No Stranger to Controversy

Peter Suber reminds us in the June issue of the SPARC Open Access Newsletter that The American Chemical Society (ACS) is trying to persuade Congress to shut down the NIH's PubChem — a freely accessible database containing chemical structures of small organic molecules and information on their biological activities.

What the ACS fears, says Suber, is that "the publicly-funded, open-access database will threaten ACS revenue from the Chemical Abstracts Service (CAS)." [CAS is a division of the ACS].

Indeed, in a public statement dated May 23rd CAS claims that as "a taxpayer-supported resource" PubChem will over time "pose an insurmountable threat to CAS' survival" since it is "a mini-replica of the CAS Registry, and a replica poised to expand."

The CAS statement adds "We believe that taxpayers should not fund the entry of NIH into the information industry more broadly than is necessary to disseminate the information whose creation it funds."

Critics have been quick to point out that the threatened CAS Registry database was itself built with taxpayers' money — in the form of a grant from the National Science Foundation (NSF). They also argue that as a non-profit organisation CAS has over the years benefited substantially from the public purse in the form of tax concessions.

As open-access advocate Jan Velterop put it on the Liblicense mailing list "It's not just the generous tax concessions that come with a non-profit status, but also the NSF grant (I hear it was in the order of $25 million) that enabled the ACS to establish a chemical registry system."

Whatever one's views on the rights and wrongs of the ACS' complaint it is worth noting that the organisation is no stranger to controversy, and that it has itself previously been criticised for unfair practices.

Those who have followed the development of CAS over the years, for instance, will recall that on 7th June 1990 the online service Dialog made a 36-page complaint about ACS to the Washington DC Federal Court, alleging unfair competition, and seeking $250 million in damages.

The action related to CAS' "Chemical Registry Structure Database (CRSD)", and followed the withdrawal by CAS of the full Registry Structure File from Dialog on 1st January 1990, thereby denying Dialog the ability to offer graphical substructure searching on its service (a feature available on a competing online service jointly operated by CAS).

Dialog argued that CRSD "has no substitutes and thus constitutes a separate and distinct market" which CAS was monopolising in contravention of anti-trust laws.

Amongst the 10 claims made by Dialog were five alleging monopoly practices, one alleging unfair competition, and one relating to a subsidy of $15 million plus that had been provided by the NSF at the time the CAS database was being created (the same database and the same grant that critics of the ACS complaint against PubChem are now citing), and which Dialog claimed obliged ACS to license all data at a fair price. This obligation had been breached by CAS, alleged Dialog, both by its withdrawal of connection table data essential for graphical structure searching, and because CAS had for some years refused to licence its abstracts of the chemical literature.

The Dialog lawsuit also claimed that its revenues from the CAS database had fallen 45% between 1984 and 1988, partly due to steep rises in CAS licence fees and royalties, and partly because of data being withheld.

ACS responded to the lawsuit by countersuing on issues of accounting. The case was eventually settled out of court.