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Judge Recommends ISP and Search Engine Blocking of Sci-Hub in the US (torrentfreak.com)
Sci-Hub, which is regularly referred to as the "Pirate Bay of Science," faces one of the strongest anti-piracy injunctions we have seen in the US to date, reports TorrentFreak. From the article: Earlier this year the American Chemical Society (ACS), a leading source of academic publications in the field of chemistry, filed a lawsuit against Sci-Hub and its operator Alexandra Elbakyan. Sci-Hub was made aware of the legal proceedings but did not appear in court. As a result, a default was entered against the site. In addition to millions of dollars in damages, ACS also requested third-party Internet intermediaries to take action against the site. While the request is rather unprecedented for the US, as it includes search engine and ISP blocking, Magistrate Judge John Anderson has included these measures in his recommendations. Judge Anderson agrees that Sci-Hub is guilty of copyright and trademark infringement. In addition to $4,800,000 in statutory damages, he recommends a broad injunction that would require search engines, ISPs, domain registrars and other services to block Sci-Hub's domain names. If the U.S. District Court Judge adopts this recommendation, it would mean that Internet providers such as Comcast could be ordered to block users from accessing Sci-Hub.
But publicly funded research should be available to the public.
This would mean the blocking access to publicly funded science. This is a first ammendment violation. (this part of the ruling would be.)
Usually what happens in just about every court proceeding is that the plaintiff's attorney files a motion usually leading to a hearing unless the parties settle the matter beforehand. During the court proceedings the plaintiff presents to the judge an order that they believe will resolve the issue. If the defendant doesn't show up (which is the case here) to contest the order that has been presented by the plaintiff, unless the judge really understands the order (which I suspect they may not understand the internet in this case), they may be inclined to use the plaintiff's proposed order and enter it as a default judgment. Otherwise, I'm not sure how a judge could have thought that this is an appropriate remedy to the issue. The judge is asking entities who are not parties to the case to perform actions that constitute the remedy.
We'll make great pets
If you don't like the result, you'll need a different argument, because while the Constitution only authorizes the federal government to do about a dozen pecific things, protecting copyright is one of those twelve things:
Article 1 - Section 8, powers of the federal government (clause 8):
âoeTo promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.â
You might advocate for a statute saying that any papers which in any way relate to any research which benefitted from any taxpayer funding must be placed in the public domain. The practical effect of that would be debatable and hard to predict, but it would be a cogent proposal. Pretending that the Constitution says the opposite of what it says in Section 8 is not a reasonable argument.