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Aldabe v. Cornell University

United States District Court, D. Massachusetts

November 7, 2017

Fermin Aldabe, Plaintiff,
Cornell University et al., Defendants.


          Nathaniel M. Gorton United States District Judge.

         Here we 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 Acts.

         Before the Court are 1) defendants' motion to control service and 2) defendants' motion to dismiss.

         I. Background

         In 1991 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, LANL secured as a domain name in 1998 and transferred arXiv to Cornell University Library in 2001.

         Articles 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.

         Fermin Aldabe joined 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.

         In a 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

         of the 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.

         Two 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 Muslim”.

         One 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 “physics.gen-ph”.

         Plaintiff filed his original complaint in November, 2016, and an amended complaint in March, 2017. The defendants' motion to dismiss responds to that amended complaint.

         The Court will address each count of the amended complaint seriatim.

         II. Analysis Class Action

         Plaintiff 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.

         Legal Standard

         To 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.

         Although 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.

         Count I - Copyright Violation

         Plaintiff alleges that defendants violated and continue to violate copyright law by distributing papers on arXiv, without consent, which plaintiff uploaded to 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.

         Section 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).

         Cornell University began operating, 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 opposition that

[t]o this day, Cornell uses to fraudulently conceal its ownership of Arxiv.

         This 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 repository with him and changed its name to

         Even 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).

         Here, 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.

         Plaintiff's claims for copyright infringement are barred by the statute of limitations and fail to state a claim upon which relief ...

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