The Morality of Piracy in Academia

Introduction

Academic piracy occupies an uncomfortable moral position. When knowledge is locked behind paywalls, piracy can seem less like theft than a refusal to accept an unjust system, and the argument is compelling, since research depends on the circulation of knowledge, yet access to it is restricted by institutions that charge substantial fees, often without paying aught to the researchers whose work they publish. What is ultimately being sold⸺ then, as I too shall argue, is not access to knowledge, but access to the prestige these institutions confer upon it.

I. The Defense of Piracy

Contextualizing the defense

The ordinary defense of piracy begins from the economics of academic publishing. Papers are written by academics whose salaries are largely paid from public money, reviewed by other academics who are usually paid nothing for the work, and sold back to the universities and libraries that employ both² by a handful of firms, of which the largest, Elsevier,³ reported in its scientific, technical and medical division an adjusted operating margin of about 38 percent in 2025.⁴
By 2013 five publishers already produced more than half of all papers in the natural and social sciences, a concentration which Larivière, Haustein and Mongeon describe as having increased steadily since the 1970s and most sharply since the advent of the digital era, while, in their words, “the value added, however, has not followed a similar trend”.⁵

In 2012 the library of Harvard, among the wealthiest in the world, told its own faculty that the cost of its journal subscriptions had become “fiscally unsustainable”.⁷ Contrary to these stands Sci-Hub, which by March 2017 held 85.1 percent of all articles published in toll-access journals and offered, for such articles, greater coverage than the subscriptions of the University of Pennsylvania⁸, and whose server logs, when Science examined six months of them in 2016, showed some twenty-eight million requests from nearly every country, about a quarter of them from countries of the OECD.⁹

Whence the defense concludes that each download is a small act of justice against an unjust enclosure of knowledge.

Against Defense

With most of what the defense says contra institutions that be, I fully agree. The difficulty is how we are to understand, without justifying it, an act that responds to institutional injustice, a tension academic publishing makes particularly clear, though it extends to other forms of digital piracy. The injustice of these institutions does not, by itself, settle the morality of taking from them, and the defense commits a fallacy, usually unnoticed, by which a judgment about the institution⸺ that it encloses what was written in order to be read, and so has failed in its purpose⸺ is carried over into a judgment about the act of taking from it, as though the injustice of the institution that withholds were transferred, now as justice, to the act of piracy. To treat piracy as wholly justified is to let the wrongs of an institution determine the moral character of the act committed against it, and to condemn it without qualification is to ignore the conditions under which it occurs.

If theft is understood as the overriding of a claim, then piracy wrongs someone even when it deprives none of anything⸺ if it wrongs someone, then the pressure under which it is committed makes it a lesser evil (relative to) without making it any less an evil (in absolute magnitude thereof)⸺ if the pressure is real, regardless of what one holds on the wider question of property surrounding it, then the institutions have failed.

Theft Without Deprivation?

It has been argued that a copied paper remains in its publisher’s possession. In what sense, then, has anything been stolen? Jefferson expressed this objection in 1813⸺ “he who receives an idea from me, receives instruction himself without lessening mine”.¹² If theft necessarily involves deprivation, piracy would seem to fall outside its definition. But this assumes that what makes theft wrong is the loss of property it causes, rather than the claim it overrides. A lost sale is a real loss, but where no sale was possible, as with a reader who cannot pay, the claim is overridden all the same. Jefferson’s objection, moreover, concerns ideas, and the pirate takes not an idea but research, i.e. the published result of labor, funding, review and production, and it is the text, not the idea, that copyright reaches.¹³

Theft need not deprive a man of a possession to wrong him, since it can violate his right to decide what happens to something over which he holds a legitimate claim, and Jefferson writes that society might grant such a claim over the profits of ideas to encourage the production of useful knowledge¹⁴, whence it follows that where that claim is legitimate, copying against its holder’s will can be wrong even when no property is lost.

I will make this argument deliberately without assuming any belief in intellectual property, so as to avoid the common economic and political argument⸺ in which (1) some laissez-faire and libertarian writers reject intellectual property as a state-created monopoly, whereas (2) Marxist critics understand it through private appropriation, commodification and the control of socially produced knowledge¹⁵⸺ I do not intend to settle or invoke their dispute, and will rest instead on a principle prior to both, theft in its fuller moral sense, which cannot be reduced to the taking of a physical object, nor to the violation of a property right, nor even to deprivation as it is commonly understood, the loss of something one held. Moral language has long extended theft and its analogues to non-material things, from honor and labor to agency and trust¹⁶, and law codifies this moral impulse, where copying of a trade secret or the assumption of another’s identity is called theft and law punishes the theft of services as it punishes the theft of things¹⁷, while economics counts services as output alongside goods, and the wages withheld from workers, an estimated fifteen billion dollars a year in the United States from minimum-wage violations alone, go by the name of wage theft¹⁸, though the worker never held what he is said to have lost, his loss being only of what was owed to him (a claim). Here the two sides of the political dispute, and the disciplines of law, economics and the anthropology that so often stands against each other, agree, as they reckon theft by the claim it overrides⸺ Adam Smith called the property every man has in his own labor “the original foundation of all other property” and “the most sacred and inviolable”, Robert Nozick held labor so far owned that “taxation of earnings from labor is on a par with forced labor”, and Marx built his critique of capital on what he called “the theft of alien labour time, on which the present wealth is based”¹⁹, a theft he found in an exchange which is, by his own account, “by no means an injury to the seller”, since the worker is paid the full value of his labor-power and loses nothing he held, so that the theft Marx condemns is a theft without deprivation.²⁰ Nor does the defender of the market reckon otherwise, since interest and rent are owed to the lender and the landlord not for anything taken from their hands, but for the claim each holds on what his capital or his land will yield, “present goods” being, in Böhm-Bawerk’s phrase, “as a rule, worth more than future goods of like kind and number”²¹, and capital spent upon the making of knowledge, in its labor, in the risk of its failure and in the waiting for its return, holds the same claim on what it yields as capital spent upon anything else. The libertarian who grants a claim on capital’s yield must then explain why capital spent on research holds none, and the Marxist who condemns the taking of surplus labor must explain why labor spent on knowledge alone may be taken⸺ only Kinsella escapes, by denying that labor can be owned at all.²²

Those who confine theft to the taking of physical things, so as to acquit the copying of ideas, thus contradict themselves and the broader view is not a moral nicety but a demonstrable fact of how people reckon what is owed to one another. Whether knowledge ought to be privately owned is distinct from whether overriding another’s claim thereto constitutes a moral wrong, and whether publishers exercise their claim justly⸺ in terms of their prices, exploitation or their restrictions⸺ is a distinct question again, and an important one (see § II). The moral judgment of piracy, as a lesser evil that remains an evil, therefore stands whatever one believes about property, and no theory of property, whether it calls copyright a legitimate claim, a monopoly granted by the state or an expropriation by capital, can by itself turn the act into a good. Nor does the publisher’s own wrong, however great, justify piracy. Abusing a right is a separate wrong that requires its own remedy, and pirating the publisher’s paper is not one of them. Reading a pirated paper in private is not the act of revolution its defenders claim, because it leaves the publisher’s power unchanged if not stronger (see § III).

It is pleaded, too, that the publisher first stole the paper from its author, so that to copy it is only to recover stolen goods. But the author transfers his copyright by consent, in exchange for the journal’s certification and the standing it brings,²³ and other venues remain open to him; that he consents under an administration which judges him by where he publishes (see § II) makes the bargain unfair, but not a theft, since he receives what he bargained for. Its unfairness falls less on the author than on the public, which pays for the same research more than once, and on a society kept from knowledge it has funded. The publisher’s claim is therefore no stolen good, and the pirate who overrides it does not recover a theft but commits one.

Nor is all piracy morally equivalent. Taking from an independent author or small developer who depends on sales is more clearly wrongful, since it takes the bread of the one who made the work. Taking from an institution whose restrictions unjustly obstruct access may, by contrast, constitute a lesser evil⸺ the act remains wrong⸺ just less wrong.

Calling piracy a lesser evil describes its relation to the greater injustice under which it occurs⸺ it subtracts nothing from the wrong involved in the act itself. The common mistake is to treat morality as a calculation in which the good secured by an act cancels its wrong, until what was wrong becomes acceptable, or even good. The strongest form of this argument is necessity, which moral and legal tradition alike admit⸺ e.g. Aquinas held that where need is manifest and urgent and admits no other remedy, all things become common,²⁴ and the later moralists confined this to extreme necessity, as modern law excuses only an act that avoids a greater harm than the one it commits.²⁵ Yet access to an academic paper, however important to a life of study, seldom meets either condition⸺ even the physician seldom needs tonight the paper behind a paywall, since what saves a life is established knowledge, lawfully at hand, and to stake it on the latest experimental design would be nearer malpractice than medicine.

II. On Failure of Our Institutions

The Fracture

Knowledge has a natural end²⁶, which is its purpose⸺i.e. dissemination by those who produce it and its apprehension by those who seek it, and a scholarly institution exists so that both may be accomplished within lawful arrangement beneficial to both⸺

In present academic publishing both ends are met outside the law. Academics routinely post their own papers in breach of the agreements they signed with publishers,²⁷ since they receive naught from the sale of the published version and their interest is in being read for both moral (dissemination of research) and socioeconomic reasons (prestige)²⁸⸺ whereas students and researchers pirate the published versions of those papers, for the lawful route to them runs through subscriptions and affiliations they often do not have.²⁹ Reviewers, for their part, work without pay for the journal, and their time in 2020 has been estimated at over 100 million hours, worth more than $1.5 billion for reviewers based in the United States alone.³⁰

When the creators of knowledge and the seekers of knowledge must both operate outside the law to achieve the natural end of knowledge, the institution itself is objectively fractured, and objectively, since the fracture is visible in the conduct of every party in the arrangement and does not depend on opinion but reality of present situation. It is an institution that loves no one, serving neither the one who writes nor the one who reads, and treating both alike as sources of revenue.

What the Publisher Sells

Aileen Fyfe and her colleagues trace how scholarly communication, largely non-commercial until the Second World War, passed after 1945 to commercial firms, and how “control of the measures of academic prestige⸺ starting with the management of peer review, and extending to the development of metrics⸺ has been silently transferred from communities of academic scholars to publishing organisations”.³¹ Larivière, Haustein and Mongeon observe that in the electronic world typesetting, printing and distribution are easily performed or no longer necessary, and that what keeps researchers dependent on the publishers is “one essentially symbolic function of publishers, which is to allocate academic capital”.³² In many journals this task has been relegated to academic as well⸺ formatting a manuscript to a journal’s template, fixing its figures and bringing its bibliography into the house style can cost a researcher days of tedious work unless the research was fully planned from the start⸺ thus the labor has not fully disappeared so much as changed hands, since authors in many fields now submit their manuscripts already set in the journal’s own template³³, so that the service which once justified the publisher is now performed for it by the author.

A comparison, moreover, of some twelve thousand papers posted to arXiv, chiefly in physics, mathematics and computer science, with their published versions found that the “vast majority of final published papers are largely indistinguishable from their pre-print versions”,³⁴ and I would expect the humanities to differ little.

What a university buys from a publisher, then, is chiefly the name of the journal,³⁵ because an academic administration which over the last half-century has grown faster than its faculty³⁶ judges scholars by where they publish,³⁷ the rank of a journal is legible to someone who does not share in the scholarship it ranks⸺ i.e. an administrator with no training in a scholar’s field can still judge the quality of his scholarship by the rank of the journals he publishes in⸺ and so the university must subscribe, at whatever price is asked, to the journals by which its own members are judged.³⁸ That price, which produces the margin, is charged for papers the publisher neither wrote nor reviewed and which arrive largely edited and typeset, while the services that remain have been priced at about 400 dollars for a representative article,³⁹ which can be reproduced without any serious cost.⁴⁰ The older doctrine of the just price held a price justified when it answers to the labor and risk of the seller and is agreed by a buyer free to go elsewhere,⁴¹ and a price charged to a typical university, for labor that is mostly the buyer’s own, to a buyer who cannot go elsewhere, meets neither condition.

The Guild of Masters

The fracture is not a problem awaiting a solution no one has found, since qualification, books and the copies of texts were once governed by the community of learning itself⸺ a master licensed at one studium generale could teach at any other⁴², membership opened libraries held in common⁴³, and copies were rented at prices the university fixed.⁴⁴ The medieval university was a guild of masters and scholars⁴⁵, one of the many institutions that once stood between the sovereign and the individual⁴⁶, of the kind Ostrom found missing from every account that frames the government of shared goods as a choice between the state and private property.⁴⁷ It kept its freedom by its capacity to migrate⁴⁸⸺ when the queen’s sergeants killed students in 1229, the masters of Paris left the city for two years and returned only under a papal charter confirming their right to govern themselves⁴⁹⸺ and by the privileges of a Church⁵⁰ whose power was subsidiary, exercised from outside the kingdom, whereas the power of the modern sovereign state is centralized and exercised from within. The medieval university exemplified the alternative: an institution combining supra-sovereign autonomy with subsidiarity to the community, thus preserving both institutional independence and local accountability, irrespective of where authority resided.⁵¹

That the guild was abused gave no sovereign, whether a king or the republic (or its tyrants) that succeeded him, the right to take it into his own hands and call it protection, since to legalize an abuse does not make it good, yet the state did so, with a theory that “with few exceptions supports state authority over any guild-like group”⁵², so that the freedom it now grants the university is conferred from above and withdrawn from above.⁵³ This was not always the case, and need not remain so.⁵⁴

Yet the modern state seldom needs the crude abuse of a purge, since it governs the university more often through the law it writes and the value (money) it attaches to that law, and it is by these, directly and indirectly, that the managerial university and the publisher’s enclosure were made. Directly, the publisher’s power rests on a monopoly the state confers and enforces, since copyright, assigned by the author as a condition of publication, gives each journal the only lawful copies of what it prints, so that no journal is a substitute for another and the library that needs a paper must buy it from the one seller who holds it.⁵⁵ Indirectly, the state made the rank of a journal the currency of the university, since from the British Research Selectivity Exercise of 1986 onwards governments have allocated research funding by assessing what universities publish, and such assessments matter less for the money they distribute than for the competition for prestige they set in motion.⁵⁶ In India the academic performance indicators of the University Grants Commission, introduced in 2010, made the number of a teacher’s publications a condition of his appointment and promotion, and journals that publish for a fee grew so fast that more than 88 percent of the unindexed journals on the Commission’s own approved list failed minimum standards of quality.⁵⁷ Withal, in China universities have paid cash rewards of up to 165,000 dollars for a single paper in an indexed journal.⁵⁸ In America the compliance federal regulation demands of universities, some 27 billion dollars a year, between 3 and 11 percent of what they spend apart from the hospitals many of them run,⁵⁹ must be staffed by the very administrators whose growth outran that of the faculty,⁶⁰ and the burden is heavier than this estimate, which counts only what federal rules require, since faculty who hold federal grants report spending 44.3 percent of their research time on administrative tasks.⁶¹ An administration once installed to meet the state’s demands grows, as Ginsberg argues, by its own interest beyond them, which in part explains why, between 1975 and 2005, administrators at American colleges and universities grew by 85 percent and other professional staff by 240 percent while the faculty grew by about half, and why administrative spending in constant dollars had already risen, between 1947 and 1995, by 235 percent against 128 percent for instruction.⁶² The state thus created the administrator’s need for a measure of scholarship he could read without reading it, and the publisher sold him that measure, so that the fall of the faculty and the rise of the publisher are two sides of one policy⸺ and when governments and the bodies they fund have tried to undo the enclosure, they have paid the same publishers to open it, as Germany’s national agreement with Springer Nature in 2020 paid 2,750 euros for each article.⁶³

Scarcity and Failure

The Middle Ages were poorer than the present, and a text that existed in a few copies could be read only where those copies were.⁶⁶ Technology has abolished that scarcity,⁶⁷ yet the reader outside a university, or in a poorer country, is still shut out, not because the text is rare but because he cannot pay, and three quarters of the requests in Sci-Hub’s logs came from outside the wealthy countries⁶⁸⸺ so that inequality caused by scarcity, which was the fault of none, has been replaced by inequality caused by failure, which is the fault of some.

Technology ought to have repaired this weakness (of material scarcity) while leaving the institutional advantage (of self-government) intact, and it has done otherwise: because it kept the convenience of the individual reader steady, or improved it, the decline in the freedom and quality of the institutions behind that convenience has gone unseen. Where technology falls behind institutional decline, the gap is visible and provokes upheaval⸺ where it holds convenience steady, the freedom on which convenience rests can be removed without anyone noticing until it is too late. Nothing argued so far romanticizes the Middle Ages: the material poverty of that age was a weakness technology could cure, while the loss of institutional freedom in ours is a weakness technology has served to hide.

The Failure of the Politico-economic Binary

Neither side of the political binary answers either failure, the political or the material. The libertarian is right that copyright is a monopoly granted by the state,⁶⁹ but its abolition would not dissolve the publisher’s institution, since what holds that institution together is prestige, not the law or the cost of printing⁷⁰⸺ Sci-Hub has already abolished copyright in practice for 85.1 percent of the papers published in toll-access journals⁷¹, and the publisher’s margin stands untouched⁷², because the administrator who must judge a scholarship he does not share would still buy the name of the journal, whether his university were funded by a ministry or by the market, the need arising not from who pays for the university but from who governs it. The socialist is right that knowledge has been enclosed by capital, but the state he would trust to open it is the state that installed the metrics from which capital profits,⁷³ and the greatest of its mandates for open knowledge have so far been paid to the enclosure they meant to open, and where a mandate frees the text without paying, libraries subscribe as before, so that the enclosure of prestige survives that of the text.⁷⁴

Nor does either answer the inequality of failure, since the market’s own remedy for the poorer reader, the Research4Life program, through which publishers in partnership with agencies of the United Nations open their journals free or at low cost to institutions in poorer countries, excludes every country whose national income exceeds a trillion dollars, however poor its readers, so that its rule measures the size of a market and not the need of a reader⁷⁵, while the state’s remedy, the national license by which governments now buy a country’s access to whole catalogs of journals, opens them only to members of the institutions it covers, so that the reader outside them is shut out as before and the enclosure is paid in full for keeping its gate.⁷⁶ Both place the remedy in the relation between the individual and the sovereign and between sovereigns and both pass over the community of learning that once governed qualification, books and copies for itself, whose freedom never depended on whether the power above it was a ministry or a firm, but on whether that power was subsidiary to the community’s own government, as the Church’s was when it defended the guild against its town and its king.⁷⁷ Both take the secular sovereign, whether an institution such as a monarchy or a republic or an abstraction such as the market, as the sole source of legitimacy, and subsume every other kind of institution under it, suffocating freedom of academic community and people desiring to learn from them.⁷⁸

III. Pirate as Shadow Client

Exit and Drift

Why, then, does the fracture persist? Piracy creates a paradox⸺ by providing a way around the institution’s restrictions it allows people to live with a system they might otherwise have reason to challenge, so that the system’s failures are exposed while their consequences are softened. Since all have found a way around the system, the pressure to repair it dissipates. Authors (see § II) break their agreements to reach their readers, by posting preprints (usually lawful)⁷⁹ or by passing published copies to readers and shadow libraries (in breach of law)⁸⁰⸺ readers obtain the published versions through leaked institutional logins, as Sci-Hub does in part⁸¹, which exposes the converse of the authors’ breach, that piracy depends on the institution it evades, since shadow libraries can copy only what universities still pay for. Neither route alters the arrangement that withholds the paper.

In Albert Hirschman’s terms piracy is an exit: those who most need the literature leave the paying constituency without leaving the literature (an exit unfelt, its revenue coming from libraries), and the pressure they might have exerted from within leaves with them.⁸² Mahoney and Thelen call an institution in this condition one in drift, “the neglect of institutional maintenance in the face of slippage between rule and practices on the ground”⁸³, where the rules of copyright stay in force, practice moves to preprints and shadow libraries, and nobody enforces the rules to effect or replaces them⁸⁴, which is the impasse: the institution cannot recover the purpose it has lost, and those who suffer from it have no reason to build a replacement so long as each can make a private way around it.

The Shadow Client

The pirate who goes to a publisher’s catalog, and to no other, to find what is worth reading concedes that the publisher holds the authority to say what is worth reading⸺ he covets its property, and in taking it he affirms its value, so that he becomes what I call the Shadow Client of the institution, dependent on it to define which knowledge is worth having and standing to it as the other side of its coin, a participant who believes himself its adversary, resisting the institution while helping it endure by abiding by its prestige and its valuation. The pirate who justifies his piracy as a fight against the institution in fact sustains the authority of the very institution he condemns, and this ironic tragedy is the proof that the justification fails. The Shadow Client is more than a figure of speech, since the economics of piracy have long shown that unpaid copies can serve the brand they are taken from. A study of spreadsheet and word-processing software in Britain between 1987 and 1992 found that six of every seven users had pirated copies, and that the pirates, by recommending the programs to others, generated more than 80 percent of the new legal buyers, and economists of the music industry have since argued that free downloading can raise a label’s sales by letting listeners sample what they later buy.⁸⁵ In scholarship the service the pirate renders is still more direct. Articles downloaded from Sci-Hub have been found to be cited about 1.72 times as often as comparable articles that were not,⁸⁶ and citations are the measure by which journals are ranked.⁸⁷ Every pirated paper that is read and cited therefore adds to the prestige of the journal that enclosed it, and so to the value of the very name the university must keep buying.

The cost of that name falls on the public. The research is paid for largely by governments and by the fees of students, which have risen sharply⁸⁸⸺ the reviewers are paid, if at all, by the universities that employ them,⁸⁹ and the same universities then buy the results back through their libraries. An investment analysis written for Deutsche Bank in 2005 described the structure of the industry as a “bizarre” “triple-pay” system.⁹⁰ The money spent in this way buys, beyond the few hundred dollars of services an article requires,⁹¹ nothing but the brand, and the pirate, whose reading and citing enlarge the brand, enlarges the bill that others pay.

The pirate who justifies himself helps to keep this inefficient and maladaptive arrangement as it is. Mahoney and Thelen give him a precise place among the agents of institutional change. The parasitic symbiont “exploit(s) an institution for private gain even as (he) depend(s) on the existence and broad efficacy of the institution to achieve this gain”, and flourishes where “expectations about institutional conformity are high, but the actual capacity to enforce those expectations is limited”⁹³, which is the condition of academic publishing exactly⸺ the mutualist symbiont, who “violate(s) the letter of the rule to support and sustain its spirit”⁹⁴, is the academic who posts his own paper so that it may be read, and the pirate who claims kinship with him has mistaken one kind of agent for the other.

Weapons of the Weak

Nor can the pirate claim the standing of the weak against the strong. James C. Scott described pilfering, foot dragging and false compliance as the “ordinary weapons of relatively powerless groups”⁹⁵, and on this reading piracy is a weapon of the weak against an institution that has wronged them, yet Scott himself sets its limits, warning against romanticizing such weapons, which rarely do more than marginally affect exploitation, and observing that squatters may take more land piecemeal than an open invasion would win, “though the de jure distribution of property rights is never publicly challenged”.⁹⁶ Such is the pirate’s position exactly, since he reads more than any open campaign for access would have won him while the publisher’s title stands unchallenged but rather confirmed by his access to it⸺ much of the traffic is not resistance at all, since many readers use Sci-Hub simply because it is quicker than their own library’s login. The critics of Sci-Hub who point to that convenience reveal less the idleness of readers than the efficiency the gatekept route has taken from them.⁹⁷ The weapons of the weak are real, but against this institution their effect is drift, which remains an accommodation however much it is called a struggle.

Civil Disobedience

Nor is the pirate a civil disobedient, though he is often called one.⁹⁸ Civil disobedience, on the account that has stuck, is a public breach of law that gives notice, appeals to the community’s sense of justice, accepts the penalty and seeks a change in the law,⁹⁹ whereas the reader downloads in private, seeks the paper and not the reform, and bears nothing⸺ and the wider defense of uncivil and covert disobedience, which might admit him, admits only acts of resistance, and to resist an injustice is to refuse to cooperate with the mechanisms that sustain it,¹⁰⁰ which the reader who takes his reading from the publisher’s catalog does not do (see The Shadow Client). Those who put their names to the act and bear the judgment against them stand on other ground,¹⁰¹ and the reader borrows their standing without its cost.

The Maxim of the Pirate

To call it acceptable to obtain knowledge by illegitimate means is to say that the legitimate means need not be reformed. Kant’s categorical imperative tested the false promise by asking what would follow if everyone made promises without intending to keep them, and found that the practice on which the false promise depends would cease to exist¹⁰²⸺ the maxim of the pirate who justifies himself has the same structure, since if everyone took and no one paid, the funding (of university not the publisher) that produces what is taken would end before anything had been built in its place, and Sci-Hub would have nothing left to copy.¹⁰³ Evil is in this sense a parasite on the good, consuming what its own existence depends on.¹⁰⁴ A better institution would have to be built. (see § IV.) The pirate already has the benefits of the closed journal’s review without its obligations, and the effort that might have built a new vessel is spent keeping a passage open into the broken one. Others bear the consequences, since an institution that cannot measure its loss answers it with tighter access controls and with litigation¹⁰⁵⸺ the anthropologist Alexander Dent, studying film and music piracy in Brazil, describes piracy and its policing as produced together, each growing with the other.¹⁰⁶ The pirate bears a consequence too. One who pirates while holding piracy to be wrong keeps his guilt, and his guilt keeps the fracture in view and keeps him a possible supporter of reform, whereas one who justifies piracy relieves the discomfort by changing what he believes in place of what he does¹⁰⁷, and so acquires a stake in the arrangement as it stands. The same holds of the piracy of software, films, games and fiction, where the pirate depends on the industries he resents and leaves them as they are.¹⁰⁸

IV. Confession of Failure

Confession, Not Justification

If piracy is an evil in its full weight, if the institution that provokes it is a greater evil kept at an impasse by the compensations that let each man live with its failure instead of repairing it, and if the justification of piracy is itself one of them, then what remains to one who pirates and will not justify it is confession, which is more than acknowledgment, since to acknowledge is only to admit a fact, and to regret it only to feel it as one’s own,¹⁰⁹ while to confess is to name the act as a fault, to own it as one’s own, to affirm the standard it falls short of, and to bind oneself to amendment (of the arrangement as well as the act).¹¹⁰

One can in good conscience: (1) neither condemn piracy without acknowledging the failure that leaves readers without lawful access to what they need, (2) nor justify piracy, which would call an evil good, since the absence of lawful options describes the situation of the one who pirates without altering the moral character of his act, and the grave fault lies precisely in turning an act of necessity (ambiguous at best) into a moral good.

Three Objections

(1) It may be objected that moral philosophy has long allowed this, since it calls the lesser evil justified and grants only that some residue of guilt remains,¹¹¹ but such a concession surrenders the word and haggles over the remainder⸺ to justify is to make just, and an act that remains a wrong is not made just by being the least of the wrongs on offer, since the ordering of evils is an ordering within evil, and to stand first among them is not to cross into the good.¹¹² That an act was the one to choose describes the choice, not the act, and to fold the one into the other is the defense’s own fallacy (see § I), carrying a judgment from one object to another⸺ the pirate hears in justified not least bad but good, and the nuance usually kept in a footnote is the first thing the pirate forgets.

(2) It may be objected that this is relativism, since the rule seems kept absolute in principle and set aside wherever need presses, but that is not so⸺ relativism lets circumstances change the moral character of the act until the standard is bent to fit the need and the actor is declared innocent, whereas confession lets circumstances explain the choice while the act remains an evil whosoever commits it and whatsoever presses him, so that even where it was the “best possible option” the one who made it remains answerable for the wrong it involved, since, as Ruth Barcan Marcus argued, an obligation that is overridden still leaves its residue¹¹³⸺ it is rather the critics who are relativists, keeping their own hands clean through formulas of intention and consequence, stretched past their own conditions,¹¹⁴ by which an act done for a good end, or with an unintended harm, is declared innocent, so that the relativism they charge to confession is their own projection. (3) Whence justification ought to be avoided, lest it become a loophole for acts with no necessity behind them, and confession is no hypocrisy, since the hypocrite hides the act and pretends it is virtue. La Rochefoucauld called hypocrisy⸺ the homage vice pays to virtue¹¹⁵, confession pays it without pretense, whereas justification refuses it, deluding the pirate with the virtue he has failed, an act of comfort and not of prudence.

Justification from Left and Right

Justification, disastrously, is offered from both sides of the political and economic argument⸺ writers in the free-market tradition hold that intellectual property is a monopoly given by state, so that copying is no theft and pirate defends the freedom of the market, as Stephan Kinsella argues that rights in ideas conflict with property in physical things and Michele Boldrin and David Levine that copyright and patent are monopolies whose costs outweigh their benefits¹¹⁶, while writers on the left hold that the enclosure of knowledge is an expropriation by capital which the pirate resists, as McKenzie Wark writes that “information wants to be free but is everywhere in chains” and Sci-Hub’s founder, Alexandra Elbakyan, calls it “an openly communistic project”, since “private ownership of science by corporations is contradictory to science itself”.¹¹⁷

Each side may be right about the institution, and their broader ideological warfare concerns me not, nor do I intend to settle it⸺ my issue is that both commit the same fallacy, putting a justification where confession ought to be. The morality of piracy (see § I) is the same whatever one believes about property, so that neither side of the binary can alter the act by its account of the institution⸺ what both do instead is to repeat the defense (see § I) i.e. to carry a judgment about the institution over into a judgment about the act, and both can do so because they read institutions through an abstraction of self-interest. The free-market writer, (though not exactly Smith) trusts the invisible hand by which we expect our dinner not from the benevolence of the butcher, the brewer or the baker but “from their regard to their own interest”¹¹⁸, and the Marxist a history in which “it is not the consciousness of men that determines their existence, but their social existence that determines their consciousness”¹¹⁹, so that for both a good order arises from self interest. and the moral character of persons is deduced from categories defined in advance, self-interest set against altruism and the individual against the class, instead of being understood in the real relationships in which men live and build.

However seen in those relationships the dichotomy dissolves, and what remains will sound like the plainest of moral lectures: good institutions are made by good morals⸺ i.e. by people, through the labor, sacrifice, love and trust they give to a community, as the masters of the medieval guilds gave theirs to the universities, and the scholars who built arXiv and the open journals of the Public Library of Science¹²⁰ gave theirs to open archives. Those masters sought honor and these scholars seek citation and standing, since prestige, honor, profit and other forms of reward are realities of human desire and carry no vice in themselves⸺ they run as readily within an extractive institution that loves no one as within a good one built by love, so that their presence neither proves that an institution was built by selfishness nor tells us what built it, and the desire of one scholar for standing does not oppose the sacrifice of another who reviews without pay.¹²¹ What distinguishes the good institution from the failed one is the moral action of those who build and keep it, which neither a market’s invisible hand nor a utopian policy can supply in their place. To justify piracy by either creed is therefore an illusory virtue, and a false virtue is no virtue at all, since it replaces the confession that an imperfect world, in which no human action is perfect, demands of us, and it is only by confession that we can hope.

What the Confessor Keeps

The one who confesses thus keeps what the one who justifies has given up. Because he does not call his act good, the arrangement that drove him to it stands condemned as one that drives men to wrong, and so he keeps his complaint against it⸺ because he names the act as his own fault, he owes an amendment, and that debt binds him to the work of repair⸺ and because he holds a better arrangement possible, and knows that it waits on men such as himself, his complaint and his debt turn to hope rather than to resentment. It is by those who keep this discomfort, refusing to be comforted by an excuse assigning themselves virtue they deserve not, that the institutions which would make piracy unnecessary will be built.

Conclusion

Many who read this essay will, before the week is out, take a paper from Sci-Hub, and I do not ask them not to⸺ I ask only that they not call it good. The reader who takes and confesses still owes something, and the debt is paid not in private workarounds, which only ease the drift (see § III), but in work that returns the allocation of standing to the community of learning (the review given to an open journal and withheld from an enclosed one, the paper sent to a journal its scholars govern, the vote in faculty that judges a scholar by his work and not by the name of the journal that printed it), small amendments, i.e. the labor of which institutions were always made. The masters of the medieval guild built theirs so, and the scholars of arXiv theirs, and neither waited on state or market to permit it. The pirate who justifies himself owes nothing and so builds nothing, whereas the one who confesses carries his debt into the very arrangement he would repair, and it is by such debtors that a better institution, in which there would be nothing left to confess, may yet be built.