The science media has blown up recently over #Sci-Hub, dubbed “the Pirate
Bay of the science world.” Here’s a BigThink article, a ScienceAlert article, and an Atlantic article. Sci-Hub is, to put it mildly, the
greatest open repository of scientific papers in the history of the world.
There’s just a small problem: those papers are almost all copyrighted, and the
whole purpose of Sci-Hub is to circumvent paying the copyright holder.
Unsurprisingly, #Elsevier, the juggernaut scientific journal publisher, has
sued the proprietor of Sci-Hub, neuroscientist Alexandra Elbakyan, for running
the database. Elsevier says in their complaint that they host “almost one-quarter of the world’s peer-reviewed,
full-text scientific, technical and medical content,” amounting to “over 10
million copyrighted publications.” As they brag, “[m]ore than 15 million
researchers, health care professionals, teachers, students, and information
professionals around the globe rely on ScienceDirect as a trusted source of
nearly 2,500 journals and more than 26,000 book titles” — all of whom have to pay for access, typically $35 per article.
In case you’re wondering: the actual authors of the
articles don’t receive a dime of that income. Elsevier owns the copyright to
those articles. Elsevier thus doesn’t create anything, they’re just the
middleman between those 15 million “researchers, health care professionals,
teachers, students, and information professionals” and the accumulated
knowledge they need to do their jobs. Even Harvard found it difficult to stomach the huge fees charged by Elsevier.
Perhaps even more frustrating, many of those papers sitting behind a paywall
were funded by U.S. taxpayers through National
Institutes of Health grants, but the NIH’s public access
policy doesn’t require public
access until “no later than 12 months after the official date of publication.”
That’s fine for the casual reader, but for researchers in the field, it means
they’re paywalled off from the latest scientific information.
Elbakyan hasn’t formally defended the case, nor has she hired counsel to
represent her and the entities that run Sci-Hub, but in September 2015 she did
send a letter to the
federal judge overseeing the case. The
court granted a preliminary
injunction against herin
October 2015, which isn’t surprising, but Sci-Hub popped up again on servers
overseas, and since then the case has stalled. A pretrial conference was
scheduled for January 20, 2016, but Elsevier’s lawyers
requested it be continued to
March 2, 2016, while they “complete [their] investigations into Defendants’
activities,” such as looking into “a number of additional domains.”
Maybe. But I think that Elsevier and its lawyers are more than capable of
finding Sci-Hub on the internet: it’s right here.
I think Elsevier is like the dog that chased a car, caught it, and now
doesn’t know what to do with it. Russia Today picked up on what may be the most problematic
issue with Elsevier’s case:
Either way, American courts can’t really cause much
more damage to Sci-Hub than ruling in Elsevier’s favor. Firstly, because
Sci-Hub servers are outside the US, in Russia. The New York district court
can’t prosecute Elbakyan, because she has no US assets…
Indeed, although it’s a little more complicated than that. It’s an issue of
jurisdiction, often the bane of first-year law students.
The highest court in New York previously ruled that, when it came to
copyright infringement claims, “The location of the infringement in online
cases is of little import inasmuch as the primary aim of the infringer is to
make the works available to anyone with access to an Internet connection,
including computer users in New York.” Penguin Grp. (USA)
Inc. v. Am. Buddha, 16 N.Y.3d 295, 306, 946
N.E.2d 159 (2011). The Second Circuit Court of Appeals (the federal appellate
court that oversees New York) agreed. Thus, in theory, any company in New York could sue
virtually anyone who uploaded their copyrighted works to the internet.
But then the United States Supreme Court recently sharply curtailed the
reach of U.S. courts.
In Daimler AG v. Bauman, 134 S. Ct. 746 (2014), victims of Argentina’s
1976–1983 “Dirty War” alleged that an Argentinian subsidiary of DaimlerChrysler
Aktiengesellschaft (which owns, among others, Mercedes Bens), “collaborated
with state security forces during to kidnap, detain, torture, and kill certain
MB Argentina workers, among them, plaintiffs or persons closely related to
plaintiffs.”
They sued in Federal District Court in under the Alien Tort Statute and the
Torture Victim Protection Act, but had their case thrown out for lack of
general jurisdiction. As the Supreme Court held, “If Daimler’s California
activities sufficed to allow adjudication of this Argentina-rooted case in
California, the same global reach would presumably be available in every other
State in which MBUSA’s sales are sizable. No decision of this Court sanctions a
view of general jurisdiction so grasping.” Daimler AG v. Bauman,
134 S. Ct. at 750.
In Walden v. Fiore, 134 S. Ct. 1115, 188 L. Ed. 2d 12 (2014), a Georgia
police officer working as a deputized Drug Enforcement Administration agent at
a Georgia airport searched residents of Nevada before their flight home. The
Nevada residents alleged that, after they returned to their Nevada residence,
the Georgia police officer helped draft a false probable cause affidavit in
support of the funds’ forfeiture and forwarded it to a United States Attorney’s
Office in Georgia.
They filed suit in the Federal District Court in Nevada, and had their case
thrown out for lack of specific jurisdiction. As the Supreme Court held, “it is
the defendant, not the plaintiff or third parties, who must create contacts
with the forum State. In this case, the application of those principles is
clear: [the officer’s] relevant conduct occurred entirely in Georgia, and the
mere fact that his conduct affected plaintiffs with connections to the forum
State does not suffice to authorize jurisdiction.” Walden v.
Fiore, 134 S. Ct. 1115, 1126, 188 L. Ed. 2d 12 (2014).
These opinions were seen at the time as gifts to defendants, particularly
big corporate defendants who can freely do business throughout the United
States without being subject to the jurisdiction of United States courts for
their actions abroad. That’s how the opinions are being used: e.g., several of
the foreign banks in the LIBOR scandal have used the rulings to shave off some
of the claims against them in the very same Federal court in which Elsevier’s
claim is pending. See, e.g., In re LIBOR-Based Fin. Instruments
Antitrust Lltigation, No. 11 MDL 2262 NRB, 2015 WL 6243526, at *20
(S.D.N.Y. Oct. 20, 2015)(“we uphold personal jurisdiction only as to claims
that arise out of or relate to the defendants’ forum-related conduct”).
Now, I’m no mind-reader, but if I were Elsevier’s lawyers, I’d be doing my
best to figure out how on earth I could convince a Federal court in New York to
enter a permanent injunction against a woman in Kazakhstan for running a
website outside of the United States. She obviously doesn’t have the type of contacts
with the United States that Daimler had and which weren’t enough to
create jurisdiction. It also is no argument that she’s “enabling” others in the
United States to upload and to download copyrighted papers: as Walden held,
“it is the defendant, not the plaintiff or third parties, who must create
contacts with the forum State.”
In other words, what’s good for the goose is good for the gander. Big
corporations wanted to limit the jurisdictional reach of United States courts
and they got it. Turns out the little guy can use that, too.
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