Graziano
Pirate Care: How do we imagine the health care for the future we want?
2018


Pirate Care - How do we imagine the health care for the future we want?

Oct 5, 2018 · 19 min read

by Valeria Graziano

A recent trend to reimagine the systems of care for the future is based on many of the principles of self-organization. From the passive figure of the patient — an aptly named subject, patiently awaiting aid from medical staff and carers — researchers and policymakers are moving towards a model defined as people-powered health — where care is discussed as transforming from a top-down service to a network of coordinated actors.

At the same time, for large numbers of people, to self-organize around their own healthcare needs is not a matter of predilection, but increasingly one of necessity. In Greece, where the measures imposed by the Troika decimated public services, a growing number of grassroots clinics set up by the Solidarity Movement have been providing medical attention to those without a private insurance. In Italy, initiatives such as the Ambulatorio Medico Popolare in Milan offer free consultations to migrants and other vulnerable citizens.

The new characteristic in all of these cases is the fact that they frame what they do in clearly political terms, rejecting or sidestepping the more neutral ways in which the third sector and the NGOs have long presented care practices as apolitical, as ways to help out that should never ask questions bigger than the problems they set out to confront, and as standing beyond left and right (often for the sake of not alienating potential donors and funders).

Rather, the current trends towards self-organization in health care are very vocal and clear in their messages: the care system is in crisis, and we need to learn from what we know already. One thing we know is that the market or the financialization of assets cannot be the solution (do you remember when just a few years ago Occupy was buying back healthcare debts from financial speculators, thus saving thousands Americans from dire economic circumstances? Or that scene from Michael Moore’s Sicko, the documentary where a guy has to choose which finger to have amputated because he does not have enough cash for saving both?).

Another thing we also know is that we cannot simply hold on to past models of managing the public sector, as most national healthcare systems were built for the needs of the last century. Administrations have been struggling to adapt to the changing nature of health conditions (moving from a predominance of epidemic to chronic diseases) and the different needs of today’s populations. And finally, we most definitely know that to go back to even more conservative ideas that frame care as a private issue that should fall on the shoulders of family members (and most often, of female relatives) or hired servants (also gendered and racialised) is not the best we can come up with.

Among the many initiatives that are rethinking how we organize the provision of health and care in ways that are accessible, fair, and efficient, there are a number of actors — mostly small organizations — who are experimenting with the opportunities introduced by digital technologies. While many charities and NGOs remain largely ignorant of the opportunities offered by technology, these new actors are developing DIY devices, wearables, 3D-printed bespoke components, apps and smart objects to intervene in areas otherwise neglected by the bigger players in the care system. These practices are presenting a new mode of operating that I want to call ‘pirate care’.
Pirate Care

Piracy and Care are not always immediately relatable notions. The figure of the pirate in popular and media cultures is often associated with cunning intelligence and masculine modes of action, of people running servers which are allowing people to illegally download music or movie files. One of the very first organizations that articulated the stakes of sharing knowledge was actually named Piratbyrån. “When you pirate mp3s, you are downloading communism” was a popular motto at the time. And yet, bringing the idea of a pirate ethics into resonance with contemporary modes of care invites a different consideration for practices that propose a paradigm change and therefore inevitably position themselves in tricky positions vis-à-vis the law and the status quo. I have been noticing for a while now that another kind of contemporary pirate is coming to the fore in our messy society in the midst of many crises. This new kind of pirate could be best captured by another image: this time it is a woman, standing on the dock of a boat sailing through the Caribbean sea towards the Mexican Gulf, about to deliver abortion pills to other women for whom this option is illegal in their country.

Women on Waves, founded in 1999, engages in its abortion-on-boat missions every couple of years. They are mostly symbolic actions, as they are rather expensive operations, and yet they are potent means for stirring public debate and have often been met with hostility — even military fleets. So far, they have visited seven countries so far, including Mexico, Guatemala and, more recently, Ireland and Poland, where feminists movements have been mobilizing in huge numbers to reclaim reproductive rights.

According to official statistics, more than 47,000 women die every year from complications resulting from illegal, unsafe abortion procedures, a service used by over 21 million women who do not have another choice. As Leticia Zenevich, spokesperson of Women on Waves, told HuffPost: “The fact that women need to leave the state sovereignty to retain their own sovereignty ― it makes clear states are deliberately stopping women from accessing their human right to health.” Besides the boat campaigns, the organization also runs Women on Web, an online medical abortion service active since 2005. The service is active in 17 languages, and it is helping more than 100,000 women per year to get information and access abortion pills. More recently, Women on Waves also begun experimenting with the use of drones to deliver the pills in countries impacted by restrictive laws (such as Poland in 2015 and Northern Ireland in 2016).

Women on Waves are the perfect figure to begin to illustrate my idea of ‘pirate care’. By this term I want to bring attention to an emergent phenomenon in the contemporary world, where more and more often initiatives that want to bring support and care to the most vulnerable subjects in the most unstable situations, increasingly have to do so by operating in that grey zone that exists between the gaps left open by various rules, laws and technologies. Some thrive in this shadow area, carefully avoiding calling attention to themselves for fear of attracting ferocious polemics and the trolling that inevitably accompanies them. In other cases, care practices that were previously considered the norm have now been pushed towards illegality.

Consider for instance the situation highlighted by the Docs Not Cops campaign that started in the UK four years ago, when the government had just introduced its ‘hostile environment’ policy with the aim to make everyday life as hard as possible for migrants with an irregular status. Suddenly, medical staff in hospitals and other care facilities were supposed to carry out document checks before being allowed to offer any assistance. Their mobilization denounced the policy as an abuse of mandate on the part of the Home Office and a threat to public health, given that it effectively discouraged patients to seek help for fear of retaliations. Another sadly famous example of this trend of pushing many acts of care towards illegality would the straitjacketing and criminalization of migrant rescuing NGOs in the Mediterranean on the part of various European countries, a policy led by Italian government. Yet another example would be the increasing number of municipal decrees that make it a crime to offer food, money or shelter to the homeless in many cities in North America and Europe.
Hacker Ethics

This scenario reminds us of the tragic story of Antigone and the age-old question of what to do when the relationship between what the law says and one what feels it is just becomes fraught with tensions and contradictions. Here, the second meaning of ‘pirate care’ becomes apparent as it points to the way in which a number of initiatives have been responding to the current crisis by mobilizing tactics and ethics as first developed within the hacker movement.

As described by Steven Levy in Hackers, the general principles of a hacker ethic include sharing, openness, decentralization, free access to knowledge and tools, and an effort of contributing to society’s democratic wellbeing. To which we could add, following Richard Stallman, founder of the free software movement, that “bureaucracy should not be allowed to get in the way of doing anything useful.” While here Stallman was reflecting on the experience of the M.I.T. AI Lab in 1971, his critique of bureaucracy captures well a specific trait of the techno-political nexus that is also shaping the present moment: as more technologies come to mediate everyday interactions, they are also reshaping the very structure of the institutions and organizations we inhabit, so that our lives are increasingly formatted to meet the requirements of an unprecedented number of standardised procedures, compulsory protocols, and legal obligations.

According to anthropologists David Graeber, we are living in an era of “total bureaucratization”. But while contemporary populism often presents bureaucracy as a problem of the public sector, implicitly suggesting “the market” to be the solution, Graeber’s study highlights how historically all so-called “free markets” have actually been made possible through the strict enforcement of state regulations. Since the birth of the modern corporation in 19th century America, “bureaucratic techniques (performance reviews, focus groups, time allocation surveys …) developed in financial and corporate circles came to invade the rest of society — education, science, government — and eventually, to pervade almost every aspect of everyday life.”
The forceps and the speculum

And thus, in resonance with the tradition of hacker ethics, a number of ‘pirate care’ practices are intervening in reshaping what looking after our collective health will look like in the future. CADUS, for example, is a Berlin based NGO which has recently set up a Crisis Response Makerspace to build open and affordable medical equipment specifically designed to bring assistance in extreme crisis zones where not many other organizations would venture, such as Syria and Northern Iraq. After donating their first mobile hospital to the Kurdish Red Crescent last year, CADUS is now working to develop a second version, in a container this time, able to be deployed in conflict zones deprived of any infrastructure, and a civil airdrop system to deliver food and medical equipment as fast as possible. The fact that CADUS adopted the formula of the makerspace to invent open emergency solutions that no private company would be interested in developing is not a coincidence, but emerges from a precise vision of how healthcare innovations should be produced and disseminated, and not only for extreme situations.

“Open source is the only way for medicine” — says Marcus Baw of Open Health Hub — as “medical software now is medicine”. Baw has been involved in another example of ‘pirate care’ in the UK, founding a number of initiatives to promote the adoption of open standards, open source code, and open governance in Health IT. The NHS spends about £500 million each time it refreshes Windows licenses, and aside from avoiding the high costs, an open source GP clinical system would be the only way to address the pressing ethical issue facing contemporary medicine: as software and technology become more and more part of the practice of medicine itself, they need to be subject to peer-review and scrutiny to assess their clinical safety. Moreover, that if such solutions are found to be effective and safe lives, it is the duty of all healthcare practitioners to share their knowledge with the rest of humanity, as per the Hippocratic Oath. To illustrate what happens when medical innovations are kept secret, Baw shares the story of the Chamberlen family of obstetricians, who kept the invention of the obstetric forceps, a family trade secret for over 150 years, using the tool only to treat their elite clientele of royals and aristocracy. As a result, thousands of mothers and babies likely died in preventable circumstances.

It is perhaps significant that such a sad historical example of the consequences ofclosed medicine must come from the field of gynaecology, one of the most politically charged areas of medical specialization to this day. So much so that last year another collective of ‘pirate carers’ named GynePunk developed a biolab toolkit for emergency gynaecological care, to allow those excluded from the reproductive healthcare — undocumented migrants, trans and queer women, drug users and sex workers — to perform basic checks on their own bodily fluids. Their prototypes include a centrifuge, a microscope and an incubator that can be cheaply realised by repurposing components of everyday items such as DVD players and computer fans, or by digital fabrication. In 2015, GynePunk also developed a 3D-printable speculum and — who knows? — perhaps their next project might include a pair of forceps…

As the ‘pirate care’ approach keeps proliferating more and more, its tools and modes of organizing is keeping alive a horizon in which healthcare is not de facto reduced to a privilege.

PS. This article was written before the announcement of the launch of Mediterranea, which we believe to be another important example of pirate care. #piratecare #abbiamounanave

USDC
Opinion: Elsevier against SciHub and LibGen
2015


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------

15 Civ. 4282(RWS)
OPINION

ELSEVIER INC., ELSEVIER B.V., and ELSEVIER LTD.,

Plaintiffs,

- against -

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

Defendants.

----------------------------------------

APPEARANCES

Attorneys for the Plaintiffs

DEVORE & DEMARCO LLP
99 Park Avenue, Suite 1100
New York, NY 1001 6
By:
Joseph DeMarco, Esq.
David Hirschberg, Esq.
Urvashi Sen, Esq.

Pro Se

Alexandra Elbakyan
Almaty, Kazakhstan

1

Sweet, D.J.,

Plaintiffs Elsevier Inc., Elsevier B.V., and Elsevier, Ltd. (collectively, "Elsevier" or the "Plaintiffs") have moved for a preliminary injunction preventing defendants Sci-Hub, Library Genesis Project (the " Project"), Alexandra Elbakyan ("Elbakyan"), Bookfi.org, Elibgen.org, Erestroresollege.org, and Libgen.info (collectively, the "Defendants") from distributing works to which Elsevier owns the copyright. Based upon the facts and conclusions below, the motion is granted and the Defendants are prohibited from distributing the Plaintiffs' copyrighted works.

Prior Proceedings

Elsevier, a major publisher of scientific journal articles and book chapters, brought this action on June 2, 2015, alleging that the Defendants, a series of websites affiliated with the Project (the "Website Defendants") and their owner and operator, Alexandra Elbakyan, infringed Elsevier's copyrighted works and violated the Computer Fraud and Abuse Act. (See generally Complaint, Dkt. No. 1.) Elsevier filed the instant motion for a preliminary injunction on June 11, 2015, via an Order to Show Cause. (Dkt. Nos. 5-13.) On June 18, 2015, the Court granted

2

Plaintiffs' Order to Show Cause and authorized service on the

Defendants via email.
week,

(Dkt.

No.

1 5.)

During the following

the Plaintiffs served the Website Defendants via email and

Elbakyan via email and postal mail.
On July 7,
Part One Judge,
and Elbakyan,

2015,

See Dkt.

Nos.

the Honorable Ronnie Abrams,

24-31. )
acting as

held a telephone conference with the Plaintiffs

during which Elbakyan acknowledged receiving the

papers concerning this case and declared that she did not intend
to obtain a lawyer.
conference,

(See Transcript,

Dkt.

No.

38. )

After the

Judge Abrams issued an Order directing Elbakyan to

notify the Court whether she wished assistance in obtaining pro
bono counsel,
se,

and advising her that while she could proceed pro

the Website Defendants,

not being natural persons,
(Dkt. No.

obtain counsel or risk default.

telephonic conference was held on July 14 ,

must

3 6. )

A second

2015,

during which

Elbakyan stated that she needed additional time to find a
lawyer.

( See Transcript,

the request,

Dkt.

No.

4 2. )

Judge Abrams granted

but warned Elbakyan th�t "you have to move quickly

both in attempting to retain an attorney and you' ll have to
stick to the schedule that is set once it' s set. "
After the telephone conference,

(Id.

at 6. )

Judge Abrams issued another

Order setting the preliminary injunction hearing for September
1 6 and directing Elbakyan to inform the Court by July 21 if she
wished assistance in obtaining pro bono counsel.
3

(Dkt. No.

4 0. )

The motion for a preliminary injunction was heard on
September 1 6,
hearing,

201 5.

None of the Defendants appeared at the

although Elbakyan sent a two-page letter to the court

the day before.

(Dkt. No.

50.)

Applicable Standard

Preliminary injunctions are "extraordinary and drastic
remed[ies]

that should not be granted unless the movant,

clear showing,
Armstrong,

carries the burden of persuasion. "

5 20 U. S.

district court may,

9 68,

972 (1997).

by a

Mazurek v.

In a copyright case,

at its discretion,

a

grant a preliminary

injunction when the plaintiffs demonstrate 1) a likelihood of
success on the merits,
injunction,
favor,

2) irreparable harm in the absence of an

3) a balance of the hardships tipping in their

and 4 ) that issuance of an injunction would not do a

disservice to the public interest.
F. 3d 27 5,

278 ( 2d Cir.

W PIX,

Inc.

v. ivi,

Inc.,

691

2012).

The Motion is Granted

With the exception of Elbakyan,

none of the Defendants

filed any opposition to the instant motion,

participated in any

hearing or telephone conference, or in any other way appeared in
4

the case.

Although Elbakyan acknowledges that she is the "main

operator of sci-hub. erg website"
only represent herself pro

se;

(Dkt.

No.

50 at 1. ), she may

since the Website Defendants are

not natural persons, they may only be represented by an attorney
See Max Cash Media, Inc.

admitted to practice in federal court.
v.

Prism Corp. , No.

(S.D. N. Y.

12 Civ.

147, 2012 WL 2861 162, at *1

July 9, 2012);

Auth. , 722 F. 2d 20, 22

(2d Cir.

1983)

(stating reasons for the

rule and noting that it is "venerable and widespread").

Because

the Website Defendants did not retain an attorney to defend this
action, they are in default.
However, the Website Defendants' default does not
the Plaintiffs to an injunction, nor does

automatically entit

the fact that Elbakyan's submission raises no mer
challenge to the Plaintiffs' claims.
Music, No.
2015).

13 Civ.

s-based

See Thurman v.

5194, 2015 WL 2 168134, at *4

Bun Bun
May 7,

(S. D. N. Y.

Instead, notwithstanding the default, the Plaintiffs

must present evidence sufficient to establish that they are
entitled to injunctive relief.
Curveal Fashion, No.
(S. D. N. Y.
Cir.

09 Civ.

Jan 20, 2010);

See id. ;

Inc.

v.

8458, 2010 WL 308303, at *2

CFTC v.

Vartuli, 228 F. 3d 94, 98

2000).

A. Likelihood of S

Gucci Am.,

ss on the
5

rits

(2d

, -

Elsevier has established that the Defendants have
reproduced and distributed its copyrighted works,
of the exclusive rights established by 17
Complaint,

Dkt. No. 1,

at 11-13.)

(1)

"two elements must be

ownership of a valid copyright,

and

(2)

copying of

constituent elements of the work that are original."
Records,

LLC v. Doe 3,

Feist Publ'ns,

See

U.S.C. § 106.

In order to prevail on a

claim for infringement of copyright,
proven:

in violation

604 F.3d 110,

117

Arista

(2d Cir. 2010)

Inc. v. Rural Tel. Serv. Co.,

499 U.S.

(quoting

340,

361

(1991) ) .
Elsevier has made a substantial evidentiary showing,
documenting the manner in which the Defendants access its
ScienceDirect database of scientific literature and post
copyrighted material on their own websites free of charge.
According to Elsevier,

the Defendants gain access to

ScienceDirect by using credentials fraudulently obtained from
educational institutions,

including educational institutions

located in the Southern District of New York,
legitimate access to ScienceDirect.
Woltermann

(the "Woltermann Dec.") ,

which are granted

(See Declaration of Anthony
Dkt. No. 8,

at 13-14.)

As

an attachment to one of the supporting declarations to this
motion,

Elsevier includes a sequence of screenshots showing how

a user could go to �ww.sc�-hub.org,
6

one of the Website

Defendants,

search for information on a scientific article,

a set of search results, click on a link,
copyrighted article on ScienceDirect,

get

and be redirected to a

via a proxy.

See

Elsevier also points to a

Walterman Dec. at 41-44 and Ex. U.)

Twitter post (in Russian) indicating that whenever an article is
downloaded via this method,
own servers.
1 2,

Ex.

B.)

the Defendants save a copy on their

(See Declaration of David M. Hirschberg,
As specific examples,

with their copyright registrations.
Dkt.

No. 9,

Exs. B-D.)

No.

Elsevier includes copies of

two of its articles accessed via the Defendants'

Doda,

Dkt.

websites,

along

(Declaration of Paul F.

This showing demonstrates a

likelihood of success on Elsevier' s copyright infringement
claims.
Elsevier also shows a likelihood of success on its claim
under the Computer Fraud and Abuse Act ("CFAA").
prohibits,

inter alia,

The CFAA

obtaining information from "any protected

computer" without authorization,

18 U.S. C. § 1030(a)(2)(C),

and

obtaining anything of value by accessing any protected computer
with intent to defraud.

Id.

§ (a) (4).

The definition of

"protected computer" includes one "which is used in or affecting
interstate or foreign commerce or communication,

including a

computer located outside the United States that

is used in a

manner that affects interstate or foreign commerce or
communication of the United States."
7

I .

§ (e) (2) (B);

Nexans

Wires S. A.
2006).

v.

Sa

Inc.

166 F.

App'x 559, 562 n. 5

(2d Cir.

Elsevier's ScienceDirect database is located on multiple

servers throughout the world and is accessed by educational
institutions and their students, and qualifies as a computer
used in interstate commerce, and therefore as a protected
computer under the CFAA.

See Woltermann Dec.

at 2-3. )

As

found above, Elsevier has shown that the Defendants' access to
ScienceDirect was unauthorized and accomplished via fraudulent
university credentials.

While the C fAA requires a civil

plaintiff to have suffered over $5,000 in damage or loss, see
Register. com, Inc.

v.

Verio, Inc. , 356 F. 3d 393, 439

(2d Cir.

2004), Elsevier has made the necessary showing since it
documented between 2,000 and 8,500 of its articles being added
to the LibGen database each day

(Woltermann Dec.

at 8, Exs.

G &

H) and because its articles carry purchase prices of between
$19. 95 and $41. 95 each.
Leon, No.

12 Civ.

Id.

at 2;

see Millennium TGA, Inc.

1360, 2013 WL 5719079, at *10

(E. D. N.Y.

v.

Oct.

18, 2013). 1
Elsevier's evidence is also buttressed by Elbakyan's
submission, in which she frankly admits to copyright
infringement.

1

(See Dkt.

No.

50.)

She discusses her time as a

While Elsevier's articles are likely sufficient on their own to qualify as

"[]thing[s]

of value" under the CFAA,

Elbakyan acknowledges in her submission

that the Defendants derive revenue from their website.
50,

at

1

{"That is true that website collects donations,

pressure anyone to send them.").)

8

Letter,

Dkt. No.

however we do not

student at a university in Kazakhstan, where she did not have
access to research papers and found the prices charged to be
just insane.
(Id.

at 1.)

She obtained the papers she needed

"by pirating them," and found may similar students and
researchers, predominantly in developing count

s, who were in

similar situations and helped each other illicitly obtain
research materials that they could not access legitimately or
afford on the open market.

Id.)

As Elbakyan describes it, "I

could obtain any paper by pirating it, so I solved many requests
and people always were very grateful for my help.

After that, I

created sci-hub.org website that simply makes this process
automatic and the website immediately became popular."

(Id.)

Given Elsevier's strong evidentiary showing and Elbakyan's
admissions, the first prong of the preliminary injunction test
is firmly established.

B. Irreparable Harm

Irreparable harm is present "where, but for the grant of
equitable relief, there is a substantial chance that upon final
resolution of the action the parties cannot be returned to the
positions they previously occupied."

Brenntag Int'l Chems.,

Inc. v. Bank of India, 175 F.3d 245, 249

(2d Cir. 1999).

Here,

there is irreparable harm because it is entirely likely that the
9

•'

damage to Elsevier could not be effectively quantified.
Register.com,

356 F.3d at 404

{"irreparable harm may be found

where damages are difficult to establish and measure.").
would be difficult,

if not impossible,

It

to determine how much

money the Plaintiffs have lost due to the availability of
thousands of their articles on the Defendant websites;

some

percentage of those articles would no doubt have been paid for
legitimately if they were not downloadable for free,

but there

appears to be no way of determining how many that would be.
There is also the matter of harm caused by "viral infringement, "
where Elsevier's content could be transmitted and retransmitted
by third parties who acquired it from the Defendants even after
the Defendants' websites were shut down.
Inc.,
275

765 F. Supp. 2d 594,

(2d Cir. 2012).

620

(S.D.N.Y.

See WPIX,
2011),

'to prove the loss of sales due to

infringement is .

notoriously difficult.'"

Colting,

81

607 F.3d 6 8,

(2d Cir. 2010)

Corp. v. Petri-Kine Camera Co.,
(Friendly,

aff'd 691 F.3d

"(C]ourts have tended to issue injunctions

in this context because

1971)

Inc. v. ivi,

Salinger v.

(quoting Omega Importing

451 F.2d 1190,

1195

(2d Cir.

J.)).

Additionally,

the harm done to the Plaintiffs is likely

irreparable because the scale of any money damages would
dramatically exceed Defendants' ability to pay.
F.3d at 249-50

Brenntag,

175

(explaining that even where money damages can be
10

quantified, there is irreparable harm when a defendant will be
unable to cover the damages).
Defendants'

It is highly likely that the

activities will be found to be willful - Elbakyan

herself refers to the websites'

activities as "pirating" (Dkt.

No. 50 at 1) - in which case they would be liable for between
$750 and $150,000 in statutory damages for each pirated work.
See 17 U.S.C.

§ 504(c);

HarperCollins Publishers LLC v. Open

Road Integrated Media, LLP, 58 F.
2014).

Supp. 3d 380, 38 7 (S.D.N.Y.

Since the Plaintiffs credibly allege that the Defendants

infringe an average of over 3,000 new articles each day
(Woltermann Deel. at 7), even if the Court were to award damages
at the lower end of the statutory range the Defendants'
liability could be extensive.

Since the Defendants are an

individual and a set of websites supported by voluntary
donations, the potential damages are likely to be far beyond the
Defendants'

ability to pay.

C. Balance of Hardships

The balance of hardships clearly tips in favor of the
Plaintiffs.

Elsevier has shown that it is likely to succeed on

the merits, and that it continues to suffer irreparable harm due
to the Defendants'
free.

making its copyrighted material available for

As for the Defendants, "it is axiomatic that an infringer
11

of copyright cannot complain about the loss of ability to offer
its infringing product."
omitted).

W PIX,

691 F.3d at 287 (quotation

The Defendants cannot be legally harmed by the fact

that they cannot continue to steal the Plaintiff' s content,

even

See id.

if they tried to do so for public-spirited reasons.

D. Public Interest

To the extent that Elbakyan mounts a legal challenge to the
motion for a preliminary injunction,
interest prong of the test.

it is on the public

In her letter to the Court,

notes that there are "lots of researchers .

she

. especially in

developing countries" who do not have access to key scientific
papers owned by Elsevier and similar organizations,

and who

cannot afford to pay the high fees that Elsevier charges.
No.

50,

at 1.)

Elbakyan states in her letter that Elsevier
operates by racket:
any papers.

(Dkt.

if you do not send money,

On my website,

as they want for free,

you will not read

any person can read as many papers

and sending donations is their free will.

Why Elsevier cannot work like this,

(Id.)

I wonder?
Elbakyan

also notes that researchers do not actually receive money in
exchange for granting Elsevier a copyright.

Id.)

Rather,

she

alleges they give Elsevier ownership of their works "because
Elsevier is an owner of so-called
12

'high-impact'

journals.

If a

researcher wants to be recognized,

make a career - he or she

needs to have publications in such journals.n

{ Id. at 1-2.)

Elbakyan notes that prominent researchers have made attempts to
boycott Elsevier and states that "[t]he general opinion in
research community is that research papers should be distributed
for free (open access),

not sold.

And practices of such

companies like Elsevier are unacceptable,
distribution of knowledge."

because they limit

ld. at 2.)

Elsevier contends that the public interest favors the
issuance of an injunction because doing so will "protect the
delicate ecosystem which supports scientific research
worldwide."

(Pl.'s Br.,

Dkt. No. 6,

at 21.)

It states that the

money it generates by selling access. to scientific research is
used to support new discoveries,
maintain a "de
discovery."

to create new journals,

and to

nitive and accurate record of scientif

( Id.)

It also argues that allowing its articles to

be widely distributed

sks the spread of bad science - while

Elsevier corrects and retracts articles whose conclusions are
later found to be flawed,

it has no way of doing so when the

content is taken out of its control.

Id. at 22.)

Lastly,

Elsevier argues that injunctive relief against the Defendants is
important to deter "cyber-crime," while

ling to issue an

injunction will incentivize pirates to continue to publish
copyrighted works.
13

It cannot be denied that there is a compelling public
interest in fostering scientific achievement, and that ensuring
broad access to scientific research is an important component of
that effort.

As the Second Circuit has noted, "[c]opyright law

inherently balances [] two competing public interests .

.

. the

rights of users and the public interest in broad accessibility
of creative works, and the rights of copyright owners and the
public interest in rewarding and incentivizing creative efforts
(the

'owner-user balance' )."

WPIX, 691 F.3d at 287 .

Elbakyan' s

solution to the problems she identifies, simply making
copyrighted content available for free via a foreign website,
disserves the public interest.

As the Plaintiffs have

established, there is a "delicate ecosystem which supports
scientific research worldwide,"

( Pl.' s Br., Dkt. No. 6 at 21),

and copyright law pays a critical function within that system.
"Inadequate protections for copyright owners can threaten the
very store of knowledge to be accessed; encouraging the
production of creative work thus ultimately serves the public' s
interest in promoting the accessibility of such works. "
691 F.3d at 287 .

W PIX,

The existence of Elsevier shows that

publication of scient ific research

generates substantial

economic value.
The public' s interest in the broad diffusion of scientific
knowledge is sustained by two critical exceptions in copyright
14

law.

First,

the "idea/expression dichotomy" ensures that while

a scientific article may be subject to copyright,

the ideas and

See 17 U. S.C. § 102(b)

insights within that article are not.

("In no case does copyright protection for an original work of
authorship extend to any idea,

procedure,

method of operation,

concept,

to this distinction,

every idea,

principle,

process,

system,

or discovery").

theory,

"Due

and fact in a

copyrighted work becomes instantly available for public
exploitation at the moment of publication."
537 U.S. 186,

219

(2003).

So while Elsevier may be able to keep

its actual articles behind a paywall,
them are fair game for anyone.
doctrine,

comment,

the discoveries within

Secondly,

codified at 17 U.S.C. § 107,

expressions,

as well as ideas,

news reporting,

Eldred v. Ashcroft,

the "fair use"

allows the public to use

nfor purposes such as criticism,

teaching .

.

.

scholarship,

or

research" without being liable for copyright infringement.

(emphasis added)

Under this doctrine,

themselves may be taken and used,
purposes,

Elsevier' s articles

bu.t only for legitimate

and not for wholesale infringement.

U.S. at 219.2

See Eldred,

537

The public interest in the broad dissemination and

use of scientific research is protected by the idea/expression
dichotomy and the fair use doctrine.

2

See Golan v. Holder,

The public interest in wide d1sseminat1on of scientific works

by the fact that copyrights are given only limited

464

15

U.S.

duration.

417, 431-32

132

is also served

See Sony Corp.

(1984).

S.

Ct. 873,

890 (2012);

Eldred,

537 U.S. at 219.

Given the

importance of scientific research and the critical role that
copyright plays in promoting it,

the public interest weighs in

favor of an injunction.

Conclusion

For the reasons set forth above,

It is hereby ordered that:

preliminary injunction is granted.

1. The Defendants,
agents,

their officers,

servants,

employees,

the motion for a

directors,

principals,

successors and assigns,

and

all persons and entities in active concert or participation
with them,

are hereby temporarily restrained from unlawful

access to,

use,

reproduction,

and/or distribution of

Elsevier's copyrighted works and from assisting,

aiding,

or

abetting any other person or business entity in engaging in
unlawful access to,

use,

reproduction,

and/or distribution

of Elsevier' s copyrighted works.
2. Upon the Plaintiffs'

request,

have registered Defendants'

those organizations which

domain names on behalf of

Defendants shall disclose immediately to the Plaintiffs all
information in their possession concerning the identity of
the operator or registrant of such domain names and of any
16

bank accounts or financial accounts owned or used by such
operator or registrant.
3. Defendants shall not transfer ownership of the Defendants'
websites during the pendency of this Action,

or until

further Order of the Court.
4. The TLD Registries for the Defendants'
administrators,

websites,

or their

shall place the domain names on

registryHold/serverHold as well as serverUpdate,
serverDelete,

and serverTransfer prohibited statuses,

until

further Order of the Court.
5. The Defendants shall preserve copies of all computer files
relating to the use of the websites and shall take all
necessary steps to retrieve computer files relating to the
use of the websites that may have been deleted before entry
of this Order.
6. That security in the amount of $ 5, 000 be posted by the
Plaintiffs within one week of the entry of this Order.
Fed.

R.

Civ.

P. 6 5(c).

17

See

It is so ordered.

New York,

fY
October ? ;--1

2015
R BERT W. SWEET

U.S.D.J.

18


 

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