[Minimally updated cross-post from LW.]

Sci-Hub is being sued by Elsevier, again, this time in India. Two other large publishers are also on the suit.

Sci-Hub has been getting sued in lots of Western countries over the past 6 years and losing default judgments because they didn’t really defend. In India, they have a better shot:

1. The founder Alexandra Elbakyan is actually mounting a defense this time
2. India has comparatively lenient copyright law
3. India is poor enough that the "public interest" angle is multiplied manyfold due to Elsevier’s absurd profit margin and prices

Last, it's higher-stakes than normal, because in India the plaintiffs have requested a dynamic injunction. This is a recent legal mechanism that would let the plaintiffs obtain court injunctions against ISPs serving any Sci-Hub domain with very little effort on very short notice. This might make it vastly more difficult for Indians to access Sci-Hub than e.g. US citizens after it was ruled illegal here.

I am helping with Sci-Hub’s legal defense in the small ways possible, along with Stag Lynn and formerly John Steidley. The next hearing appears to be January 1st, but the case has been going for over a year and will likely continue on for at least a few weeks longer. 

I'm posting this on the EA Forum because I think helping with their legal defense is a pretty cool example of pop-up, volunteer, yet effective charity. However, it won't talk about our work, only the case itself. Before I talk about the case, our two asks:

First, if you're a professor-ish level academic who might be interested in signing onto an in-progress amicus brief when it is finished, please fill out this google form. The in-progress brief currently has a Nobel prize-winner and a few other impressive names shaping it. I will answer any questions or put you in contact with the relevant lawyer. (If you want to contribute to an amicus brief but aren't an academic, go ahead and fill it out anyways—there may be extra capacity for you at some point.)

Second, we’ve focused on the legal side so far, while ignoring media. If you're interested in writing about the topic or know someone who might be, drop me a quick note at connorflexman at gmail.

Now, onto the case.

What is Sci-Hub?

Sci-Hub is a website that hosts 80 million scientific papers free for anyone to access. Many of these papers are copyrighted by the journals they were published in, making Sci-Hub’s hosting by-default illegal in most jurisdictions.

Why does Sci-Hub exist?

To route around ridiculously priced paywalls.

It costs about $30 to access one Elsevier paper. You usually want to skim/read dozens of papers to write one. Universities negotiate to get bulk subscriptions to many journals to alleviate this cost, but it's an open secret that many researchers still can't function without Sci-Hub to look at others that haven't made it into their institution's access bundle for whatever reason. Elsevier won't release prices from most of their deals, but their journals range in cost to institutions from about $1000/year and up, and there are thousands of journals.

Elsevier’s prices are tough even in Western countries. But for countries like India, they’re truly exorbitant. India has a 30x smaller GDP per capita than the US. They have great trouble affording costs for main journals, and there are a huge number of smaller journals with higher price-per-article that they have to give up on.

Elsevier and similar big academic publishers used to make more sense: publishing in the days of actual magazines was a major logistical issue. But now that the internet has made many of the logistical issues obsolete, these publishers have become zombie orgs. They do still do some work to build websites, do online layout, and ensure peer review happens. But their prices are extremely high, because most of what they do is bloat and seek rent on the rights to prestigious journals that gate-keep the life-force of academic existence. Scientists are very unhappy about this, but solutions like Arxiv have rolled out slowly.

These publishers now form an oligopoly with lots of pricing power. Elsevier’s operating profit margin is over 35%, higher than standard high-margin powerhouses like Google and Apple. They pour these proceeds into acquiring more and more journals, slowly eating up market share for great pricing power. And while they don’t do anything illegal, they are always engaging in nefarious tactics like mandating secrecy in all negotiated deals so that there isn’t price competition. Perhaps the most deadweight loss comes from the fact that they intentionally price individual journal articles far outside of almost anyone’s willingness-to-pay, losing some revenue but ensuring that institutions will be forced to enter into package-deals with them that increase their own position greatly. There have recently been some anti-trust filings but nothing that I see moving forward.

(Note that these profit numbers are not to imply the world would be much better if they charged 35% less—it's that they have so much leeway they can bloat to huge extents and still make huge profits, and the world would be much better if they tried less hard to price out individuals and extract every last penny from poor countries.)

Sci-Hub exists to work around this oligopoly and to push the world in a direction of full open access to scientific papers. It was started over a decade ago when the dream for an open internet was still more alive.

How could Sci-Hub be legal?

[Not a lawyer, I know minimal law, and I’ve been told my frame is at least partially wrong/misleading]

It does seem like India’s copyright law is fairly straightforward about Sci-Hub’s illegality. However, I see a number of inside-view and outside-view reasons for some hope.

First, remember that both laws and precedents differ in every legal system. Not only does India’s copyright law have a long list of exceptions for things like research and education, but their case law includes prominent judgments such as University of Oxford v. Rameshwari Photocopy Service, which allowed a photocopier to mass-produce educational texts for use in universities without punishment.

Second, some laws effectively override other laws. Legal systems are designed to have explicit and implicit escape-hatches in case of mis-firing. Constitutions enumerating rights perform this function; case law taking into account “public interest” performs this function; specific clauses that constrain laws or contracts via interpretation, like force majeure, perform this function. It is hard to get a set of rules exactly right the first time around, so interpretation must be built in. 

Copyright law in many jurisdictions, like the US, has precedent for considering public interest. I think India's case law includes at least some of this. As another example, some legal scholars have pointed out that India has constitutional protections against outlawing professions, where “independent researcher” would effectively be outlawed there without access to Sci-Hub and with a 30x smaller GDP per capita than the US. (However, this argument seems unlikely to be practically useful as I understand things.)

I am not a lawyer, so I don’t know how low-probability these arguments are. Some of the opinions I’ve seen espoused by lawyers online seem like absolute long-shots to me; I’m not sure how much motivated cognition is going on, but I expect it’s a lot. After reading various laws, cases, and commentaries for dozens of hours, I have some opinions, but law is full of crucial considerations that mean I am surely wrong in general.

What I do know is that there is quite a lot of escape-hatch force on the side of Sci-Hub.

1. India has 30x the financial issues with the academic publishing oligopoly as the US
2. The olipology has such high pricing power and Elsevier has 37% operating profit margin
3. It is fairly ridiculous to allow a publisher to have copyright on an article that is written by scientists, reviewed by scientists, about science done by scientists, and where all these activities were funded by the government via taxpayers
4. While India’s primary copyright law seems to clearly delineate Sci-Hub as illegal, there are a lot of options for ruling in a nuanced way: constitutional protections, intent of exemptions, certain case precedents, and general precedents like public interest all offer reasonable exceptions.

Not a binary

Further, the judge’s ruling is not win-or-lose.

The reasons given in the ruling matter a lot as future precedent, and as a guide for whether similar services could become legal. It’s very different to say “it’s illegal because there are no exemptions” vs “it’s illegal because it doesn’t restrict itself to students or researchers” or “it’s illegal because there isn’t enough precedent about public interest in India”. The latter two, and other similar possible judgments, hold open doors for future legal versions of open access to flourish in India or in other states.

Similarly, consequences for Sci-Hub’s access could be more or less dire: a dynamic injunction versus a regular injunction would probably cause significantly different barriers to access.

In general, I’m not so sanguine about Sci-Hub’s chances as many of the legal opinions I’ve seen, but in my limited epistemic state there is still real reason for hope (reinforced by the fact that the initial request for dynamic injunction was denied).

Is it cost-effective to help them?

This question is difficult. We have a mostly-finished document with a number of Fermis if you’re interested, which estimates that many billions of dollars per year are at stake and getting an amicus brief will have direct impact around the order of magnitude of $25M/year, and significantly more if you count legal precedent. Obviously these are very rough, and the sign is not clearly positive because of accelerationism.

However, I think it's often pretty easy to be mugged by naive cost-effectiveness estimates of this type. While a gut-check confirms I believe these numbers are pretty reasonable, I don’t place a ton of stock in them and they aren’t the real reason I’m working on this. There are a number of those that I’ll get into momentarily, but first I should address tractability and neglectedness.

Sci-Hub is neglected. Sci-Hub has just been Alexandra Elbakyan for a decade; she can’t really hire because of the risk of moles and the fact that she can be extradited if anyone finds her location. Thus, there’s no advocacy team, and certainly no existing advocacy relationships. Even the team of lawyers was just put together shortly after the lawsuit because one young law school grad reached out to her. So the whole defense is quite small and scrappy, not some behemoth that has already covered every possible avenue of gain.

And Sci-Hub is tractable. There just weren’t any people reaching out for amicus briefs in the US when I contacted the lawyers. There isn’t much awareness in the US that the proceedings are even occurring—many orgs that I reached out to did not mention having heard of the case or considering whether they could help. But some offered help when I asked (thank you so much!). We are obviously not the right people for this, not having connections in the open-access space ourselves, but it has gone fine so far anyways. 

Regarding reasons to care about this project outside of effectiveness Fermis:

First, I think we (the global intellectual community, if not EA per se) owe it to Sci-Hub to try to help them become legal. Maintaining it took much personal sacrifice from Alexandra, and it’s an open secret that science would have taken a huge hit before now if they were truly shut down. I think this is a great case of naive utilitarianism not really applying. Whether you call it deontology or virtue ethics or rule-utilitarianism, it seems very important for social fabric to stand by those doing good, and not leave them out for the dogs. You still have to prioritize, you can’t help everyone, but Sci-Hub seems like one of the most important and neglected projects at risk, by rank, regardless of actual dollar-value. 

Second, and more personally, I have a vision about how the community can gain important capabilities from working on projects like this. I am currently characterizing them as campaigns—but other terms include crisis management or goal-oriented projects. I think we (and especially I) could have done much better on COVID with this skill. I think the AI end-game might have applications of it. I think interacting with legal systems will be a highly important domain going forward. I think we can get much better at campaigns as a community for a variety of reasons including Dominic Cummings’ “there’s plenty of room at the top”, and how there is some convergence around this idea—Jacob Lagerros recently called for a team to respond to crises, which I would deem similar. 

I have a lot more thoughts on this topic and the “why” of helping Sci-Hub, but I must leave those for another day.

Conclusion and final call for help

If you still remember the intro, we asked for those who could write/sign amicus briefs to fill out this form, and those who might be interested in media to email me at connorflexman at gmail.

I’d also welcome brief arguments about why this project is bad, though will probably mostly engage with these after the legal situation has wrapped up.

If you’re interested in some aspect of the case that I did not address well in this post, let me know and I will consider covering it in a better write-up after the conclusion of the case.