Publishers’ Legal Action Advances Against Sci-Hub | The Scientist Magazine®

“Sci-Hub, a widely-used website that provides access to pirated academic articles, is facing legal challenges from two major publishers—Elsevier and the American Chemical Society (ACS). The site, which was established by former neuroscientist Alexandra Elbakyan in 2011 and is operated out of Russia, hosts millions of scientific documents and has users all around the globe.”

The Foxfire of Fair Use: The Google Books Litigation and the Future of Copyright Law – infojustice

Abstract:  This article considers the dynamic evolution of copyright exceptions and limitations in the United States in light of new technological developments. There has been significant legal debate in the courts and in the United States Congress in respect of the scope of the defence of fair use. The copyright litigation over Google Books has been a landmark development in the modern history of copyright law. The victory by Google Inc. over The Authors Guild in the decade long copyright dispute is an important milestone on copyright law. The ruling of Leval J emphasizes the defence of fair use in the United States plays a critical role in promoting transformative creativity, freedom of speech, and innovation. The Supreme Court of the United States was decisive in its rejection of The Authors Guild’s efforts to challenge the decision of Leval J. There has been significant debate in the United States Copyright Office and United States Congress over the development of ‘the Next Great Copyright Act’. Hearings have taken place within the United States Congressional system about the history, nature, and future of the defence of fair use under United States copyright law. There remains much debate about the internationalisation of the defence of fair use, and the need for the trading partners of the United States to enjoy similar flexibilities in respect of copyright exceptions. There has been concern about the impact of mega-regional trade agreements – such as the Trans-Pacific Partnership – upon copyright exceptions – such as the defence of fair use.

Elsevier staakt zaak openbaar maken OA contracten

From Google’s English: “Publisher Elsevier shall abide by the decision of the Appeals Committee to publish the open access contracts with Dutch universities. This means that the international negotiations now take place in more openness.

Recently did the appeals board decision in the case between publishers Elsevier and Springer against the Dutch universities. The subscription contracts, including the open access point should be made public . The publishers had six weeks to go against this appeal, but for now Elsevier chooses to leave it at that….”

US court grants Elsevier millions in damages from Sci-Hub : Nature News & Comment

“One of the world’s largest science publishers, Elsevier, won a default legal judgement on 21 June against websites that provide illicit access to tens of millions of research papers and books. A New York district court awarded Elsevier US$15 million in damages for copyright infringement by Sci-Hub, the Library of Genesis (LibGen) project and related sites.

Judge Robert Sweet had ruled in October 2015 that the sites violate US copyright. The court issued a preliminary injunction against the sites’ operators, who nevertheless continued to provide unauthorized free access to paywalled content. Alexandra Elbakyan, a former neuroscientist who started Sci-Hub in 2011, operates the site out of Russia, using varying domain names and IP addresses.

In May, Elsevier gave the court a list of 100 articles illicitly made available by Sci-Hub and LibGen, and asked for a permanent injunction and damages totalling $15 million. The Dutch publishing giant holds the copyrights for the largest share of the roughly 28 million papers downloaded from Sci-Hub in 2016, followed by Springer Nature and Wiley-Blackwell. (Nature is published by Springer Nature, and Nature’s news and comment team is editorially independent of the publisher.) According to a recent analysis, almost 50% of articles requested from Sci-Hub are published by these three companies….”

Sci-Hub study suggests publishers’ embargoes ‘not viable’ | THE News

“Described as the “Napster” of scholarly publishing, the popularity of the Sci-Hub website reflects researchers’ frustration with the inaccessibility of journal papers behind paywalls. Now, one of the first academic studies of the platform, which offers free use of millions of articles, suggests that publishers’ responses to the open access movement are proving ineffective, too. Bastian Greshake, doctoral student in applied bioinformatics at Goethe University Frankfurt, found that 35 per cent of articles downloaded from Sci-Hub were less than two years old when they were accessed. He said this indicated that publishers’ minimum embargo periods – which keep papers behind paywalls for a year or two before they are made freely available – were unlikely to halt the spread of “guerrilla open access” platforms….”

Important Ruling On Perennially-Problematic Creative Commons Non-Commercial License | Techdirt

“Techdirt has been warning about the problems with the Creative Commons Non-Commercial License (CC NC) for many, many years. Last September, Mike wrote about an important case involving the CC NC license, brought by Great Minds, an educational non-profit organization, against FedEx, the shipping giant. Copy shops owned by FedEx photocopied some of Great Minds’ works on behalf of school districts. The material had been released by Great Minds under a CC BY-NC-SA 4.0 license — that is, the Attribution-NonCommercial-ShareAlike license. The issue was whether a company like Fedex could make copies on behalf of a non-commercial organization, of material released under a license that stipulated non-commercial use. Happily, the judge in the case has ruled that it can….”

U of California, Berkeley, to delete publicly available educational content

“The University of California, Berkeley, will cut off public access to tens of thousands of video lectures and podcasts in response to a U.S. Justice Department order that it make the educational content accessible to people with disabilities….”

Internet Archive files amicus brief in support of fair use and innovation in libraries | Internet Archive Blogs

“Today marks the beginning of Fair Use Week, which celebrates the importance of fair use for libraries, students, teachers, journalists, creators, and the public. Last week, the Internet Archive joined the American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries on a friend of the court brief in the Capitol Records v. Redigi case. This case raises the important question about whether it is legal to resell lawful copies of digital music files—that is, whether the first sale right exists in digital form, and how that right interacts with fair use. The first sale right, codified at Section 109(a) of the Copyright Act, is the same law that allows libraries to lend books and other copyrighted works to the public. As library collections become increasingly digital, libraries are relying on on fair use and first sale rights in order to perform their everyday duties, including preservation and lending.

The brief argues first that the court’s fair use analysis should favor secondary uses that have the same underlying purpose as the first sale right. ‘In Authors Guild v. HathiTrust… [the Second Circuit Court] used the rationale for a specific exception—17 U.S.C. § 121, which permits the making of accessible format copies for the print disabled—to support a finding of a valid purpose under the first factor. Likewise, the Copyright Office has repeatedly based fair use conclusions on specific exceptions in the context of a rulemaking under section 1201 of the Digital Millennium Copyright Act, 17 U.S.C. § 1201. As this Court did in HathiTrust or the Copyright Office did in the section 1201 rulemaking, the district court should have recognized that the purpose behind the first sale doctrine tilted the first fair use factor in favor of ReDigi.’

Second, the brief argues that a positive fair use determination in the Redigi case would enable libraries to provide new and innovative digital services to their users. The brief states: ‘Fair use findings in technology cases have encouraged libraries to provide new, digitally-based services such as the HathiTrust Digital Library. In addition to enabling researchers to find relevant texts and perform critical data-mining, HathiTrust provides full-text access to over fourteen million volumes to people who have print disabilities. A fair use finding in this case would provide libraries with additional legal certainty to roll out innovative services such as the Internet Archive’s Open Library. Such a result would increase users’ access to important content without diminishing authors’ incentive to create new works.’

You can read the full text of the brief here.”

Research Practices and Tools: Germany vs Elsevier, and the race for legal open access

“The German consortium DEAL, however, did adopt a firm negotiating stance, and let subscriptions run out at the end of 2016, rather than accepting an unsatisfactory proposal by Elsevier. And DEAL’s Ralf Schimmer is not afraid to publicly mention Sci-Hub, and to advocate the collapse of the subscriptions system. As a result, many German researchers are now unable to legally access Elsevier journals, except through slow, unsystematic and/or inconvenient procedures. Academics who write in Elsevier journals should know that their German colleagues may find it difficult to read their work: this is one more reason not to write in Elsevier journals.

With a Finnish and a Taiwanese consortium in comparable situations, DEAL is not alone, but it is the largest and probably the boldest consortium to take on Elsevier. We may soon learn how long academics can survive without the subscriptions to which they are accustomed, and whether important concessions can now be extracted from publishers. DEAL has a sound strategy (including begin prepared for not reaching an agreement) and favourable environment (easy access to Sci-Hub): if it fails, nobody else is likely to succeed. If DEAL succeeds, it will find imitators, and the end of the subscriptions system could come as soon as the current subscription contracts expire. (These contracts are typically for five years.) Threatened with the demise of subscriptions, the publishing industry has two options:

  1. performing a revenue-neutral switch from subscriptions to gold open access,
  2. trying to block access to Sci-Hub.

Option #1 is not popular with big publishers, who have rather been trying to earn money from gold open access on top of subscriptions. After all, from their point of view, they should earn more for giving access to everyone, than for giving access to subscribers only. Hints that option #1 is still not pursued seriously include the rejection by Elsevier of DEAL’s demand that articles with German authors be made open access, and the recent launch by Springer Nature of five new subscription journals. So publishers are most likely pursuing option #2. Their efforts can hardly be limited to the rather ineffective lawsuit of Elsevier against Sci-Hub, and there may soon be further attempts to make Sci-Hub less accessible in countries where subscriptions matter, including especially Germany. The future of open access may be determined by whether publishers manage to have Sci-Hub effectively blocked, before subscriptions irreversibly collapse. At the moment, publishers seem to think that they can win this slow-moving race. But at least, thanks to the DEAL consortium, the race has begun.”

Nature’s 10 : Ten people who mattered this year.

One of the 10 is Alexandra Elbakyan, creator of Sci-Hub.

“It is copyright-breaking on a grand scale — and has brought Elbakyan praise, criticism and a lawsuit. Few people support the fact that she acted illegally, but many see Sci-Hub as advancing the cause of the open-access movement, which holds that papers should be made (legally) free to read and reuse. “What she did is nothing short of awesome,” says Michael Eisen, a biologist and open-access supporter at the University of California, Berkeley. “Lack of access to the scientific literature is a massive injustice, and she fixed it with one fell swoop.”

For the first few years of its existence, the site flew under the radar — but eventually it grew too big for subscription publishers to ignore. In 2015, the Dutch company Elsevier, supported by the wider publishing industry, brought a US lawsuit against Elbakyan on the basis of copyright infringement and hacking. If Elbakyan loses, she risks having to pay many millions of dollars in damages, and potentially spending time in jail. (For that reason, Elbakyan does not disclose her current location and she was interviewed for this article by encrypted e-mail and messaging.) In 2015, a US judge ordered Sci-Hub to be shut down, but the site popped up on other domains. It’s most popular in China, India and Iran, she says, but a good 5% or so of its users come from the United States….”