How could publishers, in particular disreputable ones, prove that you “signed” a copyright agreement?

Question

With almost every question from people having dealing with predatory publishers, the question comes up whether they have already signed a copyright agreement. This always makes me ask myself this question:

When it comes to that point, how could a publisher actually prove, that you “signed” a specific copyright transfer agreement? Any copyright transfer agreement I have encountered so far (only reputable publishers) I agreed to by clicking on a button in some submission system. Now there are two cases to distinguish:

• The submission system is hosted by a third party. In this case, the publisher has a source other than itself that could confirm that you¹ clicked on agree and what exactly you agreed to. I do not deny that there may be some evidence here.
• The system is hosted by the publisher itself. Some reputable publishers do this (at least so it seems to me) and I also would guess that this is what most disreputable publishers do. How can the publisher produce any evidence that you¹ clicked the button and what copyright agreement was shown to you? They can show that the accepted_copyright_agreement-flag in their database is set to true for your submission, but given that it’s their database, they can manipulate it at will and this does not constitute any proof.

I have not come across any other case where such kind of unilateral agreements are made online. For example, if I buy something online, the actual contract of sale is established by me transferring money (or similar) and the other party transferring a product (and I have full return rights for some weeks, at least in my country, legal disputes on whether the buy button was actually clicked are unlikely).

Note that I am not so much asking about whether some evidence would actually convince a court but rather about anything that could be even considered as evidence by any reasonable person or court.

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^{¹ or more precisely: the person who submitted the manuscript}

Answer 1

First, I would like to clear up a little misconception. A signature is never proof of anything. There is very little difference among a hand written signature, pressing the I agree button, and writing an 'X' on the signature line. They all carry the exact same legal weight provided they were done in a proper fashion. The only time a signature is ever really sufficient proof is when it has been notarized (which is much more than just the notary's signature). So, signing a paper and faxing it over, for instance, doesn't have much more value then pressing your "I agree" button. Without being notarized, signatures in any form are simply evidence.

Third parties, in this case, can effectively act as notaries to a certain extent. There tend to be very strict guidelines when dealing with electronic signatures. Depending on the field and the government involved, how the signatures are stored is often very important. Other than the legal requirements, the person or court would need to ask the question "Why would the third party forge the signature" and "Was the signer who they say they were". Usually these are emailed and involve a unique token, so identity is based on the security of email and the token is stored and hopefully not accessed. Periodic backups (using non-re-writable media) that are stored securely can often be used to ensure data hadn't been added or modified.

It is nearly impossible for a party of the deal to serve as the sole witness to the authenticity of any signature as they generally have reason to lie. Instead, they need to show that you agreed to transfer copyright as evidence that the signature is authentic. If they don't have you agreeing to the publication somewhere, then they are just waving around a piece of paper with an 'X' on it.

Answer 2

The standard in US civil courts is that one side needs to show by a preponderance of the evidence that their side is true. This is actually a pretty low bar, i.e. that there's a greater than 50% chance that their version is true. It's a lot easier to come up with evidence to this level than it is to the "reasonable doubt" standard that US criminal prosecutions need in order to convict some one of a crime.

As such, a copy of the email from your email address, attested to by sworn testimony from the recipient and containing the proper text to be a copyright transfer would probably be sufficient. Similar evidence could be used if you submitted the form through a website. In order to rebut this evidence you'd need convincing evidence that you didn't do it or that it was done fraudulently.

I know that you say that you don't care about what a court would say, but the only time it would come up is in that context. Nothing else matters. If you need to try to stop someone from publishing an article or to retract an already published one, in the end, you're going to be in court. If you're going to try to convince a judge or jury that you didn't really execute the copyright transfer, you're going to have a high hurdle. If the journal presents some evidence of a transfer document, you're going to have to try to convince a judge/jury that it's somehow fraudulent.