Could asking an author for a copy of their research article be illegal?

Question

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.

Answer 1

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.

Answer 2

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.

Answer 3

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."

Answer 4

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.