Shifting liability to the ISPs of Absentee Defendants

On October 12, 2017, the Computer and Communications Industry Association (CCIA) filed a brief as amicus curiae in a trademark and copyright infringement case, American Chemical Society v. Sci-Hub. Sci-Hub is a website that hosts research papers and make them available for free, and ACS holds the copyright to some of the research papers available on Sci-Hub. ACS filed the case on June 23, 2017, seeking damages to the effect of $4.8 million and relief against the Defendant “and all those in active concert or participation with them.” According to Magistrate Anderson, “those in active concert and participation” include search engines, domain name registries and Internet Service Providers (ISPs). ACS also moved for default judgment against Sci-Hub because despite service through various publications and social media, Sci-Hub has chosen not to appear in Court.


The CCIA, representing more than 20 companies in high technology products and services sector, including Internet Service Providers (ISPs), filed a brief objecting to the relief. CCIA members claimed that imposition of an injunction order on ISPs was not only a violation of the safe harbor provisions but also a flagrant violation of 117 U.S.C. § 512(j) and Rule 65 of the FRCP, as the ISPs were nonparties to the proceedings and effectively denied ‘their day in court’. The CCIA has urged the Court to reject Magistrate Judge Anderson’s recommendations, Dkt. No. 22, which seeks to enforce a permanent injunction on Neutral Service Providers.


This case came on the heels of a June 21, 2017 default judgment against Sci-Hub for failing to appear or answer the complaint after it was filed in 2015. The judgment awarded Elsevier, the plaintiff and major publisher of scientific journals, a permanent injunction. However, Sci-Hub continues to operate to this day and is still accessible in the U.S. despite the injunction, likely due to it being hosted outside of U.S. Thus, ACS, in seeking relief from  “all those ‘in active concert or participation,’ attempts to prevent internet users from locating Sci-Hub in the first place.


Web-blocking or shutting down of neutral search engines or ISPs is not common practice in the US. In fact, Elsevier had initially sought a relief similar to the one currently sought by ACS against the search engines, but dropped the idea after intervention by the CCIA. CCIA argues that simply because a service provider is “technologically capable of removing the postings does not render its failure to do so aiding and abetting” in the act of infringement. The case will be heard before by Judge Brinkema of the US District Court for the Eastern District of Virginia.

American Chemical Society v. Sci-Hub d/b/a www.Sci-Hub.CC, John Does 1-99, Case 1:17-cv-00726-LMB-JFA

Memorandum of Support of Plaintiff’s Motion for Entry of Default Judgement in Case 1:17-cv-00726-LMB-JFA

Proposed Findings of Fact and Recommendations in Case 1:17-cv-00726-LMB-JFA

Case 1:15-cv-4284 (RWS)