Recently Thomas Allen, CEO of the Association of American Publishers, sent a ham-fisted attempt at a "cease and desist" letter to some librarians in the California State University system. Not to the librarians themselves, actually, but to one of their "deans" -- sort of like going to the principal rather than talking first to the teacher.
That dean, Roman Kochan, replied with a tart missive to Allen. Kochan's message, in essence, was that Allen had stepped out of his lane and had best step back.
What was the fuss about? Allen accused one of Kochan's librarians, Gabriel Gardner, of promoting Sci-Hub. Yes, Sci-Hub, the site that publishers hate ("piracy") and researchers love ("it's so easy.") Now with over 50,000,000 papers and counting -- many if not most obtained through such dubious means as computer hacking -- Sci-Hub is the strongest threat yet to publisher paywalls and revenue streams.
Rather than evolving their business models, the main response by publishers so far has been to double down and build two-factor authentication schemes to protect their current revenues. This nerdy instance of whack-a-mole continues apace.
Back to Tom Allen, CEO of the Association of American Publishers (AAP). Allen's beef with librarian Gardner was that Gardner had not shilled sufficiently for AAP during a recent ALA presentation. Allen wanted Gardner to proclaim Sci-Hub illegal, immoral and detrimental to all human life. But Allen alleges -- on the basis of very scant evidence -- that Gardner encouraged people to use Sci-Hub. The more probable version of events is that Gardner simply noted that Sci-Hub is easy to use (it is). Allen charges instead that Gardner aided and abetted lawless behavior, but that's plainly ludicrous.
Let's not be too harsh -- Allen is just doing his job, throwing some red meat to his base of angry publishers. This is blatant propaganda, easily dismissed.
Nonetheless Allen's gambit does pose an interesting question: How should we discuss things that are clearly illegal (in the court of law sense) but are much more ambiguous ethically?
For Sci-Hub fits squarely into this frame. There is absolutely no doubt that the site is illegal, sourced by still-in-copyright materials Sci-Hub does not own or license.
And yet. The very fact that publishers can copyright, and profit by, the results of what is often taxpaper-funded research is unconscionable. It's legally permitted but morally outrageous. Even if we grant that publishers add value to scholarly communication (and I do) this does not mean they need the iron grip on content they currently have in order to make a profit. It's the system we've chosen to build, not the only system we ever could have.
Sci-Hub is far from blameless in this equation, as it falsely impersonates people and steals network credentials in order to obtain articles. But, of course, no such actions would be necessary if all scholarly content were open access at the time of publication.
So back to the question: what to do when something is legally forbidden but ethically ambiguous? Say so. Librarians discussing Sci-Hub with anyone should say, "This is illegal but the laws are bad. Live within these constraints AND seek to change them." Of course, most people listening will ignore the legal constraints (Sci-Hub is damn easy) and do nothing whatsoever to change copyright law. It's up to librarians and progressive attorneys to take that part on.