This text was originally published in [The
Funambulist](https://thefunambulist.net/) - Issue 17, May-June 2018
"Weaponized Infrastructure".
__
In 2003 artist Jackie Summell started a correspondence with Herman Wallace,
who at the time was serving a life sentence in solitary confinement in the
Louisiana State Penitentiary in Angola, by asking him “What kind of a house
does a man who has lived in a 6′ x 9′ cell for over thirty years dream of?”
(1) The Louisiana State Penitentiary, the largest maximum-security prison in
the US, besides inmate quarters and among other facilities includes a prison
plantation, Prison View Golf Course, and Angola Airstrip. The nickname Angola
comes from the former slave plantation purchased for a prison after the end of
the Civil War – and where Herman Wallace became a prisoner in 1971 upon
charges of armed robbery. He became politically active in the prison's chapter
of the Black Panther and campaigned for better conditions in Angola,
organizing petitions and hunger strikes against segregation, rape, and
violence. In 1973, together with Albert Woodfox, he was convicted of murder of
a prison guard and both were put in solitary confinement. Together with Robert
King, Wallace and Woodfox would become known as the Angola 3, the three prison
inmates who served the longest period in solitary confinement – 29, 41, and 43
years respectively. The House that Herman Built, Herman's virtual and
eventually physical dream house in his birth city of New Orleans grew from the
correspondence between Jackie and Herman. At one point, Jackie asked Herman to
make a list of the books he would have on the book shelf in his dream house,
the books which influenced his political awakening. At the time Jackie was a
fellow at Akademie Schloss Solitude in Stuttgart, which supported acquisition
of the books and became the foundation of Herman's physical library on its
premises, waiting for his dream home to be built to relocate.
In 2013 the conviction against Herman Wallace was thrown out and he was
released from jail. Three days later he passed away. He never saw his dream
house built, nor took a book from a shelf in his library in Solitude, which
remained accessible to fellows and visitors until 2014. In 2014 Public
Library/Memory of the World (2) digitized Herman's library to place it online
thus making it permanently accessible to everyone with an Internet
connection(3). The spirit of Herman Wallace continued to live through the
collection shaping him – works by Marxists, revolutionaries, anarchists,
abolitionists, and civil rights activists, some of whom were also prisoners
during their lifetime. Many books from Herman's library would not be
accessible to those serving time, as access to knowledge for the inmate
population in the US is increasingly being regulated. A peak into the list of
banned books, which at one point included Michelle Alexander's The New Jim
Crow (The New Press, 2010), reveals the incentive of the ban was to prevent
access to knowledge that would allow inmates to understand their position in
society and the workings of the prison-industrial complex. It is becoming
increasingly difficult for inmates to have chance encounters with a book that
could change their lives; given access to knowledge they could see their
position in life from another perspective; they could have a moment of
revelation like the one Cle Sloan had. Sloan, a member of the Los Angeles gang
Bloods encountered his neighborhood Athens Park on a 1972 Los Angeles Police
Department 'Gang Territories' map in Mike Davis' book City of Quartz, which
made him understand gang violence in L.A. was a product of institutional
violence, structural racism, and systemic dispersal of community support
networks put in place by the Black Panther Party.
The books in Herman's library can be seen as a toolbox of “really useful
knowledge” for someone who has to conceive the notion of freedom. The term
“really useful knowledge” originated with workers' awareness of the need for
self-education in the early-19th century, describing a body of 'unpractical'
knowledge such as politics, economics, and philosophy, workers needed to
understand and change their position in society, and opposed 'useful
knowledge' – knowledge of 'practical' skills which would make them useful to
the employer. Like in the 19th century, sustaining the system relies on
continued exploitation of a population prevented from accessing, producing and
sharing knowledges needed to start to understand the system that is made to
oppress and to articulate a position from which they can act. Who controls the
networks of production and distribution to knowledge is an important issue, as
it determines which books are made accessible. Self-help and coloring books
are allowed and accessible to inmates so as to continue oppression and pacify
resistance. The crisis of access persists outside the prison walls with a
continuous decline in the number of public libraries and the books they offer
due to the double assault of austerity measures and a growing monopoly of the
corporate publishing industry.
Digital networks have incredible power to widely distribute content, and once
the (digital) content is out there it is relatively easy to share and access.
Digital networks can provide a solution for enclosure of knowledge and for the
oppressed, easier access to channels of distribution. At least that was the
promise – the Internet would enable a democratization of access. However,
digital networks have a significant capacity to centralize and control within
the realm of knowledge distribution, one look at the oligopoly of academic
publishing and its impact on access and independent production shows its
contrary.
In June 2015 Elsiver won an injunction against Library Genesis and its
subsidiary platform sci-hub.org, making it inaccessible in some countries and
via some commercial internet providers. Run by anonymous scientists mostly
from Eastern Europe, these voluntary and non-commercial projects are the
largest illegal repository of electronic books, journals, and articles on the
web (4). Most of the scientific articles collected in the repository bypassed
the paywalls of academic publishers using the solidary network of access
provided by those associated with universities rich enough to pay the
exuberant subscription fees. The only person named in the court case was
Alexandra Elbakyan, who revealed her identity as the creator of sci-hub.org,
and explained she was motivated by the lack of access: “When I was working on
my research project, I found out that all research papers I needed for work
were paywalled. I was a student in Kazakhstan at the time and our university
was not subscribed to anything.”(5) The creation of sci-hub.org made
scientific knowledge accessible to anyone, not just to members of wealthy
academic institutions. The act of acknowledging responsibility for sci-hub
transformed what was seen as the act of illegality (piracy) into the act of
civil disobedience. In the context of sci-hub and Library Genesis, both
projects from the periphery of knowledge production, “copyright infringement
opens on to larger questions about the legitimacy of the historic compromise –
if indeed there ever even was one – between the labor that produces culture
and knowledge and its commodification as codified in existing copyright
regulations.”(6) Here, disobedience and piracy have an equalizing effect on
the asymmetries of access to knowledge.
In 2008, programmer and hacktivist Aaron Swartz published Guerilla Open
Access Manifesto triggered by the enclosure of scientific knowledge production
of the past, often already part of public domain, via digitization. “The
world's entire scientific and cultural heritage, published over centuries in
books and journals, is increasingly being digitized and locked up by a handful
private corporations […] We need to download scientific journals and upload
them to file sharing networks. We need to fight for Guerilla Open Access.”(7)
On January 6, 2011, the MIT police and the US Secret Service arrested Aaron
Swartz on charges of having downloaded a large number of scientific articles
from one of the most used and paywalled database. The federal prosecution
decided to show the increasingly nervous publishing industry the lengths they
are willing to go to protect them by indicting Swartz on 13 criminal counts.
With a threat of 50 years in prison and US$1 million fine, Aaron committed
suicide on January 11, 2013. But he left us with an assignment – if you have
access, you have a responsibility to share with those who do not; “with enough
of us, around the world, we'll not just send a strong message opposing the
privatization of knowledge — we'll make it a thing of the past. Will you join
us?” (8) He pointed to an important issue – every new cycle of technological
development (in this case the move from paper to digital) brings a new threat
of enclosure of the knowledge in the public domain.
While “the core and the periphery adopt different strategies of opposition to
the inequalities and exclusions [digital] technologies start to reproduce”
some technologies used by corporations to enclose can be used to liberate
knowledge and make it accessible. The existence of projects such as Library
Genesis, sci-hub, Public Library/Memory of the World, aaaarg.org, monoskop,
and ubuweb, commonly known as shadow libraries, show how building
infrastructure for storing, indexing, and access, as well as supporting
digitization, can not only be put to use by the periphery, but used as a
challenge to the normalization of enclosure offered by the core. The people
building alternative networks of distribution also build networks of support
and solidarity. Those on the peripheries need to 'steal' the knowledge behind
paywalls in order to fight the asymmetries paywalls enforce – peripheries
“steal” in order to advance. Depending on the vantage point, digitization of a
book can be stealing, or liberating it to return the knowledge (from the dusty
library closed stacks) back into circulation. “Old” knowledge can teach new
tricksters a handful of tricks.
In 2015 I realized none of the architecture students of the major European
architecture schools can have a chance encounter with Architecture and
Feminisms or Sexuality and Space, nor with many books on similar topics
because they were typically located in the library’s closed stacks. Both books
were formative and in 2005, as a student I went to great lengths to gain
access to them. The library at the Faculty of Architecture in Belgrade, was
starved of books due to permanent financial crisis, and even bestsellers such
as Rem Koolhaas' S, M, L, XL were not available, let alone books that were
focused on feminism and architecture. At the time, the Internet could inform
that edited volumes such as Architecture and Feminism and Sexuality and Space
existed but nothing more. To satisfy my curiosity, and help me write a paper,
a friend sent – via another friend – her copies from London to Belgrade, which
I photocopied, and returned. With time, I graduated to buying my own second
hand copies of both books, which I digitized upon realizing access to them
still relied on access to a well-stocked specialist library. They became the
basis for my growing collection on feminism/gender/space I maintain as an
amateur librarian, tactically digitizing books to contribute to the growing
struggle to make architecture more equitable as both a profession and an
effect in space.
At the end, a confession, and an anecdote – since 2015, I have tried to
digitize a book a week and every year, I manage to digitize around 20 books,
so one can say I am not particularly good at meeting my goals. The books I do
digitize are related to feminism, space, race, urban riots, and struggle, and
I choose them for their (un)availability and urgency. Most of them are
published in the 1970s and 1980s, though some were published in the 1960s and
1990s. Some I bought as former library books, digitized on a DIY book scanner,
and uploaded to the usual digital repositories. It takes two to four hours to
make a neat and searchable PDF scan of a book. As a PDF, knowledge production
usually under the radar or long out of print becomes more accessible. One of
the first books I digitized was Robert Goodman's After the Planners, a
critique of urban planning and the limits of alternate initiatives in cities
written in the late 1960s. A few years after I scanned it, online photos from
a conference drew my attention –the important, white male professor was
showing the front page of After the Planners on his slide. I realized fast the
image had a light signature of the scanner I had used. While I do not know if
this act of digitization made a dent or was co-opted, seeing the image was a
small proof that digitization can bring books back into circulation and access
to them might make a difference – or that access to knowledge can be a weapon.
[Dubravka Sekulic](https://www.making-futures.com/contributor/sekulic/) writes
about the production of space. She is an amateur-librarian at Public
Library/Memory of the World, where she maintains feminist, and space/race
collections. During Making Futures School, Dubravka will be figuring out the
future of education (on all things spatial) together with [Elise
Hunchuck](https://www.making-futures.com/contributor/hunchuck/), [Jonathan
Solomon](https://www.making-futures.com/contributor/solomon/) and [Valentina
Karga](https://www.making-futures.com/contributor/karga/).
__
This text was originally published in The Funambulist - Issue 17, May-June
2018 "Weaponized Infrastrucuture". [A pdf version of it can be downloaded
here.](https://www.making-futures.com/wp-content/uploads/2019/05
/Dubravka_Sekulic-On_Knowledge_and_Stealing.pdf)
__
Notes:
(1) For more on the project Herman’s House. Accessed 6 April 2018.
(2) Public Library is a project which has been since 2012 developing and
publicly supporting scenarios for massive disobedience against the current
regulation of production and circulation of knowlde and culture in the digital
realm. See: ‘Memory of the World’. Accessed 7 April 2018.
(3) Herman's library can be accessed at[
http://herman.memoryoftheworld.org/](http://herman.memoryoftheworld.org/) More
on the context of digitization see: ‘Herman’s Library’. Memory of the World
(blog), 28 October 2014.
/hermans-library/>, and ‘Public Library. Rethinking the Infrastructures of
Knowledge Production’. Memory of the World (blog), 30 October 2014.
the-infrastructures-of-knowledge-production/.>
(4) For more on shadow libraries and library genesis see: Bodo, Balazs.
‘Libraries in the Post-Scarcity Era’. SSRN Scholarly Paper. Rochester, NY:
Social Science Research Network, 10 June 2015.
(5) ‘Sci-Hub Tears Down Academia’s “Illegal” Copyright Paywalls’. TorrentFreak
(blog), 27 June 2015.
illegal-copyright-paywalls-150627/.>
(6) For the schizophrenia of the current model of the corporate enclosure of
the scientific knowledge see: Mars, Marcell and Tomislav Medak, The System of
a Takedown, forthcoming, 2018
(7) Aaron Swartz. Guerilla Open Access Manifesto. Accessed 7 April 2018.[
http://archive.org/details/GuerillaOpenAccessManifesto.](http://archive.org/details/GuerillaOpenAccessManifesto.)
(8) Ibid.
(9) Mars, Marcell and Tomislav Medak, The System of a Takedown, forthcoming,
2018.
(10) See ‘In Solidarity with Library Genesis and Sci-Hub’.
http://custodians.online. Accessed 7 April 2018.
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.