Publishers sue US OFAC

Ban on editing and peer-reviewing material from embargoed nations challenged

John Dudley Miller(johnmiller@nasw.org)
Sep 27, 2004

A coalition of publishers' and authors' organizations sued the Department of Treasury yesterday (September 27) to force it to stop banning the American publication of works written by authors in four trade-embargoed countries.

The federal lawsuit filed in New York City asks for a temporary injunction against the Treasury's Office of Foreign Assets Control (OFAC), which regulates ongoing US embargoes against Iran, Cuba, Libya, and Sudan. The regulations violate the First Amendment and US law, publishers claim, because they require them to obtain government licenses before they can "substantively edit" manuscripts before publication.

(As of April 29, the regulations on Libya changed so that most activities are now legal, including performing services for Libyans and the Libyan government.)

Manuscripts from embargoed nations that need no editing can be published as is, because Americans haven't aided an embargoed country by improving them. Violators can potentially be fined up to $1 million and jailed for up to 10 years. An OFAC spokesperson said the agency would not comment on the pending lawsuit.

"Every day, books aren't being published, and articles aren't being published," said Edward Davis, one of the coalition's two lead attorneys. "American writers and publishers and the American public are being harmed."

The judge in the case gave the government until October 18 to file its response to the suit, and the publishers must reply by November 1. "I expect the court will probably be making a decision on the preliminary injunction by mid-November," said Allan Adler, counsel to the Association of American Publishers (AAP), which is party to the suit. The publishers are also asking for a permanent injunction and the overthrow of the regulations, so even if the judge doesn't grant the temporary injunction, the case will continue in court.

The lawsuit was filed by the American Association of University Presses, the Professional/Scholarly Division of the AAP, the PEN American Center, and Arcade Publishing. Together, they represent 124 academic publishers, "the vast majority" of materials produced and used by scientists and other academics, and 2700 authors, editors, and translators, according to the suit.

Adler said that pursuing the case would be "probably right in the ballpark" of $500,000 to $1 million. He said that an unspecified "number of organizations apart from the plaintiffs' contributed financial support."

The publishers complain that OFAC has issued contradictory rulings over the past year that make it unclear how much editing constitutes "substantive alterations." "The confusion has a chilling effect on nonprofits who don't want to be sued or prosecuted," Davis said.

In September 2003, OFAC told the Institute for Electrical and Electronic Engineers (IEEE) that minor editing like adding commas or correcting spelling might violate its regulations. This past April, OFAC reversed itself, saying that the editing by IEEE was not a substantive alteration. But it remains unclear whether journals that typically do more editing are violating the regulations, Davis said.

Then in July, OFAC issued a ruling that Davis said is the most contradictory yet, because it greatly expands the freedom to edit as compared to the earlier rulings, which still stand. It told the American Society of Newspaper Editors that newspapers could broadly edit op-ed pieces submitted by embargoed-country authors, including translating; deleting parts; correcting grammar, syntax and spelling; and performing "substantive edits to the work's content to make the work more cohesive, efficient, argumentative, or effective." The ruling concludes that these substantive edits "would not constitute substantive or artistic alteration or enhancement of the article or commentary."

According to the suit, "OFAC did not explain the departure from its previous rulings or how to square its ruling with the regulations, which bar substantive alteration." "The whole thing is a bunch of doubletalk from the government," said Marc Brodsky, executive director of the American Institute of Physics and chair of AAP's professional and scholarly division.

As a result, at least eight different academic publishing projects have been cancelled or postponed because of the regulations, Davis said. Cornell University Press has postponed reprinting its Field Guide to the Birds of Cuba, said John Ackerman, its director, because minor corrections need to be made to it first, and those may be prohibited. "It's the only up-to-date field guide on Cuban birds," he said, which include many North American birds in their winter colors. The guide also gives "some of the best information you'll find" about the world's smallest bird, the bee hummingbird, he said. The book is available through a European publisher, but by a contractual arrangement, it is illegal for that publisher to sell the book to US citizens.

In March, Kluwer Academic Publishers, the Netherlands company that publishes the journal Mathematical Geology, abruptly removed from its upcoming issue an article by Iranian authors describing a novel way to predict earthquakes, according to W.E. Sharp, the journal's editor-in-chief and a professor emeritus at the University of South Carolina. "They pulled it out of production, and they renumbered the pages," he told The Scientist yesterday. "There was nothing I could do. They made a corporate decision." Sharp said it would be too big an effort to switch to a different publisher over the issue. Officials from Springer, Kluwer's parent company, could not be reached for comment.