Since early days indeed, it's been possible to bypass journal publishers and libraries in a quest for a particular article by going directly to the author. Some publishers have even facilitated this limited variety of samizdat by offering authors a few ready-made offprints.
I've even had publishers give me e-offprints (which to me, preprint disseminator that I am, just feels weird). The repository software ePrints can place an "ask the author" button on items that are withheld from public view for whatever reason. As best I can tell, just about everyone involved in scholarly communication thinks this form of mildly extra-legal distribution is all right.
Times are changing, however, and academic samizdat is taking on new forms. Exactly what the responses will be remains to be seen, but early indicators exist.
Consider website distribution of typeset publisher PDFs, or clumsy scans of typeset articles. This is legion (see Wren 2005 for details), and as any competent institutional-repository manager will tell you, it is often not legal. If you, researcher, signed over your copyright to your publisher, and your publisher did not in turn grant back a license to use the work in this fashion, you have violated the publisher's copyright, and the publisher can sue you for it.
Yes. Really. Planning to read your next publishing agreement now? Good. You gladden this librarian's wizened heart.
Now, suing the producers of your stock in trade is fairly suicidal business practice. Publishers aren't stupid; they know this. They've turned a blind eye to this practice, treating it as an extension of ordinary academic samizdat… for the most part. If you check SHERPA/RoMEO, you find fairly quickly that publishers restrict other forms of samizdat that they find more threatening to their businesses: reposting in disciplinary repositories, notably, and you'll even find a few who object to institutional repositories.
There's a troublesome sign, however: the lawsuit by Oxford University Press, Cambridge University Press, and SAGE Publications against Georgia State University. This was reported in the library press as being about practices in library-managed electronic reserves, but as I understand the matter, the presses also objected to articles posted on faculty websites and in university courseware. Twists and turns abound (this seems to be the latest situation), but the case hasn't yet been settled, so there could be a ruling that disallows faculty posting of articles they authored on their own websites.
That would be an interesting day indeed.
Of course, the articles posted might not have been the faculty members' own articles, which opens another can of worms. As access diminishes, both through library-budget impasses and through (perceived or actual) difficulties of securing even access to that which a library has paid for, samizdat flourishes. Through web bulletin boards, through "journal clubs," through chains of friends across institutions, through designated sites, even, samizdat flourishes. As journal-publisher profits are squeezed, this practice will no doubt invite scrutiny.
What will the publishers' response be? Again, suing faculty directly is distinctly unwise, so I don't expect an RIAA-style rathunt with its associated individual lawsuits. (One or two individual suits against particularly egregious examples may turn up pour encourager les autres.) Intermediaries between publisher, author, and reader, however, may be fair game; that's how Georgia State ended up in the crosshairs. I wouldn't want to be the site I linked in the paragraph up above, either.
Some of this samizdat activity is happening on social-networking sites (I won't say which; I'll just note that I've personally seen it). They may become lawsuit targets as well, though the really big ones may well be immune.
Another possibly-litigatable intermediary is the humble citation manager, which is managing entire PDF libraries these days. Zotero implemented its online sharing very carefully indeed: citations, links, and DOIs are shareable, but PDFs are not. They should stay out of trouble. Mendeley, however, appears to have some direct file-sharing features, and may therefore be vulnerable.
And finally we have just plain stupidity, such as that displayed by the people behind OpenThesis. There's been quite a dustup on the ETD-L list over their practice of harvesting thesis metadata and associated content files through OAI-PMH and some custom programming (because OAI-PMH does not enable file exchange) for display and dissemination on their own website.
Let me count the ways in which this is idiocy:
- Dissertations are copyright to their authors; many of these authors take a lively interest in their dissemination. Anyone who's started an electronic thesis and dissertation program can attest to that. Journal-article authors (though not publishers) are laissez-faire by comparison. In fact, it was a thesis author who raised questions about OpenThesis on ETD-L.
- Dissertations made available through institutional-library websites invariably involve some sort of license granted by the author to the institution. We're careful about that kind of thing in libraries. These licenses are not transitive; third parties do not have the same license that the library has by virtue of downloading a copy of the dissertation from the library's site.
- Because librarians have trodden many an eggshell to achieve viable ETD programs, elephant-footed behavior like that of OpenThesis threatens to tar us with a very bad brush. This perhaps helps explain the very cool reception OpenThesis received on ETD-L. Pro tip: angering librarians is bad business for a would-be content purveyor.
- When challenged, OpenThesis claimed (my paraphrase) that anything they found on the open web was fair game, so they meant to go on doing what they were doing. Do these people even have an IP lawyer on retainer? In the US, at least, wilful copyright infringement invites rather heavier penalties.
But these are theses, not articles, Dorothea! What's the relevance to academic samizdat of articles?
I invite you all to consider Scientific Commons. Now there is an outfit ripe for a lawsuit. Interesting times...
Wren, J. D. (2005). Open access and openly accessible: a study of scientific publications shared via the internet. BMJ, 330, 1128.