Elsevier Gets Pre-Trial Injunction Against Websites

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By Anandashankar Mazumdar

Nov. 2 — A global publisher of scientific journals has obtained a preliminary injunction against two websites that have allegedly been posting the publisher's articles in violation of its copyright interests, according to an Oct. 30 ruling by the U.S. District Court for the Southern District of New York.

Sci-Hub and the Library Genesis Project have been barred from disseminating works owned by academic and scientific publisher Elsevier B.V. of Amsterdam and its subsidiaries, Elsevier Inc. of New York and Elsevier Ltd. of London.

The court noted that one of the websites had been posting Elsevier articles at the rate of 3,000 a day, and a submission by a defendant “frankly admits to copyright infringement.”

Underlying Problem May Be Solved by Open Access 

According to a copyright practitioner who spoke to Bloomberg BNA, the case reflects the growing pains of the open-access movement, which has sought to make available to the public articles whose findings come out of government-supported research.

Washington-based copyright lawyer Jonathan Band said that today, many governments and other funders of scientific research—including the U.S. government—are conditioning research grants on a commitment to deposit the fruits of such research in public collections, often after 12 months of publication. However, the process is fairly new, he said, and there are researchers without access to scientific publications, especially in developing countries where such depositories have not yet been established.

“This problem will hopefully take care of itself over time, but you still have this transition period,” Band said. “You will have this inequality where, if you are affiliated with an institution that can afford these expensive subscriptions, you will have access to research, but if you are not,” then it will be harder to keep up with the field.

Using University Passwords to Download Articles 

Elsevier publishes approximately 2,000 scientific journals, including The Lancet—established in the 1820s and one of the world's oldest medical journals—and many other prestigious journals in a range of scientific fields. Those include several that academics depend on for publication credits that are available through its ScienceDirect subscription website.

Its subscription policies—along with those of other major publishers—have in recent years come under fire from institutional libraries that must subscribe for the benefit of their researchers and faculties. The open-access movement has grown up in response, to make research resulting from public funding more easily available.

Alleging copyright infringement, Elsevier sued the Library Genesis Project, also known as “LibGen,” and Sci-Hub, the latter of which is operated by Alexandra Elbakyan of Almaty, Kazakhstan. Elsevier alleged that Sci-Hub has been obtaining large quantities of copyrighted works through Science Direct by getting hold of student and faculty passwords and accessing Elsevier's materials without valid authorization. Sci-Hub then made the materials available through its own search engine and passed along copies to LibGen.

Band said the websites seemed to be operating outside the orbit of the legitimate open-access movement.

“That's completely different from the mainstream open-access movement, which is all about figuring out a legal way to make all this kind of material available,” he said.

Four-Part Preliminary Injunction Test Applied 

Elsevier's claims included direct copyright infringement, secondary infringement and violations of the Computer Fraud and Abuse Act, and it sought a preliminary injunction against the websites.

The court ruled that Elbakyan, who admitted to being the “main operator” of Sci-Hub, could only represent herself and not act for the websites themselves. Thus, the court found the websites in default.

Turning to the question of the motion for preliminary injunction, the court first found that Elsevier was likely to succeed on the merits of its infringement claims as well as on its claim of unauthorized access to a protected computer under the CFAA, 18 U.S.C. §1030.

“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,” the court said.

The court also referred to submissions by Elbakyan herself, in which she described her personal history while studying in Kazakhstan, “where she did not have access to research papers and found the prices charged to be ‘just insane.' ”

“She obtained the papers she needed ‘by pirating them,' ” the court said, and began helping others to do the same before using the experience to establish Sci-Hub.

Next, the court found that in the absence of a preliminary injunction, Elsevier was suffering irreparable harm through loss of sales through the infringement of “an average of over 3,000 new articles each day,” and any damages awarded would not compensate Elsevier because they would “dramatically exceed Defendants' ability to pay.”

Under the public interest prong of the injunction test, Elbakyan said in a letter to the court that shutting down the websites would harm the public interest by preventing access to scientific research by a wide range of scholars and scientists. Furthermore, she said, an injunction would prevent her from posting corrections to published articles.

However, the court said that the public was protected by the legal restriction that Elsevier could only restrict dissemination of its articles, not the factual information in them.

The Computer and Communications Industry Association and Internet Commerce Commission have filed an amicus brief in the case, objecting to any injunction that would apply to search engines, web-hosting services and Internet service providers that are not parties to the case.

Elsevier was represented by DeVore & DeMarco LLP, New York. Elbakyan represented herself.

To contact the reporter on this story: Anandashankar Mazumdar in Washington at amazumdar@bna.com

To contact the editor responsible for this story: Mike Wilczek in Washington at mwilczek@bna.com

Text is available at: http://src.bna.com/RU