defendants in USDC 2015


rg, Esq.
Urvashi Sen, Esq.

Pro Se

Alexandra Elbakyan
Almaty, Kazakhstan

1

Sweet, D.J.,

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

Prior Proceedings

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

2

Plaintiffs' Order to Show Cause and authorized service on the

Defendants via email.
week,

(Dkt.

No.

1 5.)

During the following

the Plaintiffs served the Website Defendants via email and

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

2015,

See Dkt.

Nos.

the Honorable Ronnie Abrams,

24-31. )
acting as

held a telephone conference with the Plaintiffs

during which Elbakyan acknowledged


ce,

(See Transcript,

Dkt.

No.

38. )

After the

Judge Abrams issued an Order directing Elbakyan to

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

and advising her that while she could proceed pro

the Website Defendants,

not being natural persons,
(Dkt. No.

obtain counsel or risk default.

telephonic conference was held on July 14 ,

must

3 6. )

A second

2015,

during which

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

( See Transcript,

t


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

(Dkt. No.

4 0. )

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

201 5.

None of the Defendants appeared at the

although Elbakyan sent a two-page letter to the court

the day before.

(Dkt. No.

50.)

Applicable Standard

Preliminary injunctions are "extraordinary and drastic
remed[ies]

that should not be granted unless the movant,

clear sho


ps tipping in their

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

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

278 ( 2d Cir.

W PIX,

Inc.

v. ivi,

Inc.,

691

2012).

The Motion is Granted

With the exception of Elbakyan,

none of the Defendants

filed any opposition to the instant motion,

participated in any

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

the case.

Although Elbakyan acknowledges that she is the "main

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

se;

(Dkt.

No.

50 at 1. ), she may

since the Website Defendants are

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

admitted to practice in federal court.
v.

Prism Corp. , No.

(S.D. N. Y.

12 Civ.

147, 2012 WL 2861 162, at *1

July 9, 2012);

Auth. , 722 F. 2d 20, 22

(2d Cir.

1983)

(stating reasons for the

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

Because

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

automatically entit

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

13 Civ.

s-based

See Thurman v.

5194, 2015 WL 2 168134, at *


al Fashion, No.
(S. D. N. Y.
Cir.

09 Civ.

Jan 20, 2010);

See id. ;

Inc.

v.

8458, 2010 WL 308303, at *2

CFTC v.

Vartuli, 228 F. 3d 94, 98

2000).

A. Likelihood of S

Gucci Am.,

ss on the
5

rits

(2d

, -

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

Dkt. No. 1,

at 11-13.)

(1)

"two elements must be

ownership of a valid copyright,

and

(2)

copying of

constituent elements of the work


gement of copyright,
proven:

in violation

604 F.3d 110,

117

Arista

(2d Cir. 2010)

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

499 U.S.

(quoting

340,

361

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

the Defendants gain access to

ScienceDirect by using credentials fraudulently obtained from
educational institutions,

including educational institutions

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

(the "Wolterman


nceDirect,

get

and be redirected to a

via a proxy.

See

Elsevier also points to a

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

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

Ex.

B.)

the Defendants save a copy on their

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

with their copyright registrations.
Dkt.

No. 9,

Exs. B-D.)

No.

Elsevier includes copies of

two of its articles accessed via the Defendants'

Doda,

Dkt.

websites,

along

(Declaration of Paul F.

This showing demonstrates a

likelihood of success on Elsevier' s copyright infringement
claims.
Elsevier also shows a likelihood of success on its claim
under the Computer Fraud and Abuse Act


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

See Woltermann Dec.

at 2-3. )

As

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

While the C fAA requires a civil

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

v.

Verio, Inc. , 356 F. 3d 393, 4


s to copyright
infringement.

1

(See Dkt.

No.

50.)

She discusses her time as a

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

"[]thing[s]

of value" under the CFAA,

Elbakyan acknowledges in her submission

that the Defendants derive revenue from their website.
50,

at

1

{"That is true that website collects donations,

pressure anyone to send them.").)

8

Letter,

Dkt. No.

however we do not

student at a university in Kazakhstan, where she did not have
access to resea


free,

but there

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

765 F. Supp. 2d 594,

(2d Cir. 2012).

620

(S.D.N.Y.

See WPIX,
2011),

'to prove the loss of sales due to

infringement is .

notoriously difficult.'"

Colting,

81

607 F.3d 6 8,

(2d Cir. 2010)

Corp. v. Petri


ontext because

1971)

Inc. v. ivi,

Salinger v.

(quoting Omega Importing

451 F.2d 1190,

1195

(2d Cir.

J.)).

Additionally,

the harm done to the Plaintiffs is likely

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

Brenntag,

175

(explaining that even where money damages can be
10

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

It is highly likely that the

activities


ween
$750 and $150,000 in statutory damages for each pirated work.
See 17 U.S.C.

§ 504(c);

HarperCollins Publishers LLC v. Open

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

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

Since the Plaintiffs credibly allege that the Defendants

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

Since the Defendants are an

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

ability to pay.

C. Balance of Hardships

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

Elsevier has shown that it is likely to succeed on

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

making its copyrighted material available for

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

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

W PIX,

691 F.3d at 287 (quotation

The Defendants cannot be legally harmed by the fact

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

even

See id.

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

D. Public Interest

To the extent that Elbakyan mounts a legal challenge to the
mo


ence - while

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

it has no way of doing so when the

content is taken out of its control.

Id. at 22.)

Lastly,

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

ling to issue an

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

It cannot be denied that there is a compelling public
interest in fostering scientific achievement, and t


ntific research and the critical role that
copyright plays in promoting it,

the public interest weighs in

favor of an injunction.

Conclusion

For the reasons set forth above,

It is hereby ordered that:

preliminary injunction is granted.

1. The Defendants,
agents,

their officers,

servants,

employees,

the motion for a

directors,

principals,

successors and assigns,

and

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

are hereby temporarily restrained from unlawful

access


d works and from assisting,

aiding,

or

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

use,

reproduction,

and/or distribution

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

request,

have registered Defendants'

those organizations which

domain names on behalf of

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

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

or until

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

websites,

or their

shall place the domain names on

registryHold/serverHold as well as serverUpdate,
serverDelete,

and serverTransfer prohibited statuses,

until

further Order of the Court.
5. The Defendants shall preserve copies of all computer files
relating to the use of the websites and shall take all
necessary steps to retrieve computer files relating to the
use of the websites that may have been deleted before entry
of this Order.
6. That security

 

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