In response to my piece on the ‘JNU data depot’, I received a couple of emails from Carl Malamud alleging factual inaccuracies in my piece. I invited him to respond to the errors on SpicyIP, in response to which he started calling me abusive names. When I told him, I was going to publish the abusive email on SpicyIP, he apologized and the next day withdrew the apology in another abusive email. He then publicly attacked SpicyIP on Twitter.
I find it necessary to discuss his backlash on this blog because Malamud likes to market himself as a Gandhian in India. His book on Code Swaraj with Sam Pitroda is all about taking inspiration from Gandhi for a modern- day campaign of civil resistance against the state to democratize access to knowledge for all citizens.
Last year, on Gandhi’s birthday we published an interview of Malamud on SpicyIP, where he unequivocally described himself as a Gandhian. Here’s an interesting quote from Malamud: “I would definitely describe myself as a Gandhian, in the sense of being a student of Gandhiji and trying to learn from his many examples.”
While I was teaching at NALSAR last year, I had organised a lecture by Malamud after he expressed his interest to speak at our university. Once again, he made Gandhi and Gandhian values a part of his lecture.
Whether or not you like Gandhi, you have to admit that he is a very tough act to follow. This was a man who would have chosen death over untruth and who chose the path of non-violence even if he was being physically attacked. There is a reason we call him the Mahatma.
So, imagine my surprise when I received abusive emails from Malamud for critiquing his project on legitimate grounds. But the abusive emails are a minor offence compared to his refusal to confirm whether he had sourced his papers from pirated databases, like SciHub, despite specifically being asked the question by Priyanka Pulla who wrote about his project in Nature.
I flagged this issue in my earlier post but did not delve into much detail. It is however an important issue because a database built from legitimate copies will be viewed very differently in a court of law from a database built from a source like Sci-Hub which has been declared to be a pirated database. I assure you the Google Books case would have ended very differently in the United States if Google had uploaded scanned copies of pirated books rather than legitimate copies stored in libraries. A database built from pirated copies will automatically be copyright infringing because of theories of secondary liability where although the party has not committed the primary act of illegally copying, it has benefited from the same. The same stands true for the DU Photocopy case – the case would have ended very differently if the Rameshwari Photocopy shop was photocopying pirated textbooks instead of legitimate copies from the DU library.
There is no question of a fair dealing analysis in such cases. For example, if Malamud has got the papers for the database from Sci-Hub which has been declared to be a pirated database by multiple courts in the west, there is a strong case of secondary liability against Malamud and JNU. If the source of papers is from a legitimate database, a court will have to examine whether contractual conditions have been violated because most publishers have contractual conditions preventing the use of their copyrighted material in such a manner. I presume this is the reason that Malamud did not launch a similar data depot in the US despite the Google Book case offering legal cover for such a project.
If Gandhi had launched the data depot at JNU, he would have been brave enough to be honest about the source of these papers. A commitment to the complete truth was an integral part of Gandhi’s values, even if it meant facing harsh consequences like a lawsuit for copyright infringement. Gandhi was ready to choose death over being untrue. It is only in testing conditions, that a person’s true commitment to the truth can be tested. Any person can be honest in cases with no consequences.
A second tangential issue that I wanted to comment upon is regarding Malamud’s brand of activism. His venture in JNU has exposed the public university to significant financial risk because JNU and the Government of India has contracts with multiple publishers across the board for accessing databases. I am quite sure that hosting the JNU data depot violates those contracts. The cost of defence, especially in foreign arbitration will be significant and I do not think cash starved Indian universities should be expending their money on such litigation. If Malamud’s intention was to help Indian scientists, he could have silently provided the data depot to JNU without calling a journalist to write about it in the most widely read science journals in the world. But the need for publicity is unfortunately the oxygen of the non-profit world without which it is difficult to raise funds from donor organisations.