In Defence of Piracy, Part II: Enclosures and Resistance


  • January 25, 2021
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We ended Part I by acknowledging the willingness of large publishing corporations to adopt Open Access (OA) publishing protocols, if only in name, in response to widespread demand for it by researchers across the globe. To some, this may seem encouraging. It might even suggest that the publishing industry can be reformed. Indeed, much of academia — being as it is an inexhaustible fount of unbridled idealism — continues to entertain the notion that these companies, when threatened with resignations and boycotts by editorial boards and referees, will succumb to public pressure, renounce their profit-seeking ways, and make access to knowledge free for all.

 

What motivates this abundance of optimism is unclear, and we will not speculate on this here. Rather, our goal in Part II of this essay will be to better understand academic publishing. We offer the reader two analogies to demonstrate the defects in the current modus vivendi of academic publishing and then discuss the revolutionary departure from it that Sci-Hub and Libgen represent. These will serve as a reminder that appearances can be deceiving, and form is not essence.

 – The NotA Collective

 

Enclosures

 

Recall that in Part I we traced the evolution of academic literature from a commons to a commodity. There’s a word for this in another context: In England, the enclosures were processes by which common land was fenced off and turned into private property, prompting the British historian E. P. Thomson to write “Enclosure (when all the sophistications are allowed for) was a plain enough case of class robbery.”1 A popular, anonymously authored, and epigrammatic condemnation of the enclosures is well worth quoting from:

 

“The law locks up the man or woman
Who steals the goose from off the common
But leaves the greater villain loose
Who steals the common from off the goose.

 

The law demands that we atone
When we take things we do not own
But leaves the lords and ladies fine
Who take things that are yours and mine.”

 

The parallels are quite striking. It is illegal for a graduate student to use Sci-Hub to download a paper, but it is perfectly fine for publishing corporations to “paywall” publicly funded research. In particular, it is important to keep in mind that the enclosures were accompanied by legislation, i.e. that the appropriation took place within a legal framework that enjoyed the support of the state:

“Communal property — always distinct from the State property just dealt with — was an old Teutonic institution which lived on under cover of feudalism. We have seen how the forcible usurpation of this, generally accompanied by the turning of arable into pasture land, begins at the end of the 15th and extends into the 16th century. But, at that time, the process was carried on by means of individual acts of violence against which legislation, for a hundred and fifty years, fought in vain. The advance made by the 18th century shows itself in this, that the law itself becomes now the instrument of the theft of the people’s land, although the large farmers make use of their little independent methods as well. The parliamentary form of the robbery is that of Acts for enclosures of Commons, in other words, decrees by which the landlords grant themselves the people’s land as private property, decrees of expropriation of the people. Sir F. M. Eden refutes his own crafty special pleading, in which he tries to represent communal property as the private property of the great landlords who have taken the place of the feudal lords, when he, himself, demands a ‘general Act of Parliament for the enclosure of Commons’ (admitting thereby that a parliamentary coup d’état is necessary for its transformation into private property), and moreover calls on the legislature for the indemnification for the expropriated poor.”2

 

Further, large publishing corporations like Elsevier, Wiley, and Springer have repeatedly used legal means to hamstring any efforts to make knowledge more widely accessible. From the statement In Solidarity with Library Genesis and Sci-Hub:

“Commercial publishers effectively impede open access, criminalize us, prosecute our heroes and heroines, and destroy our libraries, again and again. Before Science Hub and Library Genesis there was Library.nu or Gigapedia; before Gigapedia there was textz.com; before textz.com there was little; and before there was little there was nothing. That’s what they want: to reduce most of us back to nothing. And they have the full support of the courts and law to do exactly that.”3

 

This is the essence of the court case we started this two-part article with, brought by Elsevier, Wiley, and the American Chemical Society against Alexandra Elbakyan’s Sci-Hub, and Libgen.

 

There is a narrative surrounding the enclosures that celebrates them. According to this narrative, the enclosures represented

“…[an] innovation in property systems [that] allowed [for] an unparalleled expansion of productive possibilities. By transferring inefficiently managed common land into the hands of a single owner, enclosure escaped the aptly named “tragedy of the commons.” It gave incentives for large-scale investment, allowed control over exploitation, and, in general, ensured that resources could be put to their most efficient use. Before the enclosure movement, the feudal lord would not invest in drainage systems, sheep purchases, or crop rotation that might increase yields from the common—he knew all too well that the fruits of his labor could be appropriated by others. The strong private property rights and single entity control that were introduced in the enclosure movement avoid the tragedies of overuse and underinvestment: More grain will be grown, more sheep raised; consumers will benefit; and fewer people will starve in the long run.”4

 

However, there is a counter-narrative — one that won Elinor Ostrom the 2009 Nobel Prize in Economics — that is more critical of the supposed gains in efficiency brought on by the enclosures:

“It is worth noting, however, that while earlier scholarship extolled enclosure’s beneficial effects, some more recent empirical work has indicated that it had few, if any, effects in increasing agricultural production. The tragedies predicted in articles such as Hardin’s Tragedy of the Commons did not occur. In fact, the commons frequently may have been well-run, though the restraints on its depletion and the incentives for investment in it may have been “softer” than the hard-edged norms of private property. Thus, while enclosure produced significant distributional changes… there are significant questions about whether it led to greater efficiency or innovation.”5

 

In much the same way, we expect that when the dust settles, the claims of the publishing corporations to faithfully serve the interests of the scientific community (some of which we have detailed before) will be found wanting.

 

Now that we’ve established the parallel in the problem of the paywalled garden, let us also note one in the sorts of solutions offered by the system.

 

Free Trade

 

In Part I, we criticised the OA movement as an incomplete solution to the problems of academic publishing, because while it does away with subscription costs, it exacerbates publication costs.

 

In this regard, OA bears a striking similarity to the idea of “free trade” on an international stage, which is supposed to be a mutually beneficial arrangement that will, over time, enrich every participant. To pick a concrete example, the North American Free Trade Agreement (NAFTA) of 1993 between the USA, Canada and Mexico opened up Mexican markets to US corn while not opening up the US market for Mexican corn.6 In other words, the “Free Trade” consisted here, in effect, not in the freedom to trade but in a one-way pipeline from the US farm to the Mexican market.

 

Much like “Free Trade” granted Mexicans the freedom to buy US corn rather than the freedom to trade, OA only opens up the global South’s access to the output of the global North rather than to an actual exchange of ideas.

 

One might argue that the academics of the global South are entirely free to set up their own journals, whose publication costs are more affordable to local researchers. However, this is somewhat disingenuous. It is like asking the Mexican farmers above to sell their corn only in the Mexican market, which is already inundated with cheaper corn from the US A paper published in Nature is significantly more likely to be noticed, and add significantly more to one’s CV, than one published in any Indian journal, no matter how noble the goals with which the latter was set up. In other words, the global South’s academic “market” is already inundated with more “prestigious” research published in “prestigious” journals from the global North.

 

We should caution the reader that we are not saying that the two situations of NAFTA and OA are similar in every way. The analogy is specifically in the dissonance between the lofty ideal and its implementation in a fundamentally unequal system. Prestige differentials among journals, for the purpose of this analogy and only for this purpose, play the role that political power and hegemony played in NAFTA: that of forming the bridge between the ideal and the execution; that which is not to be mentioned in serious discussion.7

 

We have to believe that another way of organising access to knowledge is possible. OA and the increasing popularity of preprint archives is testament to the ability of our communities to adapt within relatively short periods of time. What, then, does the future hold for academic publishing?

 

We believe that a violent rupture from the present order is necessary, and that this revolution is Sci-Hub.

 

Resistance

 

Knowledge grows when it can be shared freely. It is enriched by a multitude of perspectives and a plurality of interpretations. However, the distribution of scientific work required making and sharing copies of said work, which publishers have traditionally argued is breach of copyright. Hence, authors forfeited the right to their intellectual property in order to achieve more distribution. Technology, however, has changed considerably since this state of affairs was established. The Internet Age and the file-sharing technologies it has birthed, where information sharing merely requires an internet connection, has rendered the copyright laws obsolete. It is therefore unclear as to how one can apply these laws to digital content or content on the internet. While noting that each expansion of the scope of intellectual copyright law is essentially “a vote of no-confidence in the productive power of the commons”, Boyle writes

“It used to be relatively hard to violate an intellectual property right. The technologies of reproduction or the activities necessary to infringe were largely, though not entirely, industrial. The person with the printing press who chooses to reproduce a book is a lot different from the person who lends the book to a friend or takes a chapter into class. The photocopier makes that distinction fuzzy, and the networked computer erases it altogether. In a networked society, copying is not only easy, it is a sine qua non of transmission, storage, caching, and, some would claim, even reading.”8

 

Crucially, for the purposes of our discussion, knowledge or information is a non-rivalrous commodity, meaning that one person’s access to knowledge does not interfere with or diminish the other’s access.9 In other words, one person knowing about morphogenesis in Drosophila doesn’t conflict with another knowing about it too — in fact, it’s better, because it means they can collaborate! Further, the non-rivalrous nature of the knowledge is the basis of pedagogy. Knowledge is a limitless property, an attribute. It is infinite, and individuals can possess arbitrary amounts of it in a way that doesn’t interfere with its acquisition by another, and there is no limitation in principle to knowledge production. All forms of copyright law say that the work of researchers is an intellectual property but there is limited discussion of whether knowledge itself can be considered a form of property, to be bought, sold, or bartered in a marketplace.10

 

The United Nations has acknowledged that the right to “scientific advancement and its benefits” is a universal right.11 The role of corporate publishers as copyright holders, then, is plainly creating unwanted barriers to the access of knowledge. In response to this state of affairs, Sci-Hub was started in 2011 by a Kazakhstani neuroscience graduate student named Alexandra Elbakyan, with the intention to remove all barriers in the way of access to scientific literature.12 Technically, Sci-Hub is a web scraper that can copy data behind paywalls and provide it to the user. It is the ultimate technological solution to the problem of financial barriers to accessing academic literature.13

 

Elbakyan was motivated by two goals: to collect all scientific literature that has ever been published and to provide unhindered access to it. “Sci-Hub puts articles in Open Access and the publishing system is accordingly transformed, just like that… Sci-Hub wasn’t intended to destroy anything. Rather the opposite, to repair and improve this process,” says Elbakyan.14 Operationally, Sci-Hub relies on user information donated by libraries or academics or by other means. With a few clicks, this portal is able to access almost any15 research paper, for free. Furthermore, each request need only be made once. After a paper has been accessed, it remains in Sci-Hub’s repositories forever. This dovetails smoothly with an aspect of internet publishing that, for publishing companies, has been their undoing: the cost of reproduction is negligible. Technically speaking, academic research articles are non-excludable, meaning “it is impossible, or at least hard, to stop one unit of the good from satisfying an infinite number of users at zero marginal cost”.16

 

Sci-Hub lies at the intersection of complicated questions of copyright law and knowledge sharing, and brings them to the forefront. That is, the debate surrounding Sci-Hub has forced us to examine more closely the political economy of knowledge production and dissemination.17

 

Further, websites like Sci-Hub and Libgen are an inestimable resource for scholars, especially those in the global South, since they do not typically have access to well-funded libraries or institutional access that their counterparts in the global North enjoy. As we mentioned earlier, practices such as bundling of journal subscriptions further drive up the costs. Thus purchase by individuals is unaffordable for all practical purposes, effectively leaving scholars in the global South with no option except to resort to piracy to continue their work.18

 

Copyright laws have been used by publishing conglomerates to establish an inequality regime: an inequality of access to knowledge. Ordinarily, one might have approached this problem by appealing for the passage of more enlightened legislation. This route has failed.19 Or, perhaps more accurately, the legislative route has lagged behind in both its ability to foresee the ruinous consequences of oligopolies in academic publishing, and its willingness to restrain their excesses. The Internet Age has allowed for a technological solution to this problem. Sci-Hub and Libgen are technological developments that threaten to dismantle this inequality regime, and this benefits academics, especially those in the global South. Of course, legislation must change, and our collective efforts ought to be directed towards making access to knowledge affordable and equitable within a legal framework. In fact, one can argue that under Indian copyright law the continued use of Sci-Hub and Libgen is legal, since (i) it is non-commercial, meaning users do not seek to earn profits from the reproduction and sale of copyrighted material, and (ii) it is fair, since the material is used for research and teaching.20 And this effort will continue. In the meanwhile, Sci-Hub and Libgen offer us a solution that is here (and welcome!) to stay.21

 

As it stands, since Sci-Hub is just one website (or person), what it does is considered to be equivalent to theft or piracy. As a result, Sci-Hub is constantly sued by publishing conglomerates, regardless of its popularity, and it is illegal in many countries.22 However, questions of the legitimacy of Sci-Hub and Libgen cannot be decided without reference to or mention of its efficacy. Consider this: Sci-Hub has about 500,000 users per day.23 The “Sci-Hub Effect” is such that the more your article is downloaded from Sci-Hub, the more it is cited in the future; using Sci-Hub to download a paper leads to the paper being cited 1.72 times more than those not downloaded using Sci-Hub.24 Since citations are clearly a measure of impact of scientific literature, such studies clearly show the positive impact Sci-Hub has on scientific communication. Sci-Hub works.

 

With Libgen too, the same is true. Textbooks are often prohibitively costly and simply cannot be afforded by a majority of the world’s learners. Each of us at Notes on the Academy can recall the time in college when a senior handed us thousands of textbooks on a hard-disk.25 We wouldn’t be the same without these websites, and they have been central to our development as academics. Ultimately, the fact that these websites are popular means that more people are reading, and learning, and sharing knowledge. This is what is at stake for students and researchers and independent scholars all across this country.

 

Sci-Hub is not merely a protest, or a stopgap. It is a revolution. It has been warmly received by the research community, not just in the global South but all around the world.26 The fact that it works so well has effectively served as a counterbalance to the power wielded by publishing conglomerates, and forced them to adopt OA in some form or another. Indeed, that Sci-Hub has been at the receiving end of multiple lawsuits like the one in the Delhi High Court is proof of its efficacy.27

 

For academics: we believe that it is time we all stop hand-wringing and being profusely apologetic or ashamed about engaging in “piracy”. The jury is out on this: if it is piracy, then we must accept that piracy allows us to do research, it allows us to teach better, and it allows our students to learn more. It is a universal good that must be protected at all costs. In fact, it requires much more of us:

“We are all custodians of knowledge, custodians of the same infrastructures that we depend on for producing knowledge, custodians of our fertile but fragile commons. To be a custodian is, de facto, to download, to share, to read, to write, to review, to edit, to digitize, to archive, to maintain libraries, to make them accessible. It is to be of use to, not to make property of, our knowledge commons.”28

 

The French liberal philosopher Marquis de Condorcet once remarked that the introduction of the printing presses allowed for the circulation of “any book required by the circumstances of the moment or the transitory changes of opinion, and, in consequence, all men who speak the same language can become alive to any question discussed anywhere.”29 The impact and importance of Sci-Hub and Libgen is fully comparable to invention of the printing press, in that it has made knowledge truly free to anyone who seeks it, anywhere in the world. It has allowed us to reach across space and time, to learn from sources we might otherwise have never encountered.

 

Sci-Hub and Libgen are the vanguard in the fight against the privatisation of our knowledge commons. They deserve our unqualified support because, to return to our analogy with the enclosures:

 

“The law locks up the man or woman
Who steals the goose from off the common
And geese will still a common lack
Till they go and steal it back.

 

FOOTNOTES
  1. Thompson, E. P. (1991), The Making of the English Working Class, Penguin. ↩︎
  2. See Marx, K. (1867), The Expropriation of the Agricultural Population, Capital (Volume I, Chapter 27), Marxist Internet Archive. ↩︎
  3. In Support of Library Genesis and Sci-Hub↩︎
  4. Boyle, J. (2003), The Second Enclosure Movement and the Construction of the Public Domain, Law and Contemporary Problems 66 (1/2) 33–74. ↩︎
  5. Ibid. ↩︎
  6. This is a rather imprecise description. For a more accurate description of the relevant parts of NAFTA and how it brought about this effect, see for example Chapter 3 of Patel, R. (2007), Stuffed And Starved: Markets, Power And The Hidden Battle For The World Food System, Portobello Books and references therein. ↩︎
  7. We do not use the word hegemony lightly here; the key decision-makers on the Mexican side had received training in economics from the University of Chicago, and were thus working according to a paradigm of economic development developed in USA. See Patel, R. (2007). ↩︎
  8. Ibid. Boyle quotes a dissenting opinion by Brandeis (Int’l News Serv. v. Associated Press, 248 U.S. 215, 250 (1918)) as writing that “the noblest of human productions—knowledge, truths ascertained, conceptions, and ideas—become, after voluntary communication to others, free as the air to common use”, and noting that “We seem to be shifting from Brandeis’s assumption… to the assumption that any commons is inefficient, if not tragic.” ↩︎
  9. See Suber, P. (2012). ↩︎
  10. See Elbakyan, A. (2016, May 20), Why Science is Better with Communism? The Case of Sci-Hub, University of North Texas Digital Library. ↩︎
  11. Wyndham, J. M., & Vitullo, M. W. (2018), Define the Human Right to Science, Science 362 (6418) 975. ↩︎
  12. Elbakyan, A. (2019), Sci-Hub and Alexandra Basic Information, Engineuring. ↩︎
  13. Elbakyan, A. (2017), Some Facts on Sci-Hub that Wikipedia Gets Wrong, Engineuring. ↩︎
  14. Interview with Alexandra Elbakyan: Advances of the Movement for Open Science, (2018). ↩︎
  15. For other papers, we recommend the facebook group Ask For PDFs from People With Institutional Access↩︎
  16. Boyle, J. (2003), The Second Enclosure Movement and the Construction of the Public Domain, Law and Contemporary Problems 66 (1/2) 33–74. ↩︎
  17. Interview with Alexandra Elbakyan (2018); Elbakyan, A. (2016). ↩︎
  18. Bohannon, J. (2016), Who’s Downloading Pirated Papers? Everyone, Science. ↩︎
  19. See Elbakyan, A. (2016). ↩︎
  20. Singh, A. (2021, January 7), Delhi High Court agrees to hear scientists, organisations in piracy suit by Elsevier and others against Sci-Hub, LibGen, Bar and Bench. ↩︎
  21. Bohannon, J. (2016). ↩︎
  22. See Elbakyan, A (2016); Elbakyan, A. (2016), Why Sci-Hub is the True Solution for Open Access: Reply to Criticism, Engineuring; Elbakyan, A. (2018), Why Sci-Hub is Illegal, and What You Can Do About It, Engineuring. ↩︎
  23. Resnick, B., & Belluz, J. (2019), The War to Free Science, Vox. ↩︎
  24. Correa, J. C., Laverde-Rojas, H., Marmolejo-Ramos, F., Tejada, J., & Bahník, Å . (2020), The Sci-Hub Effect: Sci-Hub Downloads Lead to More Article Citations, arXiv:2006.14979. ↩︎
  25. One member of the collective respectfully disagrees. In their college, the textbooks were on a computer instantly accessible on the LAN. ↩︎
  26. Bohannon, J. (2016). ↩︎
  27. Scaria, A. G. (2020). ↩︎
  28. In Solidarity with Library Genesis and Sci-Hub. ↩︎
  29. See p. 72 of Lukes, S., & Urbinati, N. (Eds.) (2012), Condorcet: Political Writings, Cambridge University Press. ↩︎

 

To read Part 1 of the article click here: In Defence of Piracy, Part I: Knowledge and Access

 

The article was originally published at https://notacademy.in/

 

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