As I write this in August 2015, we are in the middle of one of the worst
refugee crises in modern Western history. The European response to the carnage
beyond its borders is as diverse as the continent itself: as an ironic
contrast to the newly built barbed-wire fences protecting the borders of
Fortress Europe from Middle Eastern refugees, the British Museum (and probably
other museums) are launching projects to “protect antiquities taken from
conflict zones” (BBC News 2015). We don’t quite know how the conflict
artifacts end up in the custody of the participating museums. It may be that
asylum seekers carry such antiquities on their bodies, and place them on the
steps of the British Museum as soon as they emerge alive on the British side
of the Eurotunnel. But it is more likely that Western heritage institutions,
if not playing Indiana Jones in North Africa, Iraq, and Syria, are probably
smuggling objects out of war zones and buying looted artifacts from the
international gray/black antiquities market to save at least some of them from
disappearing in the fortified vaults of wealthy private buyers (Shabi 2015).
Apparently, there seems to be some consensus that artifacts, thought to be
part of the common cultural heritage of humanity, cannot be left in the hands
of those collectives who own/control them, especially if they try to destroy
them or sell them off to the highest bidder.
The exact limits of expropriating valuables in the name of humanity are
heavily contested. Take, for example, another group of self-appointed
protectors of culture, also collecting and safeguarding, in the name of
humanity, valuable items circulating in the cultural gray/black markets. For
the last decade Russian scientists, amateur librarians, and volunteers have
been collecting millions of copyrighted scientific monographs and hundreds of
millions of scientific articles in piratical shadow libraries and making them
freely available to anyone and everyone, without any charge or limitation
whatsoever (Bodó 2014b; Cabanac 2015; Liang 2012). These pirate archivists
think that despite being copyrighted and locked behind paywalls, scholarly
texts belong to humanity as a whole, and seek to ensure that every single one
of us has unlimited and unrestricted access to them.
The support for a freely accessible scholarly knowledge commons takes many
different forms. A growing number of academics publish in open access
journals, and offer their own scholarship via self-archiving. But as the data
suggest (Bodó 2014a), there are also hundreds of thousands of people who use
pirate libraries on a regular basis. There are many who participate in
courtesy-based academic self-help networks that provide ad hoc access to
paywalled scholarly papers (Cabanac 2015).[1] But a few people believe that
scholarly knowledge could and should be liberated from proprietary databases,
even by force, if that is what it takes. There are probably no more than a few
thousand individuals who occasionally donate a few bucks to cover the
operating costs of piratical services or share their private digital
collections with the world. And the number of pirate librarians, who devote
most of their time and energy to operate highly risky illicit services, is
probably no more than a few dozen. Many of them are Russian, and many of the
biggest pirate libraries were born and/or operate from the Russian segment of
the Internet.
The development of a stable pirate library, with an infrastructure that
enables the systematic growth and development of a permanent collection,
requires an environment where the stakes of access are sufficiently high, and
the risks of action are sufficiently low. Russia certainly qualifies in both
of these domains. However, these are not the only reasons why so many pirate
librarians are Russian. The Russian scholars behind the pirate libraries are
familiar with the crippling consequences of not having access to fundamental
texts in science, either for political or for purely economic reasons. The
Soviet intelligentsia had decades of experience in bypassing censors, creating
samizdat content distribution networks to deal with the lack of access to
legal distribution channels, and running gray and black markets to survive in
a shortage economy (Bodó 2014b). Their skills and attitudes found their way to
the next generation, who now runs some of the most influential pirate
libraries. In a culture, where the know-how of how to resist information
monopolies is part of the collective memory, the Internet becomes the latest
in a long series of tools that clandestine information networks use to build
alternative publics through the illegal sharing of outlawed texts.
In that sense, the pirate library is a utopian project and something more.
Pirate librarians regard their libraries as a legitimate form of resistance
against the commercialization of public resources, the (second) enclosure
(Boyle 2003) of the public domain. Those handful who decide to publicly defend
their actions, speak in the same voice, and tell very similar stories. Aaron
Swartz was an American hacker willing to break both laws and locks in his
quest for free access. In his 2008 “Guerilla Open Access Manifesto” (Swartz
2008), he forcefully argued for the unilateral liberation of scholarly
knowledge from behind paywalls to provide universal access to a common human
heritage. A few years later he tried to put his ideas into action by
downloading millions of journal articles from the JSTOR database without
authorization. Alexandra Elbakyan is a 27-year-old neurotechnology researcher
from Kazakhstan and the founder of Sci-hub, a piratical collection of tens of
millions of journal articles that provides unauthorized access to paywalled
articles to anyone without an institutional subscription. In a letter to the
judge presiding over a court case against her and her pirate library, she
explained her motives, pointing out the lack of access to journal articles.[2]
Elbakyan also believes that the inherent injustices encoded in current system
of scholarly publishing, which denies access to everyone who is not
willing/able to pay, and simultaneously denies payment to most of the authors
(Mars and Medak 2015), are enough reason to disregard the fundamental IP
framework that enables those injustices in the first place. Other shadow
librarians expand the basic access/injustice arguments into a wider critique
of the neoliberal political-economic system that aims to commodify and
appropriate everything that is perceived to have value (Fuller 2011; Interview
with Dusan Barok 2013; Sollfrank 2013).
Whatever prompts them to act, pirate librarians firmly believe that the fruits
of human thought and scientific research belong to the whole of humanity.
Pirates have the opportunity, the motivation, the tools, the know-how, and the
courage to create radical techno-social alternatives. So they resist the
status quo by collecting and “guarding” scholarly knowledge in libraries that
are freely accessible to all.
Both the curators of the British Museum and the pirate librarians claim to
save the common heritage of humanity, but any similarities end there. Pirate
libraries have no buildings or addresses, they have no formal boards or
employees, they have no budgets to speak of, and the resources at their
disposal are infinitesimal. Unlike the British Museum or libraries from the
previous eras, pirate libraries were born out of lack and despair. Their
fugitive status prevents them from taking the traditional paths of
institutionalization. They are nomadic and distributed by design; they are _ad
hoc_ and tactical, pseudonymous and conspiratory, relying on resources reduced
to the absolute minimum so they can survive under extremely hostile
circumstances.
Traditional collections of knowledge and artifacts, in their repurposed or
purpose-built palaces, are both the products and the embodiments of the wealth
and power that created them. Pirate libraries don’t have all the symbols of
transubstantiated might, the buildings, or all the marble, but as
institutions, they are as powerful as their more established counterparts.
Unlike the latter, whose claim to power was the fact of ownership and the
control over access and interpretation, pirates’ power is rooted in the
opposite: in their ability to make ownership irrelevant, access universal, and
interpretation democratic.
This is the paradox of the total piratical archive: they collect enormous
wealth, but they do not own or control any of it. As an insurance policy
against copyright enforcement, they have already given everything away: they
release their source code, their databases, and their catalogs; they put up
the metadata and the digitalized files on file-sharing networks. They realize
that exclusive ownership/control over any aspects of the library could be a
point of failure, so in the best traditions of archiving, they make sure
everything is duplicated and redundant, and that many of the copies are under
completely independent control. If we disregard for a moment the blatantly
illegal nature of these collections, this systematic detachment from the
concept of ownership and control is the most radical development in the way we
think about building and maintaining collections (Bodó 2015).
Because pirate libraries don’t own anything, they have nothing to lose. Pirate
librarians, on the other hand, are putting everything they have on the line.
Speaking truth to power has a potentially devastating price. Swartz was caught
when he broke into an MIT storeroom to download the articles in the JSTOR
database.[3] Facing a 35-year prison sentence and $1 million in fines, he
committed suicide.[4] By explaining her motives in a recent court filing,[5]
Elbakyan admitted responsibility and probably sealed her own legal and
financial fate. But her library is probably safe. In the wake of this lawsuit,
pirate libraries are busy securing themselves: pirates are shutting down
servers whose domain names were confiscated and archiving databases, again and
again, spreading the illicit collections through the underground networks
while setting up new servers. It may be easy to destroy individual
collections, but nothing in history has been able to destroy the idea of the
universal library, open for all.
For the better part of that history, the idea was simply impossible. Today it
is simply illegal. But in an era when books are everywhere, the total archive
is already here. Distributed among millions of hard drives, it already is a
_de facto_ common heritage. We are as gods, and might as well get good at
it.[6]
## About the author
**Bodo Balazs,** PhD, is an economist and piracy researcher at the Institute
for Information Law (IViR) at the University of Amsterdam. [More
»](https://limn.it/researchers/bodo/)
## Footnotes
[1] On such fora, one can ask for and receive otherwise out-of-reach
publications through various reddit groups such as
[r/Scholar](https://www.reddit.com/r/Scholar) and using certain Twitter
hashtags like #icanhazpdf or #pdftribute.
[2] Elsevier Inc. et al v. Sci-Hub et al, New York Southern District Court,
Case No. 1:15-cv-04282-RWS
[3] While we do not know what his aim was with the article dump, the
prosecution thought his Manifesto contained the motives for his act.
[4] See _United States of America v. Aaron Swartz_ , United States District
Court for the District of Massachusetts, Case No. 1:11-cr-10260
[5] Case 1:15-cv-04282-RWS Document 50 Filed 09/15/15, available at
[link](https://www.unitedstatescourts.org/federal/nysd/442951/).
[6] I of course stole this line from Stewart Brand (1968), the editor of the
Whole Earth catalog, who, in return, claims to have been stolen it from the
British anthropologist Edmund Leach. See
[here](http://www.wholeearth.com/issue/1010/article/195/we.are.as.gods) for
the details.
## Bibliography
BBC News. “British Museum ‘Guarding’ Object Looted from Syria. _BBC News,_
June 5. Available at [link](http://www.bbc.com/news/entertainment-
arts-33020199).
Bodó, B. 2015. “Libraries in the Post-Scarcity Era.” In _Copyrighting
Creativity_ , edited by H. Porsdam (pp. 75–92). Aldershot, UK: Ashgate.
———. 2014a. “In the Shadow of the Gigapedia: The Analysis of Supply and Demand
for the Biggest Pirate Library on Earth.” In _Shadow Libraries_ , edited by J.
Karaganis (forthcoming). New York: American Assembly. Available at
[link](http://ssrn.com/abstract=2616633).
———. 2014b. “A Short History of the Russian Digital Shadow Libraries.” In
Shadow Libraries, edited by J. Karaganis (forthcoming). New York: American
Assembly. Available at [link](http://ssrn.com/abstract=2616631).
Boyle, J. 2003. “The Second Enclosure Movement and the Construction of the
Public Domain.” _Law and Contemporary Problems_ 66:33–42. Available at
[link](http://dx.doi.org/10.2139/ssrn.470983).
Brand, S. 1968. _Whole Earth Catalog,_ Menlo Park, California: Portola
Institute.
Cabanac, G. 2015. “Bibliogifts in LibGen? A Study of a Text‐Sharing Platform
Driven by Biblioleaks and Crowdsourcing.” _Journal of the Association for
Information Science and Technology,_ Online First, 27 March 2015 _._
Fuller, M. 2011. “In the Paradise of Too Many Books: An Interview with Sean
Dockray.” _Metamute._ Available at
[link](http://www.metamute.org/editorial/articles/paradise-too-many-books-
interview-sean-dockray).
Interview with Dusan Barok. 2013. _Neural_ 10–11.
Liang, L. 2012. “Shadow Libraries.” _e-flux._ Available at
[link](http://www.e-flux.com/journal/shadow-libraries/).
Mars, M., and Medak, T. 2015. “The System of a Takedown: Control and De-
commodification in the Circuits of Academic Publishing.” Unpublished
manuscript.
Shabi, R. 2015. “Looted in Syria–and Sold in London: The British Antiques
Shops Dealing in Artefacts Smuggled by ISIS.” _The Guardian,_ July 3.
Available at [link](http://www.theguardian.com/world/2015/jul/03/antiquities-
looted-by-isis-end-up-in-london-shops).
Sollfrank, C. 2013. “Giving What You Don’t Have: Interviews with Sean Dockray
and Dmytri Kleiner.” _Culture Machine_ 14:1–3.
Swartz, A. 2008. “Guerilla Open Access Manifesto.” Available at
[link](https://archive.org/stream/GuerillaOpenAccessManifesto/Goamjuly2008_djvu.txt).
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 be
just 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.