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Several years ago I taught an upper-division Mathematics course at my former institution. In the course of preparing to teach the course, I discovered that a professor at another university had not only written a text that would be useful to my students as supplemental material, but had also posted a pre-publication version of the same text to his personal (department-hosted) website. In the syllabus, I told my students:

[Name of text and author redacted] This text may be purchased online, e.g. through Amazon.com, but it is somewhat pricey. Fortunately, a preliminary (and almost complete) version of the text may be downloaded for free from the author’s website at [website redacted].

Jump forward about a decade, and I am preparing to teach a version of the same course again at my current institution. It seems that the free, pre-publication version of the text is no longer available on the author's website.

Would it be unethical of me to distribute the copy of the preliminary version of the text that I downloaded (licitly) ten years ago? On the one hand it seems almost certain that the author would prefer students buy the commercially-published version (but since it would be only a supplemental resource in my course, I would not require it in any case). On the other hand the author himself released the text into the wild, and gave permission to people to download it. How should I think about the ethics (and, I suppose, the legality) of this situation?

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    I agree with the answer below, but the following may be ok: give them a link to wayback machine, if it is archived. If it's still publicly available, I think there should be no ethical concerns. Jul 6 at 6:23
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    Did the copy you downloaded ten years ago state its licence terms? They may either explicitly allow or explicitly forbid this. Jul 6 at 8:07
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    What @user2316602 says is the simplest way to resolve the problem in about 50% of such situations, even though (or, rather, because) it completely sidesteps the ethical questions. The bibliography of my last course notes includes 4 wayback machine links. Even when a reference is available and not expected to disappear any time soon, it is recommended to add it to the wayback machine to ensure that the cited version will always remain findable. Jul 6 at 12:09
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    What you are actually asking is whether the author has a right to be compensated for their efforts or whether it is OK - somehow - to deny those rights. Saying that using the wayback machine has no ethical implications is not valid. If you don't honor authors you will only wind up in a worse situation. You will also be teaching your students that circumvention of the wishes of a creator is fine, if you can only find a way to do it. I call foul.
    – Buffy
    Jul 6 at 12:31
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    Prior to the internet and the pandemic, you would have the library purchase one or more copies and put it on reserve for the duration of the class. And, the scale here isn't just your class, since this is a public place from which people take advice. If you don't get permission from the author, then don't do something like this. Take the advice of henning and Dan Romik.
    – Buffy
    Jul 6 at 12:51
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The author took a willful, deliberate action of removing the draft from its publicly available location online. The only thing we can infer from this is that he has revoked any implied approval he may have previously given for anyone to download the draft. By the way, giving the right to people to download something does not automatically imply a right to share it; not legally under copyright law, and certainly not ethically. For example, anyone with a bit of tech savvy can download a YouTube video clip of the latest Taylor Swift hit song, but if they post a copy of the video online, you can be sure that they will get in swift legal trouble.

Conclusion: you should not share the draft. You were within your rights to download it, and having downloaded it, have a right to use it for personal use. But unless you were explicitly given the right to share it with others indefinitely into the future, you should not be assuming such a right.

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    The key phrase: "giving the right to people to download something does not automatically imply a right to share it". Making something visible doesn't void the copyright. A license needs to be explicit.
    – Buffy
    Jul 6 at 10:47
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    they will get in swift legal trouble - Shouldn't that be they will get in Swift legal trouble? Jul 6 at 14:28
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    @manassehkatz-Moving2Codidact nice, I see you swiftly detected my pun…
    – Dan Romik
    Jul 6 at 15:19
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    "The author took a willful, deliberate action of removing the draft from its publicly available location online." Well, perhaps. A lot of reasons for something to disappear from the Internet in 10 years. But still, +1 Jul 6 at 17:44
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    Indeed, there are many reasons for things disappearing from the web. In numerous cases of which I know, things disappear from the web as unintended side-effects of IT reorganization, the vast number of historical Australian Government publications being a case in point. So the inference that the book author willfully and deliberately removed the copy seems at best, a possibility.
    – user02814
    Jul 7 at 3:31
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If the author can be contacted, ask them politely whether you may distribute the manuscript that used to be available online, explaining the purpose of your request and the size of your class.

Perhaps you will get a positive reply or even an updated version of the file. Perhaps the author will reject your request. The answer you get is the answer you get.

If your request elicits no response, default to not distributing the file. After all, your question here mentions a few reasons why the author might be unable or unwilling to say yes.

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    I think that this is a good answer, but i just want to add that the attention for copyright is something of a fad. Some 30 years ago professors would photocopy parts of books for their class, or even photocopy the photocopy (when they had no book.)
    – Ivana
    Jul 7 at 22:42
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    @Ivana That's still the case now. There's a big difference between a book chapter and a book, though. In theory, in the UK you can use a book chapter, 10% of a short book (whichever is greater), one journal article from a volume, one poem or short story from a book. But you cannot use a whole book!!! That could, in theory, get you in serious trouble.
    – Araucaria
    Jul 8 at 1:00
  • @Ivana I did and do so myself. Where I live, we have a public agency that collects a kind of royalty from those who produce and provide xerox machines, which are then distributed to authors and publishers. There's a similar mechanism for paywalled online texts. The case in point is a bit different though. First, the author won't be compensated for the free copy of the file, second the author might have signed away their rights of distributing any preceding manuscripts to the publisher.
    – henning
    Jul 8 at 6:58
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To quote Daniel's comment "Did the copy you downloaded ten years ago state its licence terms?" If the pdf says that you can share it, then you can share it, even after the link has been taken down. If it says otherwise (or more likely, says nothing), then you legally aren't allowed to share it.

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You ask "ethical", and asked on academia.stackexchange.com, rather than law.stackexchange.com. This makes this question considerably more complex and interesting than it seems at first sight.


Legality

As Daniel and Taw point out, if it's explicitly permitted under licensing terms, then it's almost-definitely legal.

If you are confident that you are definitely violating copyright law, perhaps because you are charging money for copies without permission or something, then it's almost-definitely illegal.

Between the two is the grey-area legal crapshoot called "fair use", which is where you can essentially ignore copyright until the copyright holder comes after you with lawyers, at which point you enter a legal gambling game, where the one with the deepest pockets wins. You either settle out of court and agree to stop, or you go to trial, win or lose, then it gets appealed, you win or lose again, and all the way up to the supreme court or the person with the least money blinks and agrees with the decision. Whether you win or lose is significantly random, but the odds can be pushed to one side or the other depending on your situation.

Firstly, free educational use can be protected under the first fair use consideration of copyright law. You aren't charging for access to the resource when sharing it, so it's arguably nonprofit; and you're sharing it for educational purpose. So far so good.

But sharing a whole work is not usually considered fair use. Sharing any significant parts of the work that were irrelevant to what's being studied would be a copyright violation. However, if every part of the work that you shared was relevant to the course, you might be legally OK even if you shared the whole work.

So, like I say, it's a legal crapshoot. Definitely check with your institution's legal dept to see if they're willing to let you take this gamble, as both you and the institution may be on the hook if you're found to violate the law under their auspices.

So that leaves you in one of three states: legal/illegal/crapshoot.


Ethicality

Establishing legality doesn't answer the question asked.

What you're asking, instead, is whether such behavior would be a violation of ethics, which I interpret to mean professional ethics. That is, the explicit standards of behavior for your profession.

Typically, unless there are powerful conflicts between laws and ethics, professional ethics require one to act within the constraints of the law. Violating copyright to save a few bucks wouldn't typically be considered a powerful conflict: no lives are lost if you do not share that preprint. So, if you're confident it'd be illegal, then it'd be unethical, too.

On the other hand, if the author has explicitly stated, in a license, that they are OK with distribution, then you can be confident that you're complying with their wishes, and your actions would be both legal and ethical.

As always, it's in the grey area that it gets interesting.

To establish whether your ethics support taking the risk, you need to establish what weight your professional ethics place on:

  • saving money for students;
  • ensuring students have access to necessary materials;
  • preventing outdated and incorrect material from being propagated;
  • ensuring publisher profits;
  • ensuring author profits;
  • respecting author wishes;
  • leading your students by your example;
  • minimizing potential liability for your institution;
  • minimizing potential liability for yourself;
  • minimizing potential liability for your students;
  • giving access to this specific work rather than similar ones;
  • not writing your own replacement work;
  • morality of action and inaction;
  • doubtless more I'm forgetting.

The weighting you give to these factors, combined with the advice from your institution's legal dept, should point you towards a yea or nay.


Morality

You didn't mention personal morality in your question, but it is arguably an aspect of ethics. Like with legality, professional ethics typically require one to act within the bounds of personal morality.

But like legality, there are areas of conflicts. We might help someone we are not legally permitted to aid, or in a way we are not ethically permitted to, because we feel morally obliged to act.

Consider a case where you know all your students to be too poor to buy the book, are too poor yourself, your institution is not willing to buy copies for its library, and you are unable to find a sponsor to buy copies; and you are unable to change the curriculum; and you know that this is the only book suitable for teaching the curriculum; and the book is so large or your skill so poor or time so short that you are unable to create teaching materials of sufficient volume and quality to replace it.

In such a case, you arguably have a moral imperative to ensure that your students can learn, and that there is at least a route for them to pass your course.

Some professors appear to navigate this maze of morality, legality and ethics by giving their students a warning not to obtain the book illicitly with a wink and a nod, as you see in the comments to the OP here suggesting using the Wayback Machine, or in this widely-spread tweet by a University of Ontario professor recommending that students avoid a list of free textbook sites.

This places the ball in the students' court, giving them the information they need to pass the course illicitly. Some will miss even such an obvious message, but enough would get the point that the message will spread to most of them.

Some may choose to remain within the rules, and fail, learning that strong morals or ethics are punished. This might not be a lesson you wish to teach.

Others will learn that rules are made to be broken, and so will develop a similar attitude towards things like plagiarism. This too might not be a lesson you wish to teach.

Beware of such unintended consequences.

So, as with ethics, morality is a matter where you have to weigh the pros and cons, direct and indirect, and identify a path for yourself that navigates through your own personal maze of conflicts.

My personal feeling is that the various costs of distributing this preprint would be far too high, and I would not do it, if I were in your place. But that is my morality, and my ethics.

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    This is full of errors, too numerous to list. But the "wink and a nod" is perhaps the worst, showing the way into error. You are, yourself, winking and nodding. Also, illegal doesn't imply unethical in all cases. In Germany in the 1930's it was illegal to "harbor" Jews. But it was anything but unethical or immoral. There are many other errors.
    – Buffy
    Jul 6 at 19:01
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    @Buffy: The "wink and nod" contains no error, and is a reference to three comments under the OP, and to the well-known "dear class" meme. The answer already repeatedly and explicitly calls out that law, ethics and morality can conflict; that powerful conflicts exist (such as your Godwinning); and that "Violating copyright to save a few bucks wouldn't typically be considered a powerful conflict". Nobody died to share that preprint. That your two examples of "errors" were in your imagination only, gives me little faith in the existence of the "many other errors" you claim to have seen. Jul 6 at 19:35
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    That said: edited "wink and a nod" section to replace explicit list of sites with documented instances; edited "powerful conflict" section to clarify. Jul 6 at 19:46
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    Re the list you edited out, OpenStax and LibreTexts host only openly licensed books. Jul 6 at 22:50
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    Why would charging money for copies be "definitely violating copyright law"? Doesn't that depend totally on what permissions the original author gives? Compare e.g. with the GNU General Public License, which specifically allows a person to charge a fee for distributing the code to third parties -- and there's nothing in the copyright law that would stop that. As a matter of fact, if there was, I couldn't write a book and then give to anyone to sell, because they'd be charging money for copies of a work to which I hold copyright.
    – ilkkachu
    Jul 7 at 14:09
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The ethical and legal concepts have been covered already. A solution to this is to request for the book, or a few copies of it, to be stocked in your university library. Students are able to photocopy a few pages at a time out of a library book, and even if not, it can be simply marked as a library read-only/un-loanable book, making it accessible to all students to read at any point.

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My guess is your professor colleague knew the pros and cons of what he or she was doing, including the downstream implications. The later publisher would have understood the situation too. Dust in the wind.

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    You don't actually answer the question.
    – Buffy
    Jul 6 at 10:48
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    @Buffy I suspect that the implied answer is: don't care and distribute the copy.
    – Massimo Ortolano
    Jul 6 at 13:56
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    Actually, if this was the professor's first experience doing such a thing (combination of download and publish/sell), they might very well not have known the pros & cons, and made a change later when they understood the business better. Jul 6 at 14:32
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    @MassimoOrtolano And that implied answer is why I just downvoted it. Advice which says "you can break any law you like, if you think you won't get caught" is never good advice!
    – alephzero
    Jul 6 at 15:28
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    @Aruralreader Redistribution is prohibited by default through copyright law. It doesn't need a notice.
    – JoL
    Jul 6 at 15:49

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