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
Mattern
Making Knowledge Available
2018
# Making Knowledge Available
## The media of generous scholarship
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A few weeks ago, shortly after reading that Elsevier, the world’s largest
academic publisher, had made over €1 billion in profit in 2017, I received
notice of a new journal issue on decolonization and media.* “Decolonization”
denotes the dismantling of imperialism, the overturning of systems of
domination, and the founding of new political orders. Recalling Achille
Mbembe’s exhortation that we seek to decolonize our knowledge production
practices and institutions, I looked forward to exploring this new collection
of liberated learning online – amidst that borderless ethereal terrain where
information just wants to be free. (…Not really.)
Instead, I encountered a gate whose keeper sought to extract a hefty toll: $42
to rent a single article for the day, or $153 to borrow it for the month. The
keeper of that particular gate, mega-publisher Taylor & Francis, like the
keepers of many other epistemic gates, has found toll-collecting to be quite a
profitable business. Some of the largest academic publishers have, in recent
years, achieved profit margins of nearly 40%, higher than those of Apple and
Google. Granted, I had access to an academic library and an InterLibrary Loan
network that would help me to circumvent the barriers – yet I was also aware
of just how much those libraries were paying for that access on my behalf; and
of all the un-affiliated readers, equally interested and invested in
decolonization, who had no academic librarians to serve as their liaisons.
I’ve found myself standing before similar gates in similar provinces of
paradox: the scholarly book on “open data” that sells for well over $100; the
conference on democratizing the “smart city,” where tickets sell for ten times
as much. Librarian Ruth Tillman was [struck with “acute irony
poisoning”](https://twitter.com/ruthbrarian/status/932701152839454720) when
she encountered a costly article on rent-seeking and value-grabbing in a
journal of capitalism and socialism, which was itself rentable by the month
for a little over $900.
We’re certainly not the first to acknowledge the paradox. For decades, many
have been advocating for open-access publishing, authors have been campaigning
for less restrictive publishing agreements, and librarians have been
negotiating with publishers over exorbitant subscription fees. That fight
continues: in mid-February, over 100 libraries in the UK and Ireland
[submitted a letter](https://www.sconul.ac.uk/page/open-letter-to-the-
management-of-the-publisher-taylor-francis) to Taylor & Francis protesting
their plan to lock up content more than 20 years old and sell it as a separate
package.
My coterminous discoveries of Elsevier’s profit and that decolonization-
behind-a-paywall once again highlighted the ideological ironies of academic
publishing, prompting me to [tweet
something](https://twitter.com/shannonmattern/status/969418644240420865) half-
baked about academics perhaps giving a bit more thought to whether the
politics of their publishing _venues_ – their media of dissemination –
matched the politics they’re arguing for in their research. Maybe, I proposed,
we aren’t serving either ourselves or our readers very well by advocating for
social justice or “the commons” – or sharing progressive research on labor
politics and care work and the elitism of academic conventions – in journals
that extract huge profits from free labor and exploitative contracts and fees.
Despite my attempt to drown my “call to action” in a swamp of rhetorical
conditionals – “maybe” I was “kind-of” hedging “just a bit”? – several folks
quickly, and constructively, pointed out some missing nuances in my tweet.
[Librarian and LIS scholar Emily Drabinski
noted](https://twitter.com/edrabinski/status/969629307147563008) the dangers
of suggesting that individual “bad actors” are to blame for the hypocrisies
and injustices of a broken system – a system that includes authors, yes, but
also publishers of various ideological orientations, libraries, university
administrations, faculty review committees, hiring committees, accreditors,
and so forth.
And those authors are not a uniform group. Several junior scholars replied to
say that they think _a lot_ about the power dynamics of academic publishing
(many were “hazed,” at an early age, into the [Impact
Factor](https://en.wikipedia.org/wiki/Impact_factor) Olympics, encouraged to
obsessively count citations and measure “prestige”). They expressed a desire
to experiment with new modes and media of dissemination, but lamented that
they had to bracket their ethical concerns and aesthetic aspirations. Because
tenure. Open-access publications, and more-creative-but-less-prestigious
venues, “don’t count.” Senior scholars chimed in, too, to acknowledge that
scholars often publish in different venues at different times for different
purposes to reach different audiences (I’d add, as well, that some
conversations need to happen in enclosed, if not paywalled, environments
because “openness” can cultivate dangerous vulnerabilities). Some also
concluded that, if we want to make “open access” and public scholarship – like
that featured in _Public Seminar_ – “count,” we’re in for a long battle: one
that’s best waged within big professional scholarly associations. Even then,
there’s so much entrenched convention – so many naturalized metrics and
administrative structures and cultural habits – that we’re kind-of stuck with
these rentier publishers (to elevate the ingrained irony: in August 2017,
Elsevier acquired bepress, an open-access digital repository used by many
academic institutions). They need our content and labor, which we willing give
away for free, because we need their validation even more.
All this is true. Still, I’d prefer to think that we _can_ actually resist
rentierism, reform our intellectual infrastructures, and maybe even make some
progress in “decolonizing” the institution over the next years and decades. As
a mid-career scholar, I’d like to believe that my peers and I, in
collaboration with our junior colleagues and colleagues-to-be, can espouse new
values – which include attention to the political, ethical, and even aesthetic
dimensions of the means and _media_ through which we do our scholarship – in
our search committees, faculty reviews, and juries. Change _can_ happen at
the local level; one progressive committee can set an example for another, and
one college can do the same. Change can take root at the mega-institutional
scale, too. Several professional organizations, like the Modern Language
Association and many scientific associations, have developed policies and
practices to validate open-access publishing. We can look, for example, to the
[MLA Commons](https://mla.hcommons.org/) and the [Manifold publishing
platform](https://manifold.umn.edu/). We can also look to Germany, where a
nationwide consortium of libraries, universities, and research institutes has
been battling Elsevier since 2016 over their subscription and access policies.
Librarians have long been advocates for ethical publishing, and [as Drabinski
explains](https://crln.acrl.org/index.php/crlnews/article/view/9568/10924),
they’re equipped to consult with scholars and scholarly organizations about
the publication media and platforms that best reinforce their core values.
Those values are the chief concern of the [HuMetricsHSS
initiative](http://humetricshss.org/about-2/), which is imagining a “more
humane,” values-based framework for evaluating scholarly work.
We also need to acknowledge the work of those who’ve been advocating for
similar ideals – and working toward a more ethically reflective publishing
culture – for years. Let’s consider some examples from the humanities and
social sciences – like the path-breaking [Institute for the Future of the
Book](http://www.futureofthebook.org/), which provided the platform where my
colleague McKenzie Wark publicly edited his [ _Gamer
Theory_](http://futureofthebook.org/gamertheory2.0/) back in 2006. Wark’s book
began online and became a print book, published by Harvard. Several
institutions – MIT; [Minnesota](https://www.upress.umn.edu/book-
division/series/forerunners-ideas-first); [Columbia’s Graduate School of
Architecture, Planning, and Preservation
](https://www.arch.columbia.edu/books)(whose publishing unit is led by a New
School alum, James Graham, who also happens to be a former thesis advisee);
Harvard’s [Graduate School of Design
](http://www.gsd.harvard.edu/publications/)and
[metaLab](http://www.hup.harvard.edu/collection.php?cpk=2006); and The New
School’s own [Vera List Center
](http://www.veralistcenter.org/engage/publications/1993/entry-pointsthe-vera-
list-center-field-guide-on-art-and-social-justice-no-1/)– have been
experimenting with the printed book. And individual scholars and
practitioners, like Nick Sousanis, who [published his
dissertation](http://www.hup.harvard.edu/catalog.php?isbn=9780674744431) as a
graphic novel, regard the bibliographic form as integral to their arguments.
Kathleen Fitzpatrick has also been a vibrant force for change, through her
work with the [MediaCommons](http://mediacommons.futureofthebook.org/) digital
scholarly network, her two [open-review ](http://www.plannedobsolescence.net
/peer-to-peer-review-and-its-aporias/)books, and [her
advocacy](http://www.plannedobsolescence.net/evolving-standards-and-practices-
in-tenure-and-promotion-reviews/) for more flexible, more thoughtful faculty
review standards. Her new manuscript, _Generous Thinking_ , which lives up to
its name, proposes [public intellectualism
](https://generousthinking.hcommons.org/4-working-in-public/public-
intellectuals/)as one such generous practice and advocates for [its positive
valuation](https://generousthinking.hcommons.org/5-the-university/) within the
academy. “What would be required,” she asks, “for the university to begin
letting go of the notion of prestige and of the competition that creates it in
order to begin aligning its personnel processes with its deepest values?” Such
a realignment, I want to emphasize, need not mean a reduction in rigor, as
some have worried; we can still have standards, while insisting that they
correspond to our values. USC’s Tara McPherson has modeled generous and
careful scholarship through her own work and her collaborations in developing
the [Vectors](http://vectors.usc.edu/issues/index.php?issue=7) and
[Scalar](https://scalar.me/anvc/scalar/) publishing platforms, which launched
in 2005 and 2013, respectively. _Public Seminar_ is [part of that long
tradition](http://www.publicseminar.org/2017/09/the-life-of-the-mind-online/),
too.
Individual scholars – particularly those who enjoy some measure of security –
can model a different pathway and advocate for a more sane, sustainable, and
inclusive publication and review system. Rather than blaming the “bad actors”
for making bad choices and perpetuating a flawed system, let’s instead
incentive the good ones to practice generosity.
In that spirit, I’d like to close by offering a passage I included in my own
promotion dossier, where I justified my choice to prioritize public
scholarship over traditional peer-reviewed venues. I aimed here to make my
values explicit. While I won’t know the outcome of my review for a few months,
and thus I can’t say whether or not this passage successfully served its
rhetorical purpose, I do hope I’ve convincingly argued here that, in
researching media and technology, one should also think critically about the
media one chooses to make that research public. I share this in the hope that
it’ll be useful to others preparing for their own job searches and faculty
reviews, or negotiating their own politics of practice. The passage is below.
* * *
…[A] concern with public knowledge infrastructures has… informed my choice of
venues for publication. Particularly since receiving tenure I’ve become much
more attuned to publication platforms themselves as knowledge infrastructures.
I’ve actively sought out venues whose operational values match the values I
espouse in my research – openness and accessibility (and, equally important,
good design!) – as well as those that The New School embraces through its
commitment to public scholarship and civic engagement. Thus, I’ve steered away
from those peer-reviewed publications that are secured behind paywalls and
rely on uncompensated editorial labor while their parent companies uphold
exploitative copyright policies and charge exorbitant subscription fees. I’ve
focused instead on open-access venues. Most of my articles are freely
available online, and even my 2015 book, _Deep Mapping the Media City_ ,
published by the University of Minnesota Press, has been made available
through the Mellon Foundation-funded Manifold open-access publishing platform.
In those cases in which I have been asked to contribute work to a restricted
peer-reviewed journal or costly edited volume, I’ve often negotiated with the
publisher to allow me to “pre-print” my work as an article in an open-access
online venue, or to preview an un-edited copy.
I’ve been invited to address the ethics and epistemologies of scholarly
publishing and pedagogical platforms in a variety of venues, A, B, C, D, and
E. I also often chat with graduate students and junior scholars about their
own “publication politics” and appropriate venues for their work, and I review
their prospectuses and manuscripts.
The most personally rewarding and professionally valuable publishing
experience of my post-tenure career has been my collaboration with _Places
Journal_ , a highly regarded non-profit, university-supported, open-access
venue for public scholarship on landscape, architecture, urbanism. After
having written thirteen (fifteen by Fall 2017) long-form pieces for _Places_
since 2012, I’ve effectively assumed their “urban data and mediated spaces”
beat. I work with paid, professional editors who care not only about subject
matter – they’re just as much domain experts as any academic peer reviewer
I’ve encountered – but also about clarity and style and visual presentation.
My research and writing process for _Places_ is no less time- and labor-
intensive, and the editorial process is no less rigorous, than would be
required for a traditional academic publication, but _Places_ allows my work
to reach a global, interdisciplinary audience in a timely manner, via a
smartly designed platform that allows for rich illustration. This public
scholarship has a different “impact” than pay-walled publications in prestige
journals. Yet the response to my work on social media, the number of citations
it’s received (in both scholarly and popular literature), and the number of
invitations it’s generated, suggest the significant, if incalculable, value of
such alternative infrastructures for academic publishing. By making my work
open and accessible, I’ve still managed to meet many of the prestige- and
scarcity-driven markers of academic excellence (for more on my work’s impact,
see Appendix A).
_* I’ve altered some details so as to avoid sanctioning particular editors or
authors._
_Shannon Mattern is Associate Professor of Media Studies at The New School and
author of numerous books with University of Minnesota Press. Find her on
twitter[@shannonmattern](http://www.twitter.com/shannonmattern)._