Dekker & Barok
Copying as a Way to Start Something New A Conversation with Dusan Barok about Monoskop
2017
COPYING AS A WAY TO START SOMETHING NEW
A Conversation with Dusan Barok about Monoskop
Annet Dekker
Dusan Barok is an artist, writer, and cultural activist involved
in critical practice in the fields of software, art, and theory. After founding and organizing the online culture portal
Koridor in Slovakia from 1999–2002, in 2003 he co-founded
the BURUNDI media lab where he organized the Translab
evening series. A year later, the first ideas about building an
online platform for texts and media started to emerge and
Monoskop became a reality. More than a decade later, Barok
is well-known as the main editor of Monoskop. In 2016, he
began a PhD research project at the University of Amsterdam. His project, titled Database for the Documentation of
Contemporary Art, investigates art databases as discursive
platforms that provide context for artworks. In an extended
email exchange, we discuss the possibilities and restraints
of an online ‘archive’.
ANNET DEKKER
You started Monoskop in 2004, already some time ago. What
does the name mean?
DUSAN BAROK
‘Monoskop’ is the Slovak equivalent of the English ‘monoscope’, which means an electric tube used in analogue TV
broadcasting to produce images of test cards, station logotypes, error messages but also for calibrating cameras. Monoscopes were automatized television announcers designed to
speak to both live and machine audiences about the status
of a channel, broadcasting purely phatic messages.
AD
Can you explain why you wanted to do the project and how it
developed to what it is now? In other words, what were your
main aims and have they changed? If so, in which direction
and what caused these changes?
DB
I began Monoskop as one of the strands of the BURUNDI
media lab in Bratislava. Originally, it was designed as a wiki
website for documenting media art and culture in the eastern part of Europe, whose backbone consisted of city entries
composed of links to separate pages about various events,
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initiatives, and individuals. In the early days it was modelled
on Wikipedia (which had been running for two years when
Monoskop started) and contained biographies and descriptions of events from a kind of neutral point of view. Over
the years, the geographic and thematic boundaries have
gradually expanded to embrace the arts and humanities in
their widest sense, focusing primarily on lesser-known
1
phenomena.1 Perhaps the biggest change is the ongoing
See for example
shift from mapping people, events, and places towards
https://monoskop.org/
Features. Accessed
synthesizing discourses.
28 May 2016.
A turning point occurred during my studies at the
Piet Zwart Institute, in the Networked Media programme
from 2010–2012, which combined art, design, software,
and theory with support in the philosophy of open source
and prototyping. While there, I was researching aspects of
the networked condition and how it transforms knowledge,
sociality and economics: I wrote research papers on leaking
as a technique of knowledge production, a critique of the
social graph, and on the libertarian values embedded in the
design of digital currencies. I was ready for more practice.
When Aymeric Mansoux, one of the tutors, encouraged me
to develop my then side-project Monoskop into a graduation
work, the timing was good.
The website got its own domain, a redesign, and most
crucially, the Monoskop wiki was restructured from its
2
focus on media art and culture towards the much wider
https://monoskop.org/
embrace
of the arts and humanities. It turned to a media
Symposium. Accessed
28 May 2016.
library of sorts. The graduation work also consisted of
a symposium about personal collecting and media ar3
chiving,2 which saw its loose follow-ups on media aeshttps://monoskop.org/
thetics (in Bergen)3 and on knowledge classification and
The_Extensions_of_
Many. Accessed
archives (in Mons)4 last year.
28 May 2016.
AD
https://monoskop.org/
Ideographies_of_
Knowledge. Accessed
28 May 2016.
Did you have a background in library studies, or have
you taken their ideas/methods of systemization and categorization (meta data)? If not, what are your methods
and how did you develop them?
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COPYING AS A WAY TO START SOMETHING NEW
4
been an interesting process, clearly showing the influence
of a changing back-end system. Are you interested in the
idea of sharing and circulating texts as a new way not just
of accessing and distributing but perhaps also of production—and publishing? I’m thinking how Aaaaarg started as
a way to share and exchange ideas about a text. In what
way do you think Monoskop plays (or could play) with these
kinds of mechanisms? Do you think it brings out a new
potential in publishing?
DB
Besides the standard literature in information science (I
have a degree in information technologies), I read some
works of documentation scientists Paul Otlet and Suzanne
Briet, historians such as W. Boyd Rayward and Ronald E.
Day, as well as translated writings of Michel Pêcheux and
other French discourse analysts of the 1960s and 1970s.
This interest was triggered in late 2014 by the confluence
of Femke’s Mondotheque project and an invitation to be an
artist-in-residence in Mons in Belgium at the Mundaneum,
home to Paul Otlet’s recently restored archive.
This led me to identify three tropes of organizing and
navigating written records, which has guided my thinking
about libraries and research ever since: class, reference,
and index. Classification entails tree-like structuring, such
as faceting the meanings of words and expressions, and
developing classification systems for libraries. Referencing
stands for citations, hyperlinking and bibliographies. Indexing ranges from the listing of occurrences of selected terms
to an ‘absolute’ index of all terms, enabling full-text search.
With this in mind, I have done a number of experiments.
There is an index of selected persons and terms from
5
across the Monoskop wiki and Log.5 There is a growing
https://monoskop.org/
list of wiki entries with bibliographies and institutional
Index. Accessed
28 May 2016.
infrastructures of fields and theories in the humanities.6
There is a lexicon aggregating entries from some ten
6
dictionaries of the humanities into a single page with
https://monoskop.org/
hyperlinks to each full entry (unpublished). There is an
Humanities. Accessed
28 May 2016.
alternative interface to the Monoskop Log, in which entries are navigated solely through a tag cloud acting as
a multidimensional filter (unpublished). There is a reader
containing some fifty books whose mutual references are
turned into hyperlinks, and whose main interface consists
of terms specific to each text, generated through tf-idf algorithm (unpublished). And so on.
DB
The publishing market frames the publication as a singular
body of work, autonomous from other titles on offer, and
subjects it to the rules of the market—with a price tag and
copyright notice attached. But for scholars and artists, these
are rarely an issue. Most academic work is subsidized from
public sources in the first place, and many would prefer to
give their work away for free since openness attracts more
citations. Why they opt to submit to the market is for quality
editing and an increase of their own symbolic value in direct
proportion to the ranking of their publishing house. This
is not dissimilar from the music industry. And indeed, for
many the goal is to compose chants that would gain popularity across academia and get their place in the popular
imagination.
On the other hand, besides providing access, digital
libraries are also fit to provide context by treating publications as a corpus of texts that can be accessed through an
unlimited number of interfaces designed with an understanding of the functionality of databases and an openness
to the imagination of the community of users. This can
be done by creating layers of classification, interlinking
bodies of texts through references, creating alternative
indexes of persons, things and terms, making full-text
search possible, making visual search possible—across
the whole of corpus as well as its parts, and so on. Isn’t
this what makes a difference? To be sure, websites such
as Aaaaarg and Monoskop have explored only the tip of
AD
Indeed, looking at the archive in many alternative ways has
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COPYING AS A WAY TO START SOMETHING NEW
the iceberg of possibilities. There is much more to tinker
and hack around.
within a given text and within a discourse in which it is
embedded. What is specific to digital text, however, is that
we can search it in milliseconds. Full-text search is enabled
by the index—search engines operate thanks to bots that
assign each expression a unique address and store it in a
database. In this respect, the index usually found at the
end of a printed book is something that has been automated
with the arrival of machine search.
In other words, even though knowledge in the age of the
internet is still being shaped by the departmentalization of
academia and its related procedures and rituals of discourse
production, and its modes of expression are centred around
the verbal rhetoric, the flattening effects of the index really
transformed the ways in which we come to ‘know’ things.
To ‘write’ a ‘book’ in this context is to produce a searchable
database instead.
AD
It is interesting that whilst the accessibility and search potential has radically changed, the content, a book or any other
text, is still a particular kind of thing with its own characteristics and forms. Whereas the process of writing texts seems
hard to change, would you be interested in creating more
alliances between texts to bring out new bibliographies? In
this sense, starting to produce new texts, by including other
texts and documents, like emails, visuals, audio, CD-ROMs,
or even un-published texts or manuscripts?
DB
Currently Monoskop is compiling more and more ‘source’
bibliographies, containing digital versions of actual texts
they refer to. This has been very much in focus in the past
two or three years and Monoskop is now home to hundreds
of bibliographies of twentieth-century artists, writers, groups,
and movements as well as of various theories and human7
ities disciplines.7 As the next step I would like to move
See for example
on to enabling full-text search within each such biblioghttps://monoskop.
org/Foucault,
raphy. This will make more apparent that the ‘source’
https://monoskop.
bibliography
is a form of anthology, a corpus of texts
org/Lissitzky,
https://monoskop.
representing a discourse. Another issue is to activate
org/Humanities.
cross-references
within texts—to turn page numbers in
All accessed
28 May 2016.
bibliographic citations inside texts into hyperlinks leading
to other texts.
This is to experiment further with the specificity of digital text. Which is different both to oral speech and printed
books. These can be described as three distinct yet mutually
encapsulated domains. Orality emphasizes the sequence
and narrative of an argument, in which words themselves
are imagined as constituting meaning. Specific to writing,
on the other hand, is referring to the written record; texts
are brought together by way of references, which in turn
create context, also called discourse. Statements are ‘fixed’
to paper and meaning is constituted by their contexts—both
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AD
So, perhaps we finally have come to ‘the death of the author’,
at least in so far as that automated mechanisms are becoming active agents in the (re)creation process. To return to
Monoskop in its current form, what choices do you make
regarding the content of the repositories, are there things
you don’t want to collect, or wish you could but have not
been able to?
DB
In a sense, I turned to a wiki and started Monoskop as
a way to keep track of my reading and browsing. It is a
by-product of a succession of my interests, obsessions, and
digressions. That it is publicly accessible is a consequence
of the fact that paper notebooks, text files kept offline and
private wikis proved to be inadequate at the moment when I
needed to quickly find notes from reading some text earlier.
It is not perfect, but it solved the issue of immediate access
and retrieval. Plus there is a bonus of having the body of
my past ten or twelve years of reading mutually interlinked
and searchable. An interesting outcome is that these ‘notes’
are public—one is motivated to formulate and frame them
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COPYING AS A WAY TO START SOMETHING NEW
as to be readable and useful for others as well. A similar
difference is between writing an entry in a personal diary
and writing a blog post. That is also why the autonomy
of technical infrastructure is so important here. Posting
research notes on Facebook may increase one’s visibility
among peers, but the ‘terms of service’ say explicitly that
anything can be deleted by administrators at any time,
without any reason. I ‘collect’ things that I wish to be able
to return to, to remember, or to recollect easily.
AD
Can you describe the process, how do you get the books,
already digitized, or do you do a lot yourself? In other words,
could you describe the (technical) process and organizational aspects of the project?
DB
In the beginning, I spent a lot of time exploring other digital
libraries which served as sources for most of the entries on
Log (Gigapedia, Libgen, Aaaaarg, Bibliotik, Scribd, Issuu,
Karagarga, Google filetype:pdf). Later I started corresponding with a number of people from around the world (NYC,
Rotterdam, Buenos Aires, Boulder, Berlin, Ploiesti, etc.) who
contribute scans and links to scans on an irregular basis.
Out-of-print and open-access titles often come directly from
authors and publishers. Many artists’ books and magazines
were scraped or downloaded through URL manipulation
from online collections of museums, archives and libraries.
Needless to say, my offline archive is much bigger than
what is on Monoskop. I tend to put online the files I prefer
not to lose. The web is the best backup solution I have
found so far.
The Monoskop wiki is open for everyone to edit; any user
can upload their own works or scans and many do. Many of
those who spent more time working on the website ended up
being my friends. And many of my friends ended up having
an account as well :). For everyone else, there is no record
kept about what one downloaded, what one read and for
how long... we don’t care, we don’t track.
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AD
In what way has the larger (free) publishing context changed
your project, there are currently several free texts sharing
initiatives around (some already before you started like Textz.
com or Aaaaarg), how do you collaborate, or distinguish
from each other?
DB
It should not be an overstatement to say that while in the
previous decade Monoskop was shaped primarily by the
‘media culture’ milieu which it intended to document, the
branching out of its repository of highlighted publications
Monoskop Log in 2009, and the broadening of its focus to
also include the whole of the twentieth and twenty-first
century situates it more firmly in the context of online
archives, and especially digital libraries.
I only got to know others in this milieu later. I approached
Sean Dockray in 2010, Marcell Mars approached me the
following year, and then in 2013 he introduced me to Kenneth Goldsmith. We are in steady contact, especially through
public events hosted by various cultural centres and galleries.
The first large one was held at Ljubljana’s hackerspace Kiberpipa in 2012. Later came the conferences and workshops
organized by Kuda at a youth centre in Novi Sad (2013), by
the Institute of Network Cultures at WORM, Rotterdam (2014),
WKV and Akademie Schloss Solitude in Stuttgart (2014),
Mama & Nova Gallery in Zagreb (2015), ECC at Mundaneum,
Mons (2015), and most recently by the Media Department
8
of the University of Malmo (2016).8
For more information see,
The leitmotif of all these events was the digital library
https://monoskop.org/
Digital_libraries#
and their atmosphere can be described as the spirit of
Workshops_and_
early
hacker culture that eventually left the walls of a
conferences.
Accessed 28 May 2016.
computer lab. Only rarely there have been professional
librarians, archivists, and publishers among the speakers, even though the voices represented were quite diverse.
To name just the more frequent participants... Marcell
and Tom Medak (Memory of the World) advocate universal
access to knowledge informed by the positions of the Yugoslav
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COPYING AS A WAY TO START SOMETHING NEW
Marxist school Praxis; Sean’s work is critical of the militarization and commercialization of the university (in the
context of which Aaaaarg will always come as secondary, as
an extension of The Public School in Los Angeles); Kenneth
aims to revive the literary avant-garde while standing on the
shoulders of his heroes documented on UbuWeb; Sebastian
Lütgert and Jan Berger are the most serious software developers among us, while their projects such as Textz.com and
Pad.ma should be read against critical theory and Situationist cinema; Femke Snelting has initiated the collaborative
research-publication Mondotheque about the legacy of the
early twentieth century Brussels-born information scientist
Paul Otlet, triggered by the attempt of Google to rebrand him
as the father of the internet.
I have been trying to identify implications of the digital-networked textuality for knowledge production, including humanities research, while speaking from the position
of a cultural worker who spent his formative years in the
former Eastern Bloc, experiencing freedom as that of unprecedented access to information via the internet following
the fall of Berlin Wall. In this respect, Monoskop is a way
to bring into ‘archival consciousness’ what the East had
missed out during the Cold War. And also more generally,
what the non-West had missed out in the polarized world,
and vice versa, what was invisible in the formal Western
cultural canons.
There have been several attempts to develop new projects,
and the collaborative efforts have materialized in shared
infrastructure and introductions of new features in respective platforms, such as PDF reader and full-text search on
Aaaaarg. Marcell and Tom along with their collaborators have
been steadily developing the Memory of the World library and
Sebastian resuscitated Textz.com. Besides that, there are
overlaps in titles hosted in each library, and Monoskop bibliographies extensively link to scans on Libgen and Aaaaarg,
while artists’ profiles on the website link to audio and video
recordings on UbuWeb.
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AD
It is interesting to hear that there weren’t any archivist or
professional librarians involved (yet), what is your position
towards these professional and institutional entities and
persons?
DB
As the recent example of Sci-Hub showed, in the age of
digital networks, for many researchers libraries are primarily free proxies to corporate repositories of academic
9
journals.9 Their other emerging role is that of a digital
For more information see,
repository of works in the public domain (the role piowww.sciencemag.org/
news/2016/04/whosneered in the United States by Project Gutenberg and
downloading-piratedInternet Archive). There have been too many attempts
papers-everyone.
Accessed 28 May 2016.
to transpose librarians’ techniques from the paperbound
world into the digital domain. Yet, as I said before, there
is much more to explore. Perhaps the most exciting inventive approaches can be found in the field of classics, for
example in the Perseus Digital Library & Catalog and the
Homer Multitext Project. Perseus combines digital editions
of ancient literary works with multiple lexical tools in a way
that even a non-professional can check and verify a disputable translation of a quote. Something that is hard to
imagine being possible in print.
AD
I think it is interesting to see how Monoskop and other
repositories like it have gained different constituencies
globally, for one you can see the kind of shift in the texts
being put up. From the start you tried to bring in a strong
‘eastern European voice’, nevertheless at the moment the
content of the repository reflects a very western perspective on critical theory, what are your future goals. And do
you think it would be possible to include other voices? For
example, have you ever considered the possibility of users
uploading and editing texts themselves?
DB
The site certainly started with the primary focus on east-central European media art and culture, which I considered
221
COPYING AS A WAY TO START SOMETHING NEW
myself to be part of in the early 2000s. I was naive enough
to attempt to make a book on the theme between 2008–2010.
During that period I came to notice the ambivalence of the
notion of medium in an art-historical and technological
sense (thanks to Florian Cramer). My understanding of
media art was that it is an art specific to its medium, very
much in Greenbergian terms, extended to the more recent
‘developments’, which were supposed to range from neo-geometrical painting through video art to net art.
At the same time, I implicitly understood art in the sense
of ‘expanded arts’, as employed by the Fluxus in the early
1960s—objects as well as events that go beyond the (academic) separation between the arts to include music, film,
poetry, dance, design, publishing, etc., which in turn made
me also consider such phenomena as experimental film,
electro-acoustic music and concrete poetry.
Add to it the geopolitically unstable notion of East-Central
Europe and the striking lack of research in this area and
all you end up with is a headache. It took me a while to
realize that there’s no point even attempting to write a coherent narrative of the history of media-specific expanded
arts of East-Central Europe of the past hundred years. I
ended up with a wiki page outlining the supposed mile10
stones along with a bibliography.10
https://monoskop.
For this strand, the wiki served as the main notebook,
org/CEE. Accessed
28 May 2016. And
leaving behind hundreds of wiki entries. The Log was
https://monoskop.
more or less a ‘log’ of my research path and the presence
org/Central_and_
Eastern_Europe_
of ‘western’ theory is to a certain extent a by-product of
Bibliography.
my search for a methodology and theoretical references.
Accessed 28 May 2016.
As an indirect outcome, a new wiki section was
launched recently. Instead of writing a history of mediaspecific ‘expanded arts’ in one corner of the world, it takes
a somewhat different approach. Not a sequential text, not
even an anthology, it is an online single-page annotated
index, a ‘meta-encyclopaedia’ of art movements and styles,
intended to offer an expansion of the art-historical canonical
prioritization of the western painterly-sculptural tradition
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11
https://monoskop.
org/Art. Accessed
28 May 2016.
to also include other artists and movements around the
world.11
AD
Can you say something about the longevity of the project?
You briefly mentioned before that the web was your best
backup solution. Yet, it is of course known that websites
and databases require a lot of maintenance, so what will
happen to the type of files that you offer? More and more
voices are saying that, for example, the PDF format is all
but stable. How do you deal with such challenges?
DB
Surely, in the realm of bits, nothing is designed to last
forever. Uncritical adoption of Flash had turned out to be
perhaps the worst tragedy so far. But while there certainly
were more sane alternatives if one was OK with renouncing its emblematic visual effects and aesthetics that went
with it, with PDF it is harder. There are EPUBs, but scholarly publications are simply unthinkable without page
numbers that are not supported in this format. Another
challenge the EPUB faces is from artists' books and other
design- and layout-conscious publications—its simplified
HTML format does not match the range of possibilities for
typography and layout one is used to from designing for
paper. Another open-source solution, PNG tarballs, is not
a viable alternative for sharing books.
The main schism between PDF and HTML is that one represents the domain of print (easily portable, and with fixed
page size), while the other the domain of web (embedded
within it by hyperlinks pointing both directions, and with
flexible page size). EPUB is developed with the intention of
synthetizing both of them into a single format, but instead
it reduces them into a third container, which is doomed to
reinvent the whole thing once again.
It is unlikely that there will appear an ultimate convertor
between PDF and HTML, simply because of the specificities
of print and the web and the fact that they overlap only in
some respects. Monoskop tends to provide HTML formats
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COPYING AS A WAY TO START SOMETHING NEW
next to PDFs where time allows. And if the PDF were to
suddenly be doomed, there would be a big conversion party.
On the side of audio and video, most media files on
Monoskop are in open formats—OGG and WEBM. There
are many other challenges: keeping up-to-date with PHP
and MySQL development, with the MediaWiki software
and its numerous extensions, and the mysterious ICANN
organization that controls the web domain.
as an imperative to us to embrace redundancy, to promote
spreading their contents across as many nodes and sites
as anyone wishes. We may look at copying not as merely
mirroring or making backups, but opening up for possibilities to start new libraries, new platforms, new databases.
That is how these came about as well. Let there be Zzzzzrgs,
Ůbuwebs and Multiskops.
AD
What were your biggest challenges beside technical ones?
For example, have you ever been in trouble regarding copyright issues, or if not, how would you deal with such a
situation?
DB
Monoskop operates on the assumption of making transformative use of the collected material. The fact of bringing
it into certain new contexts, in which it can be accessed,
viewed and interpreted, adds something that bookstores
don’t provide. Time will show whether this can be understood as fair use. It is an opt-out model and it proves to
be working well so far. Takedowns are rare, and if they are
legitimate, we comply.
AD
Perhaps related to this question, what is your experience
with users engagement? I remember Sean (from Aaaaarg,
in conversation with Matthew Fuller, Mute 2011) saying
that some people mirror or download the whole site, not
so much in an attempt to ‘have everything’ but as a way
to make sure that the content remains accessible. It is a
conscious decision because one knows that one day everything might be taken down. This is of course particularly
pertinent, especially since while we’re doing this interview
Sean and Marcell are being sued by a Canadian publisher.
DB
That is absolutely true and any of these websites can disappear any time. Archives like Aaaaarg, Monoskop or UbuWeb
are created by makers rather than guardians and it comes
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Bibliography
Fuller, Matthew. ‘In the Paradise of Too Many Books: An Interview with
Sean Dockray’. Mute, 4 May 2011. www.metamute.org/editorial/
articles/paradise-too-many-books-interview-seandockray. Accessed 31 May 2016.
Online digital libraries
Aaaaarg, http://aaaaarg.fail.
Bibliotik, https://bibliotik.me.
Issuu, https://issuu.com.
Karagarga, https://karagarga.in.
Library Genesis / LibGen, http://gen.lib.rus.ec.
Memory of the World, https://library.memoryoftheworld.org.
Monoskop, https://monoskop.org.
Pad.ma, https://pad.ma.
Scribd, https://scribd.com.
Textz.com, https://textz.com.
UbuWeb, www.ubu.com.
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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.