Elsevier and Other Scholarly Publishers Target Content Pirates

[Len]

The scholarly publishing industry has stepped up its attack on copyright-infringing piracy websites in a series of lawsuits filed in the federal courts. In June 2017, Elsevier won a $15 million default judgment against Sci-Hub, an online self-admitted “pirate website” providing access to a claimed 62 million articles, and The Library Genesis Project (LibGen), a similar site claiming access to 52 million scholarly and nonscholarly articles. Elsevier’s success was followed in short order by a lawsuit filed by the American Chemical Society (ACS) and a separate lawsuit filed by four leading academic book publishers against ABCDeBook for infringing on their electronic textbooks. Notwithstanding the judgment and subsequent suits, legal analysts question whether pirate sites such as Sci-Hub and ABCDeBook can be shut down through lawsuits. Other commentators see the sites as providing access to scholarship hidden behind high-priced paywalls.

Sci-Hub was formed in September 2011 and unabashedly describes itself as a pirate website with a mission to “fight inequality in knowledge access across the world.” It advocates for the “cancellation of intellectual property, or copyright laws, for scientific and educational resources” and supports the “Open Access movement in science.” The owner and operator of the site is reported to be Alexandra Elbakyan, a resident of Kazakhstan. LibGen’s origins and ownership are less clear. It is reportedly registered in the Bahamas and hosted in the Netherlands. ABCDeBook is reportedly owned by Alex Huang, who is believed to be a resident of Australia.

What the Lawsuits Entail

Sci-Hub and LibGen reportedly use a variety of means to gain unauthorized access to articles and books, including hacking and other methods of circumventing firewalls, paywalls, and other barriers; the use of unlawfully obtained access credentials to get proxy connections to university and other subscriptions; and spoofing legitimate websites and bypassing their firewalls. ABCDeBook reportedly obtains its materials through a “Free eBook Exchange” program, which encourages customers to submit “any form of textbook materials” to the service in return for discounts on other materials. These submissions are without the authorization of the copyright owners.

In June 2015, Elsevier filed a federal copyright infringement lawsuit against Sci-Hub, LibGen, Elbakyan, and “John Does 1-99.” Between 2015 and 2017, there was no response from any of the defendants or their representatives to the suit or to a preliminary injunction obtained by Elsevier in October 2015. On June 21, 2017, in the absence of any dispute by Sci-Hub or LibGen, the court accepted Elsevier’s assertions of copyright infringement and ordered Sci-Hub and the other parties to pay a judgment of $15 million to Elsevier and to stop the infringing activities. In addition, the court ordered the top-level domain (TLD) registries to transfer ownership of Sci-Hub’s and LibGen’s domains to Elsevier.

The ACS lawsuit against Sci-Hub seeks a similar recovery, including damages, the return of any profits from the distribution of ACS articles, and the transfer of registrations. In addition, the ACS suit would seek to prevent Google and other search engines from “facilitating access” to Sci-Hub and similarly require web hosts, ISPs, and domain name registries and registrars to “cease facilitating access” to Sci-Hub content that had been infringed.

The Evolution of Piracy in the Digital Age

Copyright infringement of this nature has been one of the great epidemics of the digital age, beginning with online bulletin boards and FTP exchanges, but really taking off with the rise of peer-to-peer file sharing in the late 1990s and the overseas pirate websites that emerged shortly thereafter. These early efforts largely targeted music and video content, as there was a strong market for that material; MP3 and other file-compression technologies made the data files manageable sizes; and there was a perception—rightly or wrongly—that the copyright owners were charging too much for legitimate access to their content. Legal challenges, while successful in the courts, have done little to stem the tide. The rise of convenient, reasonably priced music streaming services is seen has having been more effective in reducing—but not eliminating—piracy.

Piracy in the publishing industry is a later phenomenon that is attributed to a lower level of perceived commercial interest and the slower development and adoption of the digital subscription model. However, as more and more content moved into the digital environment, it became more likely to be a target of Sci-Hub, LibGen, and other “guerilla OA” websites. In a research paper by Bastian Greshake of Goethe University in Frankfurt, Germany, an evaluation of Sci-Hub shows that while it contains articles dating back to the 1600s, more than 35% of all downloads are of articles published within the previous 2 years. It notes that this often corresponds with publisher embargo periods, when materials are at their most restricted level of access.

In addition, the increasing commercial value of scholarly content in recent years is seen by many as leading to the rise of broad content piracy. Elbakyan reportedly was moved to develop Sci-Hub due to the high cost of papers that she was required to access to complete her university studies. Greshake’s research paper acknowledges that he is a user of Sci-Hub content. Both Elsevier (which Greshake’s research indicates is the most downloaded publisher on Sci-Hub) and ACS have been criticized for the high costs associated with their content. Scholars worldwide have expressed frustration with Elsevier’s pricing and reported hostility to OA publishing. Several thousand research scientists in Finland have pledged to boycott editorial and reviewing requests from Elsevier absent a “fair deal” on pricing. Comments in response to an article about ACS published by Chemical & Engineering News—an ACS publication—are full of praise for Sci-Hub and criticism of the ACS publishing model. Both Elsevier and ACS defend their pricing models as necessary and fair given the expenses associating with developing, editing, and publishing content, and in ACS’s case, the use of publishing revenue to support other activities.

What the Future Holds

Given that Sci-Hub, LibGen, and ABCDeBook are all in overseas locations outside of the jurisdiction of U.S. courts, it is unlikely that injunctions and damage awards alone will succeed in shutting them down. Unless Elbakyan, Huang, or any of the other owners and businesses come into the U.S. or have assets in the U.S., the courts will be unable to take many steps to force the sites to cease operation. The ACS suit’s request for the authority to stop search, registration, and other support may be of some possible help, but as with music and video piracy, it may be limited at best. The most likely solution is to look at alternate business models—like the music industry did with online streaming—that make piracy less attractive commercially, while still providing a reasonable revenue model for the industry.