Updated A subpoena can be served against Cloudflare compelling it to reveal the identities of two website owners, a New York judge has ruled.
The content delivery network has effectively been told to identify the people behind LibGen and BookFi in a copyright infringement lawsuit brought by academic book publisher Elsevier.
"The evidence set forth ... demonstrates that Elsevier is unable to identify the operators of libgen.org or bookfi.org, or the true location of the computer servers upon which those websites are hosted, absent the ability to take discovery from Cloudflare," the decision [PDF] from federal Judge Robert Sweet reads.
It continues: "Elsevier's application for leave to take expedited discovery is narrowly tailored to obtain identifying information concerning the operators of libgen.org and bookfi.org. There is good cause to believe that absent identifying information concerning the operators of libgen.org and bookfi.org, Elsevier will be unable to advance its claims against those operators."
He then granted Elsevier the right to issue Cloudflare a subpoena "requiring production of records relating to the identities of the operators."
The decision comes following an earlier refusal by Cloudflare to hand over information on the two domains through its "trusted notifier" program. The two sites no longer use Cloudflare to deal with traffic, and as a result the company said it would not share information on them.
Elsevier has been unable to track down the owners and so has been unable to exert any pressure on them. It argued that it needs the information and hence a subpoena, and the judge agreed. We have asked Cloudflare whether it intends to oppose the order or will hand over the details it has. It's unknown whether Cloudflare has retained any of that information.
Elsevier started the lawsuit back in June of 2015 claiming that LibGen, BookFi and a third site, Sci-Hub, were infringing its copyright by hosting thousands of academic articles that it holds the rights to.
Sci-hub and its Kazakhstani operator, Alexandra Elbakyan, have been quite open about their hosting of papers, claiming that Elsevier is ripping people off and openly admitting the papers hosted on the site have been pirated.
"Elsevier is not a creator of these papers," Elbakyan wrote to the judge earlier this year. "All papers on their website are written by researchers, and researchers do not receive money from what Elsevier collects ... If a researcher wants to be recognized, make a career – he or she needs to have publications in such journals."
Elsevier has chased Elbakyan around the internet, with both her website and Twitter handles being taken down. She has responded by continuing to move the website around on different domain names – using the same tactics as torrent-hosting website Pirate Bay. It is currently at Sci-Hub.io.
LibGen and BookFi have done the same and currently operate at the domains golibgen.io and bookfi.net.
It's not just these three websites that have an issue with Elsevier however – its target market, academia, does too. Recently over 15,000 scientists said they would boycott the company's journals over its "exorbitantly high prices for subscriptions" and would refuse to do editorial work for the company until "they radically change how they operate."
The company charges around $30 for access to individual articles. Even worse, some journals actually charge authors to have their papers published due to the perceived importance for a researcher's career of having their work independently recognized. In one case, Elsevier charged over $2,000 to publish papers.
Elbakyan created Sci-Hub because she was unable to afford access to the papers for her research. As a resident of Russia she has been able to stay outside the US courts' influence. It's not clear whether the owners of the other two websites are similarly situated, which is presumably why Elsevier is so keen to find out who and where they are. ®
Updated to add
A spokesperson for Cloudflare told us: "The plaintiff in [the case against libgen.org and bookfi.org] forwarded a subpoena to us on Friday. We intend to respond to the subpoena with the information available to us, that's our policy. Our policy also directs that we notify the customer about this prior to providing the information.
"To be clear, we're not a part of that lawsuit and didn't have any notice of the proceeding. The court simply permitted the plaintiff to take third-party discovery from Cloudflare. They've now sent us a subpoena, and we plan to respond."
Full disclosure: El Reg is a Cloudflare customer.