I sometimes advertise sci-hub.tw – the Kazakhstani pirate site that lets you get scientific papers for free. It’s clearly illegal in the US. But is it unethical? I can think of two strong arguments that it might be:
First, we have intellectual property rights to encourage the production of intellectual goods. If everyone downloaded Black Panther, then Marvel wouldn’t get any money, the movie industry would collapse, and we would never get Black Panther 2, Black Panther Vs. Batman Vs. Superman, A Very Black Panther Christmas, Black Panther 3000: Help, We Have No Idea How To Create Original Movies Anymore, and all the other sequels and spinoffs we await with a resignation born of inevitability. This is sort of a pop-Kantian/rule-utilitarian argument: if everyone were to act as I did, our actions would be self-defeating. Or we can reframe it as a coordination problem: we’re defecting against the institutions necessary to support movies existing at all, and free-loading off our moral betters.
Second, and related, the laws have their own moral force that has to be respected. With all our celebration of civil disobedience, we forget that in general people should feel some obligation to obey laws even if they disagree with them. This is the force that keeps libertarians from evading taxes, vegetarians from sabotaging meat markets, and doctors from giving you much better medications than the ones you consent to – even when they think they can get away with it. Civil disobedience can be justifiable – see here for more discussion – but surely it should require some truly important cause, probably above the level of “I really want to watch Black Panther, but it costs $11.99 in theaters”.
(I admit I sometimes violate this principle , because I – like most people – am not perfectly moral.)
But I can also think of an argument why Sci-Hub isn’t unethical.
The reason I don’t pirate Black Panther is because, if everyone pirated movies, it would destroy the movie industry, and we would never get Lego Black Panther IV: Lego Black Panther Vs. The Frowny Emoji, and that would make people sad.
But if everyone pirated scientific papers, it would destroy Elsevier et al, and that would be frickin’ fantastic.
As far as I can tell, the movie industry is capitalism working as it should. No one animator can make a major motion picture, so institutions like Marvel Corporation exist to solve the coordination problem and bring them together. Marvel Corporation is probably terrible in various ways, but it’s unclear we have the social technology to create non-terrible corporations right now, so unless we’re communists we accept it as the price to pay for a semi-functional industry. Then some market-rate percent of the gains flow down to the actors and videographers and so on. If you destroyed this system, you wouldn’t usher in a golden age of independent superhero movies. You would just stop getting Black Panther.
The scientific journal industry is some kind of weird rent-seeking abomination which doesn’t seem to add much real value. I don’t have space to make the full “journals are not helpful” argument here, but see eg this article, Elsevier’s profit margins, and the relative success of alternative models like arXiv. See Inadequate Equilibria for the discussion of how this might have happened. The short and wildly insufficient summary is that it looks like we backed ourselves into an equilibrium where eg tenure committees consider journals the sole arbiter of scientific merit, anyone who unilaterally tries to defect from this equilibrium is (reasonably) suspected of not having enough merit to make it the usual way, and coordination is hard so we can’t make everyone defect at the same time.
Thus Dark Rule Utilitarianism: “If I did this, everyone would do it. If everyone did it, our institutions would collapse. But I hate our institutions. Therefore…”
I think this fully addresses the first argument against science piracy. But what about the second? Sure, I don’t like the institution of scientific gatekeepers, but anarcho-communists don’t like the institution of private property. If I steal scientific papers to destroy the journal system, doesn’t universalizing that decision process lead to anarcho-communists stealing cars to destroy capitalism? Shouldn’t “civil disobedience” be reserved for the most important things, like ending segregation or resisting the Nazis, rather than endorsed as something anyone can do when they feel like destroying something?
This kind of thing leaves me hopelessly confused between different levels. It’s much worse than free speech, where all you’ve got to keep track of is whether you agree with what someone says vs. will defend their right to say it. But an important starting point is that endorsing “civil disobedience is sometimes okay” doesn’t lead to a world where anarcho-communists steal cars and nobody stops them. It leads to a world where there is no overarching moral principle preventing anarcho-communists from seizing cars, and where we have to do politics to decide whether they get arrested. In practice, the politics would end up with the car thieves arrested, because stealing cars is pretty conspicuous and nobody likes car thieves.
Isn’t this just grounding morality in power? That is, aren’t we going from the clarity and fairness of “everyone must follow the law” to a more problematic “everyone must follow the law, except people clever enough to avoid getting caught and powerful enough to get away with civil disobedience?” Well, yeah. But from an institution design perspective, everything bottoms out in power eventually. All we’re doing here is replacing one form of power (the formal power possessed by law-makers) with another form of power (the informal powers of stealth and/or popularity that allow people to get away with civil disobedience). These two forms of power have different advantages and are possessed by different groups. The formal power is nice because it’s transparent and democratic and probably bound by rules like the Bill of Rights, but it also tends to concentrate among elites and be susceptible to tyranny. The informal power is nice because it’s inherently libertarian and democratic, but it’s also illegible and susceptible to being used by demagogues and populists.
So, a metaphor: imagine a world with a magic artifact at the North Pole which makes it literally impossible to violate laws. The countries of the far north are infinitely orderly with no need for police at all. Go further south and the strength of the artifact decreases, until you’re at the edge of the Arctic Circle and it might be possible to violate a very minor law if your life was in danger. By the time you’re at the Equator, any kind of strong urge lets you violate most laws, and by the Tropic of Capricorn you can violate all but the most sacred laws with only a slight feeling of resistance. Finally you reach the nations of the South Pole, where the laws are enforced by nothing but a policeman’s gun.
Where would you want to live in such a world? It’s a hard question – I can imagine pretty much anything happening in this kind of scenario. But if I had to choose, I think I would take up residence somewhere around the latitude of California. I would want the laws to carry some force beyond just the barrel of a gun – a high trust society with consistent institutions is really important, and the more people follow the law without being watched the less incentive there is to create a police state.
But I also wouldn’t want to live exactly at the North Pole. And when I try to figure out why, I think it’s that civil disobedience is the acid that dissolves inadequate equilibria. Equilibria are inadequate relative to some set of rules; if you’re allowed to break the rules, they can become adequate again. Under this model, civil disobedience isn’t a secret weapon to save up for extreme cases like desegregation, it’s part of the search process we use to get better institutions.
If the artifact is a metaphor for the moral law, then my choice to live outside the North Pole suggests that I can consistently defy unjust laws a little, even if my decision will be universalized. I should expect some problems – groups I don’t like will use civil disobedience to promote causes I abhor, and the state will be less orderly and peaceful than it could be – but overall everyone will end up being better off. This doesn’t mean I have to support those groups or even excuse their criminality – part of the politics that decides the result is me expressing that they are bad and need to be punished – it just means that, given the chance to magically make all civil disobedience impossible in a way that applies equally to me and my enemies – I would reject it, or take it at some less-than-maximal value.
So this is my argument that Sci-Hub can be ethical. Universalized it would destroy the system – but the system is bad and needs to be destroyed. And although this would break the law, a very slight amount of law-breaking might be a beneficial solution to inadequate equilibria – one that could be endorsed even when universalized.