defendants in USDC 2015
rg, 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
ce,
(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,
t
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 sho
ps 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 *
al 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
gement 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 "Wolterman
nceDirect,
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
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, 4
s 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 resea
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
ontext 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
ween
$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
mo
ence - 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 t
ntific 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
d 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
Display 200 300 400 500 600 700 800 900 1000 ALL characters around the word.