Elsevier Granted Injunction Against Research Paper 'Pirate Site;' Which Immediately Moves To New Domain To Dodge It

from the MOLE-WHACKING-PROGRAM-DEEMED-TEMPORARY-SUCCESS! dept

The academic open access movement has gained traction over the past several years as more researchers have noticed their work disappearing behind incredibly expensive paywalls. What could be used to further the scientific world is instead being used to keep companies like Elsevier in prime financial health. Even publicly-funded research is largely unavailable, even to other researchers. Elsevier's participation in the open access movement has been to charge readers for access to open access documents. Recently, the hashtag #icanhazpdf has been used on Twitter to encourage the sharing of paywalled documents between researchers.

Not officially part of the open-access movement are repositories run by Alexandra Elbakyan, a researcher born and educated in Kazakhstan. Elbakyan's first efforts to liberate documents from behind publisher paywalls were limited to fulfilling requests made by other researchers in online forums. When she saw the demand far exceeded the supply, she automated the process, stashing the documents at Sci-Hub.org.

Elsevier sued Elbakyan for copyright infringement back in June, seeking an injunction against several domains (including LibGen). A New York judge granted the publisher's request on October 28th. Not that it appears to matter much, as Quirin Shiermeier of Nature reports.

Access to the site’s web domain was suspended following the injunction. But Sci-Hub, which is advertised as a service “to remove all barriers in the way of science”, has since moved to a different domain. Its revamped site continues to provide unauthorized free access to millions of papers.

Other pirate services, including Libgen, which also allows users to freely download audiobooks, and BookFi, a free repository of more than 2 million books, have also resurfaced on different Internet domains.
Elbakyan, perhaps unsurprisingly, feels the new domain doesn't violate the injunction.
Elbakyan, who was born and educated in Kazakhstan and is now based in Russia, says she doesn’t think that reviving her site violates the New York court ruling, because Sci-Hub is not a US-based company, and she is not a US citizen or resident of New York.
As a Russian citizen, Elbakyan is free to raise dubious legal arguments. There's not much Elsevier can do other than waste its own money stamping out new domains as they emerge. Elbakyan was the only defendant to respond to Elsevier's lawsuit (via mail). Her responses were more idealistic expressions than legal arguments, due to her personal stance on the issue of paywalled information and her position as a pro se defendant.
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… 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. Elbakyan states in her letter that Elsevier "operates by racket: if you do not send money, you will not read any papers. 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, I wonder?" Elbakyan also notes that researchers do not actually receive money in exchange for granting Elsevier a copyright. Rather, she alleges they give Elsevier ownership of their works "because Elsevier is an owner of so-called 'high-impact' journals."
All good points, but unlikely to move a US federal judge. Elbakyan's spoofing of university IP addresses to download papers free of charge does seem more aligned with the work of Aaron Swartz than the Pirate Bays of the world. But either way, the US court system -- and the government itself -- punishes people for disseminating information certain entities would rather let gather virtual dust behind expensive paywalls. (Elsevier's complaint also alleges violations of the CFAA.) The fact that many researchers can't even download copies of their own works without paying for them is completely ridiculous.

Unfortunately, none of this changes the fact that the law views it as copyright infringement. And it doesn't change the fact that anti-infringement efforts like Elsevier's will do little to curtail this sort of file sharing. What it could do is take a look at its pricing. Sometimes trimming the profit margin has more impact on copyright infringement than a fistful of federal lawsuits.




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  • identicon
    Anonymous Coward, 9 Dec 2015 @ 4:08pm

    Copyright does not protect facts

    Copyright does not protect facts. The wording is unimportant when descriptions are merely the barest possible statements of historical facts, and they could hardly be used at all without rather closely approximating the original wording. (Kane vs. Pennsylvania Broadcasting Co.)

    reply to this | link to this | view in chronology ]

  • icon
    Ehud Gavron (profile), 9 Dec 2015 @ 4:31pm

    Forced domain-name transfers

    The first time some lawyer for some IP plaintiff demanded the court hand over the defendant domain-name to the plaintiff everybody this it was absurd -- and it was. Now, it's not only taken for granted, but it's done regularly with no basis in law. Worse yet, the US DoJ and DHS set the example by "seizing" domain names without legal basis, holding them without legal basis and with no criminal nor civil charges, and eventually --years later-- restoring them.

    What is needed is for both the victims of this and the rest of us to stop begging the question and accepting that this is legitimate. There is no basis in law for this and we should exhort our lobbyist-bought-out "representatives" to be aware of this.

    Nobody can seize your home if you violate someone's trademark in it. Nobody can take the title to your car if you violate someone's copyright in it. Nobody can take your big billboard (Clearchannel-style) if you're putting an infringing advertisement on it. So if domain names are property, there is no precedent.

    If domain-names are intellectual property then I shudder to think of where they'd fit (copyright, trademark, patent, trade-secret) but in NONE of those cases do you give your patent over to someone who says you're using it to infringe. Same for copyrights, trademarks, and trade-secrets.

    It's time to quit ignoring the elephant in the room and get Congress to step up and stop the courts from taking a thing from one person and giving it to another without a basis in law. This is not Nottingham, and no IP plaintiff is Robin Hood.

    Ehud

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Dec 2015 @ 4:43pm

      Re: Forced domain-name transfers

      The Emperor is wearing no clothes. None of the seizures of sites like TBP or dotcoms companies have ever been based on fact. The closest they can come is to put together conspiracy to commit allegations that again have no legal basis.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 10 Dec 2015 @ 2:55am

        Re: Re: Forced domain-name transfers

        USG likes to forfeit and private property specially cash
        why not go "redistributionist" with websites?

        reply to this | link to this | view in chronology ]

    • icon
      Seegras (profile), 11 Dec 2015 @ 5:41am

      Re: Forced domain-name transfers

      It's an address. So if you violate somebodies copyright or trademark in your store, you get evicted. Right?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Dec 2015 @ 4:59pm

    Reminds me of "A Bug's Life"

    Hopper: You let one ant stand up to us, then they all might stand up! Those puny little ants outnumber us a hundred to one and if they ever figure that out there goes our way of life! It's not about food, it's about keeping those ants in line. That's why we're going back! Does anybody else wanna stay?

    [grasshoppers shocked - all the grasshoppers "rev up" their wings]

    ...


    Hopper: Let this be a lesson to all you ants! Ideas are very dangerous things! You are mindless, soil-shoving losers, put on this Earth to serve us!

    Flik: You're wrong, Hopper. Ants are not meant to serve grasshoppers. I've seen these ants do great things, and year after year they somehow manage to pick food for themselves *and* you. So-so who is the weaker species? Ants don't serve grasshoppers! It's *you* who need *us*! We're a lot stronger than you say we are... And you know it, don't you?

    reply to this | link to this | view in chronology ]

  • identicon
    Zem, 9 Dec 2015 @ 6:03pm

    Ultimate defense. I was ordered to do it by the government.

    The logic

    A pay wall serves a similar function to encryption.
    The government wants a back door to encryption.
    My service provides that back door.

    And now back to folding the perfect tinfoil hat.

    reply to this | link to this | view in chronology ]

  • identicon
    Mr Big Content, 9 Dec 2015 @ 7:08pm

    Well Get Them In The End

    They can run, but they cant hide. Have they forgotten were running out of IP address's? They can keep registering new one's, but in the end WELL BLOCK THEM ALL. And then WHAT WILL THEY DO? WEVE GOT THEM!!!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Dec 2015 @ 8:27pm

    New URLs?

    Why no mention of the new URLs in the story?

    reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 9 Dec 2015 @ 9:31pm

    Elsevier... they're, like, research terrorists--"all your papers are belong to us!"

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Dec 2015 @ 8:22am

      Re:

      I don't agree. Elbakyan could be considered research terrorist, especially to Elsevier. Elsevier I would more associate with the Galactic Empire. Terrorist is a label that is given by people on the receiving end of the acts of terror. To the allies of the terrorists, they are known as heroes. The forefathers of the United States were considered terrorist to the British Empire but heroes to the people of the United States.

      reply to this | link to this | view in chronology ]

      • icon
        Seegras (profile), 11 Dec 2015 @ 5:48am

        Re: Re:

        Nope, it's not an act of terror. Not regarding the public, not regarding Elsevier. They didn't threaten people working at Elsevier, they didn't bomb their offices. Just because economical factors and actors threaten your bottomline, it's not "terrorism".

        reply to this | link to this | view in chronology ]

  • icon
    Whatever (profile), 9 Dec 2015 @ 9:32pm

    I love this sort of story

    I love this sort of story because it plays out as "let's ignore the criminal acts because we like the end result". It's funny to read and even funnier to watch everyone avoid the reality.

    The researcher's arguments, while well intentioned, don't add up to much. The transfer of rights does not happen for free, it happens for valuable consideration, basic contract law. That valuable consideration is assuring that the papers are published and made available on a network of journals and so on. Considering that it would probably cost maybe $50 a year to host a document (and more if it was frequently accessed), and would require time and effort to maintain, the standards of valuable consideration are generally met. It's not a strong valuable consideration, but in a legal sense, it would appear to cover it. So that argument dies.

    When the researcher is spoofing IPs and using other methods to bypass and access the site to download the documents, it's plain hacking (and for that manner, fraud as well). There is potential for damage as the university that was spoofed may end up with the bill. If liberating the documents requires this sort of action, you know that the researcher's intentions are clear - they know they are hacking and they do it anyway.

    Finally, moving the material to another domain to start a game of whack-a-mole shows malicious intent as well. No matter how noble the goal, breaking the law is still breaking the law. Just like with Aaron, his actions while noble crossed the line to the illegal.

    Should the papers be freely available? Yes. But it would likely be much better to start a new repository and solicit submissions over time than to just rip another one off and play Robin Hood. it would be a much more durable solution, don't you think?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Dec 2015 @ 9:52pm

      Re: I love this sort of story

      Where do you come up with the number of $50 each year to host and serve a document?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Dec 2015 @ 11:38pm

      Re: I love this sort of story

      You mean like people tried and Elsevier shot down before, claiming the exact same thing as they did here?

      reply to this | link to this | view in chronology ]

    • icon
      douglascarnall (profile), 10 Dec 2015 @ 12:16am

      Re: I love this sort of story

      $50 is a bit steep.

      ArXiV hosts all of the hard sciences and math for about $7/article/year, with four full-time employees at the host institution funded by a consortium of libraries of the 200 or so institutions that use it the most; the Journal of Machine Learning Research quotes about $10/article.

      I find it amazing how the legacy publishers have managed to keep collecting rents from their monopolies in the age of the internet, but there it is.

      reply to this | link to this | view in chronology ]

      • icon
        Seegras (profile), 11 Dec 2015 @ 5:54am

        Re: Re: I love this sort of story

        And archive.org or wikimedia hosts it for free, if you put it under a free license.

        And if subscribe for a webpage hosting, you get at least 10GB of storage for USD 5; space enough for several thousand articles.

        The real costs of hosting an article are much more around some cents per year. What you pay at ArXiV is not the hosting, but some service associated with it.

        reply to this | link to this | view in chronology ]

    • icon
      orbitalinsertion (profile), 10 Dec 2015 @ 1:20am

      Re: I love this sort of story

      I love this sort of story because it plays out as "let's ignore the criminal acts because we like the end result". It's funny to read and even funnier to watch everyone avoid the reality.


      What totally slays me, personally, is watching someone avoid the reality of all the points made about how it is illegal and the courts are unlikely to even recognize any part of the defendant's response as a legal argument, let alone a viable one. Then moving on to avoid the fact the comments said nothing which could be construed as ignoring criminal acts for any purpose.

      Never mind that is a completely valid viewpoint, as it should be a civil matter anyway. (Wow, how funny, it is a civil matter. Imagine that.)

      So about those criminal acts...

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Dec 2015 @ 3:03am

      Re: I love this sort of story

      I am sure there are plenty of websites like MEGA
      that can afford to host every elsevier out there FOR FREE
      just to get clicks and traffic

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Dec 2015 @ 3:28am

      Re: I love this sort of story

      "The police shot an unarmed civilian while trying to catch a criminal who they failed to catch. I'm ignoring this because I like the end result." - Whatever

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 10 Dec 2015 @ 4:31am

      Re: I love this sort of story

      "The transfer of rights does not happen for free"

      It would if the artificial rights were better managed, and preferably bypassed for works that should belong to the public.

      "Should the papers be freely available? Yes."

      Then, perhaps you should start complaining about the root of the problem rather than attacking those forced to find a way around it. But, no, you support those who would rob the public domain, then attack those who wish to return it to the public.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Dec 2015 @ 5:37am

      Re: I love this sort of story

      Criminal?
      I thought copyright infringement was a civil matter, when did this change? Guess I need to get out more, you know ... to see this "reality"of which you speak.

      Why is that research paid in full by tax payers is not available free of charge to those same tax payers who paid for it? Looks like a scam.

      Spoofing an IP addr is hacking? Definitions are wonderful when you can make them up on the fly, supporting any insane rant is easy - wooohoooo.

      Providing content at multiple sources is malicious?
      Hmmmm, malicious == "having or showing a desire to cause harm to someone". Yup, very malicious indeed. Going around hurting people like that, they must be stopped at all costs.

      Morbid curiosity compels me to ask ... exactly what laws do you claim were broken?

      Oh - you wait till the last paragraph to say the papers should be free. LOL - wow

      reply to this | link to this | view in chronology ]

    • identicon
      Ruben, 10 Dec 2015 @ 7:54am

      Re: I love this sort of story

      "Finally, moving the material to another domain to start a game of whack-a-mole shows malicious intent as well. No matter how noble the goal, breaking the law is still breaking the law. Just like with Aaron, his actions while noble crossed the line to the illegal."

      Exactly. Civil disobedience. Unjust laws exist. Dissidents break those laws in ways that show a) the futility of their enforcement, and b) the fact that they are unjust.

      reply to this | link to this | view in chronology ]

    • icon
      btr1701 (profile), 10 Dec 2015 @ 10:35am

      Re: I love this sort of story

      > No matter how noble the goal, breaking the law is still
      > breaking the law.

      "Get to the back of the damn bus, Rosa. You're breaking the law, no matter how noble your goal!"

      reply to this | link to this | view in chronology ]

  • icon
    techflaws (profile), 9 Dec 2015 @ 10:00pm

    The transfer of rights does not happen for free, it happens for valuable consideration, basic contract law.

    I'm still wondering what anyone would need Elsevier for? Cut the middleman and be done with them.

    reply to this | link to this | view in chronology ]

    • icon
      DNY (profile), 10 Dec 2015 @ 8:35am

      Re:

      I'm still wondering what anyone would need Elsevier for? Cut the middleman and be done with them.

      Exactly what all of us who are signatories of the Cost of Knowledge boycott think.

      The boycott could have targetted any of the increasingly useless and increasingly abusive academic publishers, but Elsevier was selected as the academic publisher with the most abusive practices, on the wisdom of old Kansas lawman Batt Masterson who picked the biggest and toughest of a gang of misbehaving Texas cowboys to lay out with one punch to induce better behavior from the rest.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Dec 2015 @ 10:04pm

    Just rewards

    When it is left to corporations to define 'right', intellectual progress becomes intellectual property.

    On another note:
    "In 2014, Elsevier reported a profit margin of approximately 37% on revenues of £2.48 billion." (2014 RELX Group Annual Report)

    reply to this | link to this | view in chronology ]

    • icon
      DNY (profile), 10 Dec 2015 @ 8:40am

      Re: Just rewards (or is it alienation of the product of labor from the workers?)

      I am a strong supporter of the free market (of the sort who is too conservative to be a libertarian and too libertarian to be a conservative), but were all businesses run on the model of academic publishing, I would be a Marxist, because were that the case, Marx's critique of capitalism would have been true.

      Note: Elsevier's business model cannot function without state intervention -- while it may be capitalist, it is the very antithesis of free-market.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Dec 2015 @ 11:13pm

    I am reminded, a bit, of Spamhaus...

    It was the jurisdiction issues that brought this to mind.

    And reading the wikipedia entry on the e360 lawsuit, I see there is much more to it than I remember ever hearing about.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Dec 2015 @ 3:00am

    so,
    you do not want scientists to do a private search
    nor private data mining in their private and secure labs,
    but you want to have in a file each search associated to each account? just to help us?

    hm, that is interesting,
    scary but interesting anyway:

    -is this information safe? exactly how safe?
    -who does have authorized access to this information?
    -can this information be used to find out WHAT you are researching into?
    -can this information be used to find WHO is researching around specific topics?
    -can you think HOW MUCH this information is worth?
    -and how dangerous it is for scientists to be in such a list?

    have you read Daniel Suarez- Kill Decision?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Dec 2015 @ 3:07am

    what kind of innocent researcher wants to have his
    searches for scientific papers profiled on a ELSEVIER account?

    that is suicidal in PLENTY RESEARCH AREAS

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Dec 2015 @ 3:10am

    so if scientific papers access is limited to "wealthy" countries university researchers...
    how are the mongrels of third world countries find out about
    ALL that scholar RESEARCH on how to bond sterilization to common vaccines?

    like

    HCG antibody vaccine

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Dec 2015 @ 8:26am

    A pertinent DNS observation

    $ host -v -t SOA sci-hub.org 31.184.194.81
    Trying "sci-hub.org"
    Using domain server:
    Name: 31.184.194.81
    Address: 31.184.194.81#53
    Aliases:

    ;; ->>HEADER<<- opcode: QUERY, status: NOERROR, id: 21477
    ;; flags: qr aa rd ra; QUERY: 1, ANSWER: 1, AUTHORITY: 1, ADDITIONAL: 1

    ;; QUESTION SECTION:
    ;sci-hub.org. IN SOA

    ;; ANSWER SECTION:
    sci-hub.org. 604800 IN SOA sci-hub.org. root.sci-hub.org. 2 604800 86400 2419200 604800

    ;; AUTHORITY SECTION:
    sci-hub.org. 604800 IN NS sci-hub.org.

    ;; ADDITIONAL SECTION:
    sci-hub.org. 604800 IN A 31.184.194.81

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Dec 2015 @ 9:12am

    Cannot imagine that whoever founded Elsevier would have enjoyed the idea of his company spending money to keep information locked up out of the public's view

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Dec 2015 @ 1:29am

      Re:

      well controlling the direction of research is a very old and powerful idea
      wildly discussed during and after WWII by wells, russell and alikes

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Dec 2015 @ 12:16pm

        Re: Re:

        That sort of steering is outside Elseviers competence, they use academics as editors and referee for their journals. All they own is the journal titles and the papers, though with a few more defections of journal staff, all they will own is historic papers. Unfortunately the latter will be valuable for many years.

        reply to this | link to this | view in chronology ]

  • icon
    btr1701 (profile), 10 Dec 2015 @ 10:25am

    Law

    > Elbakyan, perhaps unsurprisingly, feels the new domain
    > doesn't violate the injunction. As a Russian citizen,
    > Elbakyan is free to raise dubious legal arguments.

    There's nothing dubious about it. As a Russian citizen operating a foreign web site, she *isn't* subject to court orders from New York judges.

    Depending on the status of international agreements, an infringement of a US copyright might be actionable in Russia, but Elsevier would have to sue her in Russia and get an order from a Russian court to address that. New York courts have no jurisdiction over her whatsoever.

    reply to this | link to this | view in chronology ]

  • icon
    tqk (profile), 10 Dec 2015 @ 7:08pm

    Elsevier pricing is the problem? Not really.

    What it could do is take a look at its pricing. Sometimes trimming the profit margin has more impact on copyright infringement than a fistful of federal lawsuits.

    Perhaps, but killing outfits like Elsevier would be a far better solution for everyone who actually matters, which Elsevier doesn't.

    reply to this | link to this | view in chronology ]


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