Judge Ignores Congress, Pretends SOPA Exists, Orders Site Blocking Of Sci-Hub | Techdirt
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Copyright
by Mike Masnick
Tue, Nov 7th 2017 3:34am
Filed Under:
academic research, copyright, site blocking, sopa
Companies:
acs, american chemical society, cloudflare, sci-hub
Permalink.
Short link.

# Judge Ignores Congress, Pretends SOPA Exists, Orders Site Blocking Of Sci-Hub

### from the how's-that-work-now? dept

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.
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22 Comments | Leave a Comment

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## Reader Comments

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  Ninja (profile), 7 Nov 2017 @ 2:58am
  Well, the US has been pretending SOPA exists before SOPA was even introduced so it's not really a surprise.
  Sci-hub is an incredibly good thing for research and I can say that having been part of projects that relied heavily on it since we didn't have access to traditional structures. Of course, officially we got it from universities and colleagues.
  [ reply to this | link to this | view in chronology ]
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  Anonymous Coward, 7 Nov 2017 @ 3:48am

  ### This is an ineffective and pathetic move

  All of Sci-Hub's content has been mirrored in multiple places, and more mirrors are being populated. If it's entirely removed, half a dozen alternatives will be live within days. ACS et.al. are burning money on lawyers and wasting the court's time with this feeble attempt to censor that which can't be censored.
  [ reply to this | link to this | view in chronology ]
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  Anonymous Coward, 7 Nov 2017 @ 4:02am
  So if this judge could make this order, why was SOPA needed again?
  [ reply to this | link to this | view in chronology ]
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  Anonymous Coward, 7 Nov 2017 @ 4:17am

  ### Common Law

  One of the problems with a common law legal system is that judges can actually make up laws. Who needs Congress or SOPA if you can get a "friendly" judge to make up the law you want instead?
  [ reply to this | link to this | view in chronology ]

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  Cdaragorn (profile), 7 Nov 2017 @ 7:41am

  ### Re: Common Law

  Ya, that's not how "common law" systems work. A judge might be able to say whatever they want, but they cannot enforce it. This is why we have checks and balances in place.
  This is just a symptom of a different problem: No system is ever better than those put in place to manage it. You can make all the rules you want, but if those who manage enforcing the rules refuse to follow them, all your rules are worth less than the paper they were written on.
  [ reply to this | link to this | view in chronology ]
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  Anonymous Coward, 7 Nov 2017 @ 11:20am

  ### Re: Common Law

  actually if a judge makes an illegal ruling and tries to enforce it, they can be forced to abdicate or even face punishment.
  people just don't use that option often (enough).
  [ reply to this | link to this | view in chronology ]

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  Designerfx (profile), 7 Nov 2017 @ 4:47am

  ### uh, isn't ACS basically a part of Elsevier?

  At a minimum they certainly are at least working with them and featured by them, and publish articles to elsevier.
  http://pubs.acs.org/doi/abs/10.1021/ac00028a712
  https://www.elsevier.com/exhibitions-update/ acs-fall-2016
  Sounds like they're just a puppet for elsevier at this point.
  [ reply to this | link to this | view in chronology ]
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  MyNameHere (profile), 7 Nov 2017 @ 4:50am
  Default judgement. They pretty much could have asked the judge to say Santa is real and the judge would have signed off on it. It's not about SOPA or not SOPA - it's a default judgement.
  I sense arm waving from the Techdirt "offices".
  [ reply to this | link to this | view in chronology ]

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  kallethen, 7 Nov 2017 @ 5:13am

  ### Re:

  Just because it's a default judgement, does not mean the judge has to pick the most heavy-handed remedy. This is still going overboard.
  [ reply to this | link to this | view in chronology ]
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  Anonymous Coward, 7 Nov 2017 @ 5:13am

  ### Re:

  Oh look, you don't know how default judgements work.
  [ reply to this | link to this | view in chronology ]
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  ShadowNinja (profile), 7 Nov 2017 @ 5:29am

  ### Re:

  Except for the fact that, you know, SOPA didn't pass, so this ruling is illegal.
  And that the CCIA tried to tell the idiot judge that in an amicus brief.
  Also, this ruling effects more than just the defendant, it's a ruling against a ton of third parties who weren't even a part of the lawsuit.
  [ reply to this | link to this | view in chronology ]
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  PaulT (profile), 7 Nov 2017 @ 6:33am

  ### Re:

  So, all sorts of censorship and overreach is OK just so long as it's a default judgement? Genius! That must be why so many of your friends are trying to sue people who have never stepped foot in the US in American courts. It's so much easier to get a default judgement if the people in question are never likely to be within a thousand miles of the courtroom, let alone its jurisdiction.
  [ reply to this | link to this | view in chronology ]
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  That One Guy (profile), 7 Nov 2017 @ 7:52am

  ### Re:

  'Default judgement' does not mean 'You can pretend the laws say whatever you want'. The judge is still bound by what is and is not on the books, they can't just make it up as they go, or issue judgements accepting anything presented as legal simply because the other side pull a no-show.
  [ reply to this | link to this | view in chronology ]

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  Jeff Green (profile), 7 Nov 2017 @ 10:57am

  ### Re: Re:

  Your problem is that you mistake what they shouldn't do with reality. The judge is busy and usually seems to just take what the prevailing lawyer offers and signs off on it. The only remedy for the injured third parties is for them to go to court and spend a lot of money on other lawyers.
  One thing we should not forget is that judges are lawyers. Their friends are lawyers, their instincts are the instincts of lawyers. Lawyers believe that giving money to lawyers is a good thing ...
  [ reply to this | link to this | view in chronology ]

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  Bamboo Harvester (profile), 7 Nov 2017 @ 5:35am

  ### Deja Vu...

  Seems pretty much the same as yesterday's story about a Canadian judge filing a default judgement against a non-citizen running a site outside of Canadian jurisdiction, and claiming it has force globally, including any third parties not named / joined in the suit.
  We really should have stomped down HARD on activist judges making such rulings back in the sixties. Maybe they'd think twice about trying it now.
  [ reply to this | link to this | view in chronology ]

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  Anonymous Coward, 7 Nov 2017 @ 8:36am

  ### Re: Deja Vu...

  Rulings by "activist judges" in the sixties are equivalent to SOPA?
  What judges and what rulings are you referring to, or is this just an attempt at changing the subject?
  [ reply to this | link to this | view in chronology ]

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  Anonymous Coward, 7 Nov 2017 @ 5:53am
  'judges can demand third parties censor and block sites, without any First Amendment analysis whatsoever'
  because judges can be easily bought to do the bidding of any company that is even in the slightest akin to something to do with entertainment, with trademark or copyright! even cases that involve (or should be involved in the case) the constitution and various amendments are ignored, particularly when it is an individual or a company that has committed the cardinal sin of daring to give away something for free, even when the 'thing' is free in the place! what a shame courts dont stop and think for a minute that not everything is trademarked, is copyrighted or should be and that there are things available for free, both on and off the net. helping companies make money from something they shouldn't be making money from is perverse!
  [ reply to this | link to this | view in chronology ]
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  Anonymous Coward, 7 Nov 2017 @ 7:02am
  However, if one needs to use Sci Hub, from the USA, you can use a VPN to get around the block. Using VPN for this purpose does break any law in the United States.
  VPNs are still legal in the United States, so using a VPN to get past the block does not break any laws in the United States.
  [ reply to this | link to this | view in chronology ]
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  Anonymous Coward, 7 Nov 2017 @ 7:38am

  ### Problem with property that can walk away.

  This is the problem with owning property that can get up and walk away or be captured. Property owners expect - and demand - that other people form a posse with sniff dogs, and go out and identify, and recapture the fugitive intellectual property and return it to its rightful owner, all without getting paid for the trouble. Or if they bring back the wrong intellectual property, the posse still demands payment. And if the intellectual property reproduces, then their intellectual property offspring belongs to the owners also.
  It is just hard to own property that can walk away. The whole community and government are expected to keep track of it for the aristocratic owner who has a sense of entitlement.
  But now we see "How the Aristocracy Preserved their Power." They control the "House of Lords."
  [ reply to this | link to this | view in chronology ]

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  Anonymous Coward, 7 Nov 2017 @ 8:38am

  ### Re: Problem with property that can walk away.

  Perhaps "walk away" was not the best choice of words?
  [ reply to this | link to this | view in chronology ]

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  That Anonymous Coward (profile), 7 Nov 2017 @ 8:18am
  The Judge had a good faith basis to think the law allowed insane overreach.
  That does seem to be the accepted standard in our courts when those charged with upholding the law remain ignorant of it.
  [ reply to this | link to this | view in chronology ]
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  Anonymous Coward, 7 Nov 2017 @ 10:52am

  ### Canute Would 'a' Known Better

  "...judges can demand third parties censor and block sites..."
  And, except for the abuse of 1st Amendment principles and the reaffirmation of the annoying ignorance of professional jurists, most TD fans will give zero fucks about the blocks. "Blocked," you say? "Nah," sez I, e.g., https://fossbytes.com/how-to-access-blocked-websites-6-easy-ways/ (cute URL, since the article lists ten).
  [ reply to this | link to this | view in chronology ]

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