Elsevier Inc. et al v. Sci-Hub et al
OPINION re: 5 MOTION for Preliminary Injunction and Alternative Service of Process, filed by Elsevier Ltd., Elsevier B.V., Elsevier Inc. For the reasons set forth above, the motion for a preliminary injunction is granted. It is hereby ordered as further set forth in this Order. Security in the amount of $5,000 be posted by the Plaintiffs within one week of the entry of this Order. (Signed by Judge Robert W. Sweet on 10/28/2015) (spo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ELSEVIER INC., ELSEVIER B.V., and
- against OPINION
WWW.SCI-HUB.ORG, THE LIBRARY GENESIS
PROJECT, d/b/a LIBGEN.ORG, ALEXANDRA
ELBAKYAN, and JOHN DOES 1-99,
A P P E A R A N C E S
Attorneys for the Plaintiffs
DEVORE & DEMARCO LLP
99 Park Avenue, Suite 1100
New York, NY 10016
Joseph DeMarco, Esq.
David Hirschberg, Esq.
Urvashi Sen, Esq.
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, the
Library Genesis Project (the "Project"), Alexandra Elbakyan
("Elbakyan"), Bookfi.org, Elibgen.org, Erestroresollege.org, and
Libgen.info (collectively, the "Defendants")
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'
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.
Complaint, Dkt. No. 1.)
Elsevier filed the instant motion for a
preliminary injunction on June 11, 2015, via an Order to Show
(Dkt. Nos. 5-13.)
On June 18, 2015, the Court granted
Plaintiffs' Order to Show Cause and authorized service on the
Defendants via email.
(Dkt. No. 15.)
During the following
week, the Plaintiffs served the Website Defendants via email and
Elbakyan via email and postal mail.
(See Dkt. Nos. 24-31.)
On July 7, 2015, the Honorable Ronnie Abrams, acting as
Part One Judge, held a telephone conference with the Plaintiffs
and Elbakyan, during which Elbakyan acknowledged receiving the
papers concerning this case and declared that she did not intend
to obtain a lawyer.
(See Transcript, Dkt. No. 38.)
conference, Judge Abrams issued an Order directing Elbakyan to
notify the Court whether she wished assistance in obtaining pro
bono counsel, and advising her that while she could proceed pro
se, the Website Defendants, not being natural persons, must
obtain counsel or risk default.
telephonic conference was held on July 14, 2015, during which
Elbakyan stated that she needed additional time to find a
(See Transcript, Dkt. No.
the request, but warned Elbakyan
Judge Abrams granted
"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, Judge Abrams issued another
Order setting the preliminary injunction hearing for September
16 and directing Elbakyan to inform the Court by July 21 if she
wished assistance in obtaining pro bono counsel.
(Dkt. No. 40.)
.The motion for a preliminary injunction was heard on
September 16, 2015.
None of the Defendants appeared at the
hearing, although Elbakyan sent a two-page letter to the court
the day before.
(Dkt. No. 50.)
Preliminary injunctions are "extraordinary and drastic
remed[ies] that should not be granted unless the movant, by a
clear showing, carries the burden of persuasion."
Armstrong, 520 U.S. 968, 972 (1997).
In a copyright case, a
district court may, at its discretion, grant a preliminary
injunction when the plaintiffs demonstrate 1) a likelihood of
success on the merits, 2) irreparable harm in the absence of an
injunction, 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 275, 278
Inc. v. ivi, Inc., 691
(2d Cir. 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
Although Elbakyan acknowledges that she is the "main
operator of sci-hub.org website" (Dkt. No. 50 at 1.), she may
only represent herself pro se; since the Website Defendants are
not natural persons, they may only be represented by an attorney
admitted to practice in federal court.
See Max Cash Media,
v. Prism Corp., No. 12 Civ. 147, 2012 WL 2861162, at *1
(S.D.N.Y. July 9, 2012); Jones v. Niagara Frontier Transp.
Auth., 722 F.2d 20, 22
(2d Cir. 1983)
(stating reasons for the
rule and noting that it is "venerable and widespread") .
the Website Defendants did not retain an attorney to defend this
action, they are in default.
However, the Website Defendants' default does not
automatically entitle the Plaintiffs to an injunction, nor does
the fact that Elbakyan's submission raises no merits-based
challenge to the Plaintiffs' claims.
See Thurman v. Bun Bun
Music, No. 13 Civ. 5194, 2015 WL 2168134, at *4
(S.D.N.Y. May 7,
Instead, notwithstanding the default, the Plaintiffs
must present evidence sufficient to establish that they are
entitled to injunctive relief.
See id.; Gucci Am.,
Curveal Fashion, No. 09 Civ. 8458, 2010 WL 308303, at *2
(S.D.N.Y. Jan 20, 2010); CFTC v. Vartuli, 228 F.3d 94, 98
A. Likelihood of Success on the Merits
Elsevier has established that the Defendants have
reproduced and distributed its copyrighted works,
of the exclusive rights established by 17 U.S.C. § 106.
Complaint, Dkt. No. 1, at 11-13.)
In order to prevail on a
claim for infringement of copyright, "two elements must be
(1) ownership of a valid copyright, and (2) copying of
constituent elements of the work that are original."
Records, LLC v. Doe 3, 604 F.3d 110, 117 (2d Cir. 2010)
Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361
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, which are granted
legitimate access to ScienceDirect. · (See Declaration of Anthony
Woltermann (the "Woltermann Dec."), Dkt. No. 8, at 13-14.)
an attachment to one of the supporting declarations to this
motion, Elsevier includes a sequence of screenshots showing how
a user could go to
one of the Website
Defendants, search for information on a scientific article, get
a set of search results, click on a link, and be redirected to a
copyrighted article on ScienceDirect, via a proxy.
Wolterman Dec. at 41-44 and Ex. U.)
Twitter post (in Russian)
Elsevier also points to a
indicating that whenever an article is
downloaded via this method, the Defendants save a copy on their
12, Ex. B.)
(See Declaration of David M. Hirschberg, Dkt. No.
As specific examples, Elsevier includes copies of
two of its articles accessed via the Defendants' websites, along
with their copyright registrations.
(Declaration of Paul F.
This showing demonstrates a
Doda, Dkt. No. 9, Exs. B-D.)
likelihood of success on Elsevier's copyright infringement
Elsevier also shows a likelihood of success on its claim
under the Computer Fraud and Abuse Act
prohibits, inter alia, 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.
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."
(el (2) (B); Nexans
Wires S.A. v. Sark-USA,
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.)
found above, Elsevier has shown that the Defendants' access to
ScienceDirect was unauthorized and accomplished via fraudulent
While the CfAA requires a civil
plaintiff to have suffered over $5,000 in damage or loss, see
Inc. v. Verio,
Inc., 356 F.3d 393, 439
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.
Id. at 2; see Millennium TGA, Inc. v.
Leon, No. 12 Civ. 1360, 2013 WL 5719079, at *10 (E.D.N.Y. Oct.
Elsevier's evidence is also buttressed by Elbakyan's
submission, in which she frankly admits to copyright
(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.
(See Letter, Dkt. No.
50, at 1 ("That is true that website collects donations, however we do not
pressure anyone to send them.").)
student at a university in Kazakhstan, where she did not have
access to research papers and found the prices charged to be
(Id. at 1.)
She obtained the papers she needed
"by pirating them," and found may similar students and
researchers, predominantly in developing countries, 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.
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.
created sci-hub.org website that simply makes this process
automatic and the website immediately became popular."
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).
there is irreparable harm because it is entirely likely that the
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, 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.
See WPIX, Inc. v.
Inc., 765 F. Supp. 2d 594, 620 (S.D.N.Y. 2011), aff'd 691 F.3d
275 (2d Cir. 2012).
"[C]ourts have tended to issue injunctions
in this context because 'to prove the loss of sales due to
Colting, 607 F.3d 68, 81 (2d Cir. 2010)
(quoting Omega Importing
Corp. v. Petri-Kine Camera Co., 451 F.2d 1190, 1195 (2d Cir.
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 (explaining that even where money damages can be
quantified, there is irreparable harm when a defendant will be
unable to cover the damages).
It is highly likely that the
Defendants' 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. Supp. 3d 380, 387
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
Elsevier has shown that it is likely to succeed on
the merits, and that it continues to suffer irreparable harm due
to the Defendants' making its copyrighted material available for
As for the Defendants, "it is axiomatic that an infringer
of copyright cannot complain about the loss of ability to offer
its infringing product."
WPIX, 691 F.3d at 287
The Defendants cannot be legally harmed by the fact
that they cannot continue to steal the Plaintiff's content, even
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, it is on the public
interest prong of the test.
In her letter to the Court, she
notes that there are "lots of researchers .
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: if you do not send money, you will not read
On my website, any person can read as many papers
as they want for free, and sending donations is their free will.
Why Elsevier cannot work like this,
also notes that researchers do not actually receive money in
exchange for granting Elsevier a copyright.
alleges they give Elsevier ownership of their works "because
Elsevier is an owner of so-called 'high-impact'
researcher wants to be recognized, make a career - he or she
needs to have publications in such journals."
(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
(open access), not sold.
And practices of such
companies like Elsevier are unacceptable, because they limit
distribution of knowledge."
(Id. 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
(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, to create new journals, and to
maintain a "definitive and accurate record of scientific
It also argues that allowing its articles to
be widely distributed risks 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.)
Elsevier argues that injunctive relief against the Defendants is
important to deter "cyber-crime," while failing to issue an
injunction will incentivize pirates to continue to publish
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
As the Second Circuit has noted, "[c]opyright law
inherently balances  two competing public interests .
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.
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.
The existence of Elsevier shows that
publication of scientific research
The public's interest in the broad diffusion of scientific
knowledge is sustained by two critical exceptions in copyright
First, the "idea/expression dichotomy 11 ensures that while
a scientific article may be subject to copyright, the ideas and
insights within that article are not.
See 17 U.S.C. § 102(b)
("In no case does copyright protection for an original work of
authorship extend to any idea, procedure, process, system,
method of operation, concept, principle, or discovery 11 )
to this distinction, every idea, theory, and fact in a
copyrighted work becomes instantly available for public
exploitation at the moment of publication. 11
537 U.S. 186, 219 (2003).
Eldred v. Ashcroft,
So while Elsevier may be able to keep
its actual articles behind a paywall, the discoveries within
them are fair game for anyone.
Secondly, the "fair use 11
doctrine, codified at 17 U.S.C. § 107, allows the public to use
expressions, as well as ideas, "for purposes such as criticism,
comment, news reporting,
. scholarship, or
research 11 without being liable for copyright infringement.
Under this doctrine, Elsevier's articles
themselves may be taken and used, but only for legitimate
purposes, 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.
See Golan v. Holder, 132
The public interest in wide d1sseminat1on of scientific works is also served
by the fact that copyrights are given only limited duration.
See Sony Corp.
of Am. V. Universal City Studios, Inc., 464 U.S. 417, 431-32 (1984).
S. Ct. 873, 890 (2012); Eldred, 537 U.S. at 219.
importance of scientific research and the critical role that
copyright plays in promoting it, the public interest weighs in
favor of an injunction.
For the reasons set forth above, the motion for a
preliminary injunction is granted.
It is hereby ordered that:
1. The Defendants, their officers, directors, principals,
agents, servants, employees, 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, those organizations which
have registered Defendants' 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
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' websites, or their
administrators, 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. 65(c).
It is so ordered.
New York, NY
R BERT W. SWEET
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