Court demands that search engines and internet service providers block Sci-Hub

The American Chemical Society (ACS) has won a lawsuit it filed in June against Sci-Hub, a website providing illicit free access to millions of paywalled scientific papers. ACS had alleged copyright infringement, trademark counterfeiting and trademark infringement; a district court in Virginia ruled on 3 November that Sci-Hub should pay the ACS $4.8 million in damages after Sci-Hub representatives failed to attend court.

The new ruling also states that internet search engines, web hosting sites, internet service providers (ISPs), domain name registrars and domain name registries cease facilitating “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.”

“This case could set precedent for the extent third-parties on the internet are required to enforce government-mandated censorship,” says Daniel Himmelstein, a data scientist at the University of Pennsylvania who recently analyzed how many journal papers Sci-Hub holds.

Earlier this year, Sci-Hub lost another lawsuit against publishing giant Elsevier, and was ordered to pay $15 million in damages. But it’s unlikely that Sci-Hub will pay either sum because neuroscientist Alexandra Elbakyan, its founder, operates the site from Russia, which is outside the court’s jurisdiction. Elbakyan has previously told the media that Sci-Hub plans to ignore the lawsuits.

ACS spokesperson Glenn Ruskin tells ScienceInsider: “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.”

The internet demands by ACS had sparked concern among the Computer and Communications Industry Association (CCIA) which filed an amicus brief in the lawsuit, asking that ISP and search engine blocking be removed from the ACS’s claim. But this was denied by the judge. Elsevier had made similar demands but the judge in its case sided with the CCIA and the Internet Commerce Coalition, which filed a similar amicus brief, and Elsevier ultimately backed off those requests.

Stephen McLaughlin, a doctoral student in information studies at the University of Texas at Austin who is following the ACS case closely, says: “In principle, search engines and ISPs could choose to comply with the injunction immediately. If they don’t, then ACS can issue cease and desist letters asking them to block Sci-Hub’s domains.”

Another US court also ruled in 2015 that Sci-Hub breaches copyright law and should be shut down. But the site popped up again using other domains, and that’s likely to happen again, McLaughlin says: “If this injunction is enforced, it remains to be seen how quickly these new domains will be blocked.”

The court’s decision only applies to the United States and “no decision had been made about pursuing similar action outside of the U.S. at this time,” Ruskin says.

Himmelstein’s recent analysis showed that Sci-Hub contains 98.8% of the ACS’ scholarly content and 85% of all paywalled journal content hosted on the registry Crossref. Despite the court order, he suspects that search engines are unlikely to delist Sci-Hub. “The internet freedom movement will take a keen interest in the proceedings,” he says.