United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge.
have a dispute over the rejection and reclassification of
certain written articles of plaintiff Fermin Aldabe
(“plaintiff” or “Aldabe”). The
articles were submitted to arXiv (pronounced
“archive”), an online repository of manuscript
preprints owned and operated by Cornell University
(“Cornell”). Aldabe, who appears pro se,
alleges that Cornell and the individual defendants who
operate arXiv (collectively “defendants”)
breached a contract between the parties and violated the
Copyright, Civil Rights, Sherman Antitrust and False Claims
the Court are 1) defendants' motion to control service
and 2) defendants' motion to dismiss.
the Los Alamos National Laboratory (“LANL”)
created an online repository of digital scientific
“preprints”. Physicists, mathematicians,
economists and other academics publish their research as
digital “preprints” before such research appears
in a formal, peer-reviewed journal. These digital preprints
take the place of draft articles researchers used to post on
physical billboards in research labs. Originally maintained
under the domain name xxx.lanl.gov, LANL secured arXiv.org as
a domain name in 1998 and transferred arXiv to Cornell
University Library in 2001.
published on arXiv are not subject to the rigorous peer
review process of formal journals. Instead, the research is
subject to minimal oversight that includes reclassifying an
article for a more appropriate category or removing an
article that violates arXiv policies. With over one million
scientific articles available to the public without cost,
arXiv is the largest such repository in the world. It also
plays a prominent role in the world of peer-reviewed
journals, as some journals will not publish articles that
lack an arXiv-assigned identification number.
Aldabe joined xxx.lanl.gov in 1994 as a postdoctoral fellow
in theoretical physics and submitted a dozen articles to the
website between 1995 and 1998. Aldabe alleges that, after the
2001 transfer from LANL to Cornell, arXiv's continued
publication of those articles was improper.
separate incident, Aldabe alleges that arXiv mistreated him
with respect to an October, 2015, paper submission. According
to Aldabe, arXiv misclassified the paper as a general physics
(“physics.gen-ph”) paper, although Aldabe
intended the paper to be categorized as a high energy
theoretical physics (“hep-th”) paper. Aldabe
explains that an author
would prefer to flush his work down the toilet instead of
selecting physics.gen-ph, [because those articles are] doomed
to be ignored by most if not all members
international community of physicists. This is because
articles bearing the “hep-th” designation are
featured closer to the top of arXiv's daily newsletter
and because researchers searching arXiv's database may
limit their search to the “hep-th” category.
weeks after the initial submission, during which time
plaintiff and arXiv exchanged emails, arXiv rejected
Aldabe's paper. One month later, arXiv explained to
Aldabe that the paper was “in need of significant
review and revision before it would be considered
publishable.” Aldabe alleges that arXiv's real
reason for rejection was that his name “sounds
year after the described incident, in November, 2016, the
European Physical Journal C, a peer-reviewed journal,
accepted Aldabe's paper . Upon submitting his article to
arXiv again, Aldabe discovered that the paper was once again
reclassified from “hep-th” to
filed his original complaint in November, 2016, and an
amended complaint in March, 2017. The defendants' motion
to dismiss responds to that amended complaint.
Court will address each count of the amended complaint
Analysis Class Action
brings each claim as a putative class action but, as a
pro se litigant, he is not authorized to serve as
the representative of a class. See D. Mass. L.R.
83.5.5(b) (“An individual appearing pro se may
not represent any other party . . .”); Kerlinsky v.
Sandoz, Inc., 2010 WL 4450494, at *2 (D. Mass. Oct. 25,
2010), report and recommendation adopted, 2010 WL 4450450 (D.
Mass. Nov. 4, 2010). Given that this litigation is at the
motion-to-dismiss stage, however, the Court need not address
the class certification issue at this time.
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state
a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). In considering the merits of a motion to dismiss, the
Court may look only to the facts alleged in the pleadings,
documents attached as exhibits or incorporated by reference
in the complaint and matters of which judicial notice can be
taken. Nollet v. Justices of Trial Court of Mass.,
83 F.Supp.2d 204, 208 (D. Mass. 2000), aff'd, 248 F.3d
1127 (1st Cir. 2000). Furthermore, the Court must accept all
factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiff's favor.
Langadinos v. Am. Airlines, Inc., 199 F.3d 68, 69
(1st Cir. 2000). If the facts in the complaint are sufficient
to state a cause of action, a motion to dismiss the complaint
must be denied. See Nollet, 83 F.Supp.2d at 208.
a court must accept as true all of the factual allegations
contained in a complaint, that doctrine is not applicable to
legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662
(2009). Threadbare recitals of the legal elements which are
supported by mere conclusory statements do not suffice to
state a cause of action. Id. Accordingly, a
complaint does not state a claim for relief where the
well-pled facts fail to warrant an inference of any more than
the mere possibility of misconduct. Id. at 1950.
I - Copyright Violation
alleges that defendants violated and continue to violate
copyright law by distributing papers on arXiv, without
consent, which plaintiff uploaded to xxx.lanl.gov from 1994
to 1998. Defendants assert that the claim is time barred,
that plaintiff never registered copyrights for the relevant
papers, and that plaintiff granted arXiv an implied license
to distribute his work. The Court agrees that the claim is
time barred and that defendant obtained an implied license
and thus will not address the registration contention.
507(b) of the Copyright Act requires that a plaintiff bring a
civil action for copyright infringement “within three
years after the claim accrued.” 17 U.S.C. §
507(b). A claim accrues when a plaintiff “knows or has
sufficient reason to know of the conduct upon which the claim
is grounded.” Warren Freedenfeld Assocs., Inc. v.
McTigue, 531 F.3d 38, 44 (1st Cir. 2008).
University began operating arXiv.org, according to plaintiff,
no later than 2001 and distributed plaintiff's works
thereafter. A minimum of 15 years passed between the time
Cornell allegedly first began to infringe plaintiff's
copyrights and the filing of plaintiff's complaint in
2016. The statute of limitations is three years. Without
providing any facts or particulars, plaintiff counters in his
[t]o this day, Cornell uses xxx.lanl.gov to fraudulently
conceal its ownership of Arxiv.
claim is belied by plaintiff's statement in his amended
complaint that, according to Wikipedia, Paul Ginsparg changed
institutions to Cornell University in 1999, brought the
xxx.lanl.gov repository with him and changed its name to
were his claim not time-barred, plaintiff would have no
copyright claim against defendants because, taking
plaintiff's factual allegations as true, plaintiff
granted arXiv an implied license to distribute his works.
Uses of copyrighted work that “stay within the scope of
a nonexclusive license are immunized from infringement
suits.” John G. Danielson, Inc. v.
Winchester-Conant Properties, Inc., 322 F.3d 26, 40 (1st
Cir. 2003) (citing Graham v. James, 144 F.3d 229,
236 (2d Cir. 1998)). An implied license exists where (1) the
licensee requested the work, (2) the creator made and
delivered the work and (3) the creator intended that the
licensee copy and make use of the work. Estate of Hevia
v. Portrio Corp., 602 F.3d 34, 41 (1st Cir. 2010).
arXiv encouraged authors to submit articles to its website,
Aldabe uploaded his paper to the licensee and Aldabe agreed
to let arXiv distribute his work for “the greater
good” and betterment of the “scientific community
as a whole.” Because arXiv did not exceed the scope of
the license, plaintiff's alleged facts, taken as true, do
not state a claim for copyright infringement.
claims for copyright infringement are barred by the statute
of limitations and fail to state a claim upon which relief