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.
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.