<nettime> Duke U > Kevin Smith > Some radical thoughts about Sci-Hub

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Some radical thoughts about Sci-Hub

   March 3, 2016

     Kevin Smith, J.D. 

   Radical, as I like to remind folks, means to get to the root of an
   issue (same derivation as radish).  So when I say I am offering some
   radical thoughts about Sci-Hub and the controversy it has generated, I
   mean that I hope to use the discussion to ask some very basic, "at the
   roots," questions about copyright, not that I intend to shock anyone.

   My radical thoughts have been prompted by the many very conventional
   reactions to stories about Sci-Hub, which collects academic papers
   using .edu proxies and makes them available without charge and in
   disregard of the rules imposed on distribution by the copyright
   holders.  These reactions have followed two predictable trajectories,
   with one group calling what the site and its founder Alexandra Elbakyan
   are doing civil disobedience.  Indeed, Ms. Elbakyan herself has
   apparently cited Article 27 of the U.N. Declaration on Human Rights
   as a justification of her project, which now host nearly 50 million
   articles.  On the other side of the debate are those who are shocked by
   this disregard of the law, and especially by the apparent willingness
   of some libraries or librarians to use Sci-Hub to obtain research
   materials for their patrons.  All this debate, by the way, has been
   provoked by a lawsuit against Sci-Hub brought by publishing giant
   Elsevier, a move which has predictably increased attention to the
   site.

   One thing that has been particularly disturbing to me about the various
   statements expressing outrage over Sci-Hub is how focused they are on
   the values and opportunities of the developed world.  One comment I saw
   pleaded with librarians to respect the law and not to use Sci-Hub "just
   to save money."  Such moralizing misses a couple of basic points, I
   think.  The first is that Sci-Hub seems directed at, and is certainly
   mostly used by, researchers and students in the developing world, where
   it is not merely a matter of "saving some money," it is a question of
   finding any way at all to get access to scientific and medical
   research.  We tend to forget that a $30 paywall, while a mere
   inconvenience to those of us in the U.S. or Europe, can be an
   insurmountable roadblock for someone in Cambodia or Malawi who is
   trying to learn about a medical condition.

   Another point about the righteous defense of "the law" in some of these
   comments is that laws come in different forms and carry different kinds
   of moral authority.  Lawyers distinguish, for example, between illegal
   acts that are "wrong in themselves" (malum in se) and those that are
   only "wrong because prohibited," or malum prohibitum. ( there is a
   discussion of this distinction, for those with a sense of humor, in the
   movie Legally Blonde).  Copyright infringement is, of course, the
   latter; a violation of the law but not of any moral imperative.  Such a
   law merely enshrines a decision about the distribution of resources,
   and it can be changed without causing the collapse of human society.
   Precisely the kind of situation where acts of civil disobedience to
   provoke discussion and change are most supportable.

   This is where the radicalism comes in, when we look at what copyright
   law does, how it has been used over time, and what Sci-Hub is actually
   doing.  These questions were raised for me by the fascinating comment
   by Thomas Munro on this blog post, which is itself defending the
   idea of Sci-Hub as civil disobedience.  Dr Munro's comment, the first
   that follows the post, points out that Sci-Hub is doing what U.S.
   publishers did for a long time -- she is refusing to recognize
   copyrights granted by other countries.  Dr. Munro writes as follows:

     What Elbakyan is doing - ignoring foreign copyright - was official
     US government policy for more than a century. As a result, books
     were much cheaper than in Europe and literacy skyrocketed. When the
     US finally caved, in 1888, the editors of `Scientific American'
     thundered that "The extension of copyright monopoly to foreigners
     will enable them to draw millions out of the country" and that it
     would turn US customs officers into "pimps and ferrets for these
     foreigners".

     As one Senator said in voting against the bill: "An international
     copyright is simply a monopoly ... what is known as protection, or
     taxing the people to make a few persons rich ... It seems to me that
     there can be no excuse for carrying this restriction upon human
     knowledge."

   That the publishing industry thrived in the U.S. by ignoring copyright
   is a well-known but little discussed aspect of our history with
   scholarly communication.  Perhaps those early American publishers did
   not see themselves as practicing civil disobedience; they may have just
   been trying to maximize profits.  But their willingness to ignore
   foreign copyrights when it served what they believed was a more
   important purpose really does call us to the root of the matter.
   Copyright law is an instrumentality, not a good in itself.  It's role
   in our legal system is to encourage creativity and the production of
   knowledge.  When it ceases to do that it deserves to be challenged and
   changed.

   I believe that copyright has a continuing role to play in the academy
   and in the reform of scholarly communications.  But we do no favors to
   that role when we treat copyright law as enshrined and inviolable,  as
   if it had been decreed from Mt. Sinai.  Instead we should focus on what
   the law is intended to accomplish, where and why it fails in its
   purpose, and how we can make it more adaptable for the digital age.
   One key to a clearer assessment of copyright law is to know its history
   a little better, and in his blog comment Dr. Munro also offered us a
   pointer for that task --  a citation to a doctoral dissertation, now
   freely available an e-book:

   Eric Anderson. (2010). Pimps and Ferrets: Copyright and Culture in the
   United States, 1831-1891.
   http://archive.org/details/PimpsAndFerretsCopyrightAndCultureInTheU
   nitedStates1831-1891

   I haven't read Anderson's book yet, but I am anticipating a more
   detailed and nuanced view of how copyright has been used and abused
   through the vicissitudes of American history.


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