Two years ago, academic publisher Elsevier filed a complaint against Sci-Hub, Libgen and several related “pirate” sites.
The publisher accused the websites of making academic papers widely available to the public, without permission.
While Sci-Hub and Libgen are nothing like the average pirate site, they are just as illegal according to Elsevier’s legal team, which swiftly obtained a preliminary injunction from a New York District Court.
The injunction ordered Sci-Hub’s founder Alexandra Elbakyan, who is the only named defendant, to quit offering access to any Elsevier content. This didn’t happen, however.
Sci-Hub and the other websites lost control over several domain names, but were quick to bounce back. They remain operational today and have no intention of shutting down, despite pressure from the Court.
This prompted Elsevier to request a default judgment and a permanent injunction against the Sci-Hub and Libgen defendants. In a motion filed this week, Elsevier’s legal team describes the sites as pirate havens.
“Defendants’ websites exist for the sole purpose of providing unauthorized and unlawful access to the copyrighted works of Elsevier and other scientific publishers. Collectively, Defendants are responsible for the piracy of millions of Elseviers’ copyrighted works as well as millions of works published by others.”
As compensation for the losses it has suffered, Elsevier is now demanding $15 million in damages. The publisher lists 100 works as evidence and argues that the maximum amount of $150,000 in statutory damages is warranted in this case.
“Here, Defendants’ willful conduct rises to the level of truly egregious conduct, justifying the maximum statutory damages of $150,000 per infringed work,” Elsevier’s team writes (pdf).
“The Preliminary Injunction constituted such notice by a court, and Defendants have flagrantly disregarded the Preliminary Injunction by continuing to operate their piracy enterprises.”
Not only did the defendants ignore the preliminary injunction by continuing to operate their websites, Sci-Hub’s operator stated that she chose to willingly disregard the court order.
“Moreover, Elbakyan has publicly stated that she is aware that Sci-Hub’s actions are unlawful and that this Court has enjoined her infringing activities, but that she intends to continue to defy the Court’s Order.”
The amount is also justified based on the scale of infringement, Elsevier stresses. The sites in question offer dozens of millions of copyrighted works which are downloaded hundreds of thousands of times per day.
A good chunk of these papers are copyrighted, many by Elsevier. In fact, when the original complaint was filed, Elsevier had trouble locating ScienceDirect-hosted articles that were not available through Libgen.
“Here, the scale of Defendants’ infringement is so staggering that a reasonable estimate of appropriate damages, even if based on a lower, license- fee-based metric, would be difficult, if not impossible, to calculate,” Elsevier’s legal team writes.
Since the court’s clerk has already entered a default against the defendants, it’s likely that Elsevier will win the case. As a result, Sci-Hub and Libgen will likely have to relocate again. Whether Elsevier will see any damages from the defendants has yet to be seen.
Sci-Hub founder Alexandra Elbakyan wasn’t really sure how to comment on the million dollar claims. She described Elsevier’s requests as “funny” and “ridiculous,” while confirming that the site is not going anywhere.
“The Sci-Hub will continue as usual. In case of problems with the domain names, users can rely on TOR scihub22266oqcxt.onion,” Elbakyan tells us.
In hindsight, Elsevier may regret its decision to take legal action.
Instead of taking Sci-Hub and Libgen down, the lawsuit and the associated media attention only helped them grow. Last year we reported that its users were downloading hundreds of thousands of papers per day from Sci-Hub, a number that has likely increased since.
Also, Elbakyan is now seen as a hero by several prominent academics, illustrated by the fact that the prestigious publication Nature listed her as one of the top ten people that mattered in science last year.