
20 determining what journals to subscribe to?
21 A. There are really just basically two factors to
22 consider. One is the price of that journal. That's sort of
23 obvious because you have a certain budget of a certain size.
24 And the other is the use that your patrons are going to get
25 from that journal. How much are our patrons going to use it
113
1 if I buy it. And given the price, given the use or the
2 expected use of that journal, those are how decisions should
3 be made within a library for purchasing journals.
4 Q. What components of cost are there for a library?
5 A. The largest component of cost for journal
6 subscriptions is the subscription price, for many journals.
7 There is also the cost of shelving, binding, cataloging and
8 storing it. Those costs typically run about $60 to $70 per
9 year per each journal title. So for many science journal
10 titles, it is a relatively small percentage of the total
11 cost for the journal.
12 Q. Did Professor Barschall examine these costs?
13 A. Not to my knowledge.
14 Q. What did he examine? What costs did he examine?
15 A. He examined the subscription price, which he
16 collected from a variety of sources.
17 Q. What sources did he use?
18 A. He used the price inside the journal cover, if it
19 was there. If it was not there, he either used the price
20 printed in Ulrich's, which is a publication of journals and
21 their prices, or used the price printed on the library
22 invoice for that particular journal.
23 Q. Whichever source he used to get a particular
24 price, what did he do with that price to put it into his
25 formula?
114
1 A. He took that price and devised a cost per
2 character measure or price per character.
3 Q. What's the purpose of doing that?
4 A. Well, he -- it's an attempt by him to normalize,
5 to make comparisons between journals, by dividing it out by
6 the number of characters in each journal.
7 Q. Was it appropriate for him to have done this --
8 A. No.
9 Q. -- to have normalized in this way?
10 A. No, I don't think that this normalization is
11 appropriate --
12 Q. Why not?
13 A. -- for these goods.
14 Well, the price per character assumes that what
15 you are purchasing is the ink and paper, is a certain number
16 of characters. And when you are purchasing a journal,
17 that's not a decision you're making. You're looking at the
18 information that's embodied within that journal, the quality
19 of articles, what are we going to get into terms of a
20 journal subscription, how much are our patrons going to use
21 it. You shouldn't really be concerned about how much ink
22 and paper there is in making that purchasing decision.
23 I find it analogous to normalizing the price of
24 cars on a per-pound basis. You could look at a number of
25 different kinds of automobiles, like Mercedes or Volkswagen
115
1 or Chevys, and they each have a certain poundage or tonnage,
2 and dividing it out by pounds or tons, you could normalize
3 and develop a price per pound for each car. But it wouldn't
4 make a whole lot of sense for consumers to be price shopping
5 based on a cost per pound for automobiles, because there is
6 something more embodied in the automobile than that.
7 Q. Well, are you familiar with unit pricing for
8 consumers?
9 A. Yes.
10 Q. What is that?
11 A. Unit pricing, the most common example of that is
12 what you see in the grocery store where on the shelf you're
13 looking at cost per ounce or cost per pound for particular
14 goods, like soda, pasta, a number of other goods.
15 Q. Is it appropriate to do unit pricing in a grocery
16 store in that way?
17 A. There are times when unit pricing is appropriate,
18 and in a grocery store it is appropriate to price out pasta
19 on a cost per ounce. I might have two different containers
20 of pasta and, not knowing the exact size but seeing the
21 different prices, being able to have a price per ounce gives
22 you a normalization that as a consumer is useful to compare,
23 because the two pastas are of relatively the same quality.
24 They are both pasta. They both feed me and I use a certain
25 amount for a meal.
116
1 Other normalizations certainly aren't
2 appropriate, and that's obvious. Again, I could go -- I
3 could go back to my automobile example of a price per pound.
4 Now, there are actually times when price per pound for
5 automobiles is an appropriate measure for international
6 shipping, where you're looking at how many cars I'm going to
7 fit onto a boat to send them across the ocean. I might only
8 be concerned about the tonnage that is going in my ship, but
9 for a consumer there's something else going on between the
10 automobiles than is embodied -- than is embodied in the
11 price per pound comparison.
12 Q. What is it about normalizing journals by
13 character which you believe makes it closer to the car
14 example than to the pasta example?
15 A. The reason you're purchasing a journal,
16 similar -- analogous to the reason you're purchasing a car,
17 has to do with the quality of that journal, what we have,
18 what we feel we're going to get and, as a librarian, what my
19 patrons believe is the usefulness of that journal. That has
20 nothing to do with how many characters are in that journal.
21 That has to do with how much my patrons are going to use
22 that journal regardless of the number of characters.
23 Similarly, with an automobile, when I'm looking
24 at an automobile, a piece of an automobile as an information
25 good, how much quality and differences in quality are
117
1 inherent in an automobile. That couldn't come out in a
2 price-per-pound comparison.
3 Q. I want to turn to use, which is the other factor
4 you stated a librarian needs to consider.
5 (Pause)
6 THE COURT: I have to take a five-minute recess.
7 (Recess)
8 BY MR. PLOTZ:
9 Q. I think when we broke, Professor Kingma, we were
10 just turning to the question of use, which is the other
11 factor that you said a librarian needs to consider.
12 What do you mean by "use"?
13 A. "Use" is simply that, how many times the patrons
14 are going to pull the journal off the shelf to look at an
15 article in it.
16 Q. Does Barschall's formula's use of impact factor
17 appropriately or reliably measure the benefit or
18 effectiveness of a journal?
19 A. No.
20 Q. What are the reasons for that?
21 A. There are several reasons why impact factor is a
22 poor proxy for benefit for use in this analysis. First of
23 all, it's -- there are apples and oranges comparisons made.
24 Journals of different types with different bodies of
25 readers, different levels of specializations, are compared.
118
1 Secondly, the impact factor as a measure is
2 notoriously unreliable, because it varies dramatically from
3 year to year going up and down.
4 Third, a librarian has to be concerned about the
5 use within that library by his or her patrons, and an impact
6 factor is actually a more global measure in some sense,
7 measure of use at your particular library.
8 And finally, there are well known errors in
9 impact or citation analysis that are written about in the
10 literature as to the flaws of this kind of analysis.
11 Q. Let's examine these reasons.
12 Taking the first apples and oranges reason that
13 you mentioned, do different disciplines and subdisciplines
14 have different levels of citation?
15 A. Yes. Yes.
16 Q. Could you explain that?
17 A. Well, different subdisciplines have different
18 numbers of journals within those subdisciplines and
19 different numbers of scholars. The smaller subdisciplines
20 with the smaller set of journals and a smaller number of
21 scholars, ultimately have smaller sets of citations. It's
22 inappropriate to compare these different subdisciplines
23 based on their impact or citation factor because they are
24 within different environments. They exist within different
25 environments, different bodies of readers, different numbers
119
1 of journals.
2 Q. Let me hand you Plaintiff's Exhibit 706G and ask
3 you if you can identify that.
4 A. Yes. These are pages from the Science Citation
5 Index listing impact factors and journal titles by different
6 subdisciplines.
7 Q. And is this the one for 1986?
8 A. Yes.
9 Q. Does this break journals into different
10 disciplines as defined by ISI?
11 A. As defined by ISI, yes, it breaks it into their
12 definitions of different disciplines.
13 Q. If you could turn to the section on physics,
14 which begins on page 269, does this reflect that physics
15 journals are broken into a number of different
16 subdisciplines within physics?
17 A. Yes.
18 Q. Does this listing of impact factors and
19 disciplines within physics show anything about the relative
20 impact factors in different disciplines within physics?
21 A. Yes. It shows that different subdisciplines can
22 have dramatically different impact factors. For example,
23 applied physics, which is in the furthest right column in
24 this table, the highest impact factor is 3.482. They can
25 take a different subdiscipline of physics.
120
1 Further on down that column, condensed matter
2 physics -- and the highest impact factor there is 7.0, more
3 than double the highest impact factor for the highest
4 journal in applied physics. And going over to general
5 physics, Review of Modern Physics has an impact factor of
6 27, which is almost four times that of the condensed matter
7 physics.
8 Q. Do those differing impact factors say anything
9 about the relative value or effectiveness of the top
10 journals within each area?
11 A. No, they do not.
12 THE COURT: You have to clarify that for me. I'm
13 looking at this -- now I'm looking under "Physics." The
14 first item under "Physics" is, what is that? Review?
15 THE WITNESS: Review of Modern Physics.
16 THE COURT: What does the first number represent?
17 THE WITNESS: That's the impact factor, 27.025.
18 THE COURT: What does that mean?
19 THE WITNESS: That is -- you take the number of
20 journal articles that were published in Review of Modern
21 Physics in 1984 and 1985. You look at the number of
22 citations they received in 1986, and then you divide by the
23 number of source items, in other words, the number of
24 articles that were published in '84 and '85.
25 THE COURT: In that journal?
121
1 THE WITNESS: In that journal. Yes. Just in
2 that journal, yes.
3 THE COURT: That is the impact?
4 THE WITNESS: That's the impact.
5 THE COURT: What's the next number?
6 THE WITNESS: I believe that's the half-life.
7 THE COURT: What does that mean?
8 THE WITNESS: It's the number of years -- I
9 believe it's the number of years for half the citations,
10 something along those lines. In other words, it looks at
11 the decay rate of citations in that particular journal.
12 THE COURT: The diminution in citation as the
13 article agent?
14 THE WITNESS: Correct. That's a good way of
15 looking at it.
16 Q. Professor Kingma, what do you understand to be
17 the -- withdrawn.
18 We were looking at the 1986 impact factor
19 numbers. Do similar differences in the impact factor range
20 of different disciplines pertain to other years as well?
21 A. Yes.
22 Q. Are there different types of journals, leaving
23 aside the discipline of journals?
24 A. Yes, there are. There are review journals,
25 letters journals, what some people call original research
122
1 journals.
2 Q. What are review journals?
3 A. Review journals are simply that. They publish
4 articles which review a certain line of research, a certain
5 topic of research, and the other things that have been
6 published, or the things that have been published on that
7 topic. Reviewing --
8 THE COURT: Surveys?
9 THE WITNESS: Pardon?
10 THE COURT: They survey the field?
11 THE WITNESS: Essentially, yes. Sometimes --
12 typically adding to that, though, more than just a survey,
13 looking at the status of that research.
14 BY MR. PLOTZ:
15 Q. What are letters journals?
16 A. Letters journals are journals that publish sort
17 of excerpts from research as it is being produced. So they
18 are typically short articles that say, here are our
19 findings. Typically, after that letters article is
20 published, there later on will be a fuller-blown article
21 that explains the research in full-published -- in what are
22 called original research journals.
23 Q. And what are original research journals?
24 A. Original research journals are journals that
25 publish full articles of original research on a particular
123
1 topic.
2 Q. Are those times referred to as archival journals?
3 A. Sometimes, yes.
4 Q. Let me ask you to take a look at Exhibit 3, which
5 is the Barschall survey as published in the Bulletin of the
6 American Physical Society and turn to page 1438, if you
7 would.
8 A. I'm sorry. Did you say the Bulletin?
9 Q. Bulletin.
10 A. I have that as Exhibit 2.
11 Q. I misspoke. It is Exhibit 2. I apologize.
12 A. And turn to what page?
13 Q. Page 1438.
14 A. Yes.
15 Q. In the top left in the section called
16 "cost/impact," Barschall wrote that "The impact number tends
17 to be highest for journals that publish review articles. It
18 also tends to be higher for letter journals than for regular
19 archival journals."
20 Is that a statement with which you agree?
21 A. Yes.
22 Q. Does the fact that different types of journals
23 have different ranges of impact factor have an effect on the
24 comparison that Barschall performed?
25 A. The different impact factors will have a
124
1 different effect on those comparisons, yes. It will have an
2 effect on those comparisons.
3 Q. Does a review article, which has a higher impact
4 factor than an archival journal, a research journal, does
5 that fact, without knowing more, say anything about the
6 relative value of the two journals?
7 A. No.
8 Q. It does say that the review journal is cited
9 more, doesn't it?
10 A. For those two years prior to that date you're
11 looking at, yes.
12 Q. Did Barschall take into account the different
13 types of journals, that is, review letters, research, and
14 the different subdisciplines in his analysis?
15 A. No.
16 THE COURT: But he did say that, in the last
17 sentence of the cost impact paragraph, he acknowledged its
18 importance?
19 THE WITNESS: Yes.
20 Q. But when he did the survey, if you look in the
21 bulletin, which is Exhibit 2, does he break down any
22 journals by either type or by discipline?
23 A. No.
24 Q. Now, turning to Physics Today, which is Exhibit
25 3, did he do that in Table 1?
125
1 A. Yes.
2 Q. And Table 1 is a listing of some of the journals
3 in the survey, correct?
4 A. Correct.
5 Q. But not all?
6 A. Correct.
7 Q. Turn to Table 2 in Physics Today on the next
8 page. What is Table 2?
9 A. Table 2 gives the number of journals, the average
10 cost per thousand characters, and average ratio of cost to
11 impact, his measure of cost effectiveness for different
12 publishers.
13 Q. How did he calculate the figure for each
14 publisher?
15 A. By taking the cost impact measure he had for the
16 number of journals he had, which is not exactly the number
17 of journals listed in Table 2, sometimes less, and simply
18 took the average of those numbers.
19 Q. When you say it's sometimes less, what do you
20 mean, the number of journals?
21 A. Well, the number of journals indicates the number
22 of journals on which he may have collected price information
23 on, but he did not collect impact information on every one
24 of those journals.
25 Q. Is that true for the Gordon & Breach listing and
126
1 subscription costs?
2 A. Yes.
3 Q. Table 2 reflects that 11 Gordon & Breach journals
4 were surveyed, correct?
5 A. Correct.
6 Q. Do you know how many journals he actually used in
7 determining the ratio of cost to impact factor for Gordon &
8 Breach?
9 A. It's less than 11. I'm not certain of the exact
10 number. Somewhere between 3 and 5, I -- is a guess.
11 Q. Now, in averaging the journals for each
12 publisher, did Barschall lump together journals of different
13 types within each publisher?
14 A. Yes.
15 Q. Did he lump together journals from different
16 disciplines?
17 A. Yes.
18 Q. In your view, was it appropriate for Barschall to
19 have taken the average cost and the average ratio of cost
20 per impact per publisher in order to rank publishers?
21 A. No.
22 Q. Why not?
23 A. For exactly that reason. You are lumping
24 together apples and oranges and trying to make a comparison
25 based on that. You do have different journals of different
127
1 types, different journals of different subdisciplines with
2 different environments in which they exist. To make
3 averages based on that is inappropriate.
4 Q. Does a librarian facing the management decision
5 of what journal to subscribe to, should that librarian make
6 the decision based on the identity of the publisher of the
7 journal?
8 A. No.
9 Q. I want to turn to the second reason that you gave
10 for stating that Barschall's use of impact factor was not a
11 reliable measure of the value or effectiveness of a journal,
12 and that is you testified that there was a year-to-year
13 fluctuation of the impact factor score. What does that
14 mean?
15 A. As you look at the numbers for impact factor, you
16 see that for some journals it varies dramatically from year
17 to year. I can give you a couple of examples of that.
18 Q. Sure.
19 A. Ferroelectrics, which is one of the Gordon &
20 Breach journals, from 1986 to 1987, the impact factor
21 actually went up by, I think it's 268 percent within a
22 single year, showing the dramatic increase there. One of
23 the other journals, Review of Modern Physics, in that same
24 period their impact factor went down by 40 percent.
25 Now, what's going on is that you're taking a very
128
1 small window of citations, just a, you know, publications
2 over two years and citations in a single year, and given the
3 snapshot, as you march on year after year, that snapshot
4 changes and is likely to change that number dramatically.
5 Q. Speaking beyond those two journals, have you
6 looked at the impact factor changes from year to year of
7 certain physics journals taken from the Science Citation
8 Index?
9 A. Yes. I have looked at that, yes.
10 Q. Can you state whether other journals' impact
11 factors have changed by more than a couple percent a year?
12 A. Yes. There are other journals that have changed
13 significantly.
14 Q. Let me ask you to make an assumption. Let's
15 assume that you have two journals, Journal A and Journal B,
16 each of which have the same subscription price and the same
17 impact factor, but Journal A has more characters than
18 Journal B. Which journal will have the lower cost per
19 impact factor, Journal A or Journal B?
20 A. The one with more characters will have a lower
21 cost per character per impact factor based solely on the
22 additional characters, not on the quality of those
23 characters at all.
24 Q. So does the fact that the journal with more
25 characters in this hypothetical have a better cost per
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1 impact ratio say anything about the relative value of those
2 two journals?
3 A. No, it does not.
4 Q. Now let me ask you to assume that you have two
5 journals with different subscription prices, with the same
6 impact factor and the same number of characters. Which
7 journal in that case will have the lower cost per impact?
8 A. The one with the lower subscription price.
9 Q. Suppose the editor of the more expensive journal
10 adds pages of characters to his journal which don't have any
11 content to them. Let's just say the letter X is added over
12 many pages to the journal. Will that have an effect on the
13 more expensive journal's cost per impact?
14 A. Yes. It will lower the cost per character per
15 impact.
16 Q. Could it lower that cost per impact so that it
17 goes below the other journal?
18 A. Yes, it could.
19 Q. Does that fact say anything about the relative
20 value of the two journals?
21 A. No, it does not.
22 Q. Let me turn to the third point you raised, which
23 is the need for the librarian to look at the use within the
24 librarian's community. Was that measured by Barschall?
25 A. No, it was not.
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1 Q. Why is it important for a librarian to assess the
2 needs of his community?
3 A. Well, it's fairly obvious. A librarian is there
4 to serve a particular community, the patrons of that
5 particular library, and that librarian has to be concerned
6 with what those patrons will use, not what other patrons
7 will use elsewhere but what the patrons will use at their
8 particular library. Those particular patrons might have a
9 certain specialty that they are interested in. They might
10 have a particular set of journals that they are very
11 interested in, and it is important for the librarian to
12 connect with them to make certain that the collection is
13 reflecting their needs.
14 Q. Have there been any studies that you are aware of
15 that examine the relationship of impact factor to faculty
16 opinion?
17 A. Yes. There was a study recently published by a
18 gentleman called Bensman at LSU that -- one of the things he
19 looked at was the correlation between faculty opinion of
20 journals and impact factor, and he found a very low
21 correlation between the faculty opinion, what they thought
22 of particular journals, and the impact factor as reported by
23 Science Citation Index.
24 THE COURT: Does the librarian -- you suggested
25 the librarian is the prime decision maker with respect to
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1 subscriptions?
2 THE WITNESS: Subscriptions for the library, yes.
3 THE COURT: Doesn't the librarian consult with
4 the faculty with respect to the needs perceived by the
5 faculty and their quality evaluation?
6 THE WITNESS: One would hope that the librarian
7 does that, yes.
8 THE COURT: But you say that there is a low
9 correlation between faculty evaluations and subscriptions?
10 THE WITNESS: There -- yes. The recent study by
11 Bensman looked at chemistry journals from the LSU library,
12 and he found a very low correlation between the faculty
13 opinion of journals, what they thought were the best
14 journals, versus -- and the impact factor, the number taken
15 out of the Science Citation Index.
16 THE COURT: Did he in that study examine whether
17 the librarian did or did not consult with the faculty prior
18 to making the subscription decision?
19 THE WITNESS: Well, he's a librarian at LSU, and
20 I think in recognizing this low correlation, you know, the
21 result was, let's look at faculty opinion. We know there's
22 a low correlation here. Let's make certain that we're
23 consulting the faculty.
24 BY MR. PLOTZ:
25 Q. The low correlation, Professor Kingma, that you
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1 are referring to, is between the views of the faculty and
2 this impact factor number, correct?
3 A. Correct.
4 THE COURT: Well, the impact factor doesn't
5 measure, does it, whether the citation is a favorable
6 citation or a disparaging citation?
7 THE WITNESS: Correct.
8 THE COURT: So that if there is an outrageously
9 poor article and there are a number of references to it
10 pointing out its deficiencies, it would score well on the
11 impact factor?
12 THE WITNESS: That's absolutely correct, yes.
13 Q. In fact, Professor Kingma, is that another one of
14 the problems that you see with relying on impact factor in
15 measuring the effectiveness or value of the journal?
16 A. Yes. There are hosts of methodological problems
17 with citation analysis or impact factor analysis, that being
18 one of them, the fact that it doesn't account for positive
19 or negative citations. A citation is a citation, end of
20 story.
21 Q. Is there an example that has been cited as a
22 practical example of that particular phenomenon?
23 A. Yes. I think an interesting or practical example
24 of that is the -- what I call the cold fusion fiasco a few
25 years ago, where there were researchers claiming that they
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1 had achieved cold fusion, and once it was discovered, the
2 charade, you could see that there might be a large number of
3 negative citations to that research, exactly as your Honor
4 said, and all of those increased the impact factor for that
5 particular journal.
6 Q. Let me ask you with respect to your fourth point
7 about why this is not a reliable measure with methodological
8 biases. Was this positive versus negative citation one of
9 the methodological biases to which you were referring?
10 A. Yes.
11 Q. Are there others?
12 A. Yes, there are. The -- I think one of the other
13 sort of severe problems are the clerical errors that occur
14 in authors citing references. They simply make mistakes in
15 terms of spelling the journal title, the journal name, the
16 article title, the author's name, etc., and these clerical
17 errors can actually be fairly severe. In some studies I
18 have seen them as high as 50 percent of the citations having
19 some error within it.
20 There are other methodological problems too,
21 things like people self-citing themselves in order to
22 increase their own number of citations, perhaps citing for
23 political reasons, citing the department chair, etc., that
24 are also part of the methodological sort of -- part of the
25 biases that are introduced with citation analysis.
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1 Q. Is it that all citations are not equal?
2 A. Right.
3 Q. But does the impact factor analysis treat all
4 citations as equal?
5 A. Yes, it does.
6 Q. I want you to please take a look at the bulletin
7 article, which is Exhibit 2.
8 THE COURT: Let's take a five- minute recess.
9 (Recess)
10 THE COURT: Let's resume.
11 BY MR. PLOTZ:
12 Q. Professor Kingma, before the break I asked you --
13 I was beginning to ask you to take another look at the
14 bulletin article, which is Exhibit 2, if you would look at
15 page 1437. In the section called "Cost per character,"
16 Barschall writes, "Differences in cost of 20 percent are not
17 significant for several reasons. Journals follow different
18 practices covering pages and having blank or partly blank
19 pages and the size of the print used in tables and
20 references. Furthermore, fluctuations in exchange rates
21 introduce uncertainties in dollar prices."
22 Do you agree that differences -- first of all, do
23 you know where that 20-percent figure comes from?
24 A. No, I do not.
25 Q. Is there any discussion or anything in either the
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1 bulletin or Physics Today articles which discusses margin of
2 error or what might contribute to a margin of error?
3 A. Nothing beyond what occurs in this paragraph.
4 Q. Do you agree that a 20-percent difference is not
5 significant?
6 A. I think 20-percent is actually a fairly
7 significant margin for error. That's fairly large -- to say
8 that there may be 20-percent cost differences than are being
9 reported, in my opinion, that is a very large error.
10 Q. Does this stated 20-percent difference have any
11 effect, or, rather, does it reflect any error other than a
12 bias on the impact factor?
13 A. No, according to Professor Barschall, it's just a
14 20-percent error rate for only the numerator, the cost
15 factor, the cost per character factor, not the denominator,
16 which is the impact factor.
17 Q. Does he assign any margin of error or error rate
18 to the impact factor figure?
19 A. Not that I'm aware of, no.
20 Q. Now, in your view, did Barschall, leaving aside
21 what you have been testifying about, the methodological
22 problems with including impact factor in the ratio, did
23 Barschall commit any errors in the way he collected or used
24 his data?
25 A. Yes, I think he did make some errors in data
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1 collection.
2 Q. What are some of those errors?
3 A. Well, there are four errors in statistical
4 methodology, one might say, of collecting his numbers.
5 First, he collected -- he looked at journals based on their
6 availability to him at the University of Wisconsin Library.
7 It was whatever journals he had I believe in a local library
8 at the University of Wisconsin. There is a much larger
9 universe of journals in physics than that, and if one wanted
10 to collect information on that larger universe of journals
11 and make global comparisons the way it is done here, it is
12 simply a matter of collecting numbers for all physics
13 journals rather than those that are just simply accessible
14 to them. It's not a random sampling, essentially.
15 He also made errors in the way that he counted
16 pages that perhaps introduces bias. And the way that he
17 counted characters, that perhaps introduces bias, and in the
18 way he collected prices. Let me start with that last one.
19 He took prices from the inside of the journal, if
20 they were printed there, but if they weren't there he would
21 either go to Ulrich's, which is a publication of journal
22 titles and prices, or take a price off the library invoice.
23 Those are three different prices for any journal. And there
24 is perhaps statistical biases depending on which price you
25 are using for which particular journal. He counted pages by
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1 looking at the numbered pages in each journal, but not those
2 pages that carried Roman numerals, and he included numbered
3 pages even if they were blank. This isn't really getting at
4 the information that is within the journal, particularly if
5 you are including blank pages.
6 In some cases, he didn't have all the pages
7 within a journal because all the journal copies hadn't been
8 received for that particular subscription, so he would
9 extrapolate and try and figure out how many more pages were
10 coming based on the number of pages on the issues that were
11 on the shelf, perhaps introducing some bias based on his
12 guessing of how many pages were going to be in the journal.
13 And finally, the way in which he counted
14 characters, he looked at a line of text in a journal and
15 counted up the number of characters in that line. Then he
16 looked at a page in the journal that included entirely text
17 and counted up the number of lines. Well, this sets up an
18 equivalence between characters and tables or figures where
19 you're looking -- you're assuming that a table of a certain
20 size has the same cost structure or value of the same number
21 of characters within that physical dimension on a page.
22 Q. Now, in your view, if Barschall had not made the
23 errors that you have just described or if these errors were
24 corrected, would that, in your view, dramatically have
25 changed the results of Barschall's survey?
138
1 A. No. In fact, there is an expert opinion report
2 prepared by Professor Ribbe that corrected these errors,
3 statistical bias errors, and there the results are
4 essentially the same.
5 Q. Does that fact mean that Barschall's cost-per-
6 impact factor formula is a reliable measure of cost
7 effectiveness?
8 A. No. I do not believe that it is a reliable
9 measure of cost effectiveness.
10 Q. Why is that?
11 A. Again, for the reasons that I talked about
12 earlier, part of it is a matter of comparing apples and
13 oranges, different journals of different types, different
14 subdisciplines, serving a --
15 THE COURT: Isn't that more a function of the use
16 that the reader makes of the journal? Barschall says, as we
17 looked at earlier, line 1438 of Exhibit 2, he talks about
18 the different cost impact to the different types of
19 journals, and he says, "Hence, comparisons of the impact are
20 most significant for journals of the same type."
21 He says we're dealing here with apples, oranges,
22 and grapefruits and comparisons are significant only within
23 those categories. Yes?
24 THE WITNESS: Correct. That's what he said.
25 THE COURT: Now, he does not, in this Table 1,
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1 categorize the journals based on what type of journal they
2 are. Right?
3 THE WITNESS: Correct.
4 THE COURT: So that is left to the reader. This
5 is not anything that is going to be read by an
6 unsophisticated reader. The nature of this article is such
7 that it has a very specific audience.
8 My question is, is there an overall conclusion
9 here which you believe is inconsistent with his statement
10 that comparisons of impact are most significant for journals
11 of the same type?
12 THE WITNESS: You know, directly related to that,
13 I think, is Table 2 from the Physics Today article.
14 THE COURT: Yes. I understand that the analysis
15 may be somewhat different in the other article. But in this
16 article, doesn't he recognize that the comparisons are most
17 significant for journals of the same type and gives his
18 findings, without more?
19 Are we talking about Table 2 in this article or
20 Table 2 in the other article?
21 THE WITNESS: No, I was talking about Table 2 in
22 the other article, yes.
23 THE COURT: Does he here make a specific
24 comparison or ask the reader to make a specific comparison
25 of publications which are not in the same category?
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1 THE WITNESS: Well, table 4 simply lists it on a
2 cost per impact from highest to lowest regardless of
3 category.
4 THE COURT: Table 4, I see. What is the
5 difference between each area's tables?
6 THE WITNESS: It's the way in which they are
7 ranked. Table 4 has cost per impact. 3 is cost per
8 character. So it's just the cost, not the impact.
9 As you go back, Table 2 may be the translation
10 journals, but I'm not certain on that point. Yes, Table 2
11 is the translation journals, which he states on page 1 --
12 1438. And then Table 1 is the journals in alphabetical
13 order.
14 BY MR. PLOTZ:
15 Q. Professor Kingma, in the bulletin article, are
16 any of the journals broken out by the type of journal?
17 A. Only in the fact that translation journals are
18 broken out in Table 2.
19 Q. But in terms of review or letters or research
20 journals?
21 A. No, they are not.
22 Q. Does Barschall say anything in the bulletin
23 article with respect to differences in citation and impact
24 factor across different disciplines within physics?
25 A. On the top of page 1438, he does say, "The
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1 impact, however, tends to be highest for journals that
2 publish a review of the articles."
3 Q. I'm asking you about different disciplines.
4 A. Oh, different disciplines. I'm sorry, no, he
5 does not.
6 Q. Does he break out in the bulletin article any
7 articles by discipline?
8 A. No, he does not.
9 THE COURT: Let me return to my question,
10 because, if I were a librarian and I had this before me, I
11 suppose there are a number of questions which I would have
12 before I subscribed. One question would be whether there
13 was a need at all for a journal on that subject.
14 Mr. Taylor, for example, said if you don't have
15 somebody whose field is ferroelectrics on the faculty, there
16 is no point getting a specialized journal on that subject,
17 right?
18 THE WITNESS: Correct.
19 THE COURT: So one question would be, is there a
20 need for this at all? And then another question, I suppose
21 might be, what else on that subject or in that general area
22 do we have on our shelf? Is that a relevant inquiry?
23 THE WITNESS: Yes, that would seem relevant.
24 THE COURT: Does a choice get down to, should I
25 subscribe to A or B?
142
1 THE WITNESS: The librarian is clearly faced with
2 a limited budget, and so ultimately it does come down to
3 that choice, of subscribing to A or B, or subscribing to one
4 journal versus another.
5 THE COURT: So wouldn't the librarian, to the
6 extent to which attention was paid to the survey, compare
7 specific lines, and wouldn't that tend to be a comparison
8 within the same type of journal?
9 THE WITNESS: Not if you're talking about lines
10 in table 4, because these can be journals of different
11 types. One line could be a review journal. The next could
12 be an original research journal.
13 THE COURT: But would I be -- would the librarian
14 be comparing those two?
15 THE WITNESS: Possibly. Possibly.
16 I think, you know, fundamentally there are two
17 issues here. One is the issue we have been talking about,
18 of comparing journals. OK? And the other issue is, what do
19 my patrons need. And the impact number is simply not a good
20 measure of my people at my library.
21 THE COURT: Yes. I was just dealing with this
22 question of the significance of Dr. Barschall explicitly
23 stating comparisons are meaningful only within the same
24 category of journal and then not subdividing in these tables
25 based on the character of the journal.
143
1 I suppose I have another question which goes back
2 to something I asked earlier about the extent of
3 communication between the faculty and the librarian.
4 Frankly, I'm surprised that it's the librarian who makes
5 these decisions rather than the department chair or some
6 designee of the department chair. How much sophistication
7 does the librarian have with respect to the very
8 considerable number of esoteric publications?
9 THE WITNESS: I think that's the very issue, you
10 know, that librarians, depending on the librarian, depending
11 on the library, you're probably going to have varying
12 degrees of sophistication, but certainly you're not going to
13 have a librarian who's a physicist, right, working in the
14 library, making it incumbent on that librarian to seek the
15 advice of somebody in the physics department.
16 THE COURT: I find it difficult to think that it
17 would be done any other way. I mean, how is a librarian,
18 who, I take it, is, for the most part, trained in library
19 sciences but knows nothing about physics, to determine which
20 publication is more appropriate except by consultation with
21 the faculty?
22 Well, all right.
23 BY MR. PLOTZ:
24 Q. Professor Kingma, in your colloquy with Judge
25 Sand, you said that a librarian needs to be concerned about
144
1 whether the journal is going to be read or used --
2 A. Correct.
3 Q. -- by the librarian's patrons, and that impact
4 factor does not speak to that.
5 A. Correct.
6 Q. How can a librarian measure those needs, or how
7 should a librarian measure those needs?
8 A. Well, in the best of all worlds, you could do a
9 use study, seeing what journals are being used. Journals
10 are also -- articles are also received by faculty through
11 interlibrary loan, where if they see an article that they
12 want but the library doesn't subscribe to that journal, they
13 make a request for that article, which the library then goes
14 out and gets a copy of that article and delivers it to the
15 faculty member.
16 Well, based on the number of questions that are
17 being, you know, processed through interlibrary loan for a
18 particular journal title, you have information on potential
19 use for any individual title, which is also information that
20 can factor into what journals should be subscribed to.
21 And finally, as we talked, it's a matter of
22 soliciting the faculty for their opinion on what journals
23 they will use, soliciting your patrons for their opinion on
24 what journals they feel they will use.
25 Q. Is it possible for a journal with a higher
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1 subscription price than another journal -- let me start
2 over.
3 Is it possible that it would be more cost
4 effective for a library to subscribe to a journal with a
5 higher subscription price than another journal?
6 A. Yes.
7 Q. How is that possible?
8 A. Well, if that journal with a higher subscription
9 price has more use, then it is more cost-effective based on
10 the cost-per-use measure. The reason I like to use the
11 cost-per-use measure is that it is directly comparable to
12 this system of interlibrary loan, where the library is
13 spending a certain amount to acquire a copy of an article
14 through interlibrary loan.
15 Q. Now, turning to Table 2 in the Physics Today
16 article, Exhibit 3, which is the ranking by publishers -- by
17 the way, in Physics Today, did Professor Barschall write, as
18 he did in the bulletin article, anything about the relative
19 impact factor levels for different types of journals?
20 A. I don't think so. I simply don't recall.
21 Q. Is there anything in Table 2 which will tell a
22 librarian anything about the needs of his patrons for any
23 particular journal?
24 A. No, there is not.
25 MR. PLOTZ: Just one moment, please.
146
1 Q. And Professor Kingma, also on Table 2, is there
2 any breaking out of journals by type of journal, review,
3 letter, or research?
4 A. No, there is not.
5 Q. Is there any breaking out in Table 2 of journals
6 by subdiscipline within physics?
7 A. No, there is not.
8 MR. PLOTZ: I have no further questions.
9 THE COURT: Mr. Huvelle.
10 CROSS-EXAMINATION
11 BY MR. HUVELLE:
12 Q. Dr. Kingma, do you have any expertise in physics?
13 A. No, I do not.
14 Q. Have you read any of the 200 journals that were
15 subject to Dr. Barschall's study?
16 A. No, I have not.
17 Q. Have you ever been involved in publishing
18 journals?
19 A. No, I have not.
20 Q. Have you ever been involved in the selection of
21 journals for a library?
22 A. No, I have not.
23 Q. Have you ever read a Gordon & Breach journal?
24 A. I don't know. I mean, I don't pay attention to
25 the publisher, so I don't know if the journal I have read is
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1 a Gordon & Breach journal or not.
2 Q. You have never read a Gordon & Breach physics
3 journal?
4 A. No, I have not.
5 Q. Did you ask for copies of Gordon & Breach
6 journals?
7 A. No, I did not.
8 Q. Did you ask for data on prices of Gordon & Breach
9 journals?
10 A. No, I did not.
11 Q. Did you ask for circulation data on Gordon &
12 Breach journals?
13 A. No, I did not.
14 Q. Have you formed any conclusion as to the relative
15 prices of Gordon & Breach and AIP or APS journals?
16 A. No, I have not.
17 Q. Am I correct in understanding that you are one of
18 two experts who are testifying for Gordon & Breach in this
19 case?
20 A. That is my understanding, but I couldn't say that
21 there would not be more than two.
22 Q. You have seen the expert reports submitted by Don
23 King?
24 A. Yes, I have.
25 Q. You know Don King?
148
1 A. Yes, I do.
2 Q. You have attended conferences with him?
3 A. Yes, I have.
4 Q. Do you respect him as a fellow professional?
5 A. Yes, I do.
6 Q. I believe you said you had great admiration for
7 his work?
8 A. Yes, I do.
9 Q. Have you said about him that few in the library
10 of information science profession are as knowledgeable on
11 the application of economics and statistics to issues in
12 library information science?
13 A. Yes.
14 Q. I take it that your two criticisms, two major
15 criticisms, of Professor Barschall's study relate to the use
16 of cents per thousand characters -- that's one -- and use of
17 the impact factor -- that's two?
18 A. Those are two of the issues, yes.
19 Q. Are those the two major issues?
20 A. Yes.
21 Q. I take it that you differ from Dr. King in terms
22 of your confidence in value of citation analysis? He places
23 more confidence in it than you?
24 A. I'm not certain if he places more or less
25 confidence in it than I do.
149
1 Q. What about the cost per character, cost per word?
2 Does he rely on that more than you do?
3 A. In his earlier writings, yes, he did some work on
4 "cost per kiloword," I believe it was called.
5 THE COURT: "He" is Dr. King?
6 THE WITNESS: Dr. King, yes.
7 Q. Now, you are familiar with the term "market
8 failure"?
9 A. Yes.
10 Q. Am I correct in understanding that there are
11 either three or four, depending on how you count, causes of
12 market failure in the views of most economists?
13 A. Yes.
14 Q. And one of those instances where there is a
15 market failure is when the consumer does not have full
16 information on price or quality of the product?
17 A. Correct.
18 Q. And such a market failure prevents the market
19 from reaching the socially efficient level?
20 A. Correct.
21 Q. And you agree that, when you look at the market,
22 price of products is obviously very important?
23 A. Yes.
24 Q. Would you also agree that, at least in theory,
25 that a producer which is a high-cost producer does not want
150
1 the consumer to have full information regarding the relative
2 prices of products?
3 A. Yes.
4 Q. Do you agree that there are three kinds of
5 analyses that are performed by economists relating to price
6 or cost of goods? I will tell you the three I have in mind.
7 A. OK. Go ahead, please.
8 Q. One is cost efficiency, or price efficiency
9 study. Is that one?
10 A. Correct, yes.
11 Q. One is cost effectiveness?
12 A. Correct.
13 Q. And the third is cost benefit?
14 A. Correct.
15 Q. Those are the three basic approaches that
16 economists take towards analyzing --
17 A. Correct.
18 Q. -- market transactions, markets.
19 And each one of these approaches generates data
20 that is useful to the consumer?
21 A. Correct.
22 Q. A cost efficiency study is the simplest, I guess,
23 in that you compare prices?
24 A. Correct.
25 Q. And you don't concern yourself with the quality
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1 of the product?
2 A. Correct.
3 Q. And that could be for a variety of reasons?
4 A. Right.
5 Q. It could be that the quality is identical?
6 A. Correct.
7 Q. It could be you assume it's identical, or it
8 could be that you simply don't care, or that it's too
9 complicated to analyze? There are probably other reasons
10 too.
11 A. One would hope that you would make mention of the
12 fact that it's too complicated to analyze if you're not
13 going to be concerned about quality at all.
14 Q. And much of what Dr. Barschall did was the cost
15 efficiency analysis, isn't that right?
16 A. Cost efficiency, his way of doing cost
17 efficiency, which is excluding the stuff on impact factor.
18 That would be considered cost efficiency, but his way of
19 doing it, I don't agree that that's a correct cost
20 efficiency analysis.
21 Q. Would you say it's a poor cost efficiency
22 analysis?
23 A. Yes.
24 Q. But it's a cost efficiency analysis?
25 A. Yes.
152
1 Q. And correct me if I'm wrong, and I may be wrong,
2 Table 2 on PX 2, where he, I believe there he just looks at
3 cost per character, that would be a cost efficiency
4 analysis?
5 It may be Table 3.
6 A. This is cost efficiency, his way of doing cost
7 efficiency, for translation journals.
8 Q. And Table 3 is what?
9 A. Table 3 is -- right, is just the cost per
10 character.
11 Q. So that's the cost efficiency analysis?
12 A. His way of doing the cost efficiency analysis,
13 yes.
14 Q. Now, let's go up a step to cost-effectiveness.
15 That's a separate approach; is that correct?
16 A. It embodies the first approach because you're
17 adding effectiveness to it.
18 Q. That takes the same analysis of prices and it
19 adds some measure of effectiveness?
20 A. Right.
21 Q. And then we have cost benefit, the third type of
22 analysis?
23 A. Yes.
24 Q. And that is considerably more complicated?
25 A. Yes.
153
1 Q. That requires you to analyze all of the costs and
2 all of the benefits?
3 A. Yes. It requires you to quantitatively measure
4 the benefits in dollar terms to compare them to the cost,
5 which is in dollar terms.
6 Q. And that would include the externalities, as
7 economists might say?
8 A. Correct.
9 Q. So that if you are talking about the cost or
10 benefit of producing an automobile, you would have to worry
11 about pollution and calculate the effects on unemployment
12 and all sorts of elements?
13 A. Correct.
14 Q. And the study that you did on interlibrary loans
15 was a cost/benefit analysis?
16 A. The theoretical model on interlibrary loan was a
17 cost/benefit analysis. The comparison, I would say, of
18 interlibrary loan to journal pricing, yes, it could fall
19 under the rubric of cost/benefit analysis.
20 Q. Even though you didn't calculate all of the
21 costs?
22 A. Even though I didn't calculate all of the
23 benefits, because there was two methods of delivering the
24 same thing. We're talking about delivering a journal
25 article either through a library subscription or through
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1 interlibrary loan.
2 Q. And you made that study at one university or a
3 set --
4 A. A set of universities.
5 Q. Four?
6 A. Four universities, the State University of New
7 York at Albany, Stonybrook, Buffalo, and Binghamton.
8 Q. How many years did you work on it?
9 A. I worked on that for a one-year period.
10 Q. And you wrote several articles about it?
11 A. Yes, and a book.
12 Q. And a lot of people worked on the project with
13 you?
14 A. Yes.
15 Q. And in one of your articles you thanked 36
16 people?
17 A. I'm taking your word for that, yes.
18 Q. And it's correct that Dr. Barschall did not
19 purport to do the cost/benefit analysis?
20 A. Correct.
21 Q. And it was probably impossible to do, in any
22 event?
23 A. I would say "difficult." I wouldn't say
24 "impossible."
25 Q. Now, to do a cost effectiveness study, am I
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1 correct in understanding that, when you add the element of
2 effectiveness to a basic cost analysis, that what you are
3 looking for is some measure that gives you enough
4 information as to effectiveness to make reasonable
5 management decisions?
6 A. Correct.
7 Q. So you can use a proxy?
8 A. For benefit?
9 Q. Right.
10 A. Right. Right.
11 Q. And indeed, for Dr. Barschall's study, you have
12 identified five possible measures of effectiveness, correct?
13 A. Could you -- where are you speaking from?
14 Q. Let me list them: Readership, use, faculty
15 ranking, total citations, and impact factor.
16 A. Right. Those are five possible proxies. It's
17 whether -- the degree to which they are good or poor proxies
18 for benefit or effectiveness.
19 THE COURT: This citation and impact factor is
20 separate?
21 THE WITNESS: Yes.
22 THE COURT: The difference being?
23 THE WITNESS: Citations are the total citations
24 that an article receives -- let me take that -- that a
25 journal receives over its lifetime. The impact factor is a
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1 very small window of those citations, a snapshot of the
2 movie, you might look at it as.
3 Q. And it's your testimony today that, of the five,
4 the one Dr. Barschall picked was the worst?
5 A. Correct.
6 Q. All the others would be better?
7 A. Correct.
8 Q. Including readership?
9 A. Yes.
10 Q. And by "readership," you mean as to a journal,
11 how many times has it been read, an article?
12 A. Correct. Article read.
13 Q. How many times has an article been read?
14 A. Correct.
15 Q. And so far as you know, no one has ever
16 calculated that?
17 A. For Don King's -- a major part of Don King's work
18 in his lifetime was analyzing readership by scientists of
19 journal articles. So he has done surveys to try and measure
20 readership.
21 Q. Has anyone compared journals by the number of
22 times they are read?
23 A. Not to my knowledge.
24 Q. And it would be very hard to do, wouldn't it?
25 A. I don't know if I agree with that. You would
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1 have to measure readership of journal titles by faculty,
2 figuring out how many times they read a journal, either
3 through a survey or, you know, essentially some survey of
4 faculty, the way that Don King has done it, and so long as
5 you have the journal title there, then you have information
6 on readership by journal title.
7 Q. Well, you might have an article assigned to a
8 class of 20 students, correct?
9 A. Correct.
10 Q. And you might assume that all 20 read the article
11 because it was assigned?
12 A. Correct.
13 Q. But that might not be correct?
14 A. You're right. That might not be correct.
15 Q. And so you would then have to watch every student
16 or interview every student to see if they actually read it,
17 correct?
18 A. To see -- correct.
19 Q. And one of the students may have asked his
20 roommate to read it because it was of interest?
21 A. Correct.
22 Q. So you would have to figure that out too, right?
23 A. There are possible errors in this kind of
24 analysis, correct.
25 THE COURT: When you are ready to go to another
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1 subject, we will break for the day.
2 MR. HUVELLE: Whenever, your Honor. I can keep
3 going or I can stop. But I'm not offended if you want to
4 stop.
5 THE COURT: All right. So we will call it a day.
6 I take it that it is still the estimate of both
7 parties that we will conclude comfortably this week?
8 MR. HUVELLE: Comfortably? If I may speak out of
9 turn, your Honor?
10 THE COURT: Yes.
11 MR. LUPERT: It's moving right along, frankly,
12 but --
13 THE COURT: Excuse me?
14 MR. LUPERT: We think it's moving right along, so
15 I think our estimate that the plaintiff's case is going to
16 finish on Wednesday remains accurate. So I think, if I am
17 estimating the defendant's case properly, it's likely to end
18 on Friday. I think that's --
19 THE COURT: If at any point it becomes apparent
20 or probable that that is not going to happen, I would like
21 to be alerted to it for the benefit of counsel next week.
22 MR. LUPERT: Of course.
23 THE COURT: Thank you. We are adjourned until 10
24 a.m. tomorrow.
25 (Adjourned to 10:00 a.m., Tuesday, June 10, 1997)
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1 INDEX OF EXAMINATION
2
3 Witness D X RD RX
4 GOERGE WILLIAM TAYLOR.....9 55 99
5 BRUCE ROBERT KINGMA......105 146
6
7 PLAINTIFF EXHIBITS
8 Exhibit No. Received
9 730A .........................................19
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