Are you familiar with the case of Diego Gómez? He’s a Colombian researcher currently on trial for sharing someone else’s thesis on the Scribd platform. Next week, a judge will decide whether he should be imprisoned (the crime carries a potential sentence of between four and eight years). It’s not an edifying tale, in that no one comes out of it particularly well: not the author (trying to argue that the sharing of his five-year-old thesis constituted harm), not publishers (whose policies around theses publication discourage electronic sharing of theses and underpin the idea of harm), not the prosecution (blindly applying a law really intended to protect commercial content against commercial piracy), and perhaps not even the researcher (arguing that he thought something being online meant it was public domain). Much of the coverage of the case has focused on whether copyright laws that enable such a sorry scenario can be fit for purpose, and whether open access solves the problem (I’m not sure it’s that simple, in that the issue here is not access, but copyright — Todd’s post earlier this week was timely, in this context). For me, the thread that hasn’t been pulled much is whether online availability of a thesis precludes publication; I’ll come back to that after a quick recap.
In 2011, Diego Gómez found a 2006 thesis in a library. From what I can gather, it was online, but unpublished (perhaps on an intranet? It’s not clear what kind of platform it was on; if I understand correctly, it had already been digitized, but not made publicly available — so presumably not a repository, or even an e-theses database). He shared a copy in Scribd, which was at that time used “Mendeley-style” by many researchers to share interesting information with others in their field. (It should be noted that Scribd didn’t adopt its current business model, whereby authors can post their own work on the system and receive payments based on the views, until 2013 — i.e. there was no commercial gain for Diego in posting the thesis to Scribd). “I never thought I was violating any law,” he was quoted as saying (in The Scientist); “I thought that I was giving him benefits on sharing his work.”
However, the unnamed author didn’t see it that way: he sued for damages, reportedly because the “distribution” of his results meant that he could not now publish them. Diego Gómez removed the article, and offered a settlement. Newsweek quotes Carolina Botero (whose digital rights organization, Fundación Karisma, is helping Gómez) as saying this was rejected by the author as too low. The situation has been publicized by a wide range of other organizations including the Electronic Frontier Foundation (EFF), Creative Commons, Internet Archive, Knowledge Ecology International, Open Access Button, Derechos Digitales, Open Coalition, Open Knowledge, The Right to Research Coalition, Open Media, Fight for the Future, USENIX, Public Knowledge, Web we Want, and OpenCon (most of this list pulled from a letter of thanks from Gómez to his supporters, published on the Fundación Karisma website).
Nonetheless, the case has dragged on; after several postponements, the final arguments were presented in April this year, with the Judge’s final decision due on May 24th. Colombia’s legal system allows for a prison sentence of up to 8 years for copyright infringement (more than the maximum for a sexual assault or for people trafficking, The Guardian points out; some suggest that the penalties were made harsher as part of Colombia’s free trade agreement with the US, which wanted to increase protections for commercial copyrights around music, film and so forth — academic copyrights, and transgressors, have been caught up in that).
Statnews sees a connection between the issues at stake in Diego’s case, and the work that we at Kudos and others including the STM Association are doing around fairer approaches to sharing of work online. These projects are focused on post-publication sharing; the case against Diego Gómez suggests we also need to think about pre-publication sharing. Which publishers still have policies that mean they won’t consider papers / books developed from theses that have previously been made available online? Is this still a valid concern on behalf of the author in this case — has he really been harmed to the extent that another academic should be imprisoned? This study by Marisa L. Ramirez et al., found “more than half of the science journals responding (51.4%) reported that manuscripts derived from openly accessible ETDs [Electronic Theses and Dissertations] are welcome for submission and an additional 29.1 percent would accept revised ETDs under certain conditions”. Is there still catching up to be done in terms of publisher’s policies, and / or could publishers do more to update perceptions of researchers (and lawyers) here, and prevent future cases of this nature?