Elbakyan
Why Science is Better with Communism The Case of Sci-Hub transcript and translation
2016
# Transcript and translation of Sci-Hub presentation
_The University of North Texas 's [Open Access Symposium
2016](/symposium/2016/) included [a presentation via Skype by Alexandra
Elbakyan](/symposium/2016/why-science-better-communism-case-sci-hub), the
founder of Sci-Hub. [Elbakyan's
slides](http://digital.library.unt.edu/ark:/67531/metadc850001/) (and those of
other presenters) have been archived in the UNT Digital Library, and [video of
this presentation](https://youtu.be/hr7v5FF5c8M) (and others) is now available
on YouTube and soon in the UNT Digital Library._
_The presentation was entitled "Why Science is Better with Communism? The Case
of Sci-Hub." Below is an edited transcript of the presentation produced by
Regina Anikina and Kevin Hawkins, with a translation by Kevin Hawkins and Anna
Pechenina._
**Martin Halbert** : We have a recent addition to our lineup of speakers that
we'll start off the day with: Alexandra Elbakyan. As many of you know,
Alexandra is a Kazakhstani graduate student, computer programmer, and the
creator of the controversial Sci-Hub site. The New York Times has compared her
to Edward Snowden for leaking information and because she avoids American law,
but Ars Technica has compared her to Aaron Swartz--so a controversial figure.
We thought it was very important to include her in the dialog about open
access because we want, in this symposium series, to include all the different
perspectives on copyright, intellectual property, open access, and access to
scholarly information. So I'm delighted that we're actually able to have her
here via Skype to present.
---
**Alexandra Elbakyan** : First of all, thank you for inviting me to share my
views. My name is Alexandra. As you might have guessed, I represent the site
Sci-Hub. It was founded in 2011 and immediately became popular among the local
community, almost immediately began providing access to about 40 articles an
hour and now providing more than 200,000.
It has to be said that over the course of the site's development it was
strongly supported by donations, and when for various reasons we had to
suspend the service, there were many displeased users who clamored for the
project to return so that the work in their laboratory could continue.
This is the case not just in poor countries; I can say that in rich countries
the public also doesn't have access to scholarly articles. And not all
universities have subscriptions to those resources that are required for
research.
A few of our users insisted that we start charging users, for example, by
allowing one or two articles to be downloaded for free but charging for more,
so that the service would be supported by those who really need it. But I
didn't end up doing that because the goal of the resource is knowledge for
all.
Certain open-access advocates criticize the site, saying that what we really
need is for articles to be in open access from the start, by changing the
business models of publishers. I can respond by saying that the goal of the
project is first and foremost the dissemination of scholarly knowledge in
society, and we have to work in the conditions we find ourselves in. Of
course, if scholarly publishers had a different business model, then perhaps
this project wouldn't be necessary. We can also imagine that if humans had
wings, we wouldn't need airplanes. But in any case we need to fly, so we make
airplanes.
Scholarly publishers quickly dubbed the work of Sci-Hub as piracy. Admittedly
Sci-Hub violates the laws of copyright, but copyright is related to the rights
of intellectual property. That is, scholarly articles are the property of
publishers, and reading them for free turns out to be something like theft
according to the current law.
The concept of intellectual property itself is not new, although it can seem
otherwise. The history of copyright goes back to around the 18th century,
although the first mentions of something similar can be found in the Talmud.
It's just that recently copyright has been found at the center of passionate
debate since some are trying to forbid the free distribution of information in
the internet.
However, the central focus of the debate is on censorship and privacy. The
defense of intellectual property in the internet requires censorship of
websites, and that is consequently a violation of freedom of speech. This also
raises a question of interference in private life - that is, when the
government in some way monitors users who violate copyright. In principle this
is also an intrusion in communication.
However, the very essence of copyright - that is, the concept of intellectual
property - is almost never questioned. That is, whether knowledge can be
someone's property is rarely discussed.
However, our ancestors were even more daring. They did not just question
intellectual property but property in general. That is, there are works in
which we can find the appearance of the idea of communism. There's Thomas
More's _Utopia_ from the 16th century, but actually such works arose much
earlier, even in Ancient Greece where these questions were already been
discussed in 391 BCE.
If we look at the slogans of communism, we see that one of the core concepts
is the struggle against inequality, the revolt of the suppressed classes,
whose members don't have any power against those who have concentrated basic
resources and power in their hands, with the goal of redistributing these
resources.
We can see that even today there is a certain informational inequality, when,
for example, only students and employees of the most wealthy universities have
full access to scholarly information, while access can be completely lacking
for institutions at the next lower tier and for the general public.
An idea arises: if there isn't private property, then there's no basis for
unequal distribution of wealth. In our case as well: if there's no private
intellectual property and all scholarly publications are nationalized, then
all people will have equal access to knowledge.
However, a question arises: if there is no private property, then what can
stimulate a person to work? One of the ideas is that under communism, rather
than greed or aspiration for wealth being a stimulus for work, a person would
aspire to self-development and learning for the betterment of the world.
Even if such values can't be applied to society as a whole, they at least work
in the world of scholarship. Therefore in the Soviet Union there was a true
cult of science - statues were even erected to the glory of science - and
perhaps thanks to this our country was one of the first to go into space.
However, it's one thing to have a revolution, when there's a mass
redistribution of property in society, but an act of theft is another thing.
This, of course, is not yet a revolution, but it's a small protest against the
property rights and the unequal distribution of wealth. Theft as protest has
always been welcomed and approved of in all eras of society. For example, we
all know about Robin Hood, but there have actually been quite a few noble
bandits in history. I've listed just a few of them.
I think that if the state works well, then accordingly it has a working tax
system and a certain system of redistribution of wealth, and then,
accordingly, there's no cause for revolution, for example. But if for some
reasons the state works poorly, then people begin to solve the problem for
themselves. In this way, Sci-Hub is an appropriate response to the inequality
that has arisen due to lack of access to information.
Pictured is Aldar Köse, a Kazakh folk hero who used his cunning to deceive
wealthy beys and take possession of their property. It's interesting to note
that beys are always depicted as greedy and stupid. And if you look at what's
written in the blogosphere today about scholarly publishers, you can find
these same characteristics.
There's also the interesting figure of the ancient Greek god Hermes, the
patron of thieves. That is, theft was a sufficiently respected activity that
it had its own god.
There's a researcher named Norman Brown who wrote an academic work called
_Hermes the Thief: The Evolution of a Myth_. It turns out that this myth is
related to a certain revolution in ancient Greek society, when the lower
classes, which lacked property, began to rise up.
For example, the poet Theognis of Megara wrote that "those who were nothing
became everything" and vice versa. This is essentially one of the most well-
known communist slogans.
For the ancient Greeks this was related, again as Brown says, to the
appearance of trade. Trade was identified with theft. There was no clear
distinction between the exchange of legal and illegal goods - that is, trade
was just as much considered theft as what we call piracy today.
Why did it turn out this way? Because Hermes was originally a god of
boundaries and transitions. Therefore, we can think that property is related
to keeping something within boundaries. At the same time, the things that
Hermes protected - theft, trade and communication - are related to boundary-
crossing.
If we think about scholarly journals, then any journal is first of all a means
of communication, and therefore it's apparent that keeping journals in closed
access contradicts the essence of what they were intended for.
This is, of course, not even the most interesting thing.
Hermes actually evolved - that is, while he was once an intellectual deity, he
later came to be interpreted as the same as Thoth, the Egyptian god of
knowledge, and further came to oversee such things as astrology, alchemy, and
magic - that is, the things from which, you might say, contemporary sciences
arose. So we can say that contemporary science arose from theft.
Of course, someone can object, saying that contemporary science is very
different from esoterica, such as astrology and alchemy, but if we look at the
history of science, we see that contemporary science differs from the ancient
arts in the former being more open.
That is, when the movement towards greater openness appeared, contemporary
science also appeared. Once again this is not an argument in support of
scholarly publishers.
Indeed, in the cultural consciousness science and the process of learning have
always been closely associated with theft, beginning with the legend of Adam
and Eve and the forbidden tree, which is called simply "the tree of
knowledge." And it's interesting that Elsevier's logo depicts some kind of
tree, which, accordingly, raises associations with this tree in the Garden of
Eden - the tree of knowledge - from which it was forbidden to eat the fruit.
Likewise we can recall the well-known legend of Prometheus, a part of our
cultural consciousness, who stole some knowledge and brought it to humans.
Once again we see the connection between science and theft.
Nowadays, many scholars have described science as the knowledge of secrets.
However, if we look closely, we have to ask: what is a secret? A secret is
something private, in essence private property. Accordingly, the disclosure of
the secret signifies that it ceases to be property. Once again we see the
contradiction between scholarship and property rights.
We can recall Robert Merton, who studied research institutes and revealed four
basic ethical norms that in his opinion are important for their successful
functioning. One of them is communism - that is, knowledge is shared.
Accordingly, if we look at certain traditional communities, then we find that
those communities that function within a caste system (dividing people by
occupation) usually turn out to have certain castes of people with
intellectual occupations, and if you look at the ethical norms of such castes,
you find that they are also communistic. You can find this, for example, in
Plato. Or even if you look at India, you find the accumulation of wealth is
usually the occupation of another caste.
To sum up, we have the following take-aways. Science, as a part of culture, is
in conflict with private property. Accordingly, scholarly communication is a
dual conflict. What open access is doing is returning science to its essential
roots.
**Audience question** : I'm a former university press director. I'd just like
to point out also that "property is theft" is the watchword of French
anarchism, a famous phrase from Pierre-Joseph Proudhon, so perhaps anarchism
and science are also inseparable. But my main question really has to do with a
challenge that a librarian named Rick Anderson posted on the Scholarly Kitchen
blog two days ago, and that has to do with the fact that evidently Sci-Hub
relies a lot on the access codes that faculty have given to Sci-Hub in one way
or another so that Sci-Hub can gain access to the electronic materials that it
then uses to post on its own site. What Anderson does is points out that if
that information falls into the wrong hands, there are all sorts of terrible
things that can be done because those access codes provide access to personal
information, to student data, to all sorts of other things that could be badly
misused, so my question to you is what assurances can you give us that that
kind of information will not fall into the wrong hands.
**Elbakyan** : Well, first of all I doubt that it's possible to gain access to
all the information that is listed in the post on the Scholarly Kitchen. As a
rule, these logins and passwords can only be used for access to the proxy
server through which you can download articles, whereas for access to other
things, such as email, the login and password won't work. [ _Audience reacts
with skepticism._ ]
**Audience question** : Earlier this week a number of us participated in a
panel presentation on scholarly publishing and social justice, and one of the
primary points that came out of that was that the people who create the
published product - not necessarily the scientist but the people who actually
do the work that results in the published product - deserve to be paid for
their labor, and there is definitely labor involved. So if you're replacing
the market for these publications and eliminating these people's opportunities
to make money, where is the appropriate distribution of wealth.
**Elbakyan** : First of all, we shouldn't confuse the compensation that a
person receives for their labor with the excessive profits that publishers
wring out by limiting access to information. For example, Sci-Hub also does a
fair amount of work and has high expenses, but these expenses are for some
reason covered by donations - that is, there's no need to close access to
information - that is, it's a red herring to say that if articles are
distributed for free, people won't have anything to eat. One does not follow
from the other. In my opinion, though, an optimal system for funding would
consist of grants, donations, and membership fees.
**Audience question** : You've spoken so far exclusively about Sci-Hub. I
wonder if you could comment just briefly on LibGen and whether you see the two
models as identical or whether there are any material differences between
LibGen and Sci-Hub.
**Elbakyan** : Well, LibGen is primarily a repository. It doesn't download
new articles but is more aimed at preserving that which has already been
downloaded.
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.