USDC
Complaint: Elsevier v. SciHub and LibGen
2015


Case 1:15-cv-04282-RWS Document 1 Filed 06/03/15 Page 1 of 16

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Index No. 15-cv-4282 (RWS)
COMPLAINT

ELSEVIER INC., ELSEVIER B.V., ELSEVIER LTD.
Plaintiffs,

v.

SCI-HUB d/b/a WWW.SCI-HUB.ORG, THE LIBRARY GENESIS PROJECT d/b/a LIBGEN.ORG, ALEXANDRA ELBAKYAN, JOHN DOES 1-99,
Defendants.

Plaintiffs Elsevier Inc, Elsevier B.V., and Elsevier Ltd. (collectively “Elsevier”),
by their attorneys DeVore & DeMarco LLP, for their complaint against www.scihub.org,
www.libgen.org, Alexandra Elbakyan, and John Does 1-99 (collectively the “Defendants”),
allege as follows:

NATURE OF THE ACTION

1. This is a civil action seeking damages and injunctive relief for: (1) copyright infringement under the copyright laws of the United States (17 U.S.C. § 101 et seq.); and (2) violations of the Computer Fraud and Abuse Act, 18.U.S.C. § 1030, based upon Defendants’ unlawful access to, use, reproduction, and distribution of Elsevier’s copyrighted works. Defendants’ actions in this regard have caused and continue to cause irreparable injury to Elsevier and its publishing partners (including scholarly societies) for which it publishes certain journals.

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PARTIES

2. Plaintiff Elsevier Inc. is a corporation organized under the laws of Delaware, with its principal place of business at 360 Park Avenue South, New York, New York 10010.

3. Plaintiff Elsevier B.V. is a corporation organized under the laws of the Netherlands, with its principal place of business at Radarweg 29, Amsterdam, 1043 NX, Netherlands.

4. Plaintiff Elsevier Ltd. is a corporation organized under the laws of the United Kingdom, with its principal place of business at 125 London Wall, EC2Y 5AS United Kingdom.

5. Upon information and belief, Defendant Sci-Hub is an individual or organization engaged in the operation of the website accessible at the URL “www.sci-hub.org,” and related subdomains, including but not limited to the subdomain “www.sciencedirect.com.sci-hub.org,”
www.elsevier.com.sci-hub.org,” “store.elsevier.com.sci-hub.org,” and various subdomains
incorporating the company and product names of other major global publishers (collectively with www.sci-hub.org the “Sci-Hub Website”). The sci-hub.org domain name is registered by
“Fundacion Private Whois,” located in Panama City, Panama, to an unknown registrant. As of
the date of this filing, the Sci-Hub Website is assigned the IP address 31.184.194.81. This IP address is part of a range of IP addresses assigned to Petersburg Internet Network Ltd., a webhosting company located in Saint Petersburg, Russia.

6. Upon information and belief, Defendant Library Genesis Project is an organization which operates an online repository of copyrighted materials accessible through the website located at the URL “libgen.org” as well as a number of other “mirror” websites
(collectively the “Libgen Domains”). The libgen.org domain is registered by “Whois Privacy
Corp.,” located at Ocean Centre, Montagu Foreshore, East Bay Street, Nassau, New Providence,

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Bahamas, to an unknown registrant. As of the date of this filing, libgen.org is assigned the IP address 93.174.95.71. This IP address is part of a range of IP addresses assigned to Ecatel Ltd., a web-hosting company located in Amsterdam, the Netherlands.

7. The Libgen Domains include “elibgen.org,” “libgen.info,” “lib.estrorecollege.org,” and “bookfi.org.”

8. Upon information and belief, Defendant Alexandra Elbakyan is the principal owner and/or operator of Sci-Hub. Upon information and belief, Elbakyan is a resident of Almaty, Kazakhstan.

9. Elsevier is unaware of the true names and capacities of the individuals named as Does 1-99 in this Complaint (together with Alexandra Elbakyan, the “Individual Defendants”),
and their residence and citizenship is also unknown. Elsevier will amend its Complaint to allege the names, capacities, residence and citizenship of the Doe Defendants when their identities are learned.

10. Upon information and belief, the Individual Defendants are the owners and operators of numerous of websites, including Sci-Hub and the websites located at the various
Libgen Domains, and a number of e-mail addresses and accounts at issue in this case.

11. The Individual Defendants have participated, exercised control over, and benefited from the infringing conduct described herein, which has resulted in substantial harm to
the Plaintiffs.

JURISDICTION AND VENUE

12. This is a civil action arising from the Defendants’ violations of the copyright laws of the United States (17 U.S.C. § 101 et seq.) and the Computer Fraud and Abuse Act (“CFAA”),

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18.U.S.C. § 1030. Therefore, the Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331.

13. Upon information and belief, the Individual Defendants own and operate computers and Internet websites and engage in conduct that injures Plaintiff in this district, while
also utilizing instrumentalities located in the Southern District of New York to carry out the acts complained of herein.

14. Defendants have affirmatively directed actions at the Southern District of New York by utilizing computer servers located in the District without authorization and by
unlawfully obtaining access credentials belonging to individuals and entities located in the
District, in order to unlawfully access, copy, and distribute Elsevier's copyrighted materials
which are stored on Elsevier’s ScienceDirect platform.
15.

Defendants have committed the acts complained of herein through unauthorized

access to Plaintiffs’ copyrighted materials which are stored and maintained on computer servers
located in the Southern District of New York.
16.

Defendants have undertaken the acts complained of herein with knowledge that

such acts would cause harm to Plaintiffs and their customers in both the Southern District of
New York and elsewhere. Defendants have caused the Plaintiff injury while deriving revenue
from interstate or international commerce by committing the acts complained of herein.
Therefore, this Court has personal jurisdiction over Defendants.
17.

Venue in this District is proper under 28 U.S.C. § 1391(b) because a substantial

part of the events giving rise to Plaintiffs’ claims occurred in this District and because the
property that is the subject of Plaintiffs’ claims is situated in this District.

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FACTUAL ALLEGATIONS
Elsevier’s Copyrights in Publications on ScienceDirect
18.

Elsevier is a world leading provider of professional information solutions in the

Science, Medical, and Health sectors. Elsevier publishes, markets, sells, and licenses academic
textbooks, journals, and examinations in the fields of science, medicine, and health. The
majority of Elsevier’s institutional customers are universities, governmental entities, educational
institutions, and hospitals that purchase physical and electronic copies of Elsevier’s products and
access to Elsevier’s digital libraries. Elsevier distributes its scientific journal articles and book
chapters electronically via its proprietary subscription database “ScienceDirect”
(www.sciencedirect.com). In most cases, Elsevier holds the copyright and/or exclusive
distribution rights to the works available through ScienceDirect. In addition, Elsevier holds
trademark rights in “Elsevier,” “ScienceDirect,” and several other related trade names.
19.

The ScienceDirect database is home to almost one-quarter of the world's peer-

reviewed, full-text scientific, technical and medical content. The ScienceDirect service features
sophisticated search and retrieval tools for students and professionals which facilitates access to
over 10 million copyrighted publications. More than 15 million researchers, health care
professionals, teachers, students, and information professionals around the globe rely on
ScienceDirect as a trusted source of nearly 2,500 journals and more than 26,000 book titles.
20.

Authorized users are provided access to the ScienceDirect platform by way of

non-exclusive, non-transferable subscriptions between Elsevier and its institutional customers.
According to the terms and conditions of these subscriptions, authorized users of ScienceDirect
must be users affiliated with the subscriber (e.g., full-time and part-time students, faculty, staff

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and researchers of subscriber universities and individuals using computer terminals within the
library facilities at the subscriber for personal research, education or other non-corporate use.)
21.

A substantial portion of American research universities maintain active

subscriptions to ScienceDirect. These subscriptions, under license, allow the universities to
provide their faculty and students access to the copyrighted works within the ScienceDirect
database.
22.

Elsevier stores and maintains the copyrighted material available in ScienceDirect

on servers owned and operated by a third party whose servers are located in the Southern District
of New York and elsewhere. In order to optimize performance, these third-party servers
collectively operate as a distributed network which serves cached copies of Elsevier’s
copyrighted materials by way of particular servers that are geographically close to the user. For
example, a user that accesses ScienceDirect from a University located in the Southern District of
New York will likely be served that content from a server physically located in the District.

Authentication of Authorized University ScienceDirect Users
23.

Elsevier maintains the integrity and security of the copyrighted works accessible

on ScienceDirect by allowing only authenticated users access to the platform. Elsevier
authenticates educational users who access ScienceDirect through their affiliated university’s
subscription by verifying that they are able to access ScienceDirect from a computer system or
network previously identified as belonging to a subscribing university.
24.

Elsevier does not track individual educational users’ access to ScienceDirect.

Instead, Elsevier verifies only that the user has authenticated access to a subscribing university.
25.

Once an educational user authenticates his computer with ScienceDirect on a

university network, that computer is permitted access to ScienceDirect for a limited amount of
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time without re-authenticating. For example, a student could access ScienceDirect from their
laptop while sitting in a university library, then continue to access ScienceDirect using that
laptop from their dorm room later that day. After a specified period of time has passed, however,
a user will have to re-authenticate his or her computer’s access to ScienceDirect by connecting to
the platform through a university network.
26.

As a matter of practice, educational users access university networks, and thereby

authenticate their computers with ScienceDirect, primarily through one of two methods. First,
the user may be physically connected to a university network, for example by taking their
computer to the university’s library. Second, the user may connect remotely to the university’s
network using a proxy connection. Universities offer proxy connections to their students and
faculty so that those users may access university computing resources – including access to
research databases such as ScienceDirect – from remote locations which are unaffiliated with the
university. This practice facilitates the use of ScienceDirect by students and faculty while they
are at home, travelling, or otherwise off-campus.
Defendants’ Unauthorized Access to University Proxy Networks to Facilitate Copyright
Infringement
27.

Upon information and belief, Defendants are reproducing and distributing

unauthorized copies of Elsevier’s copyrighted materials, unlawfully obtained from
ScienceDirect, through Sci-Hub and through various websites affiliated with the Library Genesis
Project. Specifically, Defendants utilize their websites located at sci-hub.org and at the Libgen
Domains to operate an international network of piracy and copyright infringement by
circumventing legal and authorized means of access to the ScienceDirect database. Defendants’
piracy is supported by the persistent intrusion and unauthorized access to the computer networks

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of Elsevier and its institutional subscribers, including universities located in the Southern District
of New York.
28.

Upon information and belief, Defendants have unlawfully obtained and continue

to unlawfully obtain student or faculty access credentials which permit proxy connections to
universities which subscribe to ScienceDirect, and use these credentials to gain unauthorized
access to ScienceDirect.
29.

Upon information and belief, Defendants have used and continue to use such

access credentials to authenticate access to ScienceDirect and, subsequently, to obtain
copyrighted scientific journal articles therefrom without valid authorization.
30.

The Sci-Hub website requires user interaction in order to facilitate its illegal

copyright infringement scheme. Specifically, before a Sci-Hub user can obtain access to
copyrighted scholarly journals, articles, and books that are maintained by ScienceDirect, he must
first perform a search on the Sci-Hub page. A Sci-Hub user may search for content using either
(a) a general keyword-based search, or (b) a journal, article or book identifier (such as a Digital
Object Identifier, PubMed Identifier, or the source URL).
31.

When a user performs a keyword search on Sci-Hub, the website returns a proxied

version of search results from the Google Scholar search database. 1 When a user selects one of
the search results, if the requested content is not available from the Library Genesis Project, SciHub unlawfully retrieves the content from ScienceDirect using the access previously obtained.
Sci-Hub then provides a copy of that article to the requesting user, typically in PDF format. If,
however, the requested content can be found in the Library Genesis Project repository, upon

1

Google Scholar provides its users the capability to search for scholarly literature, but does not provide the
full text of copyrighted scientific journal articles accessible through paid subscription services such as
ScienceDirect. Instead, Google Scholar provides bibliographic information concerning such articles along with a
link to the platform through which the article may be purchased or accessed by a subscriber.

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information and belief, Sci-Hub obtains the content from the Library Genesis Project repository
and provides that content to the user.
32.

When a user searches on Sci-Hub for an article available on ScienceDirect using a

journal or article identifier, the user is redirected to a proxied version of the ScienceDirect page
where the user can download the requested article at no cost. Upon information and belief, SciHub facilitates this infringing conduct by using unlawfully-obtained access credentials to
university proxy servers to establish remote access to ScienceDirect through those proxy servers.
If, however, the requested content can be found in the Library Genesis Project repository, upon
information and belief, Sci-Hub obtains the content from it and provides it to the user.
33.

Upon information and belief, Sci-Hub engages in no other activity other than the

illegal reproduction and distribution of digital copies of Elsevier’s copyrighted works and the
copyrighted works of other publishers, and the encouragement, inducement, and material
contribution to the infringement of the copyrights of those works by third parties – i.e., the users
of the Sci-Hub website.
34.

Upon information and belief, in addition to the blatant and rampant infringement

of Elsevier’s copyrights as described above, the Defendants have also used the Sci-Hub website
to earn revenue from the piracy of copyrighted materials from ScienceDirect. Sci-Hub has at
various times accepted funds through a variety of payment processors, including PayPal,
Yandex, WebMoney, QiQi, and Bitcoin.
Sci-Hub’s Use of the Library Genesis Project as a Repository for Unlawfully-Obtained
Scientific Journal Articles and Books
35.

Upon information and belief, when Sci-Hub pirates and downloads an article from

ScienceDirect in response to a user request, in addition to providing a copy of that article to that
user, Sci-Hub also provides a duplicate copy to the Library Genesis Project, which stores the
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article in a database accessible through the Internet. Upon information and belief, the Library
Genesis Project is designed to be a permanent repository of this and other illegally obtained
content.
36.

Upon information and belief, in the event that a Sci-Hub user requests an article

which has already been provided to the Library Genesis Project, Sci-Hub may provide that user
access to a copy provided by the Library Genesis Project rather than re-download an additional
copy of the article from ScienceDirect. As a result, Defendants Sci-Hub and Library Genesis
Project act in concert to engage in a scheme designed to facilitate the unauthorized access to and
wholesale distribution of Elsevier’s copyrighted works legitimately available on the
ScienceDirect platform.
The Library Genesis Project’s Unlawful Distribution of Plaintiff’s Copyrighted Works
37.

Access to the Library Genesis Project’s repository is facilitated by the website

“libgen.org,” which provides its users the ability to search, download content from, and upload
content to, the repository. The main page of libgen.org allows its users to perform searches in
various categories, including “LibGen (Sci-Tech),” and “Scientific articles.” In addition to
searching by keyword, users may also search for specific content by various other fields,
including title, author, periodical, publisher, or ISBN or DOI number.
38.

The libgen.org website indicates that the Library Genesis Project repository

contains approximately 1 million “Sci-Tech” documents and 40 million scientific articles. Upon
information and belief, the large majority of these works is subject to copyright protection and is
being distributed through the Library Genesis Project without the permission of the applicable
rights-holder. Upon information and belief, the Library Genesis Project serves primarily, if not

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exclusively, as a scheme to violate the intellectual property rights of the owners of millions of
copyrighted works.
39.

Upon information and belief, Elsevier owns the copyrights in a substantial

number of copyrighted materials made available for distribution through the Library Genesis
Project. Elsevier has not authorized the Library Genesis Project or any of the Defendants to
copy, display, or distribute through any of the complained of websites any of the content stored
on ScienceDirect to which it holds the copyright. Among the works infringed by the Library
Genesis Project are the “Guyton and Hall Textbook of Medical Physiology,” and the article “The
Varus Ankle and Instability” (published in Elsevier’s journal “Foot and Ankle Clinics of North
America”), each of which is protected by Elsevier’s federally-registered copyrights.
40.

In addition to the Library Genesis Project website accessible at libgen.org, users

may access the Library Genesis Project repository through a number of “mirror” sites accessible
through other URLs. These mirror sites are similar, if not identical, in functionality to
libgen.org. Specifically, the mirror sites allow their users to search and download materials from
the Library Genesis Project repository.
FIRST CLAIM FOR RELIEF
(Direct Infringement of Copyright)
41.

Elsevier incorporates by reference the allegations contained in paragraphs 1-40

42.

Elsevier’s copyright rights and exclusive distribution rights to the works available

above.

on ScienceDirect (the “Works”) are valid and enforceable.
43.

Defendants have infringed on Elsevier’s copyright rights to these Works by

knowingly and intentionally reproducing and distributing these Works without authorization.

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44.

The acts of infringement described herein have been willful, intentional, and

purposeful, in disregard of and indifferent to Plaintiffs’ rights.
45.

Without authorization from Elsevier, or right under law, Defendants are directly

liable for infringing Elsevier’s copyrighted Works pursuant to 17 U.S.C. §§ 106(1) and/or (3).
46.

As a direct result of Defendants’ actions, Elsevier has suffered and continues to

suffer irreparable harm for which Elsevier has no adequate remedy at law, and which will
continue unless Defendants’ actions are enjoined.
47.

Elsevier seeks injunctive relief and costs and damages in an amount to be proven

at trial.
SECOND CLAIM FOR RELIEF
(Secondary Infringement of Copyright)
48.

Elsevier incorporates by reference the allegations contained in paragraphs 1-40

49.

Elsevier’s copyright rights and exclusive distribution rights to the works available

above.

on ScienceDirect (the “Works”) are valid and enforceable.
50.

Defendants have infringed on Elsevier’s copyright rights to these Works by

knowingly and intentionally reproducing and distributing these Works without license or other
authorization.
51.

Upon information and belief, Defendants intentionally induced, encouraged, and

materially contributed to the reproduction and distribution of these Works by third party users of
websites operated by Defendants.
52.

The acts of infringement described herein have been willful, intentional, and

purposeful, in disregard of and indifferent to Elsevier’s rights.

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53.

Without authorization from Elsevier, or right under law, Defendants are directly

liable for third parties’ infringement of Elsevier’s copyrighted Works pursuant to 17 U.S.C. §§
106(1) and/or (3).
54.

Upon information and belief, Defendants profited from third parties’ direct

infringement of Elsevier’s Works.
55.

Defendants had the right and the ability to supervise and control their websites

and the third party infringing activities described herein.
56.

As a direct result of Defendants’ actions, Elsevier has suffered and continues to

suffer irreparable harm for which Elsevier has no adequate remedy at law, and which will
continue unless Defendants’ actions are enjoined.
57.

Elsevier seeks injunctive relief and costs and damages in an amount to be proven

at trial.
THIRD CLAIM FOR RELIEF
(Violation of the Computer Fraud & Abuse Act)
58.

Elsevier incorporates by reference the allegations contained in paragraphs 1-40

59.

Elsevier’s computers and servers, the third-party computers and servers which

above.

store and maintain Elsevier’s copyrighted works for ScienceDirect, and Elsevier’s customers’
computers and servers which facilitate access to Elsevier’s copyrighted works on ScienceDirect,
are all “protected computers” under the Computer Fraud and Abuse Act (“CFAA”).
60.

Defendants (a) knowingly and intentionally accessed such protected computers

without authorization and thereby obtained information from the protected computers in a
transaction involving an interstate or foreign communication (18 U.S.C. § 1030(a)(2)(C)); and
(b) knowingly and with an intent to defraud accessed such protected computers without
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authorization and obtained information from such computers, which Defendants used to further
the fraud and obtain something of value (18 U.S.C. § 1030(a)(4)).
61.

Defendants’ conduct has caused, and continues to cause, significant and

irreparable damages and loss to Elsevier.
62.

Defendants’ conduct has caused a loss to Elsevier during a one-year period

aggregating at least $5,000.
63.

As a direct result of Defendants’ actions, Elsevier has suffered and continues to

suffer irreparable harm for which Elsevier has no adequate remedy at law, and which will
continue unless Defendants’ actions are enjoined.
64.

Elsevier seeks injunctive relief, as well as costs and damages in an amount to be

proven at trial.
PRAYER FOR RELIEF
WHEREFORE, Elsevier respectfully requests that the Court:
A. Enter preliminary and permanent injunctions, enjoining and prohibiting Defendants,
their officers, directors, principals, agents, servants, employees, successors and
assigns, and all persons and entities in active concert or participation with them, from
engaging in any of the activity complained of herein or from causing any of the injury
complained of herein and from assisting, aiding, or abetting any other person or
business entity in engaging in or performing any of the activity complained of herein
or from causing any of the injury complained of herein;
B. Enter an order that, upon Elsevier’s request, those in privity with Defendants and
those with notice of the injunction, including any Internet search engines, Web
Hosting and Internet Service Providers, domain-name registrars, and domain name

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registries or their administrators that are provided with notice of the injunction, cease
facilitating access to any or all domain names and websites through which Defendants
engage in any of the activity complained of herein;
C. Enter an order that, upon Elsevier’s request, those organizations which have
registered Defendants’ domain names on behalf of Defendants shall disclose
immediately to Plaintiffs all information in their possession concerning the identity of
the operator or registrant of such domain names and of any bank accounts or financial
accounts owned or used by such operator or registrant;
D. Enter an order that, upon Elsevier’s request, the TLD Registries for the Defendants’
websites, or their administrators, shall place the domain names on
registryHold/serverHold as well as serverUpdate, ServerDelete, and serverTransfer
prohibited statuses, for the remainder of the registration period for any such website.
E. Enter an order canceling or deleting, or, at Elsevier’s election, transferring the domain
name registrations used by Defendants to engage in the activity complained of herein
to Elsevier’s control so that they may no longer be used for illegal purposes;
F. Enter an order awarding Elsevier its actual damages incurred as a result of
Defendants’ infringement of Elsevier’s copyright rights in the Works and all profits
Defendant realized as a result of its acts of infringement, in amounts to be determined
at trial; or in the alternative, awarding Elsevier, pursuant to 17 U.S.C. § 504, statutory
damages for the acts of infringement committed by Defendants, enhanced to reflect
the willful nature of the Defendants’ infringement;
G. Enter an order disgorging Defendants’ profits;

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Dockray, Pasquinelli, Smith & Waldorf
There is Nothing Less Passive than the Act of Fleeing
2010


# There is Nothing Less Passive than the Act of Fleeing

[The Public School](/web/20170523052416/http://journalment.org/author/public-
school)

What follows is a condensed and edited version of a text for a panel that was
presented at UCIRA’s _Future Tense: Alternative Arts and Economies in the
University_  conference held in San Diego, California on November 18, 2010.
The panel shared the same name as a 13-day itinerant seminar in Berlin
organized by Dockray, Waldorf, and Fiona Whitton earlier that year, in July.
The seminar began with an excerpt from Tiqqun’s _Introduction to Civil War_ ,
which was co-translated into English by Smith; and later read a chapter from
Pasquinelli’s _Animal Spirits: A Bestiary of the Commons_. Both authors have
also participated in meetings at The Public School in Los Angeles and Berlin.
Both the panel and the seminar developed out of longer conversations at The
Public School in Los Angeles, which began in late 2007 under Telic Arts
Exchange. The Public School is a school with no curriculum, where classes are
proposed and organized by the public.


## The Education Factory

The University as I understand it, has been a threshold between youth and the
labor market. Or it has been a threshold between a general education and a
more specialized one. In its more progressive form, it’s been a zone of
transition into an expanding middle class. But does this form still exist? I’m
inclined to think just the opposite, that the University is becoming a mean
for filtering people out of the middle class via student loan debt, which now
exceeds credit card debt. The point of the questions for me is simply what is
the point of the University? What are we fighting for or defending?

The next question might be, do students work? The University is a crucial site
in the reproduction of class relations; we know that students are consumers;
we know the student is a future worker who will be compelled to work, and work
in a specific way, because she/he is crushed by debt contracted during her/his
tenure as a student; we know that students work while attending school, and
that for many students school and work eerily begin to resemble one another.
But asking whether students work is to ask something more specific: do
students produce value and, therefore surplus-value? If we can assume, for the
moment, that students are a factor in the “knowledge production” that takes
place in the University, is this production of knowledge also the production
of value? We confront, maybe, a paradox: all social activity has become
“productive”—captured, absorbed—at the very moment value becomes unmeasurable.

What does this have to do with students, and their work? The thesis of the
social factory was supplemented by the assumption that knowledge had become a
central mode in the production of value in post-Fordist environments. Wouldn’t
this mean that the university could become an increasingly important
flashpoint in social struggles, now that it has become not simply the site of
the reproduction of the capital relation, but involved in the immediate
production process, directly productive of value? Would we have to understand
students themselves as, if not knowledge producers, an irreplaceable moment or
function within that process? None of this remains clear. The question is not
only a sociological one, it is also a political one. The strategy of
reconceptualizing students as workers is rooted in the classical Marxist
identification of revolt with the point of production, that is, exploitation.
To declare all social activity to be productive is another way of saying that
social war can be triggered at any site within society, even among the
precarious, the unemployed, and students.

_Knowledge is tied to struggle. To truly know is to hate truly. This is why
the working class can know and possess everything of capital, as it is enemy
to itself as capital._
—Tronti, 1966

That form of “hate” mentioned by Tronti is suggesting something interesting
form of political passion and a new modus operandi. The relation between hate
and knowledge, suggested by Tronti, is the opposite of the cynical detachment
of the new social figure of the entrepreneur-artist but it’s a joyful hate of
our condition. In order to educate ourselves we should hate our very own
environment and social network in which we were educated—the university. The
position of the artist in their work and the performance of themselves (often
no different) can take are manyfold. There are histories for all of these
postures that can be referenced and adopted. They are all acceptable tactics
as long as we keep doing and churning out more. But where does this get us,
both within the confines of the arts and the larger social structure? We are
taught that the artist is always working, thinking, observing. We have learned
the tricks of communication, performance and adaptability. We can go anywhere,
react to anything, respond in a thoughtful and creative way to all problems.
And we do this because while there is opportunity, we should take it. “We
shouldn’t complain, others have it much worse.” But it doesn’t mean that we
shouldn’t imagine something else. To begin thinking this way, it means a
refusal to deliver an event, to perform on demand. Maybe we need a kind of
inflexibility, of obstruction, of non-conductivity. After all, what exactly
are we producing and performing for? Can we try to think about these talents
of performance, of communication? If so, could this be the basis for an
intimacy, a friendship… another institution?


## Alternative pedagogical models

Let’s consider briefly the desire for “new pedagogical models” and “new forms
of knowledge production”. When articulated by the University, this simply
means new forms of instruction and new forms of research. Liberal faculty and
neoliberal politicians or administrators find themselves joined in this hunt
for future models and forms. On the one hand, faculty imagines that these new
techniques can provide space for continuing the good. On the other hand,
investors, politicians, and administrators look for any means to make the
University profitable; use unpaid labour, eliminate non-productive physical
spaces, and create new markets. Symptomatically, there is very little
resistance to this search for new forms and new models for the simple reason
that there is a consensus that the University should and will continue.

It’s also important to note that many of the so-called new forms and new
models being considered lie beyond the walls and payroll of the institution,
therefore both low-cost and low-risk. It is now a familiar story: the
institution attempts to renew itself by importing its own critique. The Public
School is not a new model and it’s not going to save the University. It is not
even a critique of the University any more or less than it is a critique of
the field of art or of capitalist society. It is not “the next university”
because it is a practice of leaving the University to the side. It would be a
mistake to think that this means isolation or total detachment.

Today, the forms of university governance cannot allow themselves to uproot
self-education. To the contrary, self-education constitutes a vital sap for
the survival of the institutional ruins, snatched up and rendered valuable in
the form of revenue. Governance is the trap, hasty and flexible, of the
common. Instead of countering us frontally, the enemy follows us. We must
immediately reject any weak interpretation of the theme of autonomous
institutions, according to which the institution is a self-governed structure
that lives between the folds of capitalism, without excessively bothering it.
The institutionalisation of self-education doesn’t mean being recognized as
one actor among many within the education market, but the capacity to organize
living knowledge’s autonomy and resistance.

One of the most important “new pedagogical models” that emerged over the past
year in the struggles around the implosion of the “public” university are the
occupations that took place in the Fall of 2009. Unlike other forms of action,
which tend to follow the timetable and cadence of the administration, to the
point of mirroring it, these actions had their own temporality, their own
initiative, their own internal logic. They were not at all concerned with
saving a university that was already in ruins, but rather with creating a
space at the heart of the University within which something else, some future,
could be risked, elaborated, prefigured. Everything had to be improvised, from
moment to moment, and in these improvisations new knowledges were developed
and shared. This improvisation was demanded by the aleatory quality of the
types of relations that emerged within these spaces, relations no longer
regulated by the social alibis that assigns everyone her/his place. When
students occupy university buildings—here in California, in NYC, in Puerto
Rico, in Europe and the UK, everywhere—they do so not because they want to
save their universities. They do so because they know the university for what
it is, as something to be at once seized and abandoned. They know that they
can only rely on and learn from one another.


## The Common and The Public

What is really so disconcerting about this antinomy between the logic of the
common and the logic of the social or the public? For Jacotot, it means the
development of a communist politics that is neither reformist nor seditious2.
It proposes the formation of common spaces at a distance from—if not outside
of—the public sphere and its communicative reason: “whoever forsakes the
workings of the social machine has the opportunity to make the electrical
energy of the emancipation machine.”

What does it mean to forsake the social machine? That is the major political
question facing us today. Such a forsaking would require that our political
energies organize themselves around spaces of experimentation at a distance
not only from the university and what is likely its slow-motion, or sudden,
collapse, but also from an entire imaginary inherited from the workers
movement: the task of a future social emancipation and vectors and forms of
struggle such a task implies. Perhaps what is required is not to put off
equality for the future, but presuppose the common, to affirm that commons as
a fact, a given, which must nevertheless be verified, created, not by a social
body, not by a collective force, but a power of the common, now.

School is not University. Neither is it Academy or College or even Institute.
We are all familiar with the common meaning of the word: it is a place for
learning. In another sense, it also refers to organized education in general,
which is made most clear by the decision to leave, to “drop out of school”.
Alongside these two stable, almost architectural definitions, the word
gestures to composition and movement—the school of bodies, moving
independently, together; the school only exists as long as that collective
movement does. The school takes shape in this oscillation between form and
formlessness, not through the act of constructing a wall but by the process of
realizing its boundary through practice.

Perhaps this is a way to think of how to develop what Felix Guattari called
“the associative sector” in 1982: “everything that isn’t the state, or private
capital, or even cooperatives”3. At first gloss, the associative sector is
only a name for the remainder, the already outside; but, in the language of a
school, it is a constellation of relationships, affinities, new
subjectivities, and movements, flickering into existence through life and use,
An “engaged withdrawal” that simultaneously creates an exit and institutes in
the act of passing through. Which itself might bring us back to school, to the
Greek etymology of school, skhole, “a holding back”, a “keeping clear” of
space for reflective distance. On the one hand, perhaps this reflective space
simply allows theoretical knowledge to shape or affect performative action;
but on the other hand, the production of this “clearing” is not given,
certainly not now and certainly not by the institutions that claim to give it.
Reflective space is not the precondition for performative action. On the
contrary; performative action is the precondition for reflective space—or,
more appropriately, space and action must be coproduced.

Is the University even worth “saving”? We are right to respond with
indignation, or better, with an array of tactics—some procedural, some more
“direct”—against these incursions, which always seem to authorize themselves
by appeals to economic austerity, budget shortfalls, and tightened belts.
Perhaps what is being destroyed in this process is the very notion of the
public sphere itself, a notion that. It is easy to succumb to the illusion
that the only possible result of this destruction of the figure of the public
is privatization. But what if the figure of the public was to be set off
against not only the private and property relations, but against a figure of
the “common” as well? What if, in other words, the notion of the public has
always been an unstable, mediating term between privatization and
communization, and what if the withering of this mediation left these two
process openly at odds with each other? Perhaps, then, it is not simply a
question of saving a university and, more broadly, a public space that is
already withering away; maybe our energies and our intelligence, our
collective or common intellectual forces, should be devoted to organizing and
articulating just this sort of counter-transition, at a distance from the
public and the private.


## Authorship and new forms of knowledge

For decades we have spoken about the “death of the author”. The most sustained
critiques of authorship have been made from the spheres of art and education,
but not coincidentally, these spheres have the most invested in the notion.
Credit and accreditation are the mechanisms for attaching symbolic capital to
individuals via degrees and other lines on CVs. The curriculum vitæ is an
inverted credit report, evidence of underpaid work, kept orderly with an
expectation of some future return.

All of this work, this self-documentation, this fidelity between ourselves and
our papers, is for what, for whom? And what is the consequence of a world
where every person is armed with their vitæ, other than “the war of all
against all?” It’s that sensation that there are no teams but everyone has got
their own jersey.

The idea behind the project The Public School is to teach each other in a very
horizontal way. No curriculum, no hierarchy. But is The Public School able to
produce new knowledge and new content by itself? Can the The Public School
become a sort of autonomous collective author? Or, is The Public School just
about exchanges and social networking?

In the recent history of university struggles, some collectives started to
refresh the idea of coresearch; a form of knowledge that can produce new
subjectivities by researching. New subjectivities that produce new knowledge
and new knowledge that produces new subjectivities If knowledge comes only
from conflict, knowledge goes back to conflict in order to produce new
autonomy and subjectivities.

### The Public School

Sean Dockray, Matteo Pasquinelli, Jason Smith and Caleb Waldorf are founding
members of and collaborators at The Public School. Initiated in 2007 under
Telic Arts Exchange (literally in the basement) in Los Angeles, The Public
School is a school with no curriculum. At the moment, it operates as follows:
first, classes are proposed by the public; then, people have the opportunity
to sign up for the classes; finally, when enough people have expressed
interest, the school finds a teacher and offers the class to those who signed
up. The Public School is not accredited, it does not give out degrees, and it
has no affiliation with the public school system. It is a framework that
supports autodidactic activities, operating under the assumption that
everything is in everything. The Public School currently exists in Los
Angeles, New York, Berlin, Brussels, Helsinki, Philadelphia, Durham, San Juan,
and is still expanding.


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.

R.

Civ.

P. 6 5(c).

17

See

It is so ordered.

New York,

fY
October ? ;--1

2015
R BERT W. SWEET

U.S.D.J.

18


 

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