Describing Public Domain Works As 'Pirated' And 'Illegal' Is Bad For Everyone

from the stop-that dept

Thu, Apr 10th 2014 9:44am — Mike Masnick

Yahoo Tech has an interesting column about an "art project" in Germany, where a bunch of folks are printing out 250,000 academic papers from JSTOR, which they're describing as the JSTOR Pirate Headquarters. Of course, as I'm sure you know, JSTOR -- the somewhat controversial organization that hosts thousands of academic articles behind a massively high paywall -- was a central player in the Aaron Swartz saga.

It was JSTOR's collection that Aaron was caught downloading, though it was never entirely clear what he was going to do with it. Soon after Aaron's arrest, a guy by the name of Greg Maxwell got some attention by releasing 33GB of JSTOR scientific papers to the Pirate Bay. While he'd considered doing so before, he had held off out of concern for how JSTOR might react. But the simple fact was that all of the papers he released were public domain papers, meaning that JSTOR would have no right to complain. In fact, a few months later, JSTOR itself agreed to make all its public domain materials free. JSTOR freely admits that Maxwell's decision influenced the move, but that they had been planning to do something like this anyway.

So, back to Germany and the "JSTOR Pirate Headquarters." As the Yahoo story notes, the folks there were inspired by the Swartz story to try to create some sort of civil disobedience act, with the initial plan being to print out the documents Swartz downloaded -- but, of course, that database has long since gone away. Instead, they found Maxwell's torrent, and decided to print that out. The problem is that throughout the story, everyone seems to pretend that this is some sort of illegal act of piracy. Beyond the fact that they call it the JSTOR Pirate Headquarters, the article by Rob Walker opens this way:

For several days now, five printers in Düsseldorf, Germany, have been pumping out illegally-downloaded articles from JSTOR, the digital library of academic journals.

Except they're not illegally downloaded. They're public domain, which makes them perfectly legal to download.

Then Walker claims:

If you’re in the area, you can stop by and browse this stuff – which would cost you something like $353,229 to buy from JSTOR itself.

Except that's not true either, because JSTOR made the same documents free.

And it appears the guy behind the project doesn't realize this either:

The JSTOR Pirate Headquarters, then, exists partly as a tribute to Swartz, and partly as a provocation, explains its overseer, the artist and poet Kenneth Goldsmith. The material being printed consists of “arcane scientific papers that are hundreds of years out of copyright,” he tells me via email. “Yet JSTOR is firewalling & profiting from this stuff, which should be available to everyone at no cost.”

Again, those works have already been freed, legally, both by Maxwell and by JSTOR. So while this protest may have some symbolic value, to claim that these works are locked up and that this is some sort of illegal activity is just wrong. Later in the article, they discuss the possibility that JSTOR might do something:

There has been, to date, no word from JSTOR. And realistically, this mass of paper is not a material threat to its business — even if it does make material an argument about the nature of that business.

“The legal issue is interesting. Is printing material without the intent to distribute it really illegal?” Goldsmith asks. “Is this useless intellectual property really worth going to the mat for?

Except, not only is this not a material threat to its business, it's not a threat to anything. These works are all completely legal, in the public domain and totally freely available from a variety of sources including JSTOR. Here, go ahead and check it out.

That's not to say there aren't other issues with JSTOR. Its regular paywall is ridiculously high, and often stands in the way of sharing important academic knowledge (frequently paid for by the public). And there are plenty of non-public domain works JSTOR should consider freeing up as well -- such as this 80 year old article on why we should do away with copyright and patent laws altogether. It's 21 pages and JSTOR wants $43 for it, which seems rather ironic, since the author himself, Arnold Plant, believes that locking up such works with intellectual property is a mistake.

So, I can recognize the desire to do something that appears to be civil disobedience to stand up against JSTOR. But the JSTOR Pirate Headquarters, unfortunately, only contributes misinformation to the situation, implying that freely available public domain works are somehow illegal or subversive. It appears this is the opposite of the message they want to send, so it's unfortunate that the message that is getting out is that it's illegal to share public domain works. Similarly, shame on Yahoo Tech and its reporter, who should be willing to do the most basic of fact checking to understand the very premise of the article is hogwash. Yahoo Tech is trying to position itself as a tech publication for a more mainstream audience, and if it believes the way to do that is to spread misinformation, that's unfortunate.

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Filed Under: aaron swartz, copyright, germany, greg maxwell, public domain
Companies: jstor

27 Comments

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NoahVail (profile), 10 Apr 2014 @ 10:18am

A correction that corrects nothing
The Yahoo article was amended with the following:
"CORRECTION: An earlier version of this article incorrectly stated that the papers had been illegally-downloaded."

A technical correction that allows the author to continue to mislead his readers.
Maybe he's prepping for a job w/ a US Intel agency.
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Thrudd, 10 Apr 2014 @ 10:21am

Oops they were. going to do that anyway
Really - is JSTOR Peewee Herman now? Unless there is corroberating evidence to support their assertion after the fact then no, I don't believe them. As for the bashing of the Yahoo, you could have laid it down a little less thick with the venom.

TL;DR Yahoo reporter and artists wrong - Yahoo me no like - JSTOR pull CYA on release of PD Docs.
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Karl (profile), 10 Apr 2014 @ 10:23am

Conflation
Unfortunately, this shows how far rights holders have managed to frame the discussion about copyright.

To copyright holders (or at least the organizations that ostensibly represent them), there is no distinction between "unauthorized" and "infringing." An unauthorized copy is a pirated copy, regardless of whether that copy is in the public domain, is not copyrightable (e.g. purely factual), covered by fair use, etc.

What copyright holders don't (or won't) recognize is that by conflating these uses with piracy, they're only making "piracy" look better to the public. This project is a perfect example.
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- Pragmatic, 14 Apr 2014 @ 5:28am
  
  Re: Conflation
  Which is why I've always argued that we shouldn't use terms like "consume" in relation to experiencing content. When we do that, we let them control the narrative by perpetuating the false notion that content can be reduced or diminished by people reading, watching, or listening to it. The best argument I've ever heard in favor of continuing to use "consume" went along the lines of, "Well, after I've watched it, it sort of loses its virginity, and that fresh experience of watching it for the first time has gone forever."
  
  That really was the best L---- could do, bless his li'l heart. The **AAs have yet to introduce that as an argument; I expect it to happen sooner or later.
  
  Refusing to use their words and re-framing their arguments so they're factual gets the ball back into our court. Who's with me?
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  - Karl (profile), 14 Apr 2014 @ 9:34am
    
    Re: Re: Conflation
    Which is why I've always argued that we shouldn't use terms like "consume" in relation to experiencing content.
    
    I get your point. Unfortunately, it comes from the term "consumer" - which is an economic term, widely-understood, and unlikely to change.
    
    It would probably be better to use the term "user" of the content, in the same sense as a software user, since that's closer to the truth. I doubt that the term will catch on, though.
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xebikr (profile), 10 Apr 2014 @ 10:26am

The material being printed consists of �arcane scientific papers that are hundreds of years out of copyright,� he tells me via email. �Yet JSTOR is firewalling & profiting from this stuff, which should be available to everyone at no cost.�

Again, those works have already been freed, legally, both by Maxwell and by JSTOR.

New movie: Rebel Without A Clue
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Ima Fish (profile), 10 Apr 2014 @ 10:43am

There's this bizarre mindset that copyright is the default and not an exception to the natural world. Which is utterly ridiculous. Copyright and patents are not a natural right. They exist solely at the discretion government. In other words, if there is no law prohibiting it, it's not infringement or piracy.

That erroneous mindset can be seen in a recent Cracked article about how plays written in England in the 1800s received no copyright protection in the United States.

The article specifically states that it was not illegal to perform those plays in the US, because they were not covered by any copyright law in the US. However, despite it being perfectly legal to perform those plays, the Cracked article goes on to claim as fact that it was piracy to perform those plays in the US. It's simply bizarre. There was no piracy going on!
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- Blue Sweater (profile), 10 Apr 2014 @ 11:40am
  
  Re:
  Actually there was piracy going on in those times, only it was on the high seas with a Yarrr Matey....
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Prashanth (profile), 10 Apr 2014 @ 11:47am

Non-illegal robbery
It almost looks like the Monty Python sketch about non-illegal robbery (but in reverse): http://www.youtube.com/watch?v=C7fsxnzZF9w .
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- RD, 10 Apr 2014 @ 11:51am
  
  Re: Non-illegal robbery
  Is that anything like "non-legitimate rape?" Because I'm pretty sure the reasoning is the same.
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- Anonymous, 10 Apr 2014 @ 5:40pm
  
  Re: Non-illegal robbery
  Non-illegal robbery is more commonly known as taxation.
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  - Pragmatic, 14 Apr 2014 @ 5:33am
    
    Re: Re: Non-illegal robbery
    Voted funny. If you don't like paying tax, live elsewhere. I hear Somalia is lovely at this time of year.
    
    Taxation is the price we pay for living in a civilized society. Without it, we'd be dependent on private enterprise for everything. And private enterprise only ever works for profit. No profit, no service.
    
    It's not the other way around.
    
    Now try to imagine enforcing your rights in a court of law you could donate to, i.e. not funded by taxpayers. Unless you are as rich as the person(s) you're fighting, good luck with that.
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Anonymous Coward, 10 Apr 2014 @ 12:15pm

Well at least Yahoo is trying to be cool, and has the beginning of an idea about what that takes.
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David, 10 Apr 2014 @ 12:34pm

Illegally downloaded public domain papers
Except they're not illegally downloaded. They're public domain, which makes them perfectly legal to download.

Sorry, but that's rubbish. The legality of downloading something is perfectly up to the discretion of the person providing the downloading service. If there is any form of access control, circumventing the access control is illegimately accessing that service and its bandwidth.

It's perfectly irrelevant whether the content is copyrighted or computer-generated or public domain for that.

The copyright status of the content merely determines whether the service provider was licensed to make the content available in the first place, and it determines what you are allowed to do with the content once you have a copy of it in your hands.

As a more tangible example: a bookstore may be selling printed copies of public domain works. It cannot prohibit you from creating copies of those works once you have purchased them, and redistributing such copies on your own.

But you still can't walk in the shop and just take all the books with public domain content that you like.

The book store is perfectly allowed to slap any price on the books it wants to.

Similar with JSTOR. They can provide copies of public domain content for any price they want to. Once you paid the price, they cannot prevent you from creating and distributing your own copies from those copies you created legitimately. But it's up to them to decide what you have to pay for providing access to a copy from their servers.
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- Anonymous Coward, 10 Apr 2014 @ 1:08pm
  
  Re: Illegally downloaded public domain papers
  Is there any suggestion that they were illegally downloaded? If they were JSTOR has a significant system security problem.
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  - David, 10 Apr 2014 @ 3:22pm
    
    Re: Re: Illegally downloaded public domain papers
    There is no such suggestion as far as I can concern except for the original quote in a quote:
    
    For several days now, five printers in D�sseldorf, Germany, have been pumping out illegally-downloaded articles from JSTOR, the digital library of academic journals.
    
    Except they're not illegally downloaded. They're public domain, which makes them perfectly legal to download.
    
    But that last sentence does not make sense either. It would appear that Maxwell downloaded the respective articles from JSTOR legally since he had presumably received them via some legitimate JSTOR access program, possibly by paying for them individually or under a bulk arrangement. And since they were in the public domain, it was then perfectly legal for him to upload them then to a torrent site of his choice, and for other people to download them from there according to the torrent site's usage conditions.
    
    It is the permission to upload rather than download that is rendered legal by the Public Domain status of the papers.
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- Thrudd, 10 Apr 2014 @ 1:14pm
  
  Re: Illegally downloaded public domain papers
  I wa with you untill that last bit. You jumped from tangible aka books in bookstore to intangible aka data on a server.
  
  The model falls apart and they KNEW they were in the wrong but did not do anything untill somebody called thgem out in it. Then it is all, its all open and free now, we were planning to do this all along.
  
  It reeks like a week old fish wrapped in Prenda papers.
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  - David, 10 Apr 2014 @ 2:54pm
    
    Re: Re: Illegally downloaded public domain papers
    So you are saying you can hack into my computer once you have positive knowledge that I have some public domain works on it? Or what?
    
    I repeat: the copyright situation of software or books in no way impacts my right to offer access to legitimate content under any conditions I want. If I want $100US for you to receive a copy of Shakespeare's MacBeth from me, that's perfectly legitimate. You are free to take your business elsewhere, and you are free to copy and redistribute the work of Shakespeare once you receive a copy from me or anybody else.
    
    But my server is tangible, and the money I pay for bandwidth is tangible, and it's my decision what I ask for access to content distributed via my server. The public domain status of some content determines what you can do with it once you legitimately received a copy. But it does not give you the right to receive a copy in the first place. You have to ask someone for a copy first. And he can say "no" perfectly well even if we are talking about public domain works.
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- Karl (profile), 10 Apr 2014 @ 8:41pm
  
  Re: Illegally downloaded public domain papers
  The legality of downloading something is perfectly up to the discretion of the person providing the downloading service. If there is any form of access control, circumventing the access control is illegimately accessing that service and its bandwidth.
  
  - The artists did not download the documents from JSTORE. They got them from The Pirate Bay (or, more accurately, from the swarm of users who connected to the torrent that was linked to on The Pirate Bay). So, yes, the documents were perfectly legal to download.
  
  - The person who created the torrent (Greg Maxwell) got the documents from JSTORE, but he procured them legally through his legitimate access to that service. (The article puts scare quotes around "procured legally," though nobody has ever claimed that they were not.)
  
  - Even if he did not, illegitimately accessing a service is not piracy. It may be a breach of contract (or worse), but it is not a violation of copyright law.
  
  So, no, nothing that anyone did in this case amounts to piracy in any way, shape, or form.
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  - David, 10 Apr 2014 @ 11:21pm
    
    Re: Re: Illegally downloaded public domain papers
    Well, "piracy" is a stupid term anyway. Let's call it "copyright violation". I agree that copyright violation is not involved when we are talking about Public Domain works. But not everything that is not a copyright violation is "legitimate". And that was the word we are talking about here. Copyright regulates what one can do once one has a legitimate copy in one's possession. And it very much appears that this is what we are talking about in Maxwell's case.
    
    It also appears that nobody including JSTOR claimed that Maxwell was doing anything problematic by uploading it to a torrent.
    
    The downloaders were protesting the establishment in a manner similar to publicly vandalizing a car they bought before.
    
    It looks superficially like a protest, but then it's up to you to interpret it. But if done right, it could give others ideas that are more troublesome. Does not look much like it, though.
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    - Karl (profile), 11 Apr 2014 @ 1:57pm
      
      Re: Re: Re: Illegally downloaded public domain papers
      Copyright regulates what one can do once one has a legitimate copy in one's possession. And it very much appears that this is what we are talking about in Maxwell's case.
      
      If that copy is of something that is in the pubic domain, then copyright law does not regulate what one can do with it - even if it is not a "legitimate" copy.
      
      Since those documents are in the public domain, Maxwell could not possibly have violated copyright law, even if he did not get them from JSTOR legitimately, and/or did not have permission from JSTOR to make them available on The Pirate Bay. Were that the case, he may have been in breach of contract with JSTOR, but not of copyright law.
      
      But no matter what, once Maxwell (or anyone else) put them on The Pirate Bay, anyone could download the documents, and the downloaders would break absolutely no law by doing so. They would break no law even if Maxwell violated his contract with JSTOR in order to get the documents. The people who get the documents from The Pirate Bay don't have a contract with JSTOR, so they didn't break any law.
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- PaulT (profile), 11 Apr 2014 @ 1:06am
  
  Re: Illegally downloaded public domain papers
  "The legality of downloading something is perfectly up to the discretion of the person providing the downloading service."
  
  What? So, if I offer a service where I allow people to download the new Captain America movie, that's legal? If someone offers a restricted copy of Night Of The Living Dead, they can suddenly prosecute anyone downloading it for free? No.
  
  "But you still can't walk in the shop and just take all the books with public domain content that you like."
  
  No, because you're not just taking the work that's in the book, you're taking a new physical object that's not available for free. Totally different. You can still go and download the TEXT from Gutenberg for free, but you can't take that particular instance because it consists of more than just text and the non-text components are not public domain. Get it?
  
  If you're going to offer an argument, at least ground it in the real world.
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- Paolo, 11 Apr 2014 @ 2:54am
  
  Re: Illegally downloaded public domain papers
  Please go read http://about.jstor.org/individuals-faq#How_can_users_access_the_Early_Journal_Content before FUDding the discussion.
  JSTOR makes that content freely available for download.
  Go to http://www.jstor.org/action/showAdvancedSearch (no need to login) and check "Include only content I can access". Search anything and download public domain papers.
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Jens, 10 Apr 2014 @ 6:14pm

One thing to consider is that works that are public domain in the US aren't necessarily also automatically public domain in Germany. From what I remember, even works created by the US government (which are not subject to copyright in the US) could still be protected by German copyright law. The rule of the shorter term doesn't apply in these cases. So unless the authors are dead for more than 70 years or the authors signed away their copyrights, there's a good chance that the works are still protected in Germany.
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Anonymous Coward, 10 Apr 2014 @ 6:18pm

Compare to Berkeley Historical Society
http://blog.librarylaw.com/librarylaw/2007/04/minow_the_centr_1.html

Interview with Tom Edwards, former president of the Berkeley Historical Society -

Invest some time, money and effort in developing a tighter one-time use agreement for sharing your photos. We thought it was satisfactory, but we know more now, and have tightened it up.

- - - - - - -

http://blog.librarylaw.com/librarylaw/files/BHS-OneTimeUseAgreement.doc

Images for Personal...

I agree that I shall...

(2) not publish, sell, copy, distribute, share, or otherwise exploit the Image(s)...

Images for Publication, Commercial, or Any Other Purpose...

(3) I shall not sell, sub-lease, donate or share the Image(s) in any fashion...

(6) I shall destroy or return any copies of the Image(s) provided by electronic media by the date specified below...

Disclaimers...

I agree to assume all responsibility and any liability for copyright infringement...
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Anonymous Coward, 11 Apr 2014 @ 12:29am

This description is culture theft, plain and simple.
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Richard Stallman, 12 Apr 2014 @ 11:27am

Describing unauthorized copies
The article is right, but let's remember Describing unauthorized copies as "pirated" is also bad for everyone -- it repeats the propaganda of the War on Sharing. See http://www.gnu.org/philosophy/words-to-avoid.html.
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