evidentiary in USDC 2015

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.

akyan 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,

 

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