Last month, we wrote about the strange and unfortunate decision by a magistrate judge in the copycat lawsuit by the American Chemical Society against Sci-Hub, the "renegade" online repository of academic knowledge. As we've discussed for years, the copyright attacks on Sci-Hub are silly, given the entire stated purpose of copyright is supposed to be to increase "learning" (and there's rarely a monetary incentive to the scholars writing academic articles). Copyright in academic papers is silly for a whole host of reasons, and then using copyright law to take down what is effectively an incredibly useful library of academic knowledge seems to run entirely counter to the basis of copyright law.

And yet, things with Sci-Hub keep getting dumber. After it lost the lawsuit Elsevier filed against it, the American Chemical Society jumped in to file a copy cat lawsuit. The issue last month was our surprise that a magistrate judge recommended an injunction against third parties who were not parties to the lawsuit, demanding that they block all access to Sci-Hub. This could impact tons of ISPs, search engines, domain registrars and more. On Friday, amazingly, the Title III judge on the case, Judge Leonie Brinkema, more or less went with the magistrate's recommendations, with one slight change. You can see the order and injunction either at those links, or embedded below.

Because Sci-Hub -- run by a woman who doesn't live in the US -- chose to ignore the lawsuit, this is a default judgment, so the judge never got to hear anyone else's viewpoint, other than ACS. It's troubling that the judge -- just prior to issuing the injunction -- decided to reject an attempted amicus brief from CCIA, which sought to explain why site blocking is not allowed as a remedy. The judge did make one change, which at the very least improves the injunction slightly. The official injunction reads as follows:

ORDERED that any person or entity in active concert or participation with Defendant Sci-Hub and with notice of the injunction, including any Internet search engines, web hosting and Internet service providers, domain name registrars, and domain name registries, cease facilitating access to any or all domain names and websites through which Defendant Sci-Hub engages in unlawful access to, use, reproduction, and distribution of the ACS Marks or ACS's Copyrighted Works; and it is FURTHER

ORDERED that the domain name registries and/or registrars for Defendant Sci-Hub's domain names and websites, or their technical administrators, shall place the domain names on registryHold/serverHold or other status to render the names/sites non-resolving.

The original recommendation from the magistrate judge said that "any person or entity in privity with Sci-Hub" had to do those things. The difference being switching out "in active concert or participation" rather than "in privity." That's... slightly better, but it's unclear exactly what "in active concert or participation" really means.

ACS is now claiming that this won't apply to general search engines, but just to those working more closely with Sci-Hub:

“The court’s affirmative ruling does not apply to search engines writ large, but only to those entities who have been in active concert or participation with Sci-Hub, such as websites that host ACS content stolen by Sci-Hub. ACS will now look to identify said entities and seek enforcement accordingly.”

Steve McLaughlin, who has been following the case closely, expects that ACS is likely to target Cloudflare with this injunction -- and it will be worth seeing how Cloudflare responds.

Either way, setting aside the questions about why we're even arguing about a library of academic research that was not incentivized by copyright, it's still perplexing that a federal judge believes this is a justifiable remedy. Again, five years ago Congerss explored the idea of allowing site blocking as a remedy for copyright infringement and decided against it when it chose not to pass SOPA/PIPA (whose main purpose was to create a site blocking remedy). No matter what you think of Sci-Hub, it should worry people when judges can demand third parties censor and block sites, without any First Amendment analysis whatsoever.