Month: September 2025

So, You Want to Get in Touch with Echovita? Good Luck (But Please Don’t Phone Me)

Image Credit: Le Journal de Montréal

I first wrote about obituary piracy back in 2019, and then more recently (here and here) about the online obituary company, Echovita which, to be clear, does not engage in copyright infringement. This is because it manages to stay just within the law by taking information from obituaries on funeral home websites and posting rewrites based on the basic, non-copyrightable facts regarding the deceased, even though the family or funeral home has not granted permission for them to do so. While full obituaries describing a person’s life can be protected by copyright law, basic facts are not protectable. Echovita takes full advantage of this, frequently to the anguish of bereaved family members and the annoyance of funeral homes. Not only does Echovita post the rewritten obituaries without seeking permission from either the family or the funeral home (which is legal), they also not infrequently get basic facts wrong. This is likely explained by use of AI in reviewing and rewriting thousands of obituaries a day. Predeceased relatives have been recorded as mourning the deceased. Pets have been identified as friends of the departed. And since Echovita’s business model is to monetize the obituaries by selling memorial items such as flowers, tree plantings etc. on their obituary site, they cut into a revenue source of the funeral homes who host the “authorized” obituaries. To date, no jurisdiction has enacted any law prohibiting the practice of monetizing obituaries without the consent of the family. Whether there should be such a law is another matter.

On its website (FAQ), Echovita explains how an incorrect obituary can be removed or edited. However, the bereaved family needs to initiate the remedy by completing an online form. Apart from this contact sheet on its website, there appears to be no other way to get in direct contact with Echovita. No doubt they prefer it that way. It’s easier to filter complaints, and you don’t have to deal with irate family members phoning to complain about mistakes in an unauthorized obituary of a loved one. I am not sure what Echovita’s error rate is. It may be quite small but given that it scrapes obituaries from websites all over North America, even a small error rate could be significant in absolute terms. And if it is the obituary of your loved one that has been mangled, it is very significant, and hurtful. All I know is that since I wrote my most recent blog posting on Echovita in July, I have started to receive phone calls from distressed family members from various parts of the US. Since I don’t answer phone calls that I don’t recognize, they usually leave a voice message, often very irate and threatening legal action if a particular obituary is not taken down forthwith.

At first, I was puzzled as to why I was getting these calls, but I attribute it to AI. People who feel victimized by Echovita want to take action quickly and to vent. This is understandable. Simply filling out a request on a website to have an unauthorized obituary corrected or removed (three days is the apparent standard) is not as satisfying as speaking to someone right now. You won’t find Echovita’s phone number anywhere but if you do a deep enough internet search on the company, my previous blog postings on Echovita will come up and, I surmise, AI will produce my phone number in response to a request for a “phone number associated with Echovita”. When I get called like this, I phone back, express my condolences and explain that unfortunately they are shooting the messenger. The first question is always, “how can I get in direct touch with Echovita?”. Here is what I know.

The company is run by someone called Pascal (aka Paco) Leclerc. I know this from various press articles, such as this one a few years ago in Wired and more recently in the Toronto Star. I also know this because after my most recent blog posting on Echovita, (Echovita is Still Going Strong: The Sleazy (but Apparently Legal) Business of Monetizing Obituaries Without Consent) I received an email apparently from him as CEO of Echovita requesting removal of my “inaccurate and misleading” blog post. It went on to say that; “Your article contains statements and implications that are factually inaccurate, misleading, and potentially damaging to our reputation. Echovita operates fully within the law, follows industry norms, and provides a free, valuable service to families by making obituaries more accessible and offering optional remembrance tools.”

This was (part of) my response;

“I publish a blog discussing copyright issues, often using current legal cases or media coverage to illustrate the topics under discussion, presenting my opinions on issues such as copyright piracy, use of copyrighted content by AI development companies and other copyright-related issues. My viewpoint is pro-creator and pro-copyright, as stated on the blog.

One topic on which I have written concerns piracy of obituaries, given that an obituary is usually a creative work that can be protected under copyright. In the case of Echovita, I have commented that Echovita’s business model of scraping obituary websites, extracting the basic unprotected facts concerning the death, and then republishing the basic information, is legal and avoids copyright infringement in contrast to the practices of another entity, Afterlife, that was found to have engaged in “obituary piracy”. I also noted that Echovita’s business practices are controversial and have upset many family members of the departed because the republished obituaries (more correctly, death notices), have been published without the consent or even in many cases the knowledge of those who may have originally published the obituary in a newspaper or on a mortuary website.

Because of the lack of consent or contact with the family, mistakes have been made in the death notices published by Echovita. While Echovita undertakes to correct any such mistakes, it is incumbent on the family to request the correction. I contrasted Echovita’s business with Legacy.com, which operates a similar website but does so on the basis of obituary content licensed from newspapers and with the consent of those placing the obituaries. Please indicate which parts of the above summary, or indeed information that I included in the blog post are inaccurate or misleading. I strive for accuracy and would be happy to correct any such misinformation on the blog.”

That was a couple of months ago. I have not heard back.

Echovita’s position is that it is providing a “service” to families (albeit one that they did not, in most instances, request). Its stated “mission” is to “make public information more easily accessible, free of charge”. While it has had plenty of complaints directed at it, one of Echovita’s responses is to encourage voluntary use of its site. For example, it advertises that users can add photos, personalize a text or authorize the original obituary for publication.

All for free! (whether you want it or not).

Here is an excerpt from one of its blurbs;

“Grief is universal and so is the need to remember. By centralizing obituaries online and making them easy to find and share, Echovita fills a critical gap between funeral homes, grieving communities, and the permanence of the internet. No family should lose a tribute because a newspaper shut down or because a paid notice couldn’t be afforded.”

Touching, n’est-ce pas? The problem is not the voluntary option. The problem (the moral problem, not the legal one) is the unauthorized republication and monetization of death notices of deceased family members without the consent, or in many cases, even knowledge of family members, compounded by making errors in republication. This business model is another offshoot of the internet where it costs very little to collect and digitally republish information, potentially reaching a market of millions to provide third party services on the platform. And it’s all perfectly legal.

But what if someone wants to actually talk to a real person at Echovita, say Paco Leclerc or one of his employees, to express some concerns?  Well, good luck to that.

According to the website Zoominfo.com, Echovita is headquartered in Quebec City, Canada, at 8967 1ère Ave, Quebec, Quebec, G1G 4C5, Canada. If you go to that address on Google Street View, a building with name Funerago on it appears. Funerago.com has a website (and a phone number). It is an online platform offering basic cremation services and is associated with another entity called Funera which provides somewhat more expensive cremation services. Funera is located at the same addresss. Testimonials on Funera’s site thank Paco Leclerc for his help and understanding. The Wired article back in 2021 that I referenced above mentions that Leclerc intended to invest in a new business called Funerago so there is clearly some connection between Funerago and Echovita, including a common business address. So, of course I called Funerago and asked to speak to someone, anyone, about Echovita. All the person who answered would say was that someone would call me back. I left my phone number.

If they call, I will have a contact number for Echovita, one that I would be happy to share. But it’s been a couple of weeks and I am still waiting. The silence is deafening. I don’t expect to be called anytime soon.

© Hugh Stephens, 2025. All Rights Reserved.

Does OpenAI (ChatGPT) Have a Presence in Canada? Should it be Subject to Canadian Law?

Based on Common Sense, the Answer Should be “Yes”

A hand holding a smartphone displaying the 'Chat GPT' logo in front of a Canadian flag backdrop.

Image: Shutterstock

Late last year a consortium of major Canadian media companies (including the Toronto Star, Globe and Mail, CBC-Radio Canada, Canadian Press, Metroland and PostMedia) sued OpenAI, founders and operators of ChatGPT (and Dalle E), for copyright infringement, seeking injunctive relief and damages. OpenAI moved to dismiss the case on jurisdictional grounds. The Ontario Superior Court is now reviewing that question. As the Globe and Mail reports, OpenAI is trying to argue that the Ontario court has no jurisdiction because the company has no physical presence in Canada. It is headquartered in San Francisco and registered in Delaware.

As I commented in an earlier blog posting on this issue, the fact that the US fair use doctrine does not apply in Canada, combined with the closed nature of fair dealing exceptions and the lack of a Text and Data Mining exception in Canadian law, could prove troublesome for OpenAI. However,  OpenAI would rather defend its case in California where it can resort to US “fair use” arguments, as it is doing in its defence against the copyright infringement and trademark dilution lawsuit brought against it by the New York Times. (The NYT case is being heard in the Southern District of New York). While the interpretation of whether fair use applies to unauthorized use of copyrighted materials for AI training is evolving in the US, and the outcome is far from certain, fair use and so-called “transformative use” have no applicability in Canada.

OpenAI claims that none of its corporate entities named in the suit conducts business in Ontario nor has a physical presence there. It also claims that the alleged conduct (web-crawling and copying) overwhelmingly takes place outside Canada. The lawyers for the plaintiffs concede that OpenAI’s servers are outside Canada but instead focus on other aspects of OpenAI’s conduct and presence. They note the websites of the media companies that were (and are) being crawled by OpenAI are hosted in Canada (which is one reason why the NYT suit is being heard in New York, because the content that OpenAI copied is located in New York City). Microsoft, which is a 49% owner of OpenAI, sells OpenAI’s products and services in Canada and its models are “reproduced and hosted” in a Microsoft data centre in Toronto. The suit alleges that the copyrighted content was copied not just once for AI training but is continuously accessed and reproduced through what is known as “Retrieval Augmented Generation” (RAG) whereby (according to the complaint) OpenAI’s models are “provided continuous access to an additional data set (the “RAG Data”), which is continually updated in response to user prompts.”

There is no doubt that OpenAI operates in Canada, offering products to Canadian residents such as ChatGPT subscriptions and accepting payment in Canadian dollars, although it may not be incorporated or have a bricks-and-mortar office. In fact, its student discount offers are pitched specifically as being only for students in the US and Canada. If physical presence in a country is a requirement for the exercise of judicial jurisdiction, it makes me wonder how Elsevier and the American Chemical Society were able to sue Sci-Hub in the US and win substantial damages (which were never paid) given that Sci-Hub had and has no presence in the US. Would Russia or Kazakhstan, which is where its servers are believed to be located, have been the appropriate jurisdictions?

This is no doubt a complex legal question, and we will have to wait to see how the Court rules. In addition to noting the various forms in which OpenAI operates in Canada, the plaintiffs have pointed out that were the Court to surrender jurisdiction, this would amount to giving up the ability to regulate a large part of the digital economy and constitute an affront to Canadian sovereignty, an argument dismissed by OpenAI’s legal team as hyperbolic and sentimental. However—and although this is not based on any legal analysis, which I am not capable of providing– I have a hunch that the sovereignty argument will carry some weight.

In the past, Canadian courts have not shied away from asserting jurisdiction over cases involving Silicon Valley giants, which have been quick to seek transfer of court proceedings to California. I can think of several cases that fit into this category, notably the Equustek case in which the Supreme Court of British Columbia’s decision requiring  Google to de-index certain information from its global search results was upheld by the Supreme Court of Canada after Google had appealed the BC court’s ruling claiming Canada was applying its law extraterritorially. Another was a defamation case in BC where the plaintiff, a resident of both California and British Columbia, sued Twitter in BC for defamation for repeatedly allowing defamatory tweets despite being requested to remove them. Twitter wanted the case moved to California where it could hide behind the notorious Section 230 of the 1996 Communications Decency Act. This legislation has been interpreted by US courts to absolve digital platforms of responsibility for user content they host and disseminate. The BC court refused precisely because under US law the plaintiff would have had no cause of action because of the existence of Section 230. In another case Google tried to invoke the jurisdictional argument, as well as Section 230, in a Quebec defamation case. Google argued the Quebec court had no jurisdiction because its server was located in the US. That argument didn’t fly, nor did Google’s argument that it was protected by Section 230 because of the CUSMA/USMCA trade agreement.

None of these cases is an exact match for the OpenAI case, of course, but I somehow doubt if the Ontario Superior Court is going to let this one go. There have only been a couple of other AI/Copyright cases in Canada along similar lines, CANLII v Caseway AI, where both parties were Canadian entities, and several class action suits brought by authors in British Columbia including a suit against Nvidia by local author J.B. MacKinnon. As far as I am aware, no decision has been reached in any of these suits. New legislation to address unauthorized use of copyrighted content for AI training does not seem to be on the immediate horizon in Parliament so it is left to Canadian courts to establish some guidelines regarding Canadian law in this area. The Toronto Star et al. v OpenAI case would fit this bill perfectly.

© Hugh Stephens, 2025. All Rights Reserved.

When the End Does Not Justify the Means, Anthropic’s $1.5 Billion Lesson

“Fair Use” Does Not Justify Piracy

A hand-written note on a white paper that reads 'END ≠ MEANS'.

Image: Author

The stunning announcement on September 5 that AI company Anthropic had agreed to a USD$1.5 billion out-of-court settlement to settle a class-action lawsuit brought by a group of authors was ground breaking in terms of its size, and goes to disprove the old adage that “the end justifies the means”. It is still not clear if the “end” (i.e. using copyrighted content without authorization to train AI algorithms) is legal, although preliminary indications are that at least in the US this may be the case. However, even if what Anthropic and other AI companies have been doing is ultimately determined to be fair use under US law—which is by no means certain—downloading and storing pirated content is clearly not legal, even if it is to be used for a fair use purpose. In other words, the piracy stands alone and must be judged as such, separate from whatever ultimate use to which the pirated content may be put.

Ironically, in the end, Anthropic did not even use much of the pirated content it had collected for training its platform, Claude. It seems to have had second thoughts about using content from online pirate libraries such as LibGen (Library Genesis) and PiLiMi (Pirate Library Mirror) and instead went out and purchased single physical copies of many works, disassembling and then digitizing them page by page for its Central Library, after which it destroyed the hard copies. Why go to all this trouble? Why not just access a legal online library? That’s because when you access a digital work, you don’t actually purchase it. You purchase a licence to use it, and that licence comes with conditions, such as likely prohibiting use for AI training. Anthropic would have been exposing itself to additional legal risk by violating the terms of the licence, so instead of negotiating a training licence, they took the easy way out by downloading content from pirate sites LibGen and PiLiMi. Later, having second thoughts, they purchased physical copies of the works they wanted to ingest and then scanned them. But it was too late. The piracy had already occurred.

When the decision in the Bartz v Anthropic case was released this summer, I commented that the findings were a mixed bag for AI developers. A very expensive mixed bag, it turns out. In the Anthropic case, there were clearly some interim “wins” for the AI industry. Anthropic’s unauthorized use of the works of the plaintiffs (authors Andrea Bartz, Charles Graeber and Kirk Wallace Johnson, who filed a class action suit) was ruled by the judge (William Alsup) to be “exceedingly tranformative” thus tipping the scales to qualify as a fair use. In addition, he ruled that Anthropic’s unauthorized digitization of the purchased books to also be fair and not infringing. However, it was the downloading and storing of the pirated works that got Anthropic into hot water. Even though the intended use of the pirated works was to train Claude, a so-called transformative fair use, this did not excuse the piracy. While Alsup did not specifically rule that use of pirated materials invalidates a fair use determination (i.e. he ruled that the piracy and the AI training were separate acts), his ruling exposes a weak flank for the AI companies. For example, the US Copyright Office has stated that the knowing use of pirated or illegally accessed works as training data weighs against a fair-use defence. In short, the end does not justify the means.

The piracy finding was significant because Judge Alsup decreed that this element of the case would be sent to a jury to determine the extent of damages. (In Canada and the UK, judges rather than juries normally play this role). Given that under US law statutory damages start at $750 for each work infringed but can go up to $150,000 per work for willful infringement, Anthropic could have been on the hook for tens of billions of dollars in damages for the almost 500,000 works at issue. (Over 7 million works were inventoried by the pirate websites and downloaded by Anthropic but the limitations on who qualifies for the class action reduced the number of actionable works to just 7 percent of the total). As deep as its pockets are (Anthropic is backed by Amazon), if a jury awarded damages toward the higher end of the scale, the company could have been bankrupted.

Thus, Anthropic had lots of incentive to settle (including keeping the fair use findings unchallenged). As it stands, the $1.5 billion payout, while large in total, amounts only to about $3000 per infringed work, not the minimum but not really financially significant for the plaintiffs. This amount will probably have to be split between authors and publishers, with some of the funds covering costs, so no authors are going to be buying a new house on the proceeds. The real beneficiaries will be the law firms that represented them. The messy process of deciding who gets what that has led Judge Alsup to suspend the proposed settlement in its current form and require greater clarity as to how the payouts will be managed. The number of works eligible for payment is limited by the fact that to qualify they have to meet three criteria;

1) they were downloaded by Anthropic from LibGen or PiLiMi in August 2022

2) they have an ISBN or ASIN (Amazon Standard Identification Number) and, importantly,

 3) they were registered with the US Copyright Office (USCO) within five years of publication, and prior to either June 2021 or July 2022, (depending on the library at issue).

Any other works do not qualify. Registration with the USCO is not a requirement for copyright protection but in a peculiarity of US law, without registration a copyright holder cannot bring legal action in the US.

While the settlement has been welcomed in copyright circles, and could set a standard for settlement in other pending cases where pirated material has been downloaded for AI training by companies such as META and OpenAI, it doesn’t settle the overriding question of whether the unauthorized use of non-pirated materials for AI training is legal. With the settlement, the Anthropic case is closed, including with respect to the fair use findings. There will be no appeal, another benefit for Anthropic. However, there are still a number of other cases working their way through the US courts, so the question of whether unauthorized use of copyrighted content for AI training constitutes fair use is far from settled.

The Anthropic settlement, especially its size, has caught people’s attention. It may result in AI developers deciding it is better to resort to licensing solutions to access content rather than risking the uncertain results of litigation. On the other hand, payments like this could be one-offs, a speed bump for deep pocketed AI companies who will continue to trample on the rights of creators if they can get away with it. In the Anthropic case, while the company must destroy its pirated database, it is not required to “unlearn” the pirated content that it ingested. Moreover, even if this case leads to more payments to authors, which would be welcome, there are still many copyright-related conundra to be resolved. It should not be necessary to have to constantly resort to litigation to assert creator’s rights given that, as the Anthropic case shows, only a very limited number of rightsholders benefit from specific cases. Broad licensing solutions are required. This would also help address the problem of AI platforms producing outputs that bear close resemblance to, or compete with, the content on which they have been trained.

While Bartz v Anthropic is a decision that applies only to the US, and only to this one very specific circumstance, it will be studied closely elsewhere in countries that do not follow the unpredictable US process of determining fair use, for example in fair dealing countries like the UK, Canada, Australia, New Zealand and elsewhere, and in EU countries. In Canada, the unauthorized use of copyrighted works for training commercial AI models is a live issue. With the possible exception of research, unauthorized use such as that undertaken by Anthropic is unlikely to fall into any of the fair dealing categories (in Canada, they are education, research, private study, criticism, review, news reporting, parody and satire) nor is there a Text and Data Mining (TDM) exception in Canadian law. As Canada and other countries come to grips with the copyright/AI training dilemma, the principle of how content is accessed will surely be an important principle. Just as fair use (if indeed AI training is determined to be fair use) does not justify piracy in the US, licit access is required in Canada to exercise fair dealing user rights, including where TPM’s (technological protection measures, aka digital locks) are in place to protect that content.

Judge Alsup’s decision upholds the important principle that the end (if legal) does not justify the means (if illegal). This is a key takeaway from the Anthropic case, imperfect as the outcomes of that case were. Meanwhile the legal process of determining how and on what terms AI developers should have access to copyrighted content to train their algorithms continues.

© Hugh Stephens, 2025. All Rights Reserved.

Sci-Hub Blocked in India: Has the Last Domino Fallen for this Notorious Academic Pirate Site?

Sci-Hub Undermines both Paywall and Open Access Models

A stylized black bird holding a red key in its beak, against a starry background.

Image: Logopedia (CC-BY-SA Licence)

As reported by TorrentFreak, Sci-Hub, the notorious pirate site for scientific and academic journals, has been blocked in India by court order after a 5 year court process. Obstinacy and failure to appear or offer a defence on the part of Sci-Hub’s operator, Kazakhstan-based Alexandra Elbakyan, appear to have been factors in finally deciding the case. Although Sci-Hub has been blocked or banned in a number of countries, India was a holdout. Sci-Hub had been effective in mobilizing the “exploited Global South/knowledge should be free” argument to delay proceedings. Sci-Hub has accused the academic publishers, in this case Elsevier, Wiley and the American Chemical Society, of monopolizing knowledge and sealing it off behind paywalls that block access. In India, where the cost of western IP is a political issue (often played out in the patent domain in the area of pharmaceuticals, where India’s widespread production of generic drugs is controversial among western pharmaceutical companies), that argument has political legs. But in the end, it did not stop the court from putting an end to the delays and reaching a clear decision. Perhaps the last major domino has fallen.

Sci-Hub dates back to 2011 when it was founded by Elbakyan explicitly to do an end run on publishers of academic journals. Its motto, highlighted on its site, is “breaking academic paywalls since 2011”. What are Elbakyan’s motivations? They appears to be altruistic, i.e. making knowledge “free” as proclaimed on Sci-Hub’s website, although it is easy to be altruistic with someone else’s property. There doesn’t seem to be much of a business model behind Sci-Hub, with donations being the prime source of funding, a pipeline made more difficult when PayPal and Twitter agreed to block the platform. Justifying Sci-Hub’s piracy by arguing that it frees up academic and scientific knowledge is fed by academics who are unhappy with the academic publishing model. For example, this India-based academic argues that, as a right, researchers should have “complete, paywall-free access to every paper published everywhere.” In other words, all free, all the time. Publishers would argue that widespread access is already provided through university libraries to those who need it, although not every institution has access to all the key journals. However, it is always possible to contact the author directly and ask for a copy. But that is a hassle. It is far easier to go to Sci-Hub and download pirated articles.

The issue of access to academic and scientific journals is complex. Academic and scientific publication is essential for several reasons. A key one is to advance and share knowledge through accurate, peer-reviewed, properly edited, credible publications. Part of that process involves career advancement and development in academe; scholars and academics are often evaluated by their institutions based on the quality and sometimes quantity of adjudicated publications they author or co-author. Research without sharing the knowledge gained is essentially pointless. The issue is how best and most credibly to disseminate that knowledge.

There are lots of dodgy so-called academic journals that will publish anything, accurate or peer reviewed or not, simply on a pay-to-play basis. Frankly, no self-respecting academic would publish in such journals; it would undermine their reputation and credibility. Therefore, publication needs to be in a recognized and respected journal where there is a high academic barrier to entry. Those journals are generally published by a few major publishing houses, such as Elsevier, Wiley, Springer and Sage. Elsevier publishes almost 3000 journals, concentrating on science and health, Springer about the same but including social sciences and humanities, Wiley 1500 and Sage about 1000, with a focus on social sciences. Other institutions such as the Royal Society, American Chemical Society and various university presses also publish peer reviewed journals.

The normal model of a publisher paying an author a royalty for the right to publish a work is stood on its head in the academic world. In a sense, the publication is doing the author a favour by agreeing to publish, assuming the work meets editorial standards. At least, that is the way the publishers see it. The peer review process is unpaid work undertaken by other academics as part of their research commitments (although many academics are unhappy with this unpaid labour) while the publisher absorbs the costs of editing, publishing, archiving and distributing. (Sometime editors are senior academics who are not separately compensated for these services). In the digital world distribution and archiving is far less costly than in the pre-digital days of printing and distributing physical copies of journals, mostly to university libraries. Today, authors are not expected to pay for publication but also normally receive no compensation for granting the right to publish. The publisher recoups its costs, (and turns a profit) by charging for access to the journals. Most universities purchase bulk access for their students, but of course they cannot subscribe to every single journal. One time access is normally available through payment of anything from $20 or $30 to much more to get the paywall key.

This business model has been modified over time with the growth of the Open Access model and other means to provide content without going through a paywall. Under Open Access (OA) the article is published in the journal but not put behind the publisher’s paywall, i.e. it is disseminated without charge. Another is the pre-print process whereby authors can post a pre-proof copy of their paper on a preprint server. Preprints are copies of papers that can be posted prior to peer review and are freely available, typically with Creative Commons or similar licenses. Pre-prints were originally opposed by the publishers, but the arrival of open access mandates led to a sudden shift where publishers now risk having their journals abandoned by authors if they refuse to accept articles with posted preprints. Many new preprint servers, some “altruistically” funded by publishers, others funded by Foundations, have sprung up in response.

As for post-proof Open Access copies published in the journals, there are still costs to be covered so if the user is not going to pay for access, who covers the costs? Why, the author of course! (The cost would possibly be covered from whatever grant the author was using to research the topic, but often there is insufficient funding to cover these costs. Sometimes there is assistance provided by the author’s institution). Cost can vary significantly but are typically in the low thousands of dollars although it can cost over $12,000 to publish an Open Access article in Nature. The point is there are legitimate costs to be covered and somebody needs to pay, unless the author has uploaded a pre-print version. But that is not how Sci-Hub works. Peer-reviewed, published works are hijacked and placed in Sci-Hub’s repository through various means such as illicit sharing of passwords, leaked credentials from students or faculty who have legitimate access through their institutional libraries, or apparently through more nefarious means such as phishing. Police in the UK reported that 42 UK universities had been “hacked” by Sci-Hub by tricking students into revealing their log in credentials.

For the academic and scientific publishers, Sci-Hub is a growing problem and so they have taken action, as in the recent case of India. In 2015 Sci-Hub was sued in the US by both Elsevier and the American Chemical Society (ACS). Elsevier won a $15 million judgement; ACS was awarded $4.8 million. Sci-Hub was not represented in court and despite the judgements, continues to operate despite losing its domain. Not surprisingly, the damages were not paid. In the UK, the publishers took a different approach, successfully obtaining site blocking orders, an approach also taken in a number of EU member states, including France, Germany and  Sweden. But India was the big test, given significant support in India for Sci-Hub and the sensitive “decolonialization of knowledge” argument. An “inconvenient truth” regarding this argument, however, is that, according to a 2022 study published in Nature (sorry, paywalled) the country with the second largest number of users of Sci-Hub, after China, is the United States, followed by France, Brazil, India, Indonesia and Germany. The widespread use of VPNs also hides where many users reside.

Why do students in developed countries use Sci-Hub? It is sometimes–perhaps often–quicker and easier than going through an institutional library, where they may have to be physically present or have updated and valid credentials. Piracy is often the course of least resistance for the user, although it comes with costs and risks, such as malware, whether it is pirating academic journals or streaming content. It is for this reason, among others, that many academic institutions warn their students against using Sci-Hub. Sci-Hub has been accused of obtaining and potentially misusing all sorts of other personal information, such as email addresses and social insurance numbers, obtained through using “borrowed” library access credentials.

It has also been accused of undermining the legal Open Access movement. Counter-intuitively, I think Sci-Hub’s role initially likely provided impetus to expand Open Access. As an academic friend put it, while policy makers were trying to figure out how to share the keys to the library, Sci-Hub had broken in through the window and was giving away the books in the back alley. Finding legal ways to minimize the negative impacts of paywalls helped energize Open Access, but now that it is well established, resorting to Sci-Hub for documents weakens the case for Open Access options. As this university library notes;

“The OA movement is a way to transform the research dissemination in a healthy and safe way for the long term without putting users and institutions at risk. If as researchers we are unsatisfied with the current limitations of academic publishing, then the solution is to push for change in how we disseminate our work that don’t necessitate responses like Sci-Hub.”

Now the “Indian domino” has fallen, with a blocking order issued by the Delhi High Court, will this stop Sci-Hub? Not likely, which means there will continue to be a need for regular pushback by the publishers, along with continued work on improving legal open access. Otherwise, the established and essential system of academic and scientific publishing will be undermined by Sci-Hub’s piracy. No-one benefits from that outcome.

While the motivation for academics to get paid for the content they produce is generally not as intense as with other authors (by “authors”, I include artists, photographers, musicians, etc)–because most academics and scientists already get compensated by their employing institutions for the research and writing that goes into an academic publication–they still need compensation. That compensation comes in the form of being able to publish in recognized, academically respected journals. As with any discussion of piracy, the reality is that when free-riding begins to overtake the legitimate dissemination of content, the content creation and distribution model is undermined. By taking various legal means to disable Sci-Hub, the publishers are of course protecting their business model–but they are also protecting the future production and distribution of quality, credible and verifiable knowledge, including content distributed through Open Access models.

© Hugh Stephens, 2025. All Rights Reserved.

Policy Overboard! US Trade Talks Stabilized…For Now.

What’s the Next Policy to Walk the Plank? (The Canadian Content Industries Are Uneasy.)

A hand-drawn illustration of a boat labeled 'TRADE TALKS' with a small figure falling overboard next to the word 'POLICY'. The background features simple waves.

Image: Author

It used to be that when concessions were made during trade negotiations, they were announced as part of a final, balanced deal. That appears to be no longer the case, at least with respect to the dragged out Canada-US trade talks that are supposed to address the unilateral imposition of US tariffs on a range of Canadian products, such as steel, aluminum and copper along with many products manufactured from these commodities, and other Canadian products that do not qualify for CUSMA/USMCA tariff-free treatment. Last week, Prime Minister Mark Carney announced that effective September 1 Canada would lift retaliatory tariffs against a range US products that it had imposed back in March when the US imposed steep “fentanyl” tariffs on Canadian products. Since then, the US has confirmed that products falling under the CUSMA/USMCA Free Trade Agreement will be exempt (for now) from the 35% tariffs that the Trump Administration has imposed on non-CUSMA compliant goods. The tariffs that Canada is lifting cover only CUSMA/USMCA compliant goods, thus matching US policy.

Maybe this is a sensible and timely move to preserve the existing but tenuous CUSMA/USMCA zero tariff treatment enjoyed by qualified Canadian products. The fact that US compliance with a carefully negotiated trilateral treaty, personally signed by Donald Trump back in 2016, is considered tenuous speaks to the US President’s respect for international obligations, or rather lack of. If he doesn’t like what the US has agreed to through negotiations, he simply ignores treaty obligations by finding some specious excuse (like the accusations of Canada being a centre for fentanyl smuggling into the US) to renege on signed and Congressionally-ratified commitments. This process, by the way, is just a warmup for the upcoming renewal negotiations for CUSMA/USMCA in 2026. Trump already has Canada, and many other trading partners, on the back foot with his incessant imposition of new trade barriers on fabricated grounds. Soon he will be saying that imports of Canadian maple syrup are a security threat to the United States.

So far Canada has managed to weather the worst of the storm thanks, in part, to the existing CUSMA treaty. Negotiations with Washington to reset the relationship have been underway for some time but famously missed the August 1 deadline that Carney tried to pry out of Trump at the Kananaskis, Alberta, G7 summit earlier this year. As part of these negotiations, Canada has already made two significant concessions, one to dramatically increase defence spending immediately (probably a good idea for a host of reasons, but designed nonetheless to mollify the President), the other to withdraw its Digital Service Tax (DST) legislation. This latter move was required by the Trump Administration as a pre-condition for resuming the trade talks it had unilaterally suspended when Canada announced it was proceeding with its DST.

On the DST, while the US has dragged its feet on finding a multilateral solution to the problem of giant digital businesses engaging in tax avoidance through tax forum shopping, Canada compounded the problem by playing its hand badly. While there is plenty of justification for imposing a tax (DST) on the digital giants based on the level of revenue they generate in a given jurisdiction (since they manipulate their tax accounting to ensure that profits accrue only in offshore low tax regimes like Ireland), to actually implement a unilateral tax in the middle of trade negotiations was asking for trouble. Instead of putting the tax on pause and using it as a bargaining chip, the introduction of the DST–despite warnings of consequences–was a poorly timed move and led, almost overnight, to a hasty retreat and a humiliating climbdown on Canada’s part. And now we have the repeal of retaliatory tariffs that were instituted as part of the “elbows up” response to the unilateral imposition of US tariffs earlier this year. All just to keep the negotiations going. The only benefit Canada has received is a verbal assurance from Trump that lifting the tariffs will “kickstart” the negotiations. Not exactly a bankable document.

Trump’s strategy is to pick off one concession after another in return for just keeping the talks going. So far, he has been successful.  If you impose a DST, we’ll walk! Remove your retaliatory tariffs (remember, it was the US that started the tariff war, thus explaining why Canadian tariffs are “retaliatory”) or the negotiations will go nowhere. What’s next? Canadians have every right to worry. Trump smells weakness, and serial capitulations only encourage him. On the other hand, are there any good options?

The goal clearly must be to protect Canadian jobs. Maybe a little water in the wine at the right time is the way to do this, since the old model of how trade negotiations used to work is no longer on the table. Traditionally negotiating an agreement, a balance of concessions and advantages, was resorted to by smaller economic powers in order to have some guarantees of security and access to larger markets. The larger powers respected what they had negotiated as a means of promoting a more open trading system, to the benefit of all, while winning access for key sectors of their own. Trump has upended all that, using any excuse he can think of to renege on US obligations and impose unilateral tariffs, even if this is likely illegal and a usurpation of the role of Congress.

The end result will be the proof of whether Carney’s policies, which some equate with appeasement, are working. Using hockey analogies, which Carney employed so effectively in the election campaign, (Carney played on both the Harvard and Oxford varsity ice-hockey teams; it is not known whether his opponent, Pierre Polievre, can even skate) we have moved beyond “elbows up” defensive moves to focus instead on scoring goals. But if Trump continues to control the puck, neither elbows up or elbows down will have made much difference. One wonders where Carney will draw the line and how much longer the US can continue to slice the Canadian salami (before it’s all gone).

One can argue that lifting retaliatory tariffs is not a bad idea since they have hurt many Canadian businesses by increasing costs on the imported US goods they rely on (although there were many special exemptions created through duty remission orders). Canadian consumers have also taken a hit. On the flip side, while the Canadian tariffs hurt and caught the attention of some US exporters, the economic pressure was not sufficient to deter the Trump Administration. Over the longer term, Trump’s import tariffs are going to seriously damage the US economy, but Canada and Carney don’t have the luxury of waiting for that to happen. Nonetheless, unilateral concessions are a slippery slope. What’s the next Canadian policy at risk of being pushed overboard?

The content industries in Canada are concerned they might be the next ones to walk the plank. It’s no secret that some large US companies are not happy with Canadian cultural policies such as the Online News Act and the Online Streaming Act. In fact, the whole idea of an exemption from free trade agreement obligations for Canadian cultural industries has long been unpopular in the US although accepted as the part of the balance of give and take that was necessary to reach a mutually beneficial agreement. The “cultural exemption” was embedded in the first Canada-US bilateral agreement in 1987 and has been carried over to both NAFTA and the CUSMA/USMCA. However, the “Art of the Deal” style of negotiating does not put much stock in mutually beneficial win/win outcomes, instead viewing negotiations as a zero-sum game. With Trump generally holding the better cards owing to several decades of economic integration of the Canadian and US economies as a result of the bilateral FTA, NAFTA and CUSMA, Carney is playing against the odds. What is the ultimate price of a deal that Canadians can live with?

The unilateral concessions to date have led to some domestic unease and criticism, but if Carney scores a winning goal, or even achieves a tie, no doubt all will be forgiven. In the meantime, the cultural sector in Canada (and no doubt the supply management industry, especially dairy) are nervously watching the process of the on-again, off-again bilateral trade negotiations, hoping they won’t find themselves the next ones made to walk the plank just to keep the negotiating process going.

© Hugh Stephens, 2025. All Rights Reserved.