Law Stack Exchange is a question and answer site for legal professionals, students, and others with experience or interest in law. It's 100% free, no registration required.

Sign up
Here's how it works:
  1. Anybody can ask a question
  2. Anybody can answer
  3. The best answers are voted up and rise to the top

I've been following an interesting Twitter conversation which raised the idea that merely asking a researcher for a copy of a paper they've written could be against the law. From the linked tweet:

you would be soliciting the violation of the law by requesting access to a copyrighted work

I guess the argument is the following: in the process of publication, authors typically transfer ownership of the copyright in their paper to the publishing journal. Sometimes the copyright transfer agreement specifies that the author retains the right to distribute copies of the paper, and sometimes it does not. If the agreement does not have this provision, it is being argued that asking the author for something they do not have the right to distribute could be contributory copyright infringement. Especially if you (the requesting third party) know - or believe - that the author doesn't have the right to redistribute the paper. It's worth noting here that most publishers put the standard copyright transfer agreement they ask authors to sign on their website, and authors are typically somewhat familiar with the standard agreements used by the journals they read and publish in.

This sounds rather crazy. I find it hard to believe that a simple informal request (which the author is free to deny, of course) could be against the law. Then again, that doesn't keep it from being true.

I'm sure it will take a court to definitively decide this issue, but I want to ask here, is it even plausible that making such a request would, in fact, be found to constitute contributory copyright infringement or some other violation of that nature? Or is there no realistic way it would happen? I'm especially interested in answers that can cite relevant references, statute or case law or whatever, that would likely influence the decision in a hypothetical case testing the issue. As far as I know this has never actually come up in a case, so there may not be much to cite, but if there is, it would be a very satisfying answer. This question is as much about supporting the answer as it is about getting one in the first place.

share|improve this question
1  
I'd say ask away. In the world I'm familiar with (pre-modern history, law, and philosophy), when you write an article, the publisher gives you some number of so-called offprints, which you are free to distribute as you see fit. It is quite common to send them to colleagues who would (potentially) be interested in the article. Indeed it is both nice to receive offprints from others and to be asked by others in turn (or at least it satisfies my ego). It is entirely possible (depending on the field, I guess) that they may be in a similar situation. – jon Mar 24 at 2:03
    
If you're interested in the practical ways of asking someone a copy of his work, this question on Academia could be of interest to you. – Clément Mar 24 at 13:58
    
@Clément indeed, though I'm moderately suspicious of the answers there. It's not a practical concern for me, though; I get all my papers from arXiv. – David Z Mar 24 at 14:04
up vote 15 down vote accepted

It is not illegal to ask for a copy.

There may be legal ways for the author to get you the paper

No matter the state of contracts, copyright ownership or licencing at the time of your request, and no matter your awareness of those things, the author can always ask the publisher for permission to share with you (17 USC 106), or they could make a determination (on their own or with the advice of counsel) that sharing with you is fair use.

If the author decided to infringe, it wouldn't be criminal infringement

Criminal copyright infringement is described in 17 USC §506. Copyright infringement is only infringement if:

(A) for purposes of commercial advantage or private financial gain;

(B) by the reproduction or distribution, including by electronic means, during any 180–day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or

(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.

Solicitation is a specific-intent crime

Even if we assume that the author somehow gets you the paper in a way that is criminal infringement, "solicitation is a specific-intent crime" (Daniel Hall. Criminal Law and Procedure. 2014. p 254). That is, "the person must intend to convince another to commit an offence".

In your hypothetical, the requester does not have the intent of convincing the author to commit criminal copyright infringement.

share|improve this answer
    
Is that really a good argument? By similar logic, suppose I call up Joe the Bank Robber and say "I would like to have all the cash that's in the vault at the First State Bank." Can I beat a conspiracy charge by claiming that I only meant him to ask them politely if he could have all the cash, and then give it to me? I'd think a court would look at the context. – Nate Eldredge Mar 23 at 18:11
5  
Are you asking if this is a good argument? I don't understand why you think I might have presented an answer that I don't think is good. That logic you give isn't similar because there are almost no ways for Joe the Bank Robber to accomplish your request legally, but there are several common ways for a paper author to be able to affirmatively respond to the request legally. If you think you have a better answer, please let me know how to improve this or write your own if you think I am not understanding you. – Dawn Mar 23 at 18:21
    
I don't have a better answer. It sounded to me like you were claiming an absolute principle that it is legal to ask for things, as long as there is any possible way for it to be achieved legally (which in my hypothetical there is, although it is unlikely to succeed). I appreciate your clarification. – Nate Eldredge Mar 23 at 18:25
5  
I'll add further (and maybe add to my answer), criminal conspiracy is an agreement between two people to commit a crime. First, there is no agreement to commit copyright infringement in this question. Second, the type of infringement that would potentially occur in this question doesn't seem to meet the elements of criminal infringement under 17 USC 506 – Dawn Mar 23 at 18:27
1  
Actually, thinking about it now, this question is really about what it means to conspire in a crime, not about copyright. – Dawn Mar 23 at 18:31

The argument is based on a presupposition that the requesting party would or could know the details of a private contract between the author and the publisher. If the requesting party can't be expected to know that the author is limited in such a way then there can't be any charges against the requesting party.

In short ask, because it is reasonable, and it is up to the author to comply with the terms of the contract that they signed. Those who ask the author for a copy aren't parties to that contract.

share|improve this answer
    
OK, thanks - but what if the details of the contract are (or could be) known? Generally, each journal publisher has a standard copyright transfer agreement, which is what they ask authors to agree to, and the agreement is publicly available on their website. (I can edit the question to clarify this.) – David Z Mar 23 at 16:58
    
Even if the standard contract a particular publisher uses is made public I have no way to know if a particular author has negotiated an alternative arrangement. I can't know that without asking either the author or the publisher. – Jason Aller Mar 23 at 17:04
    
If it is illegal to ask someone to break the law, is it necessary for the asker to know that the requested action is illegal? Your answer seems to be based on the assumption that it is necessary, but that seems far from clear. On the other hand, suppose you have in hand a copy of the author's contract with the publisher. Would it then be illegal to ask for a copy of the article? – phoog Mar 23 at 17:07
2  
@phoog The author can always ask the publisher for a one-off exception, or they could make a determination (by themself or with the advise of counsel) that sharing with you would be fair use. Asking for a copy is not illegal, no matter how much knowledge you have of the contract. – Dawn Mar 23 at 17:22
    
@phoog breaking the contract is not a crime, so even with full knowledge of these terms it is legal to ask someone if they would please act in violation of that contract. It is also legal to, for example, offer someone compensation or pay their fines/penalties if they would break their contract with a third party that favors you - e.g. service providers paying the switching costs if a customer would switch over from a competitor before the contractually agreed term. – Peteris Mar 23 at 18:52

It is not illegal to ask for a copyrighted item the author has purchased. Because authors sign away copyright to the journal, journals always offer the author an opportunity to either buy a quantity of copies to send to those who request it (usually about $25/100 copies) or offer to make the article available free online (open access) if the author pays a fee, usually about $2500. Pharmaceutical companies routinely pay for open access when they sponsor an article that has data or opinion favorable to their product(s) but many authors working in academia can't afford open access. Some journals allow open access free of charge to authors affiliated with certain academic institutions.

share|improve this answer
    
Always? I've never had that happen. In fact, usually I receive a set of off-prints, which I am free to distribute as I see fit. – jon Mar 24 at 1:59
    
@jon as you mentioned in your comment on the question (and cc Rob), it depends on the field and the journal. In my field, high-energy physics, most of the major publishers allow the author distribute electronic preprints (PDF copies of the article as it was prior to submission) in unlimited numbers at no cost. Some publishers also allow the author to distribute the final published PDF file from their personal website under similar terms. I've heard there are some publishers that don't allow the author any distribution rights at all, though I don't have an example off the top of my head. – David Z Mar 24 at 8:11

Whomever uttered this outlandish nonsense has a fundamental misunderstanding of what copyright is, what it protects, how it functions, and even what it smells and tastes like.

i.e. that "merely asking for a copy could be illegal" is pinning the "academic who has no idea what is and is not copyright and what is and is not plagiarism" meter. hard to the right. In fact the crap-meter is getting hot, it's so hard-pinned.

So, short answer: it is never a violation of copyright, and certainly isn't a violation of any law (which is a distinct and separate thing) to ask an author for a copy of a paper.

Another thing to consider, anecdotally, is that above and beyond the doctrine of fair use, there's also the doctrine of FIRST use. This states that once a copy has been purchased, the purchaser "owns" the copy and may dispose of it as he/she pleases, including re-selling it. This is starting to change as wily publishers sell "licenses to the paper" instead of "copies of the paper."

share|improve this answer
    
This makes a lot of sense if we're talking about distributing paper copies. Does it also apply to electronic copies? I suppose that would be a case where the publisher would be likely to license the article, rather than selling a copy? – David Z Mar 24 at 8:13

Your Answer

 
discard

By posting your answer, you agree to the privacy policy and terms of service.

Not the answer you're looking for? Browse other questions tagged or ask your own question.