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/PimpsAndFerretsCopyrightAndCultureInTheUnitedStates1831-1891

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.