Quality research rarely occurs in a vacuum. One would need to pore over a large corpus of work by academicians in most cases to prove one’s theories. Chances are that if the person undertaking such research is not a college student or a research fellow, she would not have the requisite institutional backing in the form of access to subscription journals such as JSTOR. Where would such a person locate legitimate sources?

The answer is more often than not shadow libraries such as ‘Library Genesis’, and ‘Guerrilla Open Access’. Assuming the concerned person takes this route, would it be ethical? If we were to say that she should have gotten an independent subscription, we would have to acknowledge the extremely high cost that most such websites impose for this and problematise the idea of making an average person pay such a price. On the other hand, if we were to argue that she is not unethical if she avails of such an option, what would become of the copyright holders? This is the dichotomy that this paper aims at analysing.

Part I shall comprise introductory remarks on the rationale behind shadow libraries, with a special focus on Library Genesis and Guerrilla Open Access. It will focus on the modus operandi of these websites and their legality. Part II will focus on the idea of such libraries being justified as an extension of the concept of fair use for educational purposes and India’s take on the same. To explain this, three cases will be analysed, namely, the Google Books Case, and the DU Photocopying Case.

Part III will look at a counter position advanced in defence of copyright holders such as the one made by JSTOR against Guerrilla Open Access and the question of moral rights of the author. Part IV will look at the possibilities of reforming this dichotomy and whether striking a balance between shadow libraries and copyright law is at all possible, as well as the liability of abettors of shadow libraries. Lastly, Part V shall offer concluding remarks in the form of the future of shadow libraries along with an opinion segment.

Introduction

1. A general idea of shadow libraries
   Book piracy is by no means a novel concept, one would only have to walk down certain streets in major Indian cities to see photocopied versions of bestsellers being sold on footpaths for half the price of the original copies. Unlike such brick and mortar shops, it is far more difficult to police the emerging trend of shadow libraries as their operations are solely digital and spread across the globe. The justification for these was that various researchers could not afford the exorbitant subscription fees levied by journals such as JSTOR. At first, the modus operandi was to use donated passwords and legitimately log into subscription-based websites to download the article and then also make it available on one’s open-access database.[1]
    
2. Brief History of Library Genesis & Guerrilla Open Access
   Library Genesis:
   Library Genesis (hereinafter referred to as “LibGen”) began as a consolidation of primarily Russian texts collected by scientists in 2008. Three years later, LibGen acquired a similar collection of online texts called Library. nu, and with this, expanded its base beyond merely Russian academic texts. The goal, since its inception, has been to universalize knowledge and cultivate and nurture self-learning communities who would be able to freely depend on such an open-access database. Eventually, the intended consumers became researchers outside the university space in developing countries such as Russia, China, Iran, and Iraq.
   
   The Soviet Union maintained a liberal intellectual property rights regime that denied copyright protection to foreign authors and allowed free translations of texts. Once laws became stricter as the political climate changed, people began to resent the concentration of books in the hands of the bourgeoise and an underground system where the common individual hoarded and photocopied books emerged. Since academicians had the easiest access to such material, they spearheaded the movement for digitalisation and open access which were initially circulated through CD-ROMS.[2]
   
   Guerrilla Open Access Software
   The Guerrilla Open Access Software was boosted by the contributions of an American computer programmer, Aaron Swartz. It was initially created for the sharing of articles which Swartz as a research fellow at Harvard, had access to.[3]
   
   In the Guerrilla Open Access Manifesto, Swartz wrote:
   Information is power. But like all power, there are those who want to keep it for themselves. The world’s entire scientific and cultural heritage, published over centuries in books and journals, is increasingly being digitized and locked up by a handful of private corporations.[4]
   
   Swartz went on to commit suicide while awaiting trial after being indicted on 13 different counts, with a potential cumulative jail sentence of 35 years. Interestingly, he had not actually shared the files downloaded from JSTOR using a peer-to-peer mechanism, as suspected by the authorities; he had merely created scripts to locate the URLs of the articles in question.[5]
    
3. Mechanisms used to circumvent copyright infringement
   Library Genesis:
   The modus operandi of LibGen has been to be as open access as possible; it collects data from other libraries or collections on the Internet and integrates these within a large database with the aim of others being able to source works for their online libraries. This is a “mirroring” mechanism wherein LibGen forms a nucleus of sorts and has other pirate libraries that feed off it on the periphery. The direct advantage of this model for LibGen has been that such other libraries bear the brunt of market competition and absorb the liability of lawsuits, whereas LibGen itself has remained committed to a relatively smaller collection of texts. Furthermore, its survival is guaranteed because of the mirror libraries’ dependence on it. Importantly, these mirror sites are allowed to derive commercial benefits by containing advertisements, so long as the texts remain universally accessible.[6]
   
   Guerrilla Open Access
   The rationale behind this was similar to that of LibGen; Aaron Swartz wanted to protest against the subscription fee charged by JSTOR and decided to use his position as a research fellow in MIT, to his advantage as he had university access to JSTOR articles. He, therefore, purchased a laptop and connected to the MIT network using a ghost name. Thereafter, he used Python scripts which allowed him to mass-download files from JSTOR. When this was detected by the website and MIT, he changed the IP address to avoid being detected and blocked. The act of mass downloading was seen as a “hacker crime”.[7]

Fair Use For Educational Purposes

Since both LibGen and Guerrilla Open Access emerged as a means of radically opening up accessibility to knowledge, particularly for academic and research purposes, it would be prudent to check whether their doing so can be considered as fair use for educational purposes. To do this, three cases from different jurisdictions will be analysed, along with the Indian position on fair use.

1. The Google Books Project
   The Google Books Project started in 2004 as an online catalogue where users could enter the names of books or authors and read excerpts of the book, after which the user could choose to purchase a copy of the book by clicking a set of links at the bottom of the page, without deriving any revenue from such ancillary pages. This was done by agreements with various libraries which provided Google with the requisite books, which Google would then scan and upload to the database.
   
   The plaintiff considered this to be copyright infringement and the U.S. Court of Appeal analysed this claim in light of the four criteria for fair use enshrined in S.107 of the Copyright Act, 1976. It held that the combination of a search function and the digitising of books made Google’s use transformative as it added critical value to ordinary search functions. The Court went to the extent of stating that even if Google had copied entire books, it would still be protected by fair use as no search function would be possible without a digitalised copy.[8]
    
2. The DU Photocopying Case
   The Defendant in this case was a photocopying shop located in the University of Delhi on a license agreement. A group of publishers, including Oxford and Cambridge University Presses, alleged that a substantial portion of their copyrighted publications which were part of the University’s curriculum was being photocopied and compiled into course packs by the defendant and then sold to students.
   
   The claim was based on a combined reading of S.51 and S.14 of the Indian Copyright Act, 1957. The Delhi High Court disagreed, stating that even though substantial amounts of the copyrighted works were included in the said course packs, this was for educational purposes and that this would not constitute infringement as it would be covered under fair use.[9]
    
3. Analysis
   As seen above, the Courts in India and the U.S. have taken a very liberal approach concerning the fair use doctrine, particularly for educational purposes. This might give us a prima facie impression that there would not be much opposition to shadow libraries given this position taken by the judiciary, however, it is important to remember that while LibGen started as a library containing academic work, its base has expanded significantly to include fiction novels, comics, and graphic novels.
   
   This gives rise to a new set of questions, one of them being whether when the doctrine of fair use has already been interpreted so expansively, would we also need to read “education” expansively so that it includes reading for leisure?
    

The Indian Position
Since the Berne Convention did not adequately account for the high cost of educational materials in developing countries such as India, an attempt was made to implore the developed nations to allow books to be freely printed and translated by underdeveloped countries. This was done in the form of the 1967 Stockholm Conference Protocol Regarding Developing Countries.

However, the developed nations did not sign this, hence it could never be integrated within the Berne Convention. It is mainly the high cost of books in India that has led to widespread instances of book piracy, both in the digital form as well as in the form of hard copies being photocopied.

Arguments By Copyright Holders

Digital book piracy on LibGen and other shadow libraries cannot be contained for the moment, hence, it becomes necessary to examine the position taken by copyright holders and those who disregard the rationale offered by such pirate libraries.

1. The Other Side of Guerrilla Open Access
   To begin with, William G. Bowen, the founder of JSTOR argued that Swartz had unfairly chosen JSTOR as his target for the open-access mission even though it was a non-profit organisation that aimed at making access to scholarly papers easier with “extraordinarily economical” subscription charges. Bowen conceded to the question of a future with open access to scholarly materials but concluded that the way to achieve it was through conscious deliberation and not Swartz’s guerrilla methods.[10]
   
   Those, like Swartz who believe that such a vague, piecemeal solution would not be sufficient to meet the growing educational needs of the moment, could validly question whether a middle ground can even exist and whether guerrilla tactics and shadow libraries are the only methods left to exhaust.
    
2. Information Inequality versus Open Access
   There is also the argument that if we are to sustainably resolve the issue that is information inequality, we must do so within the four corners of the law, rather than taking a radical approach. This approach advocates for a consumers’ boycott of for-profit online journals and encourages consumers to slowly dismantle the system from the inside. It is also necessary to understand that some non-profit journals still derive articles from for-profit journals such as Elsevier and these determine the price.
   
   This means that they are free to inflate the ultimate price that consumers pay for information access. Understandably, academicians hanker after elite journals, and in turn, students or researchers also place a premium on certain “well-known” journals over others when citing. These factors allow an oligarchy to form in the online journal market. This is where platforms such as LibGen become saviours for those not able or willing to play a part in this undoubtedly skewed pricing system.
   
   Surprisingly, it is not merely for-profit organizations that are opposed to the idea of an open access movement, but also scholars. These are often scholars from marginalised communities who have resisted and overcome several hurdles to even create academic works, hence, they often prefer not to challenge the existing informational inequality. These are important factors that have to be balanced before we can either advocate for or oppose open access.
    
3. Authors’ Views on Open Access
   Some authors have proposed a model whereby they would get to retain the right to exploit the copyright of their work for commercial purposes, rather than transferring it to a publishing company and allow it to be used by others for everything other than commercial purposes. This is the extent to which authors in favour of open access are willing to relinquish their commercial rights over the works that they produce.[11]
   
   While this might be a favourable model to adopt as far as academic work is concerned, we have already seen that shadow libraries do not restrict themselves to merely academic pieces. And while the biggest shadow library, LibGen has remained strictly non-commercial, it does allow for other offshoot libraries to be opened with relative ease, and these sometimes do exploit the works commercially as well. Furthermore, there is a relatively small community of authors who have been willing to commit to a model such as this one, hence, the question of obtaining permission from them still looms large. Lastly, most forms of open access typically account for some kind of author or publisher’s consent, whereas LibGen does not factor this in.

Reforming The Dichotomy

As the former part of this paper indicates, most jurisdictions, though certainly aware of the fact that shadow libraries exist, there does not yet exist any consensus on how this is to be battled or remedied. Due to the growing popularity of these pirate libraries, an American academic publishing company, Elsevier launched an offensive against Sci-Hub and LibGen, the two most prominent shadow libraries.[12] In this case, Elsevier was awarded USD 15 million in damages, however, given how widespread LibGen and Sci-Hub are, it would be near impossible for Elsevier to enforce the judgment and receive the damages.[13]

Some authors believe that through a collaborative effort, copyright law can be adequately remedied. They propose a stakeholder approach wherein authors are encouraged to voice their concerns as well as educate themselves about the rights they are entitled to as part and parcel of copyright protection.[14] While this mission is certainly logically sound, we do not know how far this can be applied to shadow libraries which are notorious for utterly neglecting any kinds of rights.

Is Intermediary Liability the Solution?
Internet intermediaries such as search engines, domain name providers, and platform providers have played a crucial role in the burgeoning and sustenance of pirate libraries. It, therefore, becomes important to understand whether, if we are to impose liability for copyright infringement on pirate libraries, would intermediary sites that abet them be responsible as well? It is extremely difficult to balance the question of imposing such liability because if excessive liability were to be imposed on intermediaries, it would lead to an issue of excessive censorship, as is the case in Thailand and China. This means that third-party websites would have the onerous burden of scanning and restricting content with the potential for copyright infringement.

On the other hand, if a large degree of immunity is provided to intermediaries, there is a risk of letting copyright infringement go unpunished. Given this conundrum, the conditional immunity model seems like an effective method since it provides a safe harbour to intermediaries while still adhering to statutes on copyright protection by introducing takedown procedures. These rules have been introduced in India as well in the form of Intermediary Rules (2011) which form part of the Information Technology (Amendment Act)of 2008 and the Copyright Act. However, LibGen and other shadow libraries have not received any takedown notice for their operations in India, so we might validly question the efficacy of such a model.[15]

Conclusion

1. The Way Forward for Shadow Libraries
   Pirate libraries have found a way to fundamentally uproot the pre-existing model of control created by major companies such as Google and Amazon. These companies primarily function as gatekeepers since they can regulate consumers and advertisers. By making exclusive content and keeping such high barriers of control, these companies are in effect, creating an artificial scarcity in the digital world.
   
   This is precisely why owners of pirate websites advocate for a radically open policy. They dismantled this structure of control by eliminating the gatekeeper phenomenon and making sure that content survives even in the absence of the digital platform itself by using mirror sites.
   
   The countermeasures against digital piracy operate in a slow-burn fashion, which is insufficient to keep up with pirate libraries’ sophisticated use of technology.[16]
    
2. Opinion
   I believe that the best way to resolve this dichotomy would be to allow shadow libraries to function until a tenable solution is found which integrates the open-access model while giving authors and publishers adequate compensation, at least for the first publication. This is because information inequality is a reality, particularly in developing countries. This argument is not premised on the fact that there is a fair use exemption for education.
   
   It is rather an argument that stems from a belief that knowledge should indeed be accessible without exorbitant profit margins being earned by subscription journal owners. I believe that restricting access in this manner deters true intellectual growth, as there may be several people who might contribute greatly to existing pools of knowledge if they were given a chance at the same resources.

End-Notes:

1. Sarah Laskow, ‘The Rise of Pirate Libraries’ < https://www.atlasobscura.com/articles/the-rise-of-illegal-pirate-libraries> accessed 25 November 2020
2. Joe Karaganis, Shadow Libraries: Access to Knowledge in Global Higher Education (MIT Press 2018) 35-36.
3. Ryan Tucci, Open Access Week: The Guerrilla Open Access Manifesto by Aaron Swartz, (2018) <https://www.8bitlibrarian.com/20181022-open-access-week-2018/> accessed 26 November 2020.
4. Aaron Swartz, Guerilla Open Access Manifesto, (2008).
5. Sérgio Amadeu da Silveira, Aaron Swartz and the Battles for Freedom of Knowledge, (2013), < https://sur.conectas.org/en/aaron-swartz-battles-freedom-knowledge/> accessed 26 November 2020.
6. Karaganis (n 2) 39-40.
7. Sérgio Amadeu da Silveira (n 5) 3.
8. Shinto Teramoto, Marcelo Corrales, and Paullius Jurcys, The Google Books Project is Lawful, (2016) <http://copyrightblog.kluweriplaw.com/2016/05/16/the-google-books-project-is-lawful/ > accessed 26 November 2020.
9. The Chancellor, Masters & Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services & Ors. [DU Photocopying Case], (2014),< https://spicyip.com/resources-links/du-photocopy-case> accessed 26 November 2020.
10. William G. Bowen, On Guerrilla Open Access, (2011), accessed 27 November 2020.
11. Esther Hoorn and Marits van der Graaf, Copyright Issues in Open Access Research Journals: The Authors’ Perspective, (2006)< http://www.dlib.org/dlib/february06/vandergraaf/02vandergraaf.html> accessed 27 November 2020.
12. Sarah Laskow, (n 1).
13. Calvin Reid, ‘Elsevier Awarded $15M in Lawsuit Against Pirate Sites’, [2017] PW accessed 27 November, 2020.
14. Martin Adams, Principles and Proposals for Copyright Reform,< https://www.authorsalliance.org/principles-and-proposals-for-copyright-reform/> accessed 27 November, 2020.
15. Jyoti Pandey, J. Carlos Lara, Kyun S Park, Kelly Kim, Jurisdictional Analysis: Comparative Study of Intermediary Liability Regimes Chile, Canada, India, South Korea, UK and USA in support of the Manila Principles On Intermediary Liability (2015) accessed 27 November 2020.
16. Tessel Renzenbrink, Pirate Libraries and the Future of Access, (2015) accessed 27 November 2020.