You Can't Stop Pirate Libraries

Shadow libraries exist in the space where intellectual property rights collide with the free-flowing exchange of knowledge and ideas. In some cases, these repositories of pirated books and journal articles serve as a blow against censorship, allowing those under repressive regimes to access otherwise verboten works. At other times, shadow libraries—a.k.a pirate libraries—function as a peer-to-peer lending economy, providing e-books and PDFs of research papers to people who can't or won't pay for access, as well as to people who might otherwise be paying customers.

Are the proprietors of these pirate libraries freedom fighters? Digital Robin Hoods? Criminals? That depends on your perspective, and it may also differ depending on the platform in question. But one thing is certain: These platforms are nearly impossible to eradicate. Even a greatly enhanced crackdown on them would be little more than a waste of time and resources.

Some of the biggest digital-age shadow libraries—including Library Genesis (or Libgen) and Aleph—have roots in Russia, where a culture of illicit book sharing arose under communism. "Russian academic and research institutions…had to somehow deal with the frustrating lack of access to up-to-date and affordable western works to be used in education and research," the legal researcher Balázs Bodó wrote in the 2015 paper "Libraries in the Post-Scarcity Era." "This may explain why the first batch of shadow libraries started in a number of academic/research institutions such as the Department of Mechanics and Mathematics…at Moscow State University."

"As PCs and internet access slowly penetrated Russian society, an extremely lively digital librarianship movement emerged, mostly fuelled by enthusiastic readers, book fans and often authors, who spared no effort to make their favorite books available on FIDOnet, a popular BBS [bulletin board system] in Russia," Bodó's paper explained. As a result, a "bottom-up, decentralized, often anarchic digital library movement" emerged.

These libraries have found large audiences among academics in America and around the world, thanks to the high cost of accessing scholarly journal articles.

"Payment of 32 dollars is just insane when you need to skim or read tens or hundreds of these papers to do research," wrote Alexandra Elbakyan—the Russia-based founder of the massive shadow library Sci-Hub—in a 2015 letter to the judge presiding over the academic publisher Elsevier's suit against Sci-Hub. Elbakyan pointed out that in days of yore, students and researchers would share access to papers via forum requests and emails, a system which Sci-Hub simply streamlines. She also noted that Elsevier makes money off the work of researchers who do not get paid for their work.

Such economic imperatives are just one part of the Sci-Hub ethos. "Any law against knowledge is fundamentally unjust," Elbakyan tweeted in December 2021.

"There seems to be a widely shared…consensus in the academic sector about the moral acceptability of such radical open access practices," wrote Bodó, Dániel Antal, and Zoltán Puha in a 2020 paper published by PLOS One. "Willful copyright infringement in the research and education sector is seen as an act of civil disobedience, resisting the business models in academic publishing that have faced substantial criticism in recent years for unsustainable prices and outstanding profit margins."

In his earlier paper, Bodó argued that "the emergence of black markets whether they be of culture, of drugs or of arms is always a symptom, a warning sign of a friction between supply and demand." When "there is a substantial difference between what is legally available and what is in demand, cultural black markets will be here to compete with and outcompete the established and recognized cultural intermediaries. Under this constant existential threat, business models and institutions are forced to adapt, evolve or die."

The 2020 paper underlined the point: Its "supply side analysis" of scholarly piracy suggested "that a significant chunk of the shadow library supply is not available in digital format and a significant share of downloads concentrate on legally inaccessible works."

Many would reply that such piracy is just plain wrong, no matter how much trouble and expense copyright causes for authors and researchers. But copyright, according to some strains of libertarian thought, is not the sort of "property right" we ought to justly respect, given its historical genesis in propping up unjust monopoly by creating artificial scarcity.

"Only tangible, scarce resources are the possible object of interpersonal conflict, so it is only for them that property rules are applicable," the libertarian lawyer Stephan Kinsella argued in "Against Intellectual Property," published in the Journal of Libertarian Studies in 2001. "Thus, patents and copyrights are unjustifiable monopolies granted by government legislation."

Intellectual property rights give creators "partial rights of control—ownership—over the tangible property of everyone else" and can "prohibit them from performing certain actions with their own property," Kinsella continues. "Author X, for example, can prohibit a third party, Y, from inscribing a certain pattern of words on Y's own blank pages with Y's own ink. That is, by merely authoring an original expression of ideas…the [intellectual property] creator instantly, magically becomes a partial owner of others' property."

Justly enforced property rights, by this line of thinking, ought to apply only to physical things that are scarce and whose control is rivalrous. This would not apply to words or ideas that can—as the very existence of these pirate libraries shows—be copied exactly and infinitely. Enforcing copyright inherently stops other people from doing things with their minds and their justly owned property, including their server space and hard drives.

What about the utilitarian case for intellectual property? The U.S. Constitution enshrines copyrights to "promote the progress of science and the useful arts." But banning shadow libraries could do more harm to such promotion of "science and the useful arts" than good, given how much they facilitate research and scholarship that would otherwise be either prohibitively expensive or outright impossible. As a 2016 letter in The Lancet pointed out, such sites could be hugely beneficial for doctors in places like Peru, where few physicians have access "to the papers and information they need to care for a growing and diverse set of patients." Such arguments became even more powerful during the COVID-19 pandemic.

Interestingly, the 2020 Immersive Media & Books survey found that pirates are more likely to be avid book buyers than nonpirates. "Compared to the general survey population, a higher percentage of book pirates during COVID are buying more ebooks (38.7%), audiobooks (27.1%) and print books (33.7%)," the study concluded.

But publishers love their copyrights, and they do not wish to adapt their legacy systems to the digital age. They thus have been trying to crush the shadow libraries, with the help of the legal system. In 2015, Elsevier sued to shut down Sci-Hub and Libgen. A federal court eventually ruled in Elsevier's favor, awarding it $15 million in damages and issuing an injunction against the two platforms.

In 2017, the American Chemical Society (ACS) sued Sci-Hub. The U.S. District Court for the Eastern District of Virginia ruled in the plaintiff's favor, saying that Sci-Hub owed it $4.8 million in damages. The court ordered American web hosting companies, domain registrars, and search engines to stop facilitating access to "any or all domain names and websites through which Defendant Sci-Hub engages in unlawful access to, use, reproduction, and distribution" of ACS's works.

Other countries, such as Sweden and France, have also ordered internet service providers to block Sci-Hub and Libgen.

Enforcing any of these rulings has proven nearly impossible, since Sci-Hub and Libgen are hosted in other countries and not beholden to U.S.—or Swedish, or French—rules. The people behind Sci-Hub and LibGen didn't bother to contest the lawsuits against them. When internet service providers and domain registrars in these countries cut off access, the shadow libraries simply popped up elsewhere. And even if search engines don't display them, these libraries can be accessed via the dark web.

Yet publishers keep signing up to play this game of whack-a-mole in different venues. Elsevier, research publisher Wiley, and ACS are currently suing Sci-Hub in Indian court. (This time, Elbakyan is fighting back, arguing that Sci-Hub is covered under the exemptions in India's Copyright Act.) Another shadow library, the Ukraine-based Kiss Library, lost a case last year in the U.S. District Court for the Western District of Washington and was ordered to pay $7.8 million in statutory damages and to stop distributing copyrighted materials. The library has not paid a cent.

Since U.S. courts have no real power to make any of these institutions pay, popular authors John Grisham and Scott Turow have challenged the Department of Justice to do more. "The time and money required for the suit demonstrate the absurdity of leaving anti-piracy enforcement to the victims," they wrote in a February op-ed for The Hill. "We are also asking Congress to amend the law to stop U.S. search engines from linking to notorious foreign-based piracy sites, which they have refused to do on their own."

It's no surprise that some best-selling authors are among those most inflamed about pirate libraries. "The few existing studies in the general e-book piracy space…echo findings of research on music and audiovisual piracy: displacement effects are mostly detrimental for best sellers," while "long tail content enjoys a discovery effect," wrote Bodó and his colleagues in their 2020 paper.

But the U.S. Department of Justice will have no more luck than the courts in getting the outcome those American authors want. Nor would stopping search engines from linking to shadow libraries make much of a dent, since the sites would still be accessible to those in the know and since social media can easily provide this knowledge to anyone searching for it. The whole business would ultimately be a costly and time-consuming failure—in addition to keeping students, scientists, doctors, and others from accessing important information.

In an earlier internet era, people liked to say that information wants to be free. Information, of course, wants nothing. But so long as people want free information, the modern tech and digital ecosystem will provide it. Perhaps authors and publishers would do better to accept that and address ways to mitigate its effects rather than engage in an unwinnable copyright war.