[65](ch3.xhtml#footnote-088-backlink) Sarah Kember, ‘Why Write?: Feminism,
Publishing and the Politics of Communication’, New Formations: A Journal of
Culture/Theory/Politics 83.1 (2014), 99–116.
Stankievech
Letter to the Superior Court of Quebec Regarding Arg.org
2016
Letter to the Superior Court of Quebec Regarding Arg.org
Charles Stankievech
19 January 2016
To the Superior Court of Quebec:
I am writing in support of the online community and library platform called “Arg.org” (also known under additional aliases and
urls including “aaaaarg.org,” “grr.aaaaarg.org,” and most recently
“grr.aaaaarg.fail”). It is my understanding that a copyright infringement lawsuit has been leveled against two individuals who
support this community logistically. This letter will address what
I believe to be the value of Arg.org to a variety of communities
and individuals; it is written to encompass my perspective on the
issue from three distinct positions: (1) As Director of the Visual
Studies Program, Faculty of Architecture, Landscape, and Design,
University of Toronto, where I am a professor and oversee three
degree streams for both graduate and undergraduate students;
(2) As the co-director of an independent publishing house based
in Berlin, Germany, and Toronto, Canada, which works with international institutions around the world; (3) As a scholar and writer
who has published in a variety of well-regarded international
journals and presses. While I outline my perspective in relation to
these professional positions below, please note that I would also
be willing to testify via video-conference to further articulate
my assessment of Arg.org’s contribution to a diverse international
community of artists, scholars, and independent researchers.
98
Essay continuing from page 49
“Warburgian tradition.”47 If we consider the Warburg Library
in its simultaneous role as a contained space and the reflection
of an idiosyncratic mental energy, General Stumm’s aforementioned feeling of “entering an enormous brain” seems an
especially concise description. Indeed, for Saxl the librarian,
“the books remain a body of living thought as Warburg had
planned,”48 showing “the limits and contents of his scholarly
worlds.”49 Developed as a research tool to solve a particular
intellectual problem—and comparable on a number of levels
to exhibition-led inquiry—Aby Warburg’s organically structured, themed library is a three-dimensional instance of a library that performatively articulates and potentiates itself,
which is not yet to say exhibits, as both spatial occupation and
conceptual arrangement, where the order of things emerges
experimentally, and in changing versions, from the collection
and its unusual cataloging.50
47
48
49
50
Saxl speaks of “many tentative and personal excrescences” (“The History of
Warburg’s Library,” 331). When Warburg fell ill in 1920 with a subsequent fouryear absence, the library was continued by Saxl and Gertrud Bing, the new and
later closest assistant. Despite the many helpers, according to Saxl, Warburg always
remained the boss: “everything had the character of a private book collection, where
the master of the house had to see it in person that the bills were paid in time,
that the bookbinder chose the right material, or that neither he nor the carpenter
delivering a new shelf over-charged” (Ibid., 329).
Ibid., 331.
Ibid., 329.
A noteworthy aside: Gertrud Bing was in charge of keeping a meticulous index of
names and keywords; evoking the library catalog of Borges’s fiction, Warburg even
kept an “index of un-indexed books.” See Diers, “Porträt aus Büchern,” 21.
99
1. Arg.org supports a collective & semiprivate community of
academics & intellectuals.
As the director of a graduate-level research program at the University of Toronto, I have witnessed first-hand the evolution
of academic research. Arg.org has fostered a vibrant community
of thinkers, students, and writers, who can share their research
and create new opportunities for collaboration and learning
because of the knowledge infrastructure provided by the platform.
The accusation of copyright infringement leveled against the
community misses the point of the research platform altogether.
While there are texts made available for download at no expense
through the Arg.org website, it is essential to note that these texts
are not advertised, nor are they accessible to the general public.
Arg.org is a private community whose sharing platform can only
be accessed by invitation. Such modes of sharing have always
existed in academic communities; for example, when a group of
professors would share Xerox copies of articles they want to read
together as part of a collaborative research project. Likewise,
it would be hard to imagine a community of readers at any time
in history without the frequent lending and sharing of books.
From this perspective, Arg.org should be understood within a
twenty-first century digital ethos, where the sharing of intellectual
property and the generation of derivative IP occurs through collaborative platforms. On this point, I want to draw further attention
to two fundamental aspects of Arg.org.
a. One essential feature of the Arg.org platform is that it gives
invited users the ability to create reading lists from available texts—
what are called on the website “collections.” These collections
are made up of curated folders containing text files (usually in
Portable Document Format); such collections allow for new and
novel associations of texts, and the development of working
bibliographies that assist in research. Users can discover previously unfamiliar materials—including entire books and excerpted
chapters, essays, and articles—through these shared collections.
Based on the popularity of previous collections I have personally
assembled on the Arg.org platform, I have been invited to give
100
In the Memory Hall of Reproductions
Several photographs document how the Warburg Library was
also a backdrop for Warburg’s picture panels, the wood boards
lined with black fabric, which, not unlike contemporary mood
boards, held the visual compositions he would assemble and
re-assemble from around 2,000 photographs, postcards, and
printed reproductions cut out of books and newspapers.
Sometimes accompanied by written labels or short descriptions, the panels served as both public displays and researchin-process, and were themselves photographed with the aim
to eventually be disseminated as book pages in publications.
In the end, not every publishing venture was realized, and
most panels themselves were even lost along the way; in fact,
today, the panel photographs are the only visual remainder of
this type of research from the Warburg Institute. Probably the
most acclaimed of the panels are those which Warburg developed in close collaboration with his staff during the last years
of his life and from which he intended to create a sequential
picture atlas of human memory referred to as the Mnemosyne
Atlas. Again defying the classical boundaries of the disciplines, Warburg had appropriated visual material from the
archives of art history, natural philosophy, and science to
vividly evoke and articulate his thesis through the creation of
unprecedented associations. Drawing an interesting analogy,
the following statement from Warburg scholar Kurt Forster
underlines the importance of the panels for the creation of
meaning:
Warburg’s panels belong into the realm of the montage à la Schwitters or Lissitzky. Evidently, such a
101
guest lectures at various international venues; such invitations
demonstrate that this cognitive work is considered original
research and a valuable intellectual exercise worthy of further
discussion.
b. The texts uploaded to the Arg.org platform are typically documents scanned from the personal libraries of users who have
already purchased the material. As a result, many of the documents are combinations of the original published text and annotations or notes from the reader. Commentary is a practice that
has been occurring for centuries; in Medieval times, the technique
of adding commentary directly onto a published page for future
readers to read alongside the original writing was called “Glossing.”
Much of the philosophy, theology, and even scientific theories
were originally produced in the margins of other texts. For example, in her translation and publication of Charles Babbage’s lecture
on the theory of the first computer, Ada Lovelace had more notes
than the original lecture. Even though the text was subsequently
published as Babbage’s work, today modern scholarship acknowledges Lovelace as important voice in the theorization of the
modern computer due to these vital marginal notes.
2. Arg.org supports small presses.
Since 2011, I have been the co-founder and co-director of
K. Verlag, an independent press based in Berlin, Germany, and
Toronto, Canada. The press publishes academic books on art
and culture, as well as specialty books on art exhibitions. While
I am aware of the difficulties faced by small presses in terms of
profitability, especially given fears that the sharing of books online
could further hurt book sales; however, my experience has been
in the opposite direction. At K. Verlag, we actually upload our new
publications directly to Arg.org because we know the platform
reaches an important community of readers and thinkers. Fully
conscious of the uniqueness of printed books and their importance, digital circulation of ebooks and scanned physical books
present a range of different possibilities in reaching our audiences
in a variety of ways. Some members of Arg.org may be too
102
comparison does not need to claim artistic qualities
for Warburg’s panels, nor does it deny them regarding
Schwitters’s or Lissitzky’s collages. It simply lifts the
role of graphic montage from the realm of the formal
into the realm of the construction of meaning.51
Interestingly, even if Forster makes a point not to categorize
Warburg’s practice as art, in twentieth-century art theory and
visual culture scholarship, his idiosyncratic technique has
evidently been mostly associated with art practice. In fact,
insofar as Warburg is acknowledged (together with Marcel
Duchamp and, perhaps, the less well-known André Malraux),
it is as one of the most important predecessors for artists
working with the archive.52 Forster articulates the traditional
assumption that only artists were “allowed” to establish idiosyncratic approaches and think with objects outside of the
box. However, within the relatively new discourse of the
“curatorial,” contra the role of the “curator,” the curatorial
delineates its territory as that which is no longer defined exclusively by what the curator does (i.e. responsibilities of classification and care) but rather as a particular agency in terms of
epistemologically and spatially working with existing materials and collections. Consequently, figures such as Warburg
51
52
Kurt Forster, quoted in Benjamin H.D. Buchloh, “Gerhard Richter’s Atlas: Das anomische Archiv,” in Paradigma Fotografie: Fotokritik am Ende des fotografischen Zeitalters,
ed. Herta Wolf (Frankfurt/M.: Suhrkamp Verlag, 2002), 407, with further references.
One such example is the Atlas begun by Gerhard Richter in 1962; another is
Thomas Hirschhorn’s large-format, mixed-media collage series MAPS. Entitled
Foucault-Map (2008), The Map of Friendship Between Art and Philosophy (2007),
and Hannah-Arendt-Map (2003), these works are partly made in collaboration
with the philosopher Marcus Steinweg. They bring a diverse array of archival and
personal documents or small objects into associative proximities and reflect the
complex impact philosophy has had on Hirschhorn’s art and thinking.
103
poor to afford to buy our books (eg. students with increasing debt,
precarious artists, or scholars in countries lacking accessible
infrastructures for high-level academic research). We also realize
that Arg.org is a library-community built over years; the site
connects us to communities and individuals making original work
and we are excited if our books are shared by the writers, readers,
and artists who actively support the platform. Meanwhile, we
have also seen that readers frequently discover books from our
press through a collection of books on Arg.org, download the
book for free to browse it, and nevertheless go on to order a print
copy from our shop. Even when this is not the case, we believe
in the environmental benefit of Arg.org; printing a book uses
valuable resources and then requires additional shipping around
the world—these practices contradict our desire for the broadest
dissemination of knowledge through the most environmentallyconscious of means.
3. Arg.org supports both official institutional academics
& independent researchers.
As a professor at the University of Toronto, I have access to one
of the best library infrastructures in the world. In addition to
core services, this includes a large number of specialty libraries,
archives, and massive online resources for research. Such
an investment by the administration of the university is essential
to support the advanced research conducted in the numerous
graduate programs and by research chairs. However, there are
at least four ways in which the official, sanctioned access to these
library resources can at times fall short.
a. Physical limitations. While the library might have several copies
of a single book to accommodate demand, it is often the case
that these copies are simultaneously checked out and therefore
not available when needed for teaching or writing. Furthermore,
the contemporary academic is required to constantly travel for
conferences, lectures, and other research obligations, but travelling with a library is not possible. Frequently while I am working
abroad, I access Arg.org to find a book which I have previously
104
and Malraux, who thought apropos objects in space (even
when those objects are dematerialized as reproductions),
become productive forerunners across a range of fields: from
art, through cultural studies and art history, to the curatorial.
Essential to Warburg’s library and Mnemosyne Atlas, but
not yet articulated explicitly, is that the practice of constructing two-dimensional, heterogeneous image clusters shifts the
value between an original work of art and its mechanical
reproduction, anticipating Walter Benjamin’s essay written a
decade later.53 While a museum would normally exhibit an
original of Albrecht Dürer’s Melencolia I (1514) so it could be
contemplated aesthetically (admitting that even as an etching
it is ultimately a form of reproduction), when inserted as a
quotidian reprint into a Warburgian constellation and exhibited within a library, its “auratic singularity”54 is purposefully
challenged. Favored instead is the iconography of the image,
which is highlighted by way of its embeddedness within a
larger (visual-emotional-intellectual) economy of human consciousness.55 As it receives its impetus from the interstices
53
54
55
One of the points Benjamin makes in “The Artwork in the Age of Mechanical
Reproduction” is that reproducibility increases the “exhibition value” of a work of art,
meaning its relationship to being viewed is suddenly valued higher than its
relationship to tradition and ritual (“cult value”); a process which, as Benjamin writes,
nevertheless engenders a new “cult” of remembrance and melancholy (224–26).
Benjamin defines “aura” as the “here and now” of an object, that is, as its spatial,
temporal, and physical presence, and above all, its uniqueness—which in his
opinion is lost through reproduction. Ibid., 222.
It is worth noting that Warburg wrote his professorial dissertation on Albrecht
Dürer. Another central field of his study was astrology, which Warburg examined
from historical and philosophical perspectives. It is thus not surprising to find
out that Dürer’s Melencolia I (1514), addressing the relationship between the
human and the cosmos, was of the highest significance to Warburg as a recurring
theme. The etching is shown, for instance, as image 8 of Plate 58, “Kosmologie bei
Dürer” (Cosmology in Dürer); reproduced in Warnke, ed., Aby Moritz Warburg:
Der Bilderatlas Mnemosyne, Gesammelte Schriften, Vol. 1, 106–7. The connections
105
purchased, and which is on my bookshelf at home, but which
is not in my suitcase. Thus, the Arg.org platform acts as a patch
for times when access to physical books is limited—although
these books have been purchased (either by the library or the
reader herself) and the publisher is not being cheated of profit.
b. Lack of institutional affiliation. The course of one’s academic
career is rarely smooth and is increasingly precarious in today’s
shift to a greater base of contract sessional instructors. When
I have been in-between institutions, I lost access to the library
resources upon which my research and scholarship depended.
So, although academic publishing functions in accord with library
acquisitions, there are countless intellectuals—some of whom
are temporary hires or in-between job appointments, others whom
are looking for work, and thus do not have access to libraries.
In this position, I would resort to asking colleagues and friends
to share their access or help me by downloading articles through
their respective institutional portals. Arg.org helps to relieve
this precarity through a shared library which allows scholarship
to continue; Arg.org is thus best described as a community of
readers who share their research and legally-acquired resources
so that when someone is researching a specific topic, the adequate book/essay can be found to fulfill the academic argument.
c. Special circumstances of non-traditional education. Several
years ago, I co-founded the Yukon School of Visual Arts in
Dawson City as a joint venture between an Indigenous government and the State college. Because we were a tiny school,
we did not fit into the typical academic brackets regarding student
population, nor could we access the sliding scale economics
of academic publishers. As a result, even the tiniest package for
a “small” academic institution would be thousands of times larger
than our population and budget. As a result, neither myself
nor my students could access the essential academic resources
required for a post-secondary education. I attempted to solve this
problem by forging partnerships, pulling in favors, and accessing
resources through platforms like Arg.org. It is important to realize
106
among text and image, visual display and publishing, the
expansive space of the library and the dense volume of the
book, Aby Warburg’s wide-ranging work appears to be best
summarized by the title of one of the Mnemosyne plates:
“Book Browsing as a Reading of the Universe.”56
To the Paper Museum
Warburg had already died before Benjamin theorized the
impact of mechanical reproduction on art in 1935. But it is
Malraux who claims to have embarked on a lengthy, multipart project about similitudes in the artistic heritage of the
world in exactly the same year, and for whom, in opposition
to the architectonic space of the museum, photographic
reproduction, montage, and the book are the decisive filters
through which one sees the world. At the outset of his book
Le Musée imaginaire (first published in 1947),57 Malraux argues
that the secular modern museum has been crucial in reframing and transforming objects into art, both by displacing
them from their original sacred or ritual context and purpose,
and by bringing them into proximity and adjacency
with one another, thereby opening new possible readings
56
57
and analogies between Warburg’s image-based research and his theoretical ideas,
and von Trier’s Melancholia, are striking; see Anna-Sophie Springer’s visual essay
“Reading Rooms Reading Machines” on p. 91 of this book.
“Buchblättern als Lesen des Universums,” Plate 23a, reproduced in Warnke, Aby
Moritz Warburg: Der Bilderatlas Mnemosyne, Gesammelte Schriften, Vol. 1, 38–9.
The title of the English translation, The Museum Without Walls, by Stuart Gilbert
and Francis Price (London: Secker & Warburg, 1967), must be read in reference
to Erasmus’s envisioning of a “library without walls,” made possible through the
invention of the printing press, as Anthony Grafton mentions in his lecture, “The
Crisis of Reading,” The CUNY Graduate Center, New York, 10 November 2014.
107
that Arg.org was founded to meet these grassroots needs; the
platform supports a vast number of educational efforts, including
co-research projects, self-organized reading groups, and numerous other non-traditional workshops and initiatives.
d. My own writing on Arg.org. While using the platform, I have frequently come across my own essays and publications on the
site; although I often upload copies of my work to Arg.org myself,
these copies had been uploaded by other users. I was delighted
to see that other users found my publications to be of value and
were sharing my work through their curated “collections.” In some
cases, I held outright exclusive copyright on the text and I was
pleased it was being distributed. In other rare cases, I shared the
copyright or was forced to surrender my IP prior to publication;
I was still happy to see this type of document uploaded. I realize
it is not within my authority to grant copyright that is shared,
however, the power structure of contemporary publishing is often
abusive towards the writer. Massive, for-profit corporations have
dominated the publishing of academic texts and, as a result of
their power, have bullied young academics into signing away their
IP in exchange for publication. Even the librarians at Harvard
University—who spend over $3.75 million USD annually on journal subscriptions alone—believe that the economy of academic
publishing and bullying by a few giants has crossed a line, to the
point where they are boycotting certain publishers and encouraging faculty to publish instead in open access journals.
I want to conclude my letter of support by affirming that
Arg.org is at the cutting edge of academic research and knowledge
production. Sean Dockray, one of the developers of Arg.org,
is internationally recognized as a leading thinker regarding the
changing nature of research through digital platforms; he is regularly invited to academic conferences to discuss how the community on the Arg.org platform is experimenting with digital research.
Reading, publishing, researching, and writing are all changing
rapidly as networked digital culture influences professional and
academic life more and more frequently. Yet, our legal frameworks and business models are always slower than the practices
(“metamorphoses”) of individual objects—and, even more
critically, producing the general category of art itself. As
exceptions to this process, Malraux names those creations that
are so embedded in their original architecture that they defy
relocation in the museum (such as church windows, frescoes,
or monuments); this restriction of scale and transportation, in
fact, resulted in a consistent privileging of painting and sculpture within the museological apparatus.58
Long before networked societies, with instant Google
Image searches and prolific photo blogs, Malraux dedicated
himself to the difficulty of accessing works and oeuvres
distributed throughout an international topography of institutions. He located a revolutionary solution in the dematerialization and multiplication of visual art through photography
and print, and, above all, proclaimed that an imaginary museum
based on reproductions would enable the completion of a
meaningful collection of artworks initiated by the traditional
museum.59 Echoing Benjamin’s theory regarding the power of
the reproduction to change how art is perceived, Malraux
writes, “Reproduction is not the origin but a decisive means
for the process of intellectualization to which we subject art.
58
59
I thank the visual culture scholar Antonia von Schöning for pointing me to
Malraux after reading my previous considerations of the book-as-exhibition. Von
Schöning herself is author of the essay “Die universelle Verwandtschaft zwischen
den Bildern: André Malraux’Musée Imaginaire als Familienalbum der Kunst,”
kunsttexte.de, April 2012, edoc.hu-berlin.de/kunsttexte/2012-1/von-schoening
-antonia-5/PDF/von-schoening.pdf.
André Malraux, Psychologie der Kunst: Das imaginäre Museum (Baden-Baden:
Woldemar Klein Verlag, 1949), 9; see also Rosalind Krauss, “The Ministry of
Fate,” in A New History of French Literature, ed. Denis Hollier (Cambridge, MA
and London: Harvard University Press, 1989), 1000–6: “The photographic archive
itself, insofar as it is the locale of a potentially complete assemblage of world
artifacts, is a repository of knowledge in a way that no individual museum could
ever be” (1001).
109
of artists and technologists. Arg.org is a non-profit intellectual
venture and should therefore be considered as an artistic experiment, a pedagogical project, and an online community of coresearchers; it should not be subject to the same legal judgments
designed to thwart greedy profiteers and abusive practices.
There are certainly some documents to be found on Arg.org that
have been obtained by questionable or illegal means—every
Web 2.0 platform is bound to find such examples, from Youtube
to Facebook; however, such examples occur as a result of a small
number of participant users, not because of two dedicated individuals who logistically support the platform. A strength of Arg.org
and a source of its experimental vibrancy is its lack of policing,
which fosters a sense of freedom and anonymity which are both
vital elements for research within a democratic society and
the foundations of any library system. As a result of this freedom,
there are sometimes violations of copyright. However, since
Arg.org is a committed, non-profit community-library, such transgressions occur within a spirit of sharing and fair use that characterize this intellectual community. This sharing is quite different
from the popular platform Academia.edu, which is searchable
by non-users and acquires value by monetizing its articles through
the sale of digital advertising space and a nontransparent investment exit strategy. Arg.org is the antithesis of such a model
and instead fosters a community of learning through its platform.
Please do not hesitate to contact me for further information,
or to testify as a witness.
Regards,
Charles Stankievech,
Director of Visual Studies Program, University of Toronto
Co-Director of K. Verlag, Berlin & Toronto
… Medieval works, as diverse as the tapestry, the glass window,
the miniature, the fresco, and the sculpture become united as
one family if reproduced together on one page.”60 In his search
for a common visual rhetoric, Malraux went further than
merely arranging creations from one epoch and cultural sphere
by attempting to collect and directly juxtapose artworks and
artifacts from very diverse and distant cultural, historical, and
geographic contexts.
His richly illustrated series of books thus functions as a
utopian archive of new temporalities of art liberated from
history and scale by de-contextualizing and re-situating the
works, or rather their reproduced images, in unorthodox combinations. Le Musée imaginaire was thus an experimental virtual
museum intended to both form a repository of knowledge and
provide a space of association and connection that could not
be sustained by any other existing place or institution. From an
art historical point of view—Malraux was not a trained scholar
and was readily criticized by academics—his theoretical
assumptions of “universal kinship” (von Schöning) and the
“anti-destiny” of art have been rejected. His material selection
process and visual appropriation and manipulation through
framing, lighting, and scale, have also been criticized for their
problematic and often controversial—one could say, colonizing—implications.61 Among the most recent critics is the art
historian Walter Grasskamp, who argues that Malraux moreover might well have plagiarized the image-based work of the
60
61
André Malraux, Das imaginäre Museum, 16.
See the two volumes of Georges Duthuit, Le Musée Inimaginable (Paris: J. Corti,
1956); Ernst Gombrich, “André Malraux and the Crisis of Expressionism,” The
Burlington Magazine 96 (1954): 374–78; Michel Merlot, “L’art selon André Malraux,
du Musée imaginaire à l’Inventaire general,” In Situ 1 (2001), www.insitu.revues
.org/1053; and von Schöning, “Die universelle Verwandtschaft zwischen den Bildern.”
111
USDC
Opinion: Elsevier against SciHub and LibGen
2015
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------
15 Civ. 4282(RWS)
OPINION
ELSEVIER INC., ELSEVIER B.V., and ELSEVIER LTD.,
Plaintiffs,
- against -
WWW.SCI-HUB.ORG, THE LIBRARY GENESIS PROJECT, d/b/a LIBGEN.ORG, ALEXANDRA ELBAKYAN, and JOHN DOES 1-99,
Defendants.
----------------------------------------
APPEARANCES
Attorneys for the Plaintiffs
DEVORE & DEMARCO LLP
99 Park Avenue, Suite 1100
New York, NY 1001 6
By:
Joseph DeMarco, Esq.
David Hirschberg, Esq.
Urvashi Sen, Esq.
Pro Se
Alexandra Elbakyan
Almaty, Kazakhstan
1
Sweet, D.J.,
Plaintiffs Elsevier Inc., Elsevier B.V., and Elsevier, Ltd. (collectively, "Elsevier" or the "Plaintiffs") have moved for a preliminary injunction preventing defendants Sci-Hub, Library Genesis Project (the " Project"), Alexandra Elbakyan ("Elbakyan"), Bookfi.org, Elibgen.org, Erestroresollege.org, and Libgen.info (collectively, the "Defendants") from distributing works to which Elsevier owns the copyright. Based upon the facts and conclusions below, the motion is granted and the Defendants are prohibited from distributing the Plaintiffs' copyrighted works.
Prior Proceedings
Elsevier, a major publisher of scientific journal articles and book chapters, brought this action on June 2, 2015, alleging that the Defendants, a series of websites affiliated with the Project (the "Website Defendants") and their owner and operator, Alexandra Elbakyan, infringed Elsevier's copyrighted works and violated the Computer Fraud and Abuse Act. (See generally Complaint, Dkt. No. 1.) Elsevier filed the instant motion for a preliminary injunction on June 11, 2015, via an Order to Show Cause. (Dkt. Nos. 5-13.) On June 18, 2015, the Court granted
2
Plaintiffs' Order to Show Cause and authorized service on the
Defendants via email.
week,
(Dkt.
No.
1 5.)
During the following
the Plaintiffs served the Website Defendants via email and
Elbakyan via email and postal mail.
On July 7,
Part One Judge,
and Elbakyan,
2015,
See Dkt.
Nos.
the Honorable Ronnie Abrams,
24-31. )
acting as
held a telephone conference with the Plaintiffs
during which Elbakyan acknowledged receiving the
papers concerning this case and declared that she did not intend
to obtain a lawyer.
conference,
(See Transcript,
Dkt.
No.
38. )
After the
Judge Abrams issued an Order directing Elbakyan to
notify the Court whether she wished assistance in obtaining pro
bono counsel,
se,
and advising her that while she could proceed pro
the Website Defendants,
not being natural persons,
(Dkt. No.
obtain counsel or risk default.
telephonic conference was held on July 14 ,
must
3 6. )
A second
2015,
during which
Elbakyan stated that she needed additional time to find a
lawyer.
( See Transcript,
the request,
Dkt.
No.
4 2. )
Judge Abrams granted
but warned Elbakyan th�t "you have to move quickly
both in attempting to retain an attorney and you' ll have to
stick to the schedule that is set once it' s set. "
After the telephone conference,
(Id.
at 6. )
Judge Abrams issued another
Order setting the preliminary injunction hearing for September
1 6 and directing Elbakyan to inform the Court by July 21 if she
wished assistance in obtaining pro bono counsel.
3
(Dkt. No.
4 0. )
The motion for a preliminary injunction was heard on
September 1 6,
hearing,
201 5.
None of the Defendants appeared at the
although Elbakyan sent a two-page letter to the court
the day before.
(Dkt. No.
50.)
Applicable Standard
Preliminary injunctions are "extraordinary and drastic
remed[ies]
that should not be granted unless the movant,
clear showing,
Armstrong,
carries the burden of persuasion. "
5 20 U. S.
district court may,
9 68,
972 (1997).
by a
Mazurek v.
In a copyright case,
at its discretion,
a
grant a preliminary
injunction when the plaintiffs demonstrate 1) a likelihood of
success on the merits,
injunction,
favor,
2) irreparable harm in the absence of an
3) a balance of the hardships tipping in their
and 4 ) that issuance of an injunction would not do a
disservice to the public interest.
F. 3d 27 5,
278 ( 2d Cir.
W PIX,
Inc.
v. ivi,
Inc.,
691
2012).
The Motion is Granted
With the exception of Elbakyan,
none of the Defendants
filed any opposition to the instant motion,
participated in any
hearing or telephone conference, or in any other way appeared in
4
the case.
Although Elbakyan acknowledges that she is the "main
operator of sci-hub. erg website"
only represent herself pro
se;
(Dkt.
No.
50 at 1. ), she may
since the Website Defendants are
not natural persons, they may only be represented by an attorney
See Max Cash Media, Inc.
admitted to practice in federal court.
v.
Prism Corp. , No.
(S.D. N. Y.
12 Civ.
147, 2012 WL 2861 162, at *1
July 9, 2012);
Auth. , 722 F. 2d 20, 22
(2d Cir.
1983)
(stating reasons for the
rule and noting that it is "venerable and widespread").
Because
the Website Defendants did not retain an attorney to defend this
action, they are in default.
However, the Website Defendants' default does not
the Plaintiffs to an injunction, nor does
automatically entit
the fact that Elbakyan's submission raises no mer
challenge to the Plaintiffs' claims.
Music, No.
2015).
13 Civ.
s-based
See Thurman v.
5194, 2015 WL 2 168134, at *4
Bun Bun
May 7,
(S. D. N. Y.
Instead, notwithstanding the default, the Plaintiffs
must present evidence sufficient to establish that they are
entitled to injunctive relief.
Curveal Fashion, No.
(S. D. N. Y.
Cir.
09 Civ.
Jan 20, 2010);
See id. ;
Inc.
v.
8458, 2010 WL 308303, at *2
CFTC v.
Vartuli, 228 F. 3d 94, 98
2000).
A. Likelihood of S
Gucci Am.,
ss on the
5
rits
(2d
, -
Elsevier has established that the Defendants have
reproduced and distributed its copyrighted works,
of the exclusive rights established by 17
Complaint,
Dkt. No. 1,
at 11-13.)
(1)
"two elements must be
ownership of a valid copyright,
and
(2)
copying of
constituent elements of the work that are original."
Records,
LLC v. Doe 3,
Feist Publ'ns,
See
U.S.C. § 106.
In order to prevail on a
claim for infringement of copyright,
proven:
in violation
604 F.3d 110,
117
Arista
(2d Cir. 2010)
Inc. v. Rural Tel. Serv. Co.,
499 U.S.
(quoting
340,
361
(1991) ) .
Elsevier has made a substantial evidentiary showing,
documenting the manner in which the Defendants access its
ScienceDirect database of scientific literature and post
copyrighted material on their own websites free of charge.
According to Elsevier,
the Defendants gain access to
ScienceDirect by using credentials fraudulently obtained from
educational institutions,
including educational institutions
located in the Southern District of New York,
legitimate access to ScienceDirect.
Woltermann
(the "Woltermann Dec.") ,
which are granted
(See Declaration of Anthony
Dkt. No. 8,
at 13-14.)
As
an attachment to one of the supporting declarations to this
motion,
Elsevier includes a sequence of screenshots showing how
a user could go to �ww.sc�-hub.org,
6
one of the Website
Defendants,
search for information on a scientific article,
a set of search results, click on a link,
copyrighted article on ScienceDirect,
get
and be redirected to a
via a proxy.
See
Elsevier also points to a
Walterman Dec. at 41-44 and Ex. U.)
Twitter post (in Russian) indicating that whenever an article is
downloaded via this method,
own servers.
1 2,
Ex.
B.)
the Defendants save a copy on their
(See Declaration of David M. Hirschberg,
As specific examples,
with their copyright registrations.
Dkt.
No. 9,
Exs. B-D.)
No.
Elsevier includes copies of
two of its articles accessed via the Defendants'
Doda,
Dkt.
websites,
along
(Declaration of Paul F.
This showing demonstrates a
likelihood of success on Elsevier' s copyright infringement
claims.
Elsevier also shows a likelihood of success on its claim
under the Computer Fraud and Abuse Act ("CFAA").
prohibits,
inter alia,
The CFAA
obtaining information from "any protected
computer" without authorization,
18 U.S. C. § 1030(a)(2)(C),
and
obtaining anything of value by accessing any protected computer
with intent to defraud.
Id.
§ (a) (4).
The definition of
"protected computer" includes one "which is used in or affecting
interstate or foreign commerce or communication,
including a
computer located outside the United States that
is used in a
manner that affects interstate or foreign commerce or
communication of the United States."
7
I .
§ (e) (2) (B);
Nexans
Wires S. A.
2006).
v.
Sa
Inc.
166 F.
App'x 559, 562 n. 5
(2d Cir.
Elsevier's ScienceDirect database is located on multiple
servers throughout the world and is accessed by educational
institutions and their students, and qualifies as a computer
used in interstate commerce, and therefore as a protected
computer under the CFAA.
See Woltermann Dec.
at 2-3. )
As
found above, Elsevier has shown that the Defendants' access to
ScienceDirect was unauthorized and accomplished via fraudulent
university credentials.
While the C fAA requires a civil
plaintiff to have suffered over $5,000 in damage or loss, see
Register. com, Inc.
v.
Verio, Inc. , 356 F. 3d 393, 439
(2d Cir.
2004), Elsevier has made the necessary showing since it
documented between 2,000 and 8,500 of its articles being added
to the LibGen database each day
(Woltermann Dec.
at 8, Exs.
G &
H) and because its articles carry purchase prices of between
$19. 95 and $41. 95 each.
Leon, No.
12 Civ.
Id.
at 2;
see Millennium TGA, Inc.
1360, 2013 WL 5719079, at *10
(E. D. N.Y.
v.
Oct.
18, 2013). 1
Elsevier's evidence is also buttressed by Elbakyan's
submission, in which she frankly admits to copyright
infringement.
1
(See Dkt.
No.
50.)
She discusses her time as a
While Elsevier's articles are likely sufficient on their own to qualify as
"[]thing[s]
of value" under the CFAA,
Elbakyan acknowledges in her submission
that the Defendants derive revenue from their website.
50,
at
1
{"That is true that website collects donations,
pressure anyone to send them.").)
8
Letter,
Dkt. No.
however we do not
student at a university in Kazakhstan, where she did not have
access to research papers and found the prices charged to bejust insane.
(Id.
at 1.)
She obtained the papers she needed
"by pirating them," and found may similar students and
researchers, predominantly in developing count
s, who were in
similar situations and helped each other illicitly obtain
research materials that they could not access legitimately or
afford on the open market.
Id.)
As Elbakyan describes it, "I
could obtain any paper by pirating it, so I solved many requests
and people always were very grateful for my help.
After that, I
created sci-hub.org website that simply makes this process
automatic and the website immediately became popular."
(Id.)
Given Elsevier's strong evidentiary showing and Elbakyan's
admissions, the first prong of the preliminary injunction test
is firmly established.
B. Irreparable Harm
Irreparable harm is present "where, but for the grant of
equitable relief, there is a substantial chance that upon final
resolution of the action the parties cannot be returned to the
positions they previously occupied."
Brenntag Int'l Chems.,
Inc. v. Bank of India, 175 F.3d 245, 249
(2d Cir. 1999).
Here,
there is irreparable harm because it is entirely likely that the
9
•'
damage to Elsevier could not be effectively quantified.
Register.com,
356 F.3d at 404
{"irreparable harm may be found
where damages are difficult to establish and measure.").
would be difficult,
if not impossible,
It
to determine how much
money the Plaintiffs have lost due to the availability of
thousands of their articles on the Defendant websites;
some
percentage of those articles would no doubt have been paid for
legitimately if they were not downloadable for free,
but there
appears to be no way of determining how many that would be.
There is also the matter of harm caused by "viral infringement, "
where Elsevier's content could be transmitted and retransmitted
by third parties who acquired it from the Defendants even after
the Defendants' websites were shut down.
Inc.,
275
765 F. Supp. 2d 594,
(2d Cir. 2012).
620
(S.D.N.Y.
See WPIX,
2011),
'to prove the loss of sales due to
infringement is .
notoriously difficult.'"
Colting,
81
607 F.3d 6 8,
(2d Cir. 2010)
Corp. v. Petri-Kine Camera Co.,
(Friendly,
aff'd 691 F.3d
"(C]ourts have tended to issue injunctions
in this context because
1971)
Inc. v. ivi,
Salinger v.
(quoting Omega Importing
451 F.2d 1190,
1195
(2d Cir.
J.)).
Additionally,
the harm done to the Plaintiffs is likely
irreparable because the scale of any money damages would
dramatically exceed Defendants' ability to pay.
F.3d at 249-50
Brenntag,
175
(explaining that even where money damages can be
10
quantified, there is irreparable harm when a defendant will be
unable to cover the damages).
Defendants'
It is highly likely that the
activities will be found to be willful - Elbakyan
herself refers to the websites'
activities as "pirating" (Dkt.
No. 50 at 1) - in which case they would be liable for between
$750 and $150,000 in statutory damages for each pirated work.
See 17 U.S.C.
§ 504(c);
HarperCollins Publishers LLC v. Open
Road Integrated Media, LLP, 58 F.
2014).
Supp. 3d 380, 38 7 (S.D.N.Y.
Since the Plaintiffs credibly allege that the Defendants
infringe an average of over 3,000 new articles each day
(Woltermann Deel. at 7), even if the Court were to award damages
at the lower end of the statutory range the Defendants'
liability could be extensive.
Since the Defendants are an
individual and a set of websites supported by voluntary
donations, the potential damages are likely to be far beyond the
Defendants'
ability to pay.
C. Balance of Hardships
The balance of hardships clearly tips in favor of the
Plaintiffs.
Elsevier has shown that it is likely to succeed on
the merits, and that it continues to suffer irreparable harm due
to the Defendants'
free.
making its copyrighted material available for
As for the Defendants, "it is axiomatic that an infringer
11
of copyright cannot complain about the loss of ability to offer
its infringing product."
omitted).
W PIX,
691 F.3d at 287 (quotation
The Defendants cannot be legally harmed by the fact
that they cannot continue to steal the Plaintiff' s content,
even
See id.
if they tried to do so for public-spirited reasons.
D. Public Interest
To the extent that Elbakyan mounts a legal challenge to the
motion for a preliminary injunction,
interest prong of the test.
it is on the public
In her letter to the Court,
notes that there are "lots of researchers .
she
. especially in
developing countries" who do not have access to key scientific
papers owned by Elsevier and similar organizations,
and who
cannot afford to pay the high fees that Elsevier charges.
No.
50,
at 1.)
Elbakyan states in her letter that Elsevier
operates by racket:
any papers.
(Dkt.
if you do not send money,
On my website,
as they want for free,
you will not read
any person can read as many papers
and sending donations is their free will.
Why Elsevier cannot work like this,
(Id.)
I wonder?
Elbakyan
also notes that researchers do not actually receive money in
exchange for granting Elsevier a copyright.
Id.)
Rather,
she
alleges they give Elsevier ownership of their works "because
Elsevier is an owner of so-called
12
'high-impact'
journals.
If a
researcher wants to be recognized,
make a career - he or she
needs to have publications in such journals.n
{ Id. at 1-2.)
Elbakyan notes that prominent researchers have made attempts to
boycott Elsevier and states that "[t]he general opinion in
research community is that research papers should be distributed
for free (open access),
not sold.
And practices of such
companies like Elsevier are unacceptable,
distribution of knowledge."
because they limit
ld. at 2.)
Elsevier contends that the public interest favors the
issuance of an injunction because doing so will "protect the
delicate ecosystem which supports scientific research
worldwide."
(Pl.'s Br.,
Dkt. No. 6,
at 21.)
It states that the
money it generates by selling access. to scientific research is
used to support new discoveries,
maintain a "de
discovery."
to create new journals,
and to
nitive and accurate record of scientif
( Id.)
It also argues that allowing its articles to
be widely distributed
sks the spread of bad science - while
Elsevier corrects and retracts articles whose conclusions are
later found to be flawed,
it has no way of doing so when the
content is taken out of its control.
Id. at 22.)
Lastly,
Elsevier argues that injunctive relief against the Defendants is
important to deter "cyber-crime," while
ling to issue an
injunction will incentivize pirates to continue to publish
copyrighted works.
13
It cannot be denied that there is a compelling public
interest in fostering scientific achievement, and that ensuring
broad access to scientific research is an important component of
that effort.
As the Second Circuit has noted, "[c]opyright law
inherently balances [] two competing public interests .
.
. the
rights of users and the public interest in broad accessibility
of creative works, and the rights of copyright owners and the
public interest in rewarding and incentivizing creative efforts
(the
'owner-user balance' )."
WPIX, 691 F.3d at 287 .
Elbakyan' s
solution to the problems she identifies, simply making
copyrighted content available for free via a foreign website,
disserves the public interest.
As the Plaintiffs have
established, there is a "delicate ecosystem which supports
scientific research worldwide,"
( Pl.' s Br., Dkt. No. 6 at 21),
and copyright law pays a critical function within that system.
"Inadequate protections for copyright owners can threaten the
very store of knowledge to be accessed; encouraging the
production of creative work thus ultimately serves the public' s
interest in promoting the accessibility of such works. "
691 F.3d at 287 .
W PIX,
The existence of Elsevier shows that
publication of scient ific research
generates substantial
economic value.
The public' s interest in the broad diffusion of scientific
knowledge is sustained by two critical exceptions in copyright
14
law.
First,
the "idea/expression dichotomy" ensures that while
a scientific article may be subject to copyright,
the ideas and
See 17 U. S.C. § 102(b)
insights within that article are not.
("In no case does copyright protection for an original work of
authorship extend to any idea,
procedure,
method of operation,
concept,
to this distinction,
every idea,
principle,
process,
system,
or discovery").
theory,
"Due
and fact in a
copyrighted work becomes instantly available for public
exploitation at the moment of publication."
537 U.S. 186,
219
(2003).
So while Elsevier may be able to keep
its actual articles behind a paywall,
them are fair game for anyone.
doctrine,
comment,
the discoveries within
Secondly,
codified at 17 U.S.C. § 107,
expressions,
as well as ideas,
news reporting,
Eldred v. Ashcroft,
the "fair use"
allows the public to use
nfor purposes such as criticism,
teaching .
.
.
scholarship,
or
research" without being liable for copyright infringement.
(emphasis added)
Under this doctrine,
themselves may be taken and used,
purposes,
Elsevier' s articles
bu.t only for legitimate
and not for wholesale infringement.
U.S. at 219.2
See Eldred,
537
The public interest in the broad dissemination and
use of scientific research is protected by the idea/expression
dichotomy and the fair use doctrine.
2
See Golan v. Holder,
The public interest in wide d1sseminat1on of scientific works
by the fact that copyrights are given only limited
464
15
U.S.
duration.
417, 431-32
132
is also served
See Sony Corp.
(1984).
S.
Ct. 873,
890 (2012);
Eldred,
537 U.S. at 219.
Given the
importance of scientific research and the critical role that
copyright plays in promoting it,
the public interest weighs in
favor of an injunction.
Conclusion
For the reasons set forth above,
It is hereby ordered that:
preliminary injunction is granted.
1. The Defendants,
agents,
their officers,
servants,
employees,
the motion for a
directors,
principals,
successors and assigns,
and
all persons and entities in active concert or participation
with them,
are hereby temporarily restrained from unlawful
access to,
use,
reproduction,
and/or distribution of
Elsevier's copyrighted works and from assisting,
aiding,
or
abetting any other person or business entity in engaging in
unlawful access to,
use,
reproduction,
and/or distribution
of Elsevier' s copyrighted works.
2. Upon the Plaintiffs'
request,
have registered Defendants'
those organizations which
domain names on behalf of
Defendants shall disclose immediately to the Plaintiffs all
information in their possession concerning the identity of
the operator or registrant of such domain names and of any
16
bank accounts or financial accounts owned or used by such
operator or registrant.
3. Defendants shall not transfer ownership of the Defendants'
websites during the pendency of this Action,
or until
further Order of the Court.
4. The TLD Registries for the Defendants'
administrators,
websites,
or their
shall place the domain names on
registryHold/serverHold as well as serverUpdate,
serverDelete,
and serverTransfer prohibited statuses,
until
further Order of the Court.
5. The Defendants shall preserve copies of all computer files
relating to the use of the websites and shall take all
necessary steps to retrieve computer files relating to the
use of the websites that may have been deleted before entry
of this Order.
6. That security in the amount of $ 5, 000 be posted by the
Plaintiffs within one week of the entry of this Order.
Fed.
R.
Civ.
P. 6 5(c).
17
See
It is so ordered.
New York,
fY
October ? ;--1
2015
R BERT W. SWEET
U.S.D.J.
18
Barok
Poetics of Research
2014
_An unedited version of a talk given at the conference[Public
Library](http://www.wkv-stuttgart.de/en/program/2014/events/public-library/)
held at Württembergischer Kunstverein Stuttgart, 1 November 2014._
_Bracketed sequences are to be reformulated._
Poetics of Research
In this talk I'm going to attempt to identify [particular] cultural
algorithms, ie. processes in which cultural practises and software meet. With
them a sphere is implied in which algorithms gather to form bodies of
practices and in which cultures gather around algorithms. I'm going to
approach them through the perspective of my practice as a cultural worker,
editor and artist, considering practice in the same rank as theory and
poetics, and where theorization of practice can also lead to the
identification of poetical devices.
The primary motivation for this talk is an attempt to figure out where do we
stand as operators, users [and communities] gathering around infrastructures
containing a massive body of text (among other things) and what sort of things
might be considered to make a difference [or to keep making difference].
The talk mainly [considers] the role of text and the word in research, by way
of several figures.
A
A reference, list, scheme, table, index; those things that intervene in the
flow of narrative, illustrating the point, perhaps in a more economic way than
the linear text would do. Yet they don't function as pictures, they are
primarily texts, arranged in figures. Their forms have been
standardised[normalised] over centuries, withstood the transition to the
digital without any significant change, being completely intuitive to the
modern reader. Compared to the body of text they are secondary, run parallel
to it. Their function is however different to that of the punctuation. They
are there neither to shape the narrative nor to aid structuring the argument
into logical blocks. Nor is their function spatial, like in visual poems.
Their positions within a document are determined according to the sequential
order of the text, [standing as attachments] and are there to clarify the
nature of relations among elements of the subject-matter, or to establish
relations with other documents. The [premise] of my talk is that these
_textual figures_ also came to serve as the abstract[relational] models
determining possible relations among documents as such, and in consequence [to
structure conditions [of research]].
B
It can be said that research, as inquiry into a subject-matter, consists of
discrete queries. A query, such as a question about what something is, what
kinds, parts and properties does it have, and so on, can be consulted in
existing documents or generate new documents based on collection of data [in]
the field and through experiment, before proceeding to reasoning [arguments
and deductions]. Formulation of a query is determined by protocols providing
access to documents, which means that there is a difference between collecting
data outside the archive (the undocumented, ie. in the field and through
experiment), consulting with a person--an archivist (expert, librarian,
documentalist), and consulting with a database storing documents. The
phenomena such as [deepening] of specialization and throughout digitization
[have given] privilege to the database as [a|the] [fundamental] means for
research. Obviously, this is a very recent [phenomenon]. Queries were once
formulated in natural language; now, given the fact that databases are queried
[using] SQL language, their interfaces are mere extensions of it and
researchers pose their questions by manipulating dropdowns, checkboxes and
input boxes mashed together on a flat screen being ran by software that in
turn translates them into a long line of conditioned _SELECTs_ and _JOINs_
performed on tables of data.
Specialization, digitization and networking have changed the language of
questioning. Inquiry, once attached to the flesh and paper has been
[entrusted] to the digital and networked. Researchers are querying the black
box.
C
Searching in a collection of [amassed/assembled] [tangible] documents (ie.
bookshelf) is different from searching in a systematically structured
repository (library) and even more so from searching in a digital repository
(digital library). Not that they are mutually exclusive. One can devise
structures and algorithms to search through a printed text, or read books in a
library one by one. They are rather [models] [embodying] various [processes]
associated with the query. These properties of the query might be called [the
sequence], the structure and the index. If they are present in the ways of
querying documents, and we will return to this issue, are they persistent
within the inquiry as such? [wait]
D
This question itself is a rupture in the sequence. It makes a demand to depart
from one narrative [a continuous flow of words] to another, to figure out,
while remaining bound to it [it would be even more as a so-called rhetorical
question]. So there has been one sequence, or line, of the inquiry--about the
kinds of the query and its properties. That sequence itself is a digression,
from within the sequence about what is research and describing its parts
(queries). We are thus returning to it and continue with a question whether
the properties of the inquiry are the same as the properties of the query.
E
But isn't it true that every single utterance occurring in a sequence yields a
query as well? Let's consider the word _utterance_. [wait] It can produce a
number of associations, for example with how Foucault employs the notion of
_énoncé_ in his _Archaeology of Knowledge_ , giving hard time to his English
translators wondering whether _utterance_ or _statement_ is more appropriate,
or whether they are interchangeable, and what impact would each choice have on
his reception in the Anglophone world. Limiting ourselves to textual forms for
now (and not translating his work but pursing a different inquiry), let us say
the utterance is a word [or a phrase or an idiom] in a sequence such as a
sentence, a paragraph, or a document.
## (F) The
structure[[edit](/index.php?title=Talks/Poetics_of_Research&action=edit§ion=1
"Edit section: \(F\) The structure")]
This distinction is as old as recorded Western thought since both Plato and
Aristotle differentiate between a word on its own ("the said", a thing said)
and words in the company of other words. For example, Aristotle's _Categories_
[lay] on the [notion] of words on their own, and they are made the subject-
matter of that inquiry. [For him], the ambiguity of connotation words
[produce] lies in their synonymity, understood differently from the moderns--
not as more words denoting a similar thing but rather one word denoting
various things. Categories were outlined as a device to differentiate among
words according to kinds of these things. Every word as such belonged to not
less and not more than one of ten categories.
So it happens to the word _utterance_ , as to any other word uttered in a
sequence, that it poses a question, a query about what share of the spectrum
of possibly denoted things might yield as the most appropriate in a given
context. The more context the more precise share comes to the fore. When taken
out of the context ambiguity prevails as the spectrum unveils in its variety.
Thus single words [as any other utterances] are questions, queries,
themselves, and by occuring in statements, in context, their [means] are being
singled out.
This process is _conditioned_ by what has been formalized as the techniques of
_regulating_ definitions of words.
### (G) The structure: words as
words[[edit](/index.php?title=Talks/Poetics_of_Research&action=edit§ion=2
"Edit section: \(G\) The structure: words as words")]
* [![](/images/thumb/c/c8/Philitas_in_P.Oxy.XX_2260_i.jpg/144px-Philitas_in_P.Oxy.XX_2260_i.jpg)](/File:Philitas_in_P.Oxy.XX_2260_i.jpg)
P.Oxy.XX 2260 i: Oxyrhynchus papyrus XX, 2260, column i, with quotation from
Philitas, early 2nd c. CE. 1(http://163.1.169.40/cgi-
bin/library?e=q-000-00---0POxy--00-0-0--0prompt-10---4------0-1l--1-en-50---
20-about-2260--
00031-001-0-0utfZz-8-00&a=d&c=POxy&cl=search&d=HASH13af60895d5e9b50907367)
2(http://en.wikipedia.org/wiki/File:POxy.XX.2260.i-Philitas-
highlight.jpeg)
* [![](/images/thumb/9/9e/Cyclopaedia_1728_page_210_Dictionary_entry.jpg/88px-Cyclopaedia_1728_page_210_Dictionary_entry.jpg)](/File:Cyclopaedia_1728_page_210_Dictionary_entry.jpg)
Ephraim Chambers, _Cyclopaedia, or an Universal Dictionary of Arts and
Sciences_ , 1728, p. 210. 3(http://digicoll.library.wisc.edu/cgi-
bin/HistSciTech/HistSciTech-
idx?type=turn&entity=HistSciTech.Cyclopaedia01.p0576&id=HistSciTech.Cyclopaedia01&isize=L)
* [![](/images/thumb/b/b8/Detail_from_the_Liddell-Scott_Greek-English_Lexicon_c1843.jpg/160px-Detail_from_the_Liddell-Scott_Greek-English_Lexicon_c1843.jpg)](/File:Detail_from_the_Liddell-Scott_Greek-English_Lexicon_c1843.jpg)
Detail from the Liddell-Scott Greek-English Lexicon, c1843.
Dictionaries have had a long life. The ancient Greek scholar and poet Philitas
of Cos living in the 4th c. BCE wrote a vocabulary explaining the meanings of
rare Homeric and other literary words, words from local dialects, and
technical terms. The vocabulary, called _Disorderly Words_ (Átaktoi glôssai),
has been lost, with a few fragments quoted by later authors. One example is
that the word πέλλα (pélla) meant "wine cup" in the ancient Greek region of
Boeotia; contrasted to the same word meaning "milk pail" in Homer's _Iliad_.
Not much has changed in the way how dictionaries constitute order. Selected
archives of statements are queried to yield occurrences of particular words,
various _criteria[indicators]_ are applied to filtering and sorting them and
in turn the spectrum of [denoted] things allocated in this way is structured
into groups and subgroups which are then given, according to other set of
rules, shorter or longer names. These constitute facets of [potential]
meanings of a word.
So there are at least _four_ sets of conditions [structuring] dictionaries.
One is required to delimit an archive[corpus of texts], one to select and give
preference[weights] to occurrences of a word, another to cluster them, and yet
another to abstract[generalize] the subject-matter of each of these clusters.
Needless to say, this is a craft of a few and these criteria are rarely being
disclosed, despite their impact on research, and more generally, their
influence as conditions for production[making] of a so called _common sense_.
It doesn't take that much to reimagine what a dictionary is and what it could
be, especially having large specialized corpora of texts at hand. These can
also serve as aids in production of new words and new meanings.
### (H) The structure: words as knowledge and the
world[[edit](/index.php?title=Talks/Poetics_of_Research&action=edit§ion=3
"Edit section: \(H\) The structure: words as knowledge and the world")]
* [![](/images/thumb/0/02/Boethius_Porphyrys_Isagoge.jpg/120px-Boethius_Porphyrys_Isagoge.jpg)](/File:Boethius_Porphyrys_Isagoge.jpg)
Boethius's rendering of a classification tree described in Porphyry's Isagoge
(3th c.), [6th c.] 10th c.
4(http://www.e-codices.unifr.ch/en/sbe/0315/53/medium)
* [![](/images/thumb/d/d0/Cyclopaedia_1728_page_ii_Division_of_Knowledge.jpg/94px-Cyclopaedia_1728_page_ii_Division_of_Knowledge.jpg)](/File:Cyclopaedia_1728_page_ii_Division_of_Knowledge.jpg)
Ephraim Chambers, _Cyclopaedia, or an Universal Dictionary of Arts and
Sciences_ , London, 1728, p. II. 5(http://digicoll.library.wisc.edu/cgi-
bin/HistSciTech/HistSciTech-
idx?type=turn&entity=HistSciTech.Cyclopaedia01.p0015&id=HistSciTech.Cyclopaedia01&isize=L)
* [![](/images/thumb/d/d6/Encyclopedie_1751_Systeme_figure_des_connaissances_humaines.jpg/116px-Encyclopedie_1751_Systeme_figure_des_connaissances_humaines.jpg)](/File:Encyclopedie_1751_Systeme_figure_des_connaissances_humaines.jpg)
Système figuré des connaissances humaines, _Encyclopédie ou Dictionnaire
raisonné des sciences, des arts et des métiers_ , 1751.
6(http://encyclopedie.uchicago.edu/content/syst%C3%A8me-figur%C3%A9-des-
connaissances-humaines)
* [![](/images/thumb/9/96/Haeckel_Ernst_1874_Stammbaum_des_Menschen.jpg/96px-Haeckel_Ernst_1874_Stammbaum_des_Menschen.jpg)](/File:Haeckel_Ernst_1874_Stammbaum_des_Menschen.jpg)
Haeckel - Darwin's tree.
Another _formalized_ and [internalized] process being at play when figuring
out a word is its [containment]. Word is not only structured by way of things
it potentially denotes but also by words it is potentially part of and those
it contains.
The fuzz around categorization of knowledge _and_ the world in the Western
thought can be traced back to Porphyry, if not further. In his introduction to
Aristotle's _Categories_ this 3rd century AD Neoplatonist began expanding the
notions of genus and species into their hypothetic consequences. Aristotle's
brief work outlines ten categories of 'things that are said' (legomena,
λεγόμενα), namely substance (or substantive, {not the same as matter!},
οὐσία), quantity (ποσόν), qualification (ποιόν), a relation (πρός), where
(ποῦ), when (πότε), being-in-a-position (κεῖσθαι), having (or state,
condition, ἔχειν), doing (ποιεῖν), and being-affected (πάσχειν). In his
different work, _Topics_ , Aristotle outlines four kinds of subjects/materials
indicated in propositions/problems from which arguments/deductions start.
These are a definition (όρος), a genus (γένος), a property (ἴδιος), and an
accident (συμβεβηϰόϛ). Porphyry does not explicitly refer _Topics_ , and says
he omits speaking "about genera and species, as to whether they subsist (in
the nature of things) or in mere conceptions only"
8(http://www.ccel.org/ccel/pearse/morefathers/files/porphyry_isagogue_02_translation.htm#C1),
which means he avoids explicating whether he talks about kinds of concepts or
kinds of things in the sensible world. However, the work sparked confusion, as
the following passage [suggests]:
> "[I]n each category there are certain things most generic, and again, others
most special, and between the most generic and the most special, others which
are alike called both genera and species, but the most generic is that above
which there cannot be another superior genus, and the most special that below
which there cannot be another inferior species. Between the most generic and
the most special, there are others which are alike both genera and species,
referred, nevertheless, to different things, but what is stated may become
clear in one category. Substance indeed, is itself genus, under this is body,
under body animated body, under which is animal, under animal rational animal,
under which is man, under man Socrates, Plato, and men particularly." (Owen
1853,
9(http://www.ccel.org/ccel/pearse/morefathers/files/porphyry_isagogue_02_translation.htm#C2))
Porphyry took one of Aristotle's ten categories of the word, substance, and
dissected it using one of his four rhetorical devices, genus. Employing
Aristotle's categories, genera and species as means for logical operations,
for dialectic, Porphyry's interpretation resulted in having more resemblance
to the perceived _structures_ of the world. So they began to bloom.
There were earlier examples, but Porphyry was the most influential in
injecting the _universalist_ version of classification [implying] the figure
of a tree into the [locus] of Aristotle's thought. Knowledge became
monotheistic.
Classification schemes [growing from one point] play a major role in
untangling the format of modern encyclopedia from that of the dictionary
governed by alphabet. Two of the most influential encyclopedias of the 18th
century are cases in the point. Although still keeping 'dictionary' in their
titles, they are conceived not to represent words but knowledge. The [upper-
most] genus of the body was set as the body of knowledge. The English
_Cyclopaedia, or an Universal Dictionary of Arts and Sciences_ (1728) splits
into two main branches: "natural and scientifical" and "artificial and
technical"; these further split down to 47 classes in total, each carrying a
structured list (on the following pages) of thematic articles, serving as
table of contents. The French _Encyclopedia: or a Systematic Dictionary of the
Sciences, Arts, and Crafts_ (1751) [unwinds] from judgement ( _entendement_ ),
branches into memory as history, reason as philosophy, and imagination as
poetry. The logic of containers was employed as an aid not only to deal with
the enormous task of naming and not omiting anything from what is known, but
also for the management of labour of hundreds of writers and researchers, to
create a mechanism for delegating work and the distribution of
responsibilities. Flesh was also more present, in the field research, with
researchers attending workshops and sites of everyday life to annotate it.
The world came forward to unshine the word in other schemes. Darwin's tree of
evolution and some of the modern document classification systems such as
Charles A. Cutter's _Expansive Classification_ (1882) set to classify the
world itself and set the field for what has came to be known as authority
lists structuring metadata in today's computing.
### The structure
(summary)[[edit](/index.php?title=Talks/Poetics_of_Research&action=edit§ion=4
"Edit section: The structure \(summary\)")]
Facetization of meaning and branching of knowledge are both the domain of the
unit of utterance.
While lexicographers[dictionarists] structure thought through multi-layered
processes of abstraction of the written record, knowledge growers dissect it
into hierarchies of [mutually] contained notions.
One seek to describe the word as a faceted list of small worlds, another to
describe the world as a structured lists of words. One play prime in the
domain of epistemology, in what is known, controlling the vocabulary, another
in the domain of ontology, in what is, controlling reality.
Every [word] has its given things, every thing has its place, closer or
further from a single word.
The schism between classifying words and classifying the world implies it is
not possible to construct a universal classification scheme[system]. On top of
that, any classification system of words is bound to a corpus of texts it is
operating upon and any classification system of the world again operates with
words which are bound to a vocabulary[lexicon] which is again bound to a
corpus [of texts]. It doesn't mean it would prevent people from trying.
Classifications function as descriptors of and 'inscriptors' upon the world,
imprinting their authority. They operate from [a locus of] their
corpus[context]-specificity. The larger the corpus, the more power it has on
shaping the world, as far as the word shapes it (yes, I do imply Google here,
for which it is a domain to be potentially exploited).
## (J) The
sequence[[edit](/index.php?title=Talks/Poetics_of_Research&action=edit§ion=5
"Edit section: \(J\) The sequence")]
The structure-yielding query [of] the single word [shrinks][zuzuje
sa,spresnuje] with preceding and following words. Inquiry proceeds in the flow
that establishes another kind[mode] of relationality, chaining words into the
sequence. While the structuring property of the query brings words apart from
each other, its sequential property establishes continuity and brings these
units into an ordered set.
This is what is responsible for attaching textual figures mentioned earlier
(lists, schemes, tables) to the body of the text. Associations can be also
stated explicitly, by indexing tables and then referring them from a
particular point in the text. The same goes for explicit associations made
between blocks of the text by means of indexed paragraphs, chapters or pages.
From this follows that all utterances point to the following utterance by the
nature of sequential order, and indexing provides means for pointing elsewhere
in the document as well.
A lot can be said about references to other texts. Here, to spare time, I
would refer you to a talk I gave a few months ago and which is online
10(http://monoskop.org/Talks/Communing_Texts).
This is still the realm of print. What happens with document when it is
digitized?
Digitization breaks a document into units of which each is assigned a numbered
position in the sequence of the document. From this perspective digitization
can be viewed as a total indexation of the document. It is converted into
units rendered for machine operations. This sequentiality is made explicit, by
means of an underlying index.
Sequences and chains are orders of one dimension. Their one-dimensional
ordering allows addressability of each element and [random] access. [Jumps]
between [random] addresses are still sequential, processing elements one at a
time.
## (K) The
index[[edit](/index.php?title=Talks/Poetics_of_Research&action=edit§ion=6
"Edit section: \(K\) The index")]
* [![](/images/thumb/2/27/Summa_confessorum.1310.jpg/103px-Summa_confessorum.1310.jpg)](/File:Summa_confessorum.1310.jpg)
Summa confessorum [1297-98], 1310.
7(http://www.bl.uk/onlinegallery/onlineex/illmanus/roymanucoll/j/011roy000008g11u00002000.html)
[The] sequencing not only weaves words into statements but activates other
temporalities, and _presents occurrences of words from past statements_. As
now when I am saying the word _utterance_ , each time there surface contexts
in which I have used it earlier.
A long quote from Frederick G. Kilgour, _The Evolution of the Book_ , 1998, pp
76-77:
> "A century of invention of various types of indexes and reference tools
preceded the advent of the first subject index to a specific book, which
occurred in the last years of the thirteenth century. The first subject
indexes were "distinctions," collections of "various figurative or symbolic
meanings of a noun found in the scriptures" that "are the earliest of all
alphabetical tools aside from dictionaries." (Richard and Mary Rouse supply an
example: "Horse = Preacher. Job 39: 'Hast thou given the horse strength, or
encircled his neck with whinning?')
>
> [Concordance] By the end of the third decade of the thirteenth century Hugh
de Saint-Cher had produced the first word concordance. It was a simple word
index of the Bible, with every location of each word listed by [its position
in the Bible specified by book, chapter, and letter indicating part of the
chapter]. Hugh organized several dozen men, assigning to each man an initial
letter to search; for example, the man assigned M was to go through the entire
Bible, list each word beginning with M and give its location. As it was soon
perceived that this original reference work would be even more useful if words
were cited in context, a second concordance was produced, with each word in
lengthy context, but it proved to be unwieldy. [Soon] a third version was
produced, with words in contexts of four to seven words, the model for
biblical concordances ever since.
>
> [Subject index] The subject index, also an innovation of the thirteenth
century, evolved over the same period as did the concordance. Most of the
early topical indexes were designed for writing sermons; some were organized,
while others were apparently sequential without any arrangement. By midcentury
the entries were in alphabetical order, except for a few in some classified
arrangement. Until the end of the century these alphabetical reference works
indexed a small group of books. Finally John of Freiburg added an alphabetical
subject index to his own book, _Summa Confessorum_ (1297—1298). As the Rouses
have put it, 'By the end of the [13]th century the practical utility of the
subject index is taken for granted by the literate West, no longer solely as
an aid for preachers, but also in the disciplines of theology, philosophy, and
both kinds of law.'"
In one sense neither subject-index nor concordane are indexes, they are words
or group of words selected according to given criteria from the body of the
text, each accompanied with a list of identifiers. These identifiers are
elements of an index, whether they represent a page, chapter, column, or other
[kind of] block of text. Every identifier is an unique _address_.
The index is thus an ordering of a sequence by means of associating its
elements with a set of symbols, when each element is given unique combination
of symbols. Different sizes of sets yield different number of variations.
Symbol sets such as an alphabet, arabic numerals, roman numerals, and binary
digits have different proportions between the length of a string of symbols
and the number of possible variations it can contain. Thus two symbols of
English alphabet can store 26^2 various values, of arabic numerals 10^2, of
roman numberals 8^2 and of binary digits 2^2.
Indexation is segmentation, a breaking into segments. From as early as the
13th century the index such as that of sections has served as enabler of
search. The more [detailed] indexation the more precise search results it
enables.
The subject-index and concordance are tables of search results. There is a
direct lineage from the 13th-century biblical concordances and the birth of
computational linguistic analysis, they were both initiated and realised by
priests.
During the World War II, Jesuit Father Roberto Busa began to look for machines
for the automation of the linguistic analysis of the 11 million-word Latin
corpus of Thomas Aquinas and related authors.
Working on his Ph.D. thesis on the concept of _praesens_ in Aquinas he
realised two things:
> "I realized first that a philological and lexicographical inquiry into the
verbal system of an author has t o precede and prepare for a doctrinal
interpretation of his works. Each writer expresses his conceptual system in
and through his verbal system, with the consequence that the reader who
masters this verbal system, using his own conceptual system, has to get an
insight into the writer's conceptual system. The reader should not simply
attach t o the words he reads the significance they have in his mind, but
should try t o find out what significance they had in the writer's mind.
Second, I realized that all functional or grammatical words (which in my mind
are not 'empty' at all but philosophically rich) manifest the deepest logic of
being which generates the basic structures of human discourse. It is .this
basic logic that allows the transfer from what the words mean today t o what
they meant to the writer.
>
> In the works of every philosopher there are two philosophies: the one which
he consciously intends to express and the one he actually uses to express it.
The structure of each sentence implies in itself some philosophical
assumptions and truths. In this light, one can legitimately criticize a
philosopher only when these two philosophies are in contradiction."
11(http://www.alice.id.tue.nl/references/busa-1980.pdf)
Collaborating with the IBM in New York from 1949, the work, a concordance of
all the words of Thomas Aquinas, was finally published in the 1970s in 56
printed volumes (a version is online since 2005
12(http://www.corpusthomisticum.org/it/index.age)). Besides that, an
electronic lexicon for automatic lemmatization of Latin words was created by a
team of ten priests in the scope of two years (in two phases: grouping all the
forms of an inflected word under their lemma, and coding the morphological
categories of each form and lemma), containing 150,000 forms
13(http://www.alice.id.tue.nl/references/busa-1980.pdf#page=4). Father
Busa has been dubbed the father of humanities computing and recently also of
digital humanities.
The subject-index has a crucial role in the printed book. It is the only means
for search the book offers. Subjects composing an index can be selected
according to a classification scheme (specific to a field of an inquiry), for
example as elements of a certain degree (with a given minimum number of
subclasses).
Its role seemingly vanishes in the digital text. But it can be easily
transformed. Besides serving as a table of pre-searched results the subject-
index also gives a distinct idea about content of the book. Two patterns give
us a clue: numbers of occurrences of selected words give subjects weights,
while words that seem specific to the book outweights other even if they don't
occur very often. A selection of these words then serves as a descriptor of
the whole text, and can be thought of as a specific kind of 'tags'.
This process was formalized in a mathematical function in the 1970s, thanks to
a formula by Karen Spärck Jones which she entitled 'inverse document
frequency' (IDF), or in other words, "term specificity". It is measured as a
proportion of texts in the corpus where the word appears at least once to the
total number of texts. When multiplied by the frequency of the word _in_ the
text (divided by the maximum frequency of any word in the text), we get _term
frequency-inverse document frequency_ (tf-idf). In this way we can get an
automated list of subjects which are particular in the text when compared to a
group of texts.
We came to learn it by practice of searching the web. It is a mechanism not
dissimilar to thought process involved in retrieving particular information
online. And search engines have it built in their indexing algorithms as well.
There is a paper proposing attaching words generated by tf-idf to the
hyperlinks when referring websites 14(http://bscit.berkeley.edu/cgi-
bin/pl_dochome?query_src=&format=html&collection=Wilensky_papers&id=3&show_doc=yes).
This would enable finding the referred content even after the link is dead.
Hyperlinks in references in the paper use this feature and it can be easily
tested: 15(http://www.cs.berkeley.edu/~phelps/papers/dissertation-
abstract.html?lexical-
signature=notemarks+multivalent+semantically+franca+stylized).
There is another measure, cosine similarity, which takes tf-idf further and
can be applied for clustering texts according to similarities in their
specificity. This might be interesting as a feature for digital libraries, or
even a way of organising library bottom-up into novel categories, new
discourses could emerge. Or as an aid for researchers to sort through texts,
or even for editors as an aid in producing interesting anthologies.
## Final
remarks[[edit](/index.php?title=Talks/Poetics_of_Research&action=edit§ion=7
"Edit section: Final remarks")]
1
New disciplines emerge all the time - most recently, for example, cultural
techniques, software studies, or media archaeology. It takes years, even
decades, before they gain dedicated shelves in libraries or a category in
interlibrary digital repositories. Not that it matters that much. They are not
only sites of academic opportunities but, firstly, frameworks of new
perspectives of looking at the world, new domains of knowledge. From the
perspective of researcher the partaking in a discipline involves negotiating
its vocabulary, classifications, corpus, reference field, and specific
terms[subjects]. Creating new fields involves all that, and more. Even when
one goes against all disciplines.
2
Google can still surprise us.
3
Knowledge has been in the making for millenia. There have been (abstract)
mechanisms established that govern its conditions. We now possess specialized
corpora of texts which are interesting enough to serve as a ground to discuss
and experiment with dictionaries, classifications, indexes, and tools for
references retrieval. These all belong to the poetic devices of knowledge-
making.
4
Command-line example of tf-idf and concordance in 3 steps.
* 1\. Process the files text.1-5.txt and produce freq.1-5.txt with lists of (nonlemmatized) words (in respective texts), ordered by frequency:
> for i in {1..5}; do tr '[A-Z]' '[a-z]' < text.$i.txt | tr -c '[a-z]'
'[\012*]' | tr -d '[:punct:]' | sort | uniq -c | sort -k 1nr | sed '1,1d' >
temp.txt; max=$(awk -vvar=1 -F" " 'NRDisplay 200
300
400
500
600
700
800
900
1000
ALL
characters around the word.