I like doing the right thing, not because I’m essentially a “good” person, but because I am wracked with guilt if I ever do step a toe over the line of legality. It’s partly a personality quirk and partly due to the fact that as an officer of the court I took an oath to uphold the law and I took it seriously. This isn’t just a lawyer thing – I’ve also believed that librarians have an increased duty to follow the law when it comes to information transfer in order to keep ourselves “ethically pure” when having disputes with vendors over unfair practices. I believe I may have even parroted the line “if you wouldn’t steal a car, you shouldn’t download a movie.”
Lately, though, the ethically pure thing isn’t so obvious, at least not to me.
Justice Oliver Wendell Holmes Jr. famously said, “This is a court of law, not a court of justice.” This thought and ones like it helped me view the world in a much more black and white way. But lately I’ve been thinking that the world is not a court room and maybe we should consider the “just” path instead of the one that strictly complies with the law.
A guiding light of my career has been the idea that “access to information is access to justice.” I’ve been very lucky in that the information that I mainly deal with – law – is pretty clearly supposed to be free and open. Legally, ethically, morally….it’s pretty clear that people should have a right to access the law that governs them. Even if a state does try and slap a copyright notice on it or – as has been the case in other countries, completely erase the existence of law – it’s pretty clear that librarians and legal technologists are well within the side of right to post it and make it accessible to people.
Once we step out of the realm of “pure law”, things get a little tricky. There’s the case in Georgia over annotations to law, of course. But I’ve been thinking more about scholarly literature lately. It’s problematic when you think of the academic ecosystem which it exists in – universities pay faculty to do research and require them to publish it, faculty labor on scholarly journals (often for free) and create the publications, and then the universities (via library subscriptions) have to buy back (or even just lease) the information that they paid for to be created, both so their faculty can create more information and sometimes (and this is really insidious) so that the organization which publishes the information will accredit the university. The best analogy I’ve heard to this is Beth Nowviskie’s Fight Club Soap one. It’s a sucky system but it’s one that the academe has gotten itself into and will hopefully get itself out of by adopting more open publishing practices.
But when you get out of the academic ecosystem? That’s when my “ethical” and “justice” radar becomes twitchy. I have, just a gut feeling the way some people have religious beliefs, that people should be able to access information and cultural resources. And I have the United Nations backing me up on this, to a point, in Articles 19 and 27 of the Universal Declaration of Human Rights. Yes the rights of copyright holders should be protected, but how do we balance that against people’s right to access information which – in the case of scholarly literature such as medical research – could be the key to save their life? Especially when that copyright is being extended for periods way past what was originally conceived as a fair copyright term and we know much of the cost of doing this research has been paid for several times over?
I would be remiss if I didn’t mention that these issues have been in the news lately due to increased media attention on Sci-Hub. This is an underground repository of over 48 million – MILLION – scientific papers. And it’s growing – it has log ins for all the major publisher platforms and will add any requested paper to its repository and similar site called LibGen. Predictably, and rightfully, it’s currently being sued by publishers but due to its geographic location plus the elusive nature of the web, it may or may not get shut down.
I have to admit when I first heard about it I did not clutch my pearls and I wasn’t outraged at the large scale copyright infringement going on. I believe my first reaction was to smirk and think “well, this could get interesting.” I know! I’m a terrible person. But then it was pointed out to me that Sci-Hub was possibly getting its logins to databases via phishing scams instead of via willing donations by faculty co-conspirators. (Possible confirmation of this fact here.) For some reason that was a bridge too far for me and I did not feel as good about Sci-Hub as I previously had. It seems that in my current moral compass over access to information struggles, copyright infringement, theft and terms of service violations done by someone else are okay, but phishing scams are not.
I don’t know the right answer or what exactly librarians should do. I can’t even come up with a check list of things to consider, and I’m a huge fan of lists. All I know is that I’m starting to see the world of information access in more shades of grey than I ever have previously and I suspect others are doing the same.