In legal philosophy, a distinction is often drawn between two broad categories of illegal act: those considered mala prohibita (acts that are technically illegal but not morally wrong), and those considered mala in se (“bad in themselves”). Acts mala prohibita are usually forbidden mainly in the interest of maintaining safety and order, whereas acts mala in se are prohibited both to preserve the social order and because they represent behavior that society considers fundamentally wrong. Classic examples of crimes mala prohibita would be jaywalking or hunting out of season, whereas most would consider murder and robbery to be mala in se. Penalties for mala prohibita are usually mild compared to those for mala in se, but the line between the two can be fuzzy and distinctions are debated at the margins. Thus, for example, while everyone pretty much agrees that driving 58 mph in a 55 mph zone is malum prohibitum, and that stealing someone else’s property is malum in se, there is ongoing debate about the nature of drug crimes.

scale with books and money

In the context of scholarly communication, one of the most interesting areas of dispute right now is around the question of copyright infringement, and the degree to which it’s something worth worrying about. Is copyright piracy a relatively harmless example of malum prohibitum, one that doesn’t actually hurt anyone even though it’s technically illegal? Or does it represent a crime that does real damage to innocent parties?

People say it’s malum prohibitum

You don’t have to go far to encounter arguments (or at least assertions) that copyright infringement is a crime malum prohibitum. Check out the Wikipedia page on which malum prohibitum is defined, and which provides a long list of examples: copyright infringement is second on the list, right after “building or modifying a house without a license.” You’ll find it on legaldictionary.net’s list of mala prohibita too, and on the one provided by USLegal.com and in some introductory legal textbooks.

At first blush, it’s easy to see why this should be so. It’s not obvious that anyone is hurt or disadvantaged if I copy a friend’s King Crimson CD onto my computer for personal use, or when I upload a journal article to ResearchGate without the copyright holder’s permission. Maybe copying my friend’s CD took a sale away from the band and its label, but maybe not—who knows whether I would have bought a legitimate copy of the CD otherwise? And in the case of that journal article, the minimal harm I might be causing is arguably offset by the potential good that I’m doing in making the article freely available to thousands of people. Maybe I’m hurting the publisher a little bit, but I’m also helping lots of little guys who can’t afford access. So not only does one face a challenge when arguing that copyright infringement does real harm to anyone, it’s also easy to show how copyright infringement can create value for lots of people.

Of course, in both of the scenarios cited above, the potential harm that infringement might do is camouflaged by the scale at which I’m doing it. It’s one thing to say that no one is harmed by the illegal copying of a single CD or the illegal uploading of a single article by one person, and quite another to say that no harm would be done if millions of people engaged in such behaviors with impunity. But scale itself isn’t really relevant to the question of whether a given illegal act is malum prohibitum or malum in se—after all, even though everyone probably agrees that jaywalking is malum prohibitum, it would still be a big problem if everyone did it all the time, and property theft is generally considered malum in se even if it only consists of one kid stealing a piece of candy.

Not only does one face a challenge when arguing that copyright infringement does real harm to anyone, it’s also easy to show how copyright infringement can create value for lots of people

The real question is about the nature of the act itself. Does it make more sense to consider copyright infringement a kind of theft, or to regard it as merely the breaching of a more or less arbitrary rule (like a speed limit or a license-renewal deadline)?

So let’s come back to the idea that copyright infringement is a genuinely victimless crime — that it’s really not “wrong” because it really doesn’t hurt anyone. Leaving aside, for the moment, the question of scale, I think the assumption that copyright infringement does no harm by its fundamental nature is one that depends on an unspoken (and maybe kind of arrogant) assumption about what it means to “harm” someone. For one thing, in the case of writing from which an author hopes to make money through sales, the potential for piracy to cause her real damage is clear. But not all harm is financial. If I write an essay intended for academic, noncommercial publication, and you publish it without my permission, have you “harmed” me? You might say “no, of course not,” but honestly, who do you think you are? If I don’t want my essay placed in your book, or if I want it to reach a defined audience of colleagues rather than be distributed online to millions of people, who are you to say that by doing so anyway without my permission, you’re doing me no harm?

Of course, maybe your argument is that the essay wasn’t “mine” to begin with, at least not in any meaningful sense. Maybe you think that “intellectual property” is itself an absurd notion, or you don’t believe that there’s really any such thing as an “original work”, or you think that restricting access to scholarly or scientific information is fundamentally wrong. If that’s your position, fair enough—but for now, the law completely disagrees with you. And, heck, maybe I disagree with you as well. Why should your view on this issue prevail over mine?

… but the law and the courts act like it’s malum in se

But hold up. How can I say that the law disagrees that copyright infringement is malum prohibitum? After all, the law itself doesn’t provide us with a list of crimes mala prohibita and mala in se. How we characterize illegal acts is a matter of personal opinion. However, in the case of copyright infringement specifically, American case law and statute are both pretty clear: the law itself explicitly characterizes copyright piracy as property theft, and courts have repeatedly treated it as such in their findings and decisions, regularly awarding significant statutory and punitive damages in copyright piracy cases (for example here, here, here, here, here, and here). The court isn’t going to award anyone damages in cases of jaywalking, or building a house without a license, or hunting out of season. It’s in the nature of mala prohibita crimes that they generally don’t create victims. And yet the law very clearly treats copyright infringement as a crime that does create victims, who are often eligible for damages — thus separating it cleanly from just about every other entry in any popular list of mala prohibita. And in fact, this has been the case since the earliest days of copyright law: the 1710 Statute of Anne, on which modern copyright law is built, was enacted with an eye to the protection of “Authors or Proprietors of… Books and Writings” whose work was being printed and published without their permission “to their very great Detriment, and too often to the Ruin of them and their Families.” The law does not regard copyright infringement as a victimless crime, and never has. So what justifies characterizing it as malum prohibitum?

The law treats copyright infringement as a crime that creates victims who are eligible for damages—thus separating it cleanly from just about every other entry in any popular list of mala prohibita

One obvious answer might be that the law is simply wrong, and shouldn’t treat copyright infringement that way. And one argument in support of that position would be one that I often hear from those who advocate for the weakening of copyright restrictions. The argument goes like this: “When I breach someone’s copyright by, for example, making copies of their original work and distributing those copies to others, I’m not infringing on their ability to exercise any of their rights as copyright holders — they can still do all the things with regard to their work that copyright law allows them to do: copy, distribute, create derivatives, etc.” But there’s a very big problem with this argument. It rests on a misrepresentation of what copyright consists in. Being a copyright holder doesn’t mean that you have the right to copy, redistribute, etc. — after all, we all have that right with regard to a work that’s in the public domain, and you even have limited versions of those rights with regard to the copyrighted work of others. Being a copyright holder means having the exclusive right to do those things. Breaching someone else’s copyright, in other words, doesn’t mean taking away their right to make copies, create derivatives, etc.; it means taking for yourself a right that is exclusively theirs — the right to decide (within certain legal limits) who may do those things with their original work, and in what ways.

Of course, if you don’t believe that such rights ought to be exclusive — if, for example, you believe that all scholarship, or even all knowledge, ought to be considered public property by definition — then this legal reality is beside the point; your view will be that the law is wrong, and that those rights shouldn’t be exclusive to begin with. Now, to my knowledge, few if any people believe that all original works ought to be made public property. However, a significant number of people in and outside of the scholarly community believe that all science (see such statements, for example, here, here, here, here) or even all scholarly knowledge products (see here) ought to be treated as public property. Some believe this to be true only or mainly for scholarship that arises from publicly-funded research, but others believe that to put any kind of access barrier around scholarly products of any kind is morally wrong. These might agree that if I’m a musician or a novelist I should be allowed to control access to my original work, but say that if my work arises from laboratory research or social science it should belong to everyone — because those kinds of work constitute knowledge products rather than creative expression, and since restricting access to knowledge is inherently wrong, access (including unlimited reuse rights) should be freely granted to all. In this view, it’s copyright restriction itself that is actually malum in se, and copyright infringement, therefore, would be (at most) malum prohibitum — if not full-on bonum.

Piracy as guerilla reform?

Some who see things this way have decided not to wait for the world to catch up with their enlightened views on intellectual property, and instead have taken a guerilla approach. Sci-Hub is the most obvious example and the one most prominently in the news at the moment, but it’s by no means the only one. There is also LibGen, which does with books what SciHub does with journal articles. Consider also the “Guerilla Open Access Manifesto,” which encourages people to “(trade) passwords with colleagues,” to “(liberate) the information locked up by the publishers and (share it) with all your friends,” and to “download scientific journals and upload them to file sharing networks.” Sounds extreme? Maybe so, but it gets quoted approvingly quite often — for example, here, here, here, and here. (Favorite line from that last example: “I entirely agree with his views… and I think any rational person given proper information on the issue would agree.” Womp.)

It’s this view, I believe, that lies at the foundation of the library’s world’s general ambivalence about Sci-Hub, LibGen, and other more-or-less organized piracy operations. When someone raises the objection that piracy is wrong, the response among many librarians — though not all, and not usually expressed in so many words — is basically “No, what’s genuinely wrong is restricting access to knowledge; copyright piracy as a method of opening up access to knowledge is not ‘wrong’ — it’s merely illegal.”

And here, I guess, the two sides of this argument find themselves at an impasse, because the whole malum prohibitum/malum in se argument really boils down to a question of moral philosophy. The law clearly treats copyright infringement as an act that harms others both by infringing on their exclusive rights and, in some cases, by causing them real financial damage. But if you don’t believe that a copyright holder’s rights ought to be exclusive, or that the harm is real, or that it’s a kind of harm people can reasonably expect the law to protect them from, then we’re kind of stuck. And copyright holders are left just hoping that the law will continue doing its imperfect best to protect their rights.

Rick Anderson

Rick Anderson

Rick Anderson is Associate Dean for Collections and Scholarly Communication in the J. Willard Marriott Library at the University of Utah. He speaks and writes regularly on issues related to libraries, scholarly communication, and higher education, and has served as president of NASIG and of the Society for Scholarly Publishing.

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Discussion

48 Thoughts on "Is Copyright Piracy Morally Wrong or Merely Illegal? The Malum Prohibitum/Malum in Se Conundrum"

A great piece, Rick, thank you. I think the views of many in academia around the “is copyright piracy morally or legally wrong?” question will depend on whether the rights are still owned by the original creator (authors in this case) or a party to whom it has been transferred (here, the publisher). Many would sympathise with authors being able to protect their own moral rights or make a living from their creations, but are less sympathetic when it comes to publishers protecting copyright that many believe they have ‘immorally’ obtained from authors in the first place. Inflicting copyright ‘harm’ on an individual author seems less defensible than inflicting ‘harm’ on an international conglomerate, that many feel are harming scholarly communication practices through copyright acquisition. Robin Hood syndrome…

Right — elsewhere, I’ve characterized this as the “malum in se, sed…” (“wrong in itself, but…”) argument. I wonder how those who hold this view would apply it to situations where the target of copyright piracy is a small, non-profit company (i.e., one of the vast majority of scholarly publishers). Or how it applies in situations where authors genuinely believe (however benightedly) that they have freely chosen to exchange the copyright in their work for publishing services that they value.

I’m not sure there’s a clean line to be drawn there. Where an author is earning royalties (and relying on that income to make a living), they have likely transferred their rights to their publisher. Were those rights “immorally obtained” if the author made a sound business decision that would help him/her earn more money through the services their publisher provides?

And in practice, when someone in academia downloads a journal article or book from a pirate site, do they first check to see its copyright status so they can weigh these issues, or do most just want to get something for free?

> the whole malum prohibitum/malum in se argument really boils down to a question of moral philosophy.

Not exactly. I think that people outside the publishing industry see the “malum in se” interpretation in legal code as evidence of the influence of wealth and lobbying to create property (and crime) where there was previously none, to the benefit of those who are already wealthy. This isn’t a matter of morality. It’s a matter of justice (denied).

There is no such thing as “malum in se”. All humanity has is a multitude of social contracts, shared by varying groups of the species and enforced to varying degrees.

The very concept of “property” – even for objects you can put into your pocket – is a social contract, nothing more. And “intellectual property theft” is removed from empirical reality at each of those words: it is breach of a social contract about a social contract extended by a social contract. Thrice-removed from “in se”.

Letting go of moral universalism as argument allows more rational negotiations. Yes, copyright infringement is “only” mala prohibita. But so is murder.

Law is all that stands between us and the abyss. If some social contracts around property have become outdated and harmful, the options are to negotiate better social contracts, or breach that contract knowing that other people on that contract may seek to enforce it or punish you.

To follow up on Elizabeth Gadd’s comment, it is worth noting that, contrary to the disinformation put out by piracy apologists like Eileen Joy in the comments thread to last week’s discussion of Sci-Hub, no pirated book site makes a distinction between pirating work whose copyright is held by the author, or by a small independent publisher, and pirating work whose copyright is held by a “corporate conglomerate.”

How could it be otherwise when at aaaarg.fail, for example, each and every one of the site’s half-million “members” can upload anything they want, which means that the site is full of the publications of small literary and non-fiction presses, for example. No distinction is made; everything is fair game.

And yet the cant and intellectual dishonesty is so thick that someone like Eileen Joy can sign her name to a defense of piracy, one peppered with references to “publicly-funded research” as if this, per the question raised by Rick’s piece, were justification enough — and as if this, crucially, were all that is being stolen by the pirate sites in question, such as Sci-Hub and aaaarg.fail and one assumes lib.gen and the others also. Thus Eileen Joy from last week on this site:

“I will always respect copyright law when to do so is to ensure that creators’ needs (economic and otherwise) are met, and also to help support the eco-system of university-based and other not-for-profit presses who depend on mutual respect and mutual aid. I do not support copyright law when it is used as a bludgeoning tool to go after individuals and entities who have created what I would call shadow, or underground, libraries for the specific purpose of making publicly-funded research available to persons merely who otherwise could never access it.”

Like the politician who pays lip service to the very ideals to which he or she is opposed, here we have a defense of piracy based on notions (the piracy Ms. Joy supports “ensures that creators’ needs are met”) that are contradicted by the facts. In fact the very lawsuit against aaarg fail that Ms. Joy references, in her financial support of the site, was about an individual creator whose work was repeatedly pirated on the site.

One further comment with respect to Rick’s piece. It would be hard to find many people today who would argue that jaywalking is a malum in se rather than a malum prohibitum, or who don’t on occasion jaywalk. But many of the things that are prohibited in our lives are so not just because of the possible effects of an individual action, but also because the legislator foresaw what would happen if everyone started doing it. I suspect the reason one can’t fish out of season is because that’s when fish are reproducing. If everyone were to fish then, there would be no fish the following season – for those who didn’t fish illegally also.

So here lies a new conundrum, perhaps, through which we can see that piracy is less like building a garage for your home without a permit (but this is to ensure that the design is sound, that it won’t collapse on the person you sell your home to one day, and that the added value to your home is considered in your property taxes, so you’re paying your fair share) and more like shoplifting: if just a few people do it, the store will probably survive. If everyone does it, how do people expect the store they like to walk into and shoplift from to keep its doors open? Piracy is one of those things that is fun for a vanguard while it’s practiced by a minority, but absolutely untenable once everyone starts doing it.

These are some of the ways in which a malum prohibitum can in fact have serious consequences. Bookstores will close; library and university administrators, when they see journals no longer being consulted because everyone is using Sci-Hub, will drop their subscription; those same administrators, when they see foot traffic and circulation figures drop precipitously in their libraries, will slash budgets, shelve expansion plans, etc. Publishers, when a new humanities author’s work does not sell well (but is loved on lib.gen and aaaarg.fail by its intended market), will not sign the author to a second book. The pirates will never address these issues – as I invited Eileen Joy to last week, and got no response, other than a few piracy kool-aid fueled rants.

What’s wrong — in my opinion — is failing to focus on monetization, the incentive copyright is intended to fuel. Current copyright approaches generally write a check to creators that they cannot and will never cash with their emphasis on theoretical control approaches that never bear fruit. Comparing art, culture and knowledge to mere chattel and property is a mistake.

If it’s illegal and akin to shoplifting, why won’t the police respond to piracy claims, with the public prosecutor handling the case? Why is infringement a self-handled civil case and generally not a criminal matter? Answer: It’s not shoplifting and judges do not permit the word theft in US courtrooms when copyright issues are discussed: See https://bit.ly/2r95SL5 or:

https://en.wikipedia.org/wiki/Dowling_v._United_States

More to the point: Why so conditional? Why wrong now but OK after a time period, after which it intentionally becomes public property? Why extensive fair use defenses? Why so much creativity excluded from copyright application at all, and why does application vary widely from jurisdiction to jurisdiction, law to law (14 years for pharma patents, life plus 70 for music)?

Why statutory licensing in so many cases? Is this a taking of property? What do we make of libraries, dedicated as they are to equalizing access to art, knowledge, culture — are libraries communism? If I copy a music disc borrowed from the library — or a photocopy made — is that, too, theft? (Those who know the law assure me it is not in the US.)

When cures arise — to cite just one example — who among us would choose to allocate them based on the size of someone’s wallet, worse still their parents’ wallet? Why do the same with knowledge shared that can lead to cures and general progress in the arts and sciences?

Remuneration and monetization are keys, not control, because they are the purposes of so-called IP protections, temporary monopolies intended to incentivize creativity. Putting the cart of control before the creative engine and its purposes deprives us of the benefits of stimulating progress in the arts and offers nothing but confusion to those seeking answers to the thought-provoking questions posed by this otherwise well-written essay.

The focus should be on aggregating and licensing both content and users. It is much more about motives than it is about mechanisms. About getting culture financed, not controlled. We can do the former but the latter recedes at a rapid pace once digital.

Further, we need to find new mediums instead of doubling down on controlling the old ones. The expression of modern science is increasingly incompatible with English language in a Western character set in black text on a white PDF background. McLuhan put it well: Mediums are our messages, so let’s freshen them through innovation.

Remember, we hold a great deal more in an open hand than we do a closed fist. It was only when the music industry turned from enforcement to creative, flat-fee licensing that it recovered from its slide, a canary in all our mines.

I see it’s time to reiterate our long-standing policy on avoiding semantic arguments from non-lawyers over whether copyright infringement should e considered “theft”. There is significant precedent of courts considering the taking of intangible rights as “theft”, and the Dowling case often cited is a very limited decision, relevant only to the NSPA, rather than law in general. For more details and a significant quantity of legal precedent for considering copyright infringement to be theft, see this article:
http://www.copyhype.com/2013/09/why-copyright-infringement-is-theft/

That said, these arguments are usually red herrings that distract away from the concepts being discussed, causing conversations to get lost in the weeds of specific legal vocabulary. We request that such arguments over legal jargon be taken to other more appropriate forums.

Agreed, I wrote what I did because I find such discussions misleading and I responded to just such claims that belong instead in legal forums than a discussion on finding our way forward.

There’s a very simple answer to one of these “questions”: the police no longer prosecute copyright infringement simply because it’s become so widespread. Many police agencies, such as the FBI and the Australian national police, no longer accept copyright infringement complaints from the public. But piracy remains a criminal act, and it is simply nonsense to marshall the fact that it is rarely prosecuted to argue that infringement is “generally not a criminal matter” as the author of this comment claims. It *is* a “criminal matter,” i.e. defined as a criminal act; it is just not widely prosecuted (and the recent case of Pirate Bay, among others, disproves this notion as well). Thus the USA has an agency supposedly mandated to investigate complaints with a view to prosecution, while the Australians appear to have simply given up.

Given that my whole posting here is based substantially on a semantic argument, I’m fine with discussing this issue with you, Jim. What I’m curious about is how to square the fact that U.S. statute very clearly classifies criminal infringement of a copyright as a subcategory of property theft with the Supreme Court’s finding in the Dowling case (not to mention the piracy=theft findings that David cites above). Could part of the explanation be that in this particular case, the issue was much narrower than a question of whether copyright piracy represents property theft, and had more to do with the interstate commerce question (and whether the physical records themselves constituted stolen property, as distinct from the intellectual content of those records)?

Yet other statutes offer blanket licenses for set fees, govt completely substituting its judgment for that of those with claims to property rights.

In our lifetimes, we will not regain control of digits, not in an effective, efficient manner. It is our responsibility, our challenge, our opportunity it monetize that lack of control, much as does insurance permit those who accidentally kill and maim to sleep in their own bed after an accident.

Shimon Peres put it well: “If a problem has no solution, it not be a problem, but a fact — not to be solved, but to be coped with over time.”

Yet other statutes offer blanket licenses for set fees, govt completely substituting its judgment for that of those with claims to property rights.

Governments frequently seize physical property through eminent domain, civil forfeiture and other activities. Governments can institute specific pricing schemes on physical products as well (e.g. price gouging laws). Just last month the US government substituted its judgment over my claim to my income, which it seems to want from me in taxes. This argument would suggest the IP is no different from physical property as far as governments are concerned.

Slippery, David. Those seizures have different justifications, and you know it. Indeed, IP is very different from physical property for a long list of reasons you’d prefer we left to lawyers.

The key point I made: The law — especially copyright — is neither more nor less than what Congress says it is (although with natural rights the law is irrelevant and can be over-ridden by Congress).

What you call IP “rights” are not moral rights at all, merely a patchwork quilt of regulations and laws fashioned from political interest.

In the beginning of 1972, sound recordings were not covered by copyright. After the Spring of 1972, they were covered. Did morality change? No. The law changed. A vote of Congress in response to rent seeking lobbyists.

Were sound recording artists in the years pre-72 lacking incentive to create? Were we deprived of great music? Really? And if incentive to create is the guide, how does our current status of being awash in quantity and quality of creative works reconcile with being awash in piracy?

I agree. Let’s focus on monetization and the incentive to create, how we refresh and optimize the mediums for scholarly discourse. The remainder is a debate besides the point and ill-serves the creative community.

I will put it this way: Creativity is risk, and the response to risk is monetization ala insurance. Sometimes digital rewards, sometimes it deprives, but the response to risk is at its best actuarial.

So, it’s just a matter of whether copyright violation is handled by a moral authority (priest, reverend, deity) or by lawyers, I guess. I’d point out that the two aren’t mutually exclusive.

I hope the “merely” in the headline is tongue-in-cheek, as “merely illegal” is pretty funny if so.

Take-away message — any way you cut it, it’s wrong.

The question is licensing. It is not “wrong” if use is licensed and monetized.

It is an opportunity, this sort of demand. Jack Valentiz assured us repeatedly VCR “piracy” was akin to “leaving the Boston Strangler with a woman alone.”

Today we license and monetize just this activity, once considered on par with the most savage form of murder. It’s our ability to rise to the challenge and responsibility for intelligent, remunerative licensing growth that defines us, not facile claims of it being wrong or theft.

We increasingly cannot control supply against growing demand. The loss of actual control is surely a massive actuarial opportunity, not unlike Spotify.

Jim, is anyone arguing that licensed use of copyrighted material is wrong? The topic here is piracy (i.e. unlicensed and illegal use), not licensing.

The journey from piracy to licensing is precisely my point, and it addresses yours: Our focus should be less on how to prosecute and define piracy and more about how to transform the relationship into a licensed one.

How do we get to yes? How do we get licensing to grow? What is that proposition? How does it work? Put simply, how do we reduce if not eliminate the motive for piracy? Dealing with its mechanisms has proved an endless mouse hunt, legislation and lawyers included, and the arc of digital suggests this will accelerate.

I’m sure you’re addressing someone’s point here, Jim, but it’s definitely not the one I’m making in this posting.

Apologies for that. I continue to think it is spot on, the very essence of the discussion, and I urge you to reconsider, but I accept your conclusion and bow out of your discussion.

If you’ve ever used your cell phone while driving, the potential deadly damage is utterly catastrophic. Piracy, not so much.

I suspect that if, through the sales of your creative works, you do things like pay for shelter and food for your family, or pay your medical bills and such, one might find the loss of that income “catastrophic”.

The “people depend on it to feed their families” argument is a really bad argument.

Bank robbers also depend on the revenues from their work to feed their families. But this in no way means that stopping bank robbers is wrong.

There are other ways to make a living. Copyright owners could work and live on daily wages like the rest of us.

I’m trying to follow you here. Your claim it is wrong for people to make their living through copyright, an activity that is perfectly legal, because you see it as analogous to robbing banks, which is decidedly not legal?

Curious about the phrase “perfectly legal.”

Tell us more. I do hope you are not suggesting that copyright activities are immune from legal scrutiny. After all, Jefferson and others found monopolies abhorrent, especially monopolies on ideas and their expression. All copyright collectives are under scrutiny for competitions issues, amongst other inquiries. In addition, some enforcement campaigns have led to serious regrets and legal questions.

Not to mention issues related to the allocation of rewards. Serious legal issues arise in this area such that I hesitate to call the activity “perfectly legal”. Indeed, the length of copyright terms continues to expand without end in our country, where copyright and other protections are inherently restricted to limited terms by the constitution.

Copyright is less about the law than it is about getting creators paid, incentivizing creativity. Do we lack scholarly or creative output? Is there evidence we are failing to incentivize? Or does the evidence of rising user generated content point to the contrary?

Sure, happy to interpret the phrase for you. “Perfectly legal” is an conversational phrase meant to indicate not illegal per se. Unlike bank robbery which is, I hope we can agree, illegal. In does not suggest any of the things that it seems you were worried it might so you needn’t be concerned!

Some obvious forms of bank robbery are illegal, primarily those from the outside. Inside jobs? Not so clear. How many were jailed in the US banking scandals?

Which is my point. It’s easier when it’s a standalone lemonade stand, dicier with aggregation. I am not “worried” about the problems I cited — they are real and present dangers.

Both the suspension of competitions law and the aggregation of rights raise serious questions about the perfect legality you claim.

Let’s be clear: I favor the purpose of “copyright” — incentivizing creativity with reward — but what sort of “right” has it turned out to be? Is our common understanding of “rights” to mean whatever Congress assigns? Do copyright laws truly address copying? Aren’t computers copying machines?

Think of it as copyrisk. Creators run copying risks (sometimes good, sometimes bad) and compensation is generally how we address risk. Enforcement? Not so popular, even when we can agree on the issues — ask college campuses about the old music enforcement campaign. So much for “perfectly legal”.

That something wasn’t prosecuted doesn’t mean that it wasn’t illegal. I don’t think what I said was really all that confusing (though I’ll apologize in advance if that my decision about that leaves you in a state of confusion) and ultimately my question is really to Stephen re if he thinks it is inherently wrong to make one’s living by copyright. I’ll let you have the last word on my phrase “perfectly legal” if you want to reply further. Best, Lisa

No particular need for the last word but a desire to be clear that the devil is in the details. I am definitely not asserting that it is inherently wrong to make one’s living by copyright — but neither is it perfectly legal to do so. It depends on how you do so, and increasingly it is both ineffective — and of questionable morality — to simply assert one’s “right” to stop others from making copies without asking permission.

Thirsting for art, knowledge, culture is not immoral, nor is slaking that thirst. Trading control for compensation is the answer.

Remember the old joke? Would you do X?

Of course not, that’s immoral!

Would you do it for a million dollars?

Sure, where’s the million?

Now we’re no longer discussing morality, we’re simply discussing the price.

A bit of reflection urges me to re-assert the point: How can copyright be “perfectly legal” when its enforcement for, say, songwriters requires on-going dispensation and supervision from the US Dept of Justice in the form of consent decrees that admit the collective activity is violative of US antitrust laws?

My mother would’ve said that no activity that requires a lawyer — let alone teams of them — is perfectly legal. I suspect she was right!

I think we’re going off into the weeds here. If any activity that requires a lawyer is not considered “perfectly legal” then we have a problem with buying a house, writing a will, etc.

It’s a good thing we are discussing this if you are under such a mistaken impression that you think the involvement of lawyers in these matters is pro-forma and routine.

In fact, the on-going collection of royalties by ASCAP/BMI is subject to DOJ supervision due to its anti-competitive nature. It is permitted solely due to compliance with a special set of rules overseen by courts on a day-to-day basis.

As regards scholarly publishing, CCC waited years for a letter from the Dept of Justice before it began collecting royalties and distributing them to members:

https://www.justice.gov/archive/atr/public/press_releases/1993/211650.htm

These are not trivial matters like house closings or wills. They are on-going competitions questions, and they arise due to the inherently collective nature of group copyright enforcement.

To be clear, I’d give them a permanent competitions waiver for precisely this reason, much as we have for organized sports, but it’s a big issue. And I repeat: I very much favor growing the revenue for art, knowledge and culture, but it is pollyanna to pretend it is entirely innocent activity.

Whenever business owners collectivize their interests with regards to price, terms and conditions, these questions are raised and addressed in an on-going manner because they do call into question compliance with anti-trust laws.

The suggestion is that unauthorized copying is wrong because people depend selling content to feed their families.

In response I point out that people do lots of things to feed their families. The mere fact that they’re feeding their families doesn’t make it wrong to stop them (or oppose them, or make it more difficult, etc).

Yes, act A is legal and act B is illegal. But that is a fact *independent* of whether people are doing it to feed their families.

Saying that people use copyright to feed their families adds no weight to the suggestion that it is right, or that opposing them is wrong.

After all, people who are copying content without authorization are just trying to feed their families too. And they may be in fact feeding more families than the copyright owners.

The “feed your families” comment was not a justification for copyright law, rather a response to someone who was belittling the potential damage done when such laws are broken. It’s a result of copyright law (one can make a living being creative) rather than a reason for copyright law to exist (the betterment of society).

I’m not sure that’s a world I want to live in. The purpose of copyright is, “To promote the progress of Science and useful Arts.” The idea is that this progress is a positive force for society, and thus worth trying to support.

How long does it take to write a great novel? How much longer would it take if the author was working 40 hours a week, 50 weeks a year? How many would still make that effort knowing that they wouldn’t be able to financially benefit from the novel, in fact, it would be a major cost-sink for them, as they would need to pay for editing, design, promotion, making it available, etc.? Why bother?

So a massive decrease in literature, no more Picassos, no more Princes, because who has time to paint or play guitar after a hard day at the factory? As a society, do we value a great work of art more than we value 8 hours of service at a fast food restaurant? Your argument suggests that we shouldn’t.

I’d like to address your points about copyright and income. While I do support artists’ ability to earn royalties from their creations, I fear that you have greatly misunderstood the reality of creative pursuits in the contemporary USA. Because I’m most familiar with print publishing, I’ll focus on that here. I’d wager that you’d be amazed at how many of your favorite authors make a living solely from their published books and/or short works. The number is appallingly low, and writers who make a living solely off of their craft are rare, even more so when you consider writers whose main gig is writing published books.

It can take years to write a great novel, and indeed it often does precisely because the author is working a day job and carving out space for undervalued creative pursuits in their non-work time. Advances for first-time novelists are fleetingly rare and even more rarely provide enough money to live on, even for the limited period during which one would expect that author to complete the work. In fact, many authors undertake great efforts to put their words into the world without expectation of (but perhaps, yes, hoping for) financial compensation, as evidenced by the success of NaNoWriMo, the popularity of fan-fiction, and the rise of self-publication. In the latter case, authors pay out of their own pocket for editorial, design, and distribution services with absolutely no guarantee of making a dime. Nor are self-published books necessarily inferior to their traditionally published counterparts; I, for one, am grateful that Andy Weir decided to peck away at his irreverent science fiction while working a demanding full-time job (an exception to the rule, yes, but an example of a well-received work of fiction created outside of the immediate expectation of profit) and distributed initially for free. Clearly these authors are getting something out of the process, particularly those who distribute their works for free.

Again, I believe that creators deserve to be compensated for their work and would love to live in a world that places a high value on artistic pursuits and compensates these pursuits with adequate financial rewards. That does not change the fact that financial gain is not, for most people working in creative pursuits, the primary aim of their work or even a realistic one.

“How long does it take to write a great novel? How much longer would it take if the author was working 40 hours a week, 50 weeks a year? How many would still make that effort knowing that they wouldn’t be able to financially benefit from the novel…”

Well, let’s think about this.

We can be pretty sure when a person writes well enough to know that they’ll write a good novel if given the space and the time.

So why not just pay them a salary for a year or so and let them write at their leisure. We might even help them out with editing and proofing costs. Maybe even research.

I’d do it now. I could write some *terrific* books given the time and space to do that, and I would have a lot of *incentive* to do so knowing that they’re be made available nearly free to readers (and hence widely read).

This would cap the cost of a novel at, say, $300K, give or take. That would work out to 30 cents a copy for a million copies. *Maybe* we round everything up to a dollar (meaning we’ve invested a million dollars on our novel, far more than is actually spent for purely digital distribution), but that’s pushing it.

At $1 a novel, there’s no unauthorized copying, because it’s not worth the effort. We’ve already seen how this works with music and video. I’m happy to pay my $8 a month for Google Music, and another $8 for Netflix.

Publishers can’t let go of the golden goose. But they don’t realize that their grip is so tight they’re cooking it.

Soooooo, we’re just going to give anyone who thinks they can write a novel $300K? Sign me up. Who’s paying, by the way?

As for the notion that there’s some magical price point where books that normally sell modestly to a small audience (even worse for scholarly works) will magically sell millions of copies to everyone, I’ll quote an expert here, Cory Doctorow:
https://www.locusmag.com/Features/2008/09/cory-doctorow-macropayments.html

This is a marked departure from the traditional wisdom of selling creative works online, which is generally about “micropayments,” a hoary science-fictional notion that captured the imaginations of dotcom marketers in the 1990s: the idea is that one can sell goods to even the flintiest of customers just by dropping the cost low enough — charging a tenth of a cent to read a single blog-post or to look at three photos. In micros’ heyday, the theory was that once new computer-driven efficiency made credit-card processing cheap enough, it would be possible to pull this off, either by aggregating the charges before processing them or by inventing new payment-processing systems that could efficiently run tiny charges in realtime without keeling over under the weight of the transaction charges. Once that system is in place, we just need to fiddle around with pricing and sizing until we find the magic sweet-spot where people an be coaxed into parting with enough dough to make a difference to the seller without the dough being enough to actually register as an expense on their internal balance sheet.

Micros have not had much success in the wild. Sure, there are the tiny pay-per-click markets of Google’s AdWords program, but the real action in AdWords is in the popular terms (“asbestos,” or “travel” or even “sex”) where the auction market for AdWords drives the cost per click up into the macropayment realm — for example, ambulance chasers have been known to bid up the price-per-click on “asbestos” to $100. In general, the cost of figuring out whether you want to pay a sum (what Clay Shirky calls the “mental transaction cost”) remains high, no matter how small the monetary cost and no matter how efficient the system is. The web’s strength is in how adventurous it encourages us to be in what we click on — that’s how we get exposed to such a breadth of material online. Adding even a tiny cost to a link brings the cost of being adventurous from zero to non-zero, a step-change that requires enough thought that the overwhelming majority shrug and find a cheaper link to follow. The web isn’t short of links.

There is another element related to this discussion that would benefit from reflection in the librarians’ case. That is, the license agreement or contract. The thoughtful discussion above focuses on an individual’s beliefs and their evaluation of choices about whether to engage in acts of disobedience of one kind or another. But many of us also work for organizations, and act as representatives of those organizations. What if you are a librarian working at college or university that has signed a license with the publisher to carry out certain activities that support a publisher’s assertion of copyright? Perhaps you believe that the license agreement should not have been signed, that there was unequal power, or that copyright is malum prohibitum, or whatever. Nevertheless, there is a license agreement signed by your institution and your behavior takes on greater weight in this context. As a representative of the institution, what are the implications if you choose to guide or help students, faculty, or others to gain access to pirated content? The question in this case then becomes one not limited to personal philosophy and copyright law, but also organizational alignment and contract law. And the degree to which we as individuals and employees respect those frameworks and commitments.

Good comments, Kevin, thanks. You’re right that when librarians themselves actively engage in copyright infringement (or help students to do so), they may well be not only breaking the law itself, but also breaching contracts. This is one reason, I think, why you will rarely hear librarians explicitly encouraging that kind of behavior. In my experience, the much more common response from my colleagues when these issues are raised is either strategic silence, or a sort of winking “Well, obviously what SciHub is doing is illegal, but boy, you’ve got to admire the girl’s moxie.” (And, of course, there are also many librarians–maybe even most of us–who actively discourage the use of piracy sites and who actively seek to educate library patrons about the responsible use of copyrighted material.)

I am returning to the point made by Elizabeth Gadd. It always worries me when librarians or research managers speak about what views academia have. I think one thing we can be sure about is that very few researchers will perceive research managers and librarians as in any sense speaking for them. If there was a research manager who might be a spokesperson for the research community Elizabeth might fit that job description so this is not a personal remark. I have just been to a meeting where senior librarians really believed that university heads and administrators spoke for the research community. My own experience as an academic researcher is that vice chancellors are rarely respected by those who do the work of research and teaching. What has happened to the idea that one might listen to the views of those who do represent the views of researchers. Learned and Professional societies and associations are membership organisations and the members of researchers in the appropriate discipline. I have never heard of them supporting SciHub.

As PhD student, I can assure you that I have heard researchers (faculty and other graduate students) recommending sites that I as a librarian recognize as piracy sites. One interesting thing in those conversations is that the person making the recommendation may not realize that they are using a piracy site – they may think is is just another online database (and since they don’t know when they *are* using a library database – it doesn’t surprise me that they don’t realize when they are not!).

What you gaven’t talked about is the whole issue of copyright holders who aren’t the creators – like scholarly publishers. I think most people who would agree that illegal copying harms creators wouldn’t care about harming copyright holders who haven’t created or even paid for the content they are making money from.

Authors routinely sign over their rights to publishers (including both trade and scholarly publishers) in exchange for services that they receive. A book author signs over rights to their publisher to get the book edited, designed, printed, marketed, etc. Journal authors have the choice to pay for the publisher’s services directly through Gold OA, or instead can pass those costs on to readers, and sign over some set of rights to the publisher/journal. To claim that the publisher has not “paid” for the content is incorrect, as it has been paid for through services rendered, or often in the case of books, through direct payments of advances and royalties.

If an author deliberately makes that choice, rather than self-publishing and paying for/doing all that work themselves, is that the only rationale one should consider as to whether to respect the law?

Please name a “scholarly publisher” in the humanities or social sciences “making money from” “content they haven’t created.”

Also, do you consider the design, copy-editing, production, and marketing of a book “creating it”? And do you think the people who do that work are entitled to be paid for it?

King Crimson, by the way, is an example of the arbitrary nature of this so-called “moral” issue: Sound recordings were not covered by copyright in the US until the Spring of 1972.

OK one month, wrong the next, eh? How about fonts? Covered or not? Is it truly a moral and not a political issue? I am skeptical.

In my opinion, our job is to focus on rewards, allocations and incentives. We fail artists when we blame morals or the law for what is our business opportunity, seemingly a diversion from the point: In an attention-based economy, we are more likely selling the crowd content draws, not the content itself.

How do we replace the PDF? How do we build a sustainable economy around that? These are challenges to which we are well-suited. Controlling the quantity and destiny of digits? Not so much.

Isn’t there is a very rich middle ground here, Rick? Is there really an either/or, black/white choice between respecting copyright or dismissing it? Take open access, for instance. As we move toward a more open world, we have before us an opportunity to add more structure and tapestry to what it means to allow greater access to research work (the goal of a copyright-free world) while still preserving the incentives of publishers to serve the research community. For instance, with APC-funded open journals, copyright can still exist and the needs of publishers can still be met. Other variations on this theme might include having fewer copyright limitations on using preprint versions (providing authors consent to this), reducing embargo periods, negotiating methods for releasing older articles en masse, reducing prices (via an iTunes model) to where individual articles are essentially free, and much more. Even considering author royalty systems might be an interesting fix—tethering the publishing rewards more firmly to authors and their institutions. Journal articles may seem to exist in a netherworld of copyright because of the issues you’ve identified, where every perspective is valid, important, but in apparent conflict. The reality, however, is that everyone can get what they need and want from this system with just a little more structure—we may be almost there.

There’s definitely a broad spectrum of attitudes related to copyright–people can and do think about it in ways that shade the difference between strict observance of copyright law and outright piracy. (My own attitude is that as librarians, it’s our job both to observe copyright law strictly and to assert our fair use rights aggressively.) But I think what you’re proposing here, Glenn, isn’t a sort of compromise between respecting copyright and abusing it, but rather a variety of different approaches that copyright holders might take to granting or licensing their rights, depending on what kind of openness of access and reuse they want to achieve. None of the approaches you recommend poses a threat to the integrity of copyright, as long as rightsholders are freely and intentionally granting the rights in question.

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