In a joint filing last week, attorneys for the Internet Archive and four publishers suing for copyright infringement proposed a discovery plan for the case that would extend for more than a year. The filing, known as a rule 26(f) report, lays out a potential road map for the case that would begin with the first proposed deadline for initial fact disclosures on September 11, 2020, and would conclude with expert depositions due by September 20, 2021.
The filing notes that the parties “did not agree to any limitations on the number of interrogatories, requests for production, or requests for admission that may be served.” The Plaintiff publishers told the court they do not anticipate taking more than 10 depositions, but lawyers for the Internet Archive note that because there are “four unaffiliated Plaintiffs” they will likely require more than 10 depositions. And while the Internet Archive has demanded a jury trial, both parties indicated in the filing that they expect to move for summary judgment in this case.
Further, the report outlines a litany of issues that will be part of the discovery process—a list that suggests a potentially sensitive, and complex litigation. Among the subjects expected be addressed in discovery:
- All aspects of the operations of the Internet Archive, Open Library, and National Emergency Library, including without limitation the development and application of “Controlled Digital Lending.”
- Defendant’s reproduction, display, distribution, and public performance of Plaintiffs’ Works alleged in the Complaint.
- Defendant’s fair use defense and other defenses.
- Defendant’s justifications for and promotion of “Controlled Digital Lending.”
- Plaintiffs’ legal and contractual rights in the Works cited in the complaint, and the copyright registration for such Works.
- Plaintiffs’ sales, licenses, or agreements relating to the Works.
- Plaintiffs’ enforcement actions related to the Works.
- Plaintiffs’ actions related to the Works during COVID-19.
- Damages, including Plaintiffs’ claims for damages for willful infringement, as permitted by the Copyright Act.
The copyright infringement lawsuit was filed on June 1 in the Southern District of New York by Hachette, HarperCollins, John Wiley & Sons, and Penguin Random House, and is being coordinated by the Association of American Publishers. The IA's scanning program has troubled publishers and authors groups for years, but tensions came to a head in late March when the IA announced its now ended National Emergency Library initiative, under which the IA unilaterally made its collection available for unlimited borrowing in response to the Covid-19 outbreak. The publishers have compared the IA's efforts to those of the world's largest pirate sites, and are seeking damages for infringement, as well as to shut down the IA’s scanning program and to have any infringing scans destroyed.
Lawyers for the Internet Archive counter that their decade-old scanning program is "sheltered by the fair use doctrine" and "buttressed" by traditional library practices and protections. Guided by an untested theory called Controlled Digital Lending, the IA and its partner libraries create scans of books from their legally acquired print collections and make them available for lending under rules designed to mimic traditional library lending: only one user can borrow a scan at a time; the scans are DRM-protected against copying and to enforce limited lend periods; and the scan and the corresponding print book from which the scan is derived are not allowed to circulate at the same time in order to maintain "a one-to-one owned-to-loan" basis. Rightsholders can also opt out of the program, and Internet Archive officials say that all of the 127 books listed as infringing in an appendix to the publishers' initial complaint have been taken down.
In a July 22 online press conference, Internet Archive founder Brewster Kahle urged the publishers to drop the suit and settle the dispute in the boardroom, rather than the courtroom. So far, that is not happening, although last week’s filing revealed that the two sides spoke about a possible settlement but were unable to come to an agreement.
The proposal would also give the publishers until November 1 to add additional works to the suit, and until December 1 to amend their complaint. The Internet Archive would then have 21 days to respond to any amended complaint.
UPDATE: After this story went to press, the court approved the proposed discovery plan with only minor changes, and set a tentative schedule that would have the case ready for trial by November, 2021.