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
Sollfrank & Snelting
Performing Graphic Design Practice
2014
Femke Snelting
Performing Graphic Design Practice
Leipzig, 7 April 2014
[00:12]
What is Libre Graphics?
[00:16]
Libre Graphics is quite a large ecosystem of software tools, of people –
people that develop these tools, but also people that use these tools;
practices, like how do you then work with them, not just how you make things
quickly and in an impressive way, but also these tools might change your
practice and the cultural artefacts that result from it. So it’s all these
elements that come together, and we call Libre Graphics. [00:53] The term
“Libre” is chosen deliberately. It’s slightly more mysterious that the term
“free”, especially when it turns up in the English language. It sort of hints
that there’s something different, that there’s something done on purpose.
[01:16] And it is a group of people that are inspired by free software
culture, by free culture, by thinking about how to share both their tools,
their recipes and the outcomes of all this. [01:31] So Libre Graphics is quite
wild, it goes in many directions, but it’s an interesting context to work in,
that for me it has been quite inspiring for a few years now.
[01:46]
The context of Libre Graphics
[01:50]
The context of Libre Graphics is multiple. I think that’s part of why I’m
excited about it, and also part of why it’s sometimes difficult to describe it
in a short sentence. [02:04] The context is design – so people that are
interested in design, in creating visuals, in creating animations, videos,
typography. And that is already a multiple context, because each of these
disciplines have their own histories, and their own sort of types of people
that get touched by them. [02:23] Then there is software, people that are
interested in the digital material – so, let’s say, excited about raw bits and
the way a vector gets produced. So that’s a very, almost formal interest in
how graphics are made. [02:47] Then there’s people that do software, so they
are interested in programming, in programming languages, in thinking about
interfaces and thinking about ways software can become a tool. And then
there’s people that are interested in free software, so how can you make
digital tools that can be shared, but also how can you produce processes that
can be shared. [03:11] So there you have from free software activists to
people that are interested in developing specific tools for sharing design and
software development processes, like Git or [Apache] Subversion, or those
kinds of things. So I think that multiple context is really special and rich
in Libre Graphics.
[03:34]
Free software culture
[03:38]
Free software culture… And I use the term culture because I’m more interested
in, let’s say, the cultural aspect of it, and this includes software, for me
software is a cultural object – but I think it’s important to emphasise this,
because it's easily turned into a very technocentric approach which I think is
important to stay away from. [04:01] So free software culture is the thinking
that, when you develop technology – and I’m using technology in the sense that
is cultural as well, to me, deeply cultural – you need to take care of sharing
the recipes for how this technology has been developed as well. [04:28] And
this produces many different other tools, ways of working, ways of speaking,
vocabularies, because it changes radically the way we make and the way we
produce hierarchies. [04:49] So it means, for example, if you produce a
graphic design artefact, for example, that you share all the source files that
were necessary to make it. But you also share, as much as you can,
descriptions and narrations of how it came to be, which does include, maybe,
how much was paid for it, what difficulties were in negotiating with the
printer, and what elements were included – because the graphic design object
is usually a compilation of different elements –, what software was used to
make it and where it might have resisted. [05:34] So the consequences of
taking free software culture seriously in a graphic design or a design
context, means that you care about all these different layers of the work, all
the different conditions that actually make the work happen.
[05:50]
Free culture
[05:54]
The relationship from Libre Graphics to free culture is not always that
explicit. For some people it’s enough to work with tools that are released
under GPL (GNU General Public License), or like an open content license, and
there it stops. So even their work would be released under proprietary
licenses. [06:18] For others it’s important to make the full circle and to
think about what the legal status is of the work they release. So that’s the
more general one. [06:34] Then free culture – we can use that very loosely, as
in everything that is circulating under conditions that it can be reused and
remade, that would be my position – free culture, of course, also refers to
the very specific idea of how that would work, namely Creative Commons.
[06:56] For myself, Creative Commons is problematic, although I value the fact
that it exists and has really created a broader discussion around licenses in
creative practices, so I value that. [07:11] For me, the distinction Creative
Commons makes, almost for all the licenses they promote, between commercial
and non-commercial work, and as a consequence between professional and amateur
work – I find that very problematic, because I think one of the most important
elements of free software culture, for me, is the possibility of people from
different backgrounds, with different skill sets, to actually engage the
digital artefacts they are surrounded with. [07:47] And so by making this
quite lazy separation between commercial and non-commercial, which, especially
in the context of the web as it is right now, since it’s not very easy to hold
up, seems really problematic, because it creates an illusion of clarity that I
think actually makes more trouble than clarity. [08:15] So I use free culture
licenses, I use licenses that are more explicit about the fact that anyone can
use whatever I produce, in any context, because I think that’s where the real
power is of free software culture. [08:31] For me, free software licenses and
all the licenses around them – because I think there are many different types,
and that’s interesting – is that they have a viral power built in. So if you
apply a free software license to, for example, a typeface, it means that
someone else, even someone else you don’t know, has the permission, and
doesn’t have to ask for the permission to reuse the typeface, to change it, to
mix it with something else, to distribute it and to sell it. [09:08] That’s
one part that is already very powerful. But the real secret of such a license
is that once this person re-releases a typeface, it means that they need to
keep the same license. So it means that it propagates across the network, and
that is where it’s really powerful.
[09:31]
Free tools
[09:35]
It’s important to have tools that are released under conditions that allow me
to look further than its surface, for many reasons. There is an ethical
reason. It’s very problematic, I think, to, as a friend explained last week,
to feel like you are renting a room in a hotel – because that is often the way
practitioners nowadays relate to their tools, they have no right to remove the
furniture, they’ve no right to invite friends to their hotel room, they have
to check out at 11, etc. So it’s a very sterile relationship to your tools. So
that’s one part. [10:24] The other is that there is little way of coming into
contact with the cultural aspects of the tools. Something that I suspected
before I started to use free software tools for my practice, but has been
already for almost ten years continuously exciting, is the whole… let’s say,
all the other elements around it: the way people organise themselves in
conferences, mailing lists, the fact that the kinds of communications that
happens, the vocabularies, the histories, the connections between different
disciplines. [11:07] And all that is available to look at, to work with, to
come into contact with, even to speak to people that do these tools and ask
them, why is like this and not like that. And so to me it seems obvious that
artists want to have that kind of, let’s say, layered relation with their
tools, and not just accept whatever comes out of the next-door shop. [11:36] I
have a very different, almost different physical experience of these tools,
because I can enter on many levels. And that makes them part of my practice
and not just means to an end, I really can take them into my practice, and
that I find interesting as an artist and as a designer.
[11:56] Artefacts
[12:00] The outcomes of this type of practice are different, or at least the
kind of work I make, try to make, and the people I like to work with. There’s
obviously also a group of people that would like to do Hollywood movies with
those tools. And, you know, that’s kind of interesting too, that that happens.
[12:21] For me, somehow the technological context or conditions that made the
work possible will always occur in the final result. So that’s one part.
[12:38] And the other is that the, let’s say, the product is never the end. So
it means that because, in whatever way, source materials would be released,
would be made available, it means that the product is always the beginning of
another project or product, either by me or by other people. [13:02] So I
think that’s two things that you can always see in the kind of works we make
when we do Libre Graphics – my style.
[13:15] Libre Fonts
[13:18] A very exciting part of Libre Graphics is the Libre Font movement,
which is strong, and has been strong for a long time. Fonts are the basic
building block of how a graphic comes to life. I mean, when you type
something, it’s there. [13:40] And the fact that that part of the work is free
is important in many levels. Things that you often don’t think about when we
speak English and we stay within a limited character set, is that when you
live in, let’s say, India, the language you speak is not available as a
digital typeface, meaning that when you want to produce book in the tools that
are available, or publish it online, your language has no way of expressing
itself. [14:26] And so it’s important, and that has to do with commercial
interests, laws, ways that the technical infrastructure has been built. And so
by understanding that it’s important that you can express yourself in the
language and with the characters you need, it’s also obvious that that part
needs to be free. [14:53] Fonts are also interesting because they exist on
many levels. They exist on your system. They are almost software, because they
are quite complicated objects. They appear in your screen, when you print a
document – they are there all the time. [15:17] But at the same time it’s the
alphabet. It’s the most, let’s say… we consider it as a totally accessible,
available and universal right, to have the alphabet at our disposal. [15:29]
So I think, politically and, let’s say, from a sort of interest in that kind
of practice that is very technical but at the same time also very basic, in
the sense that is about “freeing an A,” that’s quite a beautiful energy – I
think that that has made the Libre Font movement very strong.
[15:55] Free artefacts / open standards
[15:59] It took me a while to figure out myself – that for me it was so
obvious that if you do free software, that you would produce free artefacts, I
mean, it seems kind of obvious, but that is not at all the case. [16:12] There
is full-fledged commercial production happening with these tools. But one
thing that sort of keeps the results, the outcomes of these projects, freer
than most commercial tools is that there is really an emphasis on open
document formats. [16:34] And that is extremely important because, first of
all, through this sort of free software thinking it’s very obvious that the
documents that you produce with the tool should not belong to the software
vendor, they are yours. [16:49] And to be able to own your own documents you
need to be able to look, to inspect how they are produced. I know many tragic
stories of designers that with several upgrades of “their” tool set lost
documents, because they could never open them again. [17:12] So there’s really
an emphasis and a lot of work in making sure that the documents produced from
these tools remain inspectable, are documented, so that either you can open
them in another tool, or could develop a tool to open them in, to have these
files available for you. [17:38] So it’s really part and parcel of free
software culture, it’s that you care about that what generates your artefact,
but also about the materiality of your artefact. And so there, open standards
are extremely important – or maybe, let’s say, that file formats are
documented and can be understood. [18:04] And what’s interesting to see is
that in this whole Libre Graphics world there is also a very strong group of
reverse engineers, that are document formants, document activists, I would
say. [18:19] And I think that’s really interesting. They claim, they say,
documents need to be free, and so we would go against… let’s say, we would
risk breaking the law to be able to understand how non-free documents actually
are constructed. [18:37] So they are really working to be able to understand
non-free documents, to be able to read them, and to be able to develop tools
for them, so that they can be reused and remade. [18:54] So the difference
between a free and a non-free document is that, for example, an InDesign file,
which is the result of a commercial product, there’s no documentation
available to how this file works. [19:10] This means that the only way to open
the file is with that particular program. So there is a connection between
that what you’ve made and the software you’ve used to produce it. [19:24] It
also means that if the software updates, or the license runs out, you will not
have access to your own file. It means it’s fixed, you can never change it,
and you can never allow anyone else to change it. [19:39] And open document
format has documentation. That means that not only the software that created
it is available, and so that way you can understand how it was made, but also
there’s independent documentation available. [19:55] So that whenever a
project, like a software, doesn’t work anymore or it’s too old to be run, or
you don’t have it available, you have other ways of understanding the document
and being able to open it, and reuse and remake it. [20:11] Examples of open
document formats are, for example, SVG (Scalable Vector Graphics), ODT (Open
Document Text format), or OGG, a format for video that allows you to look at
all the elements that are packed into the video format. [20:31] What’s
important is that, around these open formats, you see a whole ecosystem exists
of tools to inspect, to create, to read, to change, to manipulate these
formats. And I think it’s very easy to see how around InDesign files this
culture does not exist at all.
[20:55] Getting started
[20:59] If you would be interested to start using Libre Graphics, you can
enter it in different levels. There’s well-developed tools that look a bit
like commercial photo manipulation tools, or layout tools. [21:19] There’s
something called Gimp, which is a well-developed software for treating photos.
There’s Blender, which is a fast-developing animation software, that’s being
used by thousands of thousands of people, and even it’s being used in
commercial productions, Pixar-style stuff. [21:43] These tools can be
installed on any system, so you don’t have to run a Linux system to be able to
use them. You can install them on a Macintosh or on a Windows, for example. Of
course, they are usually more powerful when you run them on a system that
recognises that power.
[22:09] Sharing practice / re-learn
[22:14] This way of working changes the way you learn, and also therefore the
way you teach. And so, as many of us have understood the relation between
learning and practice, we’ve all been somehow involved in education, many of
us are teaching in formal design or art education. [22:43] And it’s very clear
how those traditional schools are really not fit for the type of learning and
teaching that needs to happen around Libre Graphics. [22:57] So one of the
problems that we run into is the fact that art academies are traditionally
really organised on many levels – so that the validation systems are really
geared towards judging individuals. And our type of practice is always
multiple, it’s always about, let’s say, things that happen with many people.
[23:17] And it’s really difficult to inspire students to work that way, and at
the same time know that at the end of the day, they will be judged on their
own, what they produce as an individual. So that’s one part. [23:31] In
traditional education there’s always like a separation between teaching
technology and practice. So you have, in different ways, let’s say, you have
the studio practice and then you have the workshops. And it’s very difficult
to make conceptual connections between the two, so we end up trying to make
that happen but it’s clearly not made for that. [24:02] And then there is the
problematics of the hierarchies between tutors and students, that are hard to
break in formal education, just because the set up is – even when it’s a very
informal situation – that someone comes to teach and someone else comes to be
taught. [24:28] And there’s no way to truly break that hierarchy because
that’s the way the school works. So since a year we’ve been starting to think
about how to do… Well, no, for years we’ve been thinking about how to do
teaching differently, or how to do learning differently. [24:48] And so last
year for the first time we organised a summer school, just as a kind of
experiment to see if we could learn and teach differently. And the title, the
name of the school is Relearn, because the sort of relearning, for yourself
but also to others, through teaching-learning, has became really a good
methodology, it seems.
[25:15] Affiliations
[25:19] If I say “we”, that’s always a bit uncomfortable, because I like to be
clear about who that is, but when I’m speaking here there’s many “we” in my
mind. So there’s a group of designers called OSP (Opens Source Publishing).
They started in 2006 with the simple decision to not use any proprietary
software anymore for their work. And from that this whole set of questions,
and practices and methods developed. [25:51] So right now that’s about twelve
people working in Brussels having a design practice. And I’m lucky to be an
honorary member of this group, and so I’m in close contact with them, but I’m
not actively working with the design group. [20:11] Another “we”, and
overlapping “we”, is Constant, an association for art and media active in
Brussels since 1996, 1997 maybe. Our interest is more in mixing copyleft
thinking, free software thinking and feminism. And in many ways that
intersects with OSP, but they might phrase it in a different way. [26:42]
Another “we” is the Libre Graphics community, which is even a more
uncomfortable “we” because it includes engineers that would like to conquer
the world, and small hyper-intelligent developers that creep out of their
corner to talk about the very strange world they are creating, or typographers
that care about universal typefaces. [27:16] I mean, there’s many different
people that are involved in that world. So I think, in this conversation the
“we” are Contant, OSP and Libre Graphics community, whatever that is.
[27:34] We worked on a Code of Conduct – which is something that seems to
appear in free software or tech conferences more and more, it comes a bit from
the U.S. context – where we have started to understand that the fact that free
software is free doesn’t mean that everyone feels welcome. [28:02] For long
there still are large problems with diversity in this community. The
excitement about freedom has led people to think that people that were no
there would probably not want to be there, and therefore had no role to be
there. [28:26] And so if you think, for example, the fact that there is very
little, that there’s not a lot of women active in free software, a lot less
than in proprietary software, which is quite painful if you think about it.
[28:41] That has to do with this sort of cyclical effects of: because women
are not there they would probably be not interested, and because they are not
interested they might not be capable, or feel capable of being active, and
they feel they might not belong. So that’s one part. [29:07] The other part is
that there’s a very brutal culture of harassment, of racist and sexist
language, of using imagery that is, let’s say, unacceptable. And that needs to
be dealt with. [29:26] Over the last two years, I think, the documents like
the Code of Conduct have started to come out from feminists active in this
world, like Geek Feminism or the Ada Initiative, as a way to deal with this.
And what it does is it describes, in a bit… let’s say, it’s slightly pompous
in the sense that you describe your values. [29:56] But it is a way to
acknowledge the fact that this communities have a problem with harassment,
first; that they explicitly say, we want diversity, which is important; that
it gives very clear and practical guidelines for what someone that feels
harassed can do, who he or she can speak to, and what will be the
consequences. [30:31] Meaning that it takes away the burden from, well, at
least as much as possible, from someone who is harassed to defend, actually,
the gravity of the case.
[30:43] Art as integrative concept
[30:47] For me, calling myself an artist is useful, it’s very useful. I’m not
so busy, let’s say, with the institutional art context – that doesn’t help me
at all. [31:03] But what does help me is the figure of the artist, the kinds
of intelligences that I sort of project on myself, and I use from others, from
my colleagues (before and contemporary), because it allows me to not have too
many… to be able to define my own context and concepts without forgetting
practice. [31:37] And I think art is one of the rare places that allows this.
Not only it allows it, but actually it rigorously asks for it. It’s really
wanting me to be explicit about my historical connections, my way of making,
my references, my choices, that are part of the situation I build. [32:11] So
the figure of the artist is a very useful toolbox in itself. And I think I use
it more than I would have thought, because it allows me to make these cross-
connections in a productive way.