The Grey Area: The Ethicality and Legality of the actions of the Archive Team
On occasion I will run across a website that makes me pause for a moment and think, “what the heck are they thinking?” This is one of those sites. These guys are the historian version of the hacktivist Anonymous. They go into various websites, both ones that are in danger of shutting down for good and ones that simply seem like a strong candidate in preserving the climate of this time period with their content, and archive them. And by archive I totally mean straight up copy and save. Is what these guys are doing for the common good, or is a it a gross violation of the rights of authors and creators of the work they are storing?
Perhaps the most pressing matter in this discussion is to define what exactly they are doing. While I will later discuss the legality and ehticality of their actions, I would first like to bring up a point made in chapter 7 of Cohen & Rosenzweig’s Digital History (which can be found here). According to them, most historians are more concerned with someone claiming their work as their own than their work being reproduced and distributed. They go on to make the clear distinction between copyright infringement and plagiarism. I am inclined to believe that the website mentioned above deals more with copyright infringement, as the members of the “archive team” do not wish to claim the work as their own.
Now, delving further and more specifically into the legality of their actions, I would like to delve deeper into the discussion of the scope of the work that they archive. Part of “fair use” for copyrighted work often regards the amount of the work used, meaning that another cannot come along and rip off the entire work yet again. In the case of images, the trick is to reduce the quality of the image to make it an undesirable prospect for snatching or to not use the full image. In the case of text, the first strategy is best applied in the sense of only using pieces of another’s work – enough to support their message but not border on relying solely on the ideas of the author. In this case, the entire website is being saved as-is. In the world of black and white, this would make it wrong for the “archive team” to be doing this kind of work.
Unfortunately, the world of copyright is not in black and white (as much of what it concerns is). Sure, parts of the law draw a clear line between what is allowable and what is not. Other areas are in the gray area, leaving much to the subjectiveness of whoever is reviewing the case. Even worse for departing from the comfort found in the stark contrast between right and wrong is the ethicality of their actions. Before condemning the souls responsible for such a violation of the rights of others, it is important to stop and examine their motivation. The very first line of their “about me” style blurb is “Archive Team is a loose collective of rogue archivists, programmers, writers and loudmouths dedicated to saving our digital heritage.” It is clear that they do not want the monetary benefit of claiming authorship of works or to maliciously violate the rights of others, but instead insure the durability of what is saved on the web. With more and more of the types of archives that have helped us decode the past in recent years ending up online, we are potentially putting ourselves at risk of losing years of valuable history and records of social, political, and economic climate and more. We could be just one major computer failure away from creating a huge gap in history to the detriment of future generations! Isn’t it noble that these guys are fighting an uphill battle to preserve and backup what we have so carelessly stored in such a tempestuous, ever-changing space?
Switching back to law, my criminal justice course has made it clear to me that motivation does not matter. Sure, it may help to sway the jury slightly more in the defendant’s favor when it comes to sentencing, but in reality, regardless of motivation, the crime was still committed and is still punishable by law. This is yet again another problem with copyright laws and evaluating the legality of sites including and similar to this one: copyright laws allow much more room for the evaluation of motivation than the typical courtroom case. While this may technically violate a law, is it really even going to be punished?
Beyond this, it is also important to look at who has the power in thee decisions in what is legal and what is not. When discussing a 1909 compromise measure to expand copyright scope, Jessica Litman, a legal scholar, mentions how the center of the debate was in the hands of “interested parities” and not the “amorphous public.” Here the power of the information and prosecution of copyright violations lies in the hands of the major websites that the Archive Team is taking content from, while the main benefit of the information is for the public and future generations who don’t even have a voice to speak with yet. One example is their archive of Geocities from Yahoo!. Since Yahoo! decided to take them offline seemingly out of the blue, they held the power to decide what they would lose based off of their point of view and whether it was worth it. For them, the answer was obviously yes. For the users of Geocities? For future generations wishing to understand the interests of past society? No. So then is it fair for most of the legal power to be in the hands of the ones with power over the information, but not necessarily the party that benefits the most from its existence?
The most important goal for historians should be the circulation of ideas and expressions, and the web offers a wonderful new tool for such dissemination. We should focus more on getting others to pay attention to what we have to say rather than on ensuring that the proper individual gets the proper credit. – Digital History, Cohen and Rosenzewig
In this case, it seems that ethicality is a much greater concern in the justification of this site’s actions than legality – at least in terms of the most fair way to assess the situation. While this site certainly challenges fair use, along with a likely myriad of other elements of copyright law, it is clear that the people behind the work feel that they are dedicated to a cause greater than the individual rights of an author. To them, the preservation of information for future generations is paramount to any sort of law, code, or precedent that could be used as grounds to challenge their work. It is for this reason that I would even go so far as to say that their actions are ethical and in the best interests of society.
Leave a Reply