Four Ways of Rationalizing Infringement: or, How to Defend a Pirate - The Scholarly Kitchen

"On the less-honest end of the rationalization spectrum are those who shake their heads with a grin and a “those darn kids” roll of the eyes, but stop well short of actually condemning Sci-Hub’s behavior. This response is sometimes couched in giggling expressions of appreciation for Sci-Hub’s moxie, and very often those who respond in that mode then quickly try to change the subject from Sci-Hub’s behavior to larger problems in the scholarly-communication ecosystem that Sci-Hub purports to solve.

On the more-honest end of the spectrum — from those, in other words, who are interested in trying to deal with the moral/ethical implications of Sci-Hub’s manifestly illegal behavior, rather than wink at or sidestep them — the responses I’ve seen so far seem to fit into one (or more) of four categories of argument:

1. Sci-Hub’s activity is neither illegal nor immoral. Again, I haven’t heard any responsible or informed member of the scholcomm community take this position, but it seems necessary to acknowledge its existence since it’s the one that Elbakyan herself has publicly taken. This stance is uncommon because it requires a truly comprehensive and bone-deep ignorance of the law.
2. Sci-Hub’s activity is illegal, but not immoral. Those taking this stance tend to appeal to the legal concept of malum prohibitum, which means “bad (because) prohibited” — as distinct from malum in se, which means “bad in itself.” This line of argument basically says “sure, copyright infringement is technically illegal, but it’s not morally wrong because it doesn’t actually hurt anyone.” In this light, copyright infringement is seen less like stealing than like speeding: a speed limit of 55 mph isn’t there because there’s something morally wrong with driving 56 mph, but rather as a way of organizing traffic and hopefully preventing accidents. In a 55-mph zone, driving 56 mph is malum prohibitum but not malum in se. Laws against stealing, however, reflect not only a societal desire to preserve the social order, but also a common societal belief that taking something that doesn’t belong to you is simply not right. From this perspective, stealing someone’s car would be both malum prohibitum and malum in se, but breaching copyright is only malum prohibitum. (An unpacking of this argument would require a separate posting in itself, but here it should suffice to say that the idea that copyright infringement never does real harm to anyone is debatable, and it may also be worth pointing out that copyright infringement can be a felony.)
3. A third position allows that Sci-Hub’s activities are both illegal and immoral, but excuses them on the basis of the odiousness of their targets. We might summarize this characterization as malum in se, sed… ('Bad in itself, but…'). This line of argument says 'OK, infringement really can cause real damage to copyright holders, and therefore you can argue that it’s morally wrong. But if the only people being hurt are big commercial publishers like Elsevier and Wiley, then what Sci-Hub is doing isn’t really morally objectionable because Elsevier and Wiley are bad guys.' You might also call this the 'Robin Hood' argument—sure, stealing is wrong, but if you’re robbing from the rich in order to give to the poor… Of course, one problem with this position is that robbing from toll-access publishers doesn’t mean just hurting the big commercial guys. Sci-Hub harms the non-profits and university presses as well.
4. A fourth line of argument has emerged as well: that Sci-Hub’s activities are positively good (even if technically illegal) because they undermine an aspect of the social order that sorely needs to be undermined. By this light, the real criminal here isn’t Sci-Hub, but publishers and others who restrict access to content — or even copyright law itself. The more radical version of this argument holds that copyright itself should be abolished; the less radical version holds that copyright law isn’t a bad thing in principle, but over the years it has mutated into something that no longer serves the public good. A person who holds this view might say, “Look, the basic idea behind copyright is great, but over the years copyright protections have expanded to a really unreasonable degree. Everyone knows that we’re not going to be able to rein in those protections by appealing to Congress. The only way we’re going to reform copyright law is by basically blowing it up and starting over.”

One thing that’s interesting about those who seek to defend Sci-Hub on the basis of any of these arguments is how touchy they often get about acknowle