So ends a judge’s September 30, 2016 opinion dismissing a case brought in 2014 by Andrew Mallon, a former Brown University postdoc, alleging that his advisor and former business partner, John Marshall, had published a paper in 2013 in PLOS Biology that should have listed him as a co-author.
As with most court cases, this one had a long backstory: An earlier version of the paper had listed Mallon as a co-author, but was rejected by Neuron in 2011; after the authors had a dispute over the data, a different version of the manuscript was submitted to PLOS Biology in 2012, leaving Mallon off the co-author list. So Mallon had sued to have the paper retracted.
In communications with Retraction Watch and other media, as well as during depositions of the plaintiffs, Mallon referred frequently to allegations of scientific misconduct, including the fact that the first author of the PLOS Biology paper had an unrelated paper retracted in 2010 for duplicated data. However, this case was brought under the Copyright Act, which focused on the authorship dispute.
Kevin Tottis, who represented Marshall and co-defendant Dennis Goebel, told Retraction Watch his clients “are delighted with the judge’s decision.” Massachusetts District Court Judge Timothy Hillman, he said,
…took his time and issued a very thoughtful opinion that discussed not only copyright standards for joint authorship, but also looked at the purpose of copyright law under U.S. law. What a number of people don’t always recognize is that the primary purpose of U.S. copyright law is to serve as the engine of free expression. That’s how the Supreme Court has characterized it on a number of occasions. The secondary interest is the rights of authors and creators. Under U.S. copyright law, copyright is looked at as a vehicle to encourage speech, rather than suppress it.
In this particular case, there was a claim of joint authorship. Under U.S. copyright, joint authors share rights, and are free to use them in any way. They just have to have to account for royalties.
Those weren’t of course an issue in this case, because scholarly papers don’t pay royalties. Tottis added:
What was sought here was a demand for a retraction of the paper, which is antithetical to [US] copyright law. Frankly, that’s why my clients — individuals on academic salaries — had to fight this so hard.
As Hillman noted in his decision, Mallon sought
not to be added as an author, but rather full retraction of the manuscript from the journal. It is difficult to reconcile Dr. Mallon’s acquiescence in the Neuron submission and his vehement objection to the publication of the PLoS Biology paper with this contention that both manuscripts represented a continuous, successive work that he now claims to be a unified, integrated whole.
Mallon’s attorney, Brian O’Reilly, told Retraction Watch that he and his client are still assessing whether to appeal:
We’re both disappointed. I think that this area of the law, whenever you’re dealing with graduate students, post-docs, and faculty at a university, is pretty undeveloped, and it’s largely stacked against graduate students and post-docs. Going in, you’re definitely working uphill when you take on these types of cases.
We do think this case and [cases] like it are important, and that students contributions aren’t accorded the recognition they deserve, both as an academic matter and a legal matter.
Clearly the judge disagreed with us. Putting aside the legal issues, I think the basis of the case was using Dr. Mallon’s work without authorization, and I don’t think that that’s really been disputed. what’s been disputed is whether he has legal recourse.
The authors will not be retracting the paper, Tottis said, because there is no basis for doing so:
A retraction in the academic sphere can have very serious ramifications for a scholar. Not only does it significantly impact on his or her reputation, it can also affect the ability to win grants. In this case, Dr. Marshall applied for one grant that arose directly out of work disclosed in the paper at issue, and another that was indirectly related. So he was at risk of losing millions of dollars in grant money to fund the research, not to go into his pocket.
Tottis and his clients have made a motion requesting nearly $300,000 in legal fees. In making that argument, Tottis pointed out that the judge had determined that
Dr. Mallon appeared to use his copyright claim as a “litigation device.” The summary judgment record compelling this conclusion, however, doesn’t tell half the story. Not only did Dr. Mallon use the existence of this lawsuit to mislead the press and public into believing this Court would rule on his false claims of academic misconduct, he cherry picked nearly 200 pages of private emails and manuscripts produced in discovery to gin up or resurrect bogus misconduct claims against both Defendants and third parties. (By contrast, he used almost none of Defendants’ documents in the actual litigation before this Court.) Simply put, long before this Court had the chance to dispose of his baseless copyright claim, Dr. Mallon exploited this lawsuit and the discovery process to cast a pall on important research and smear scholarly reputations.
O’Reilly, who has filed a response to that request, said:
The judge is going to decide what he’s going to decide.
Of note: The judge who presided over the case has ruled before on retractions, albeit to deny a request by Mario Saad to have them blocked.
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