Lawyers for the Association of American Publishers and a group of publisher plaintiffs are pushing back against an effort by the Internet Archive to obtain a range of the AAP's internal communications and documents for its defense against copyright infringement charges.
In a blistering November 3 reply letter, lawyers for the publishers outlined their objections to the scope of the IA's discovery requests in the closely watched lawsuit over the IA's program to scan and lend print editions of library books. And further, the plaintiff lawyers suggested that the IA’s October 29 letter asking the court to intervene in a discovery dispute regarding the IA's subpoenas was being played up as a publicity grab.
“Plaintiffs have already explained to IA why the withheld communications were made in a privileged context,” the plaintiffs' November 3 response reads. “Plaintiffs reminded IA of this on October 28 and offered to confer, but IA did not respond. Instead, IA and [the Electronic Frontier Foundation] promptly filed and then uploaded the [October 29 letter] to EFF’s public website attached to a misleading blog on the case, further attempting to litigate this case and their desired policy gains in the press based on a false narrative rather than in the courtroom based on the facts and the law.”
In their October 29 letter, IA lawyers told the court that the AAP and the plaintiff publishers were asserting various claims of privilege to withhold communications and documents that IA lawyers say could aid their defense, potentially shedding light on "the varying views of publishers” regarding the Internet Archive’s activities, as well as whether the publishers "regarded themselves as having been harmed by those activities" and “whether that harm was of a large or of a small magnitude.”
IA lawyers told the court that it filed its letter after "seven written communications (letters and emails) and a lengthy telephonic meet" and it was clear that "further discussions between the parties will not be productive."
But in their three-page reply letter this week, lawyers for the AAP and the publishers insisted that the withheld communications are in fact privileged, and rejected the IA’s claims that communications were at all relevant to the IA’s defense.
“Email statements cannot undo the objective market harm that IA causes from its systematic copying and distribution,” the letter states, adding that the IA’s efforts to gain access to the AAP’s confidential internal legal deliberations" and related member communications "reeks in the context of the ongoing public policy battles on Capitol Hill and elsewhere in which the AAP, on the one hand, and IA and EFF, on the other, are on opposite sides of significant copyright issues.”
Further, plaintiff lawyers say the problems with the IA’s subpoenas go beyond seeking privileged communications, pointing out that, in addition to privilege, the AAP objected to the subpoenas based on "relevance, burden, and overall lack of proportionality,” as well as the IA “improperly trying to obtain broader non-party” discovery in the context of this case. “Those issues remain,” the letter states. “At the appropriate juncture, if necessary, the AAP will argue those issues and file declarations to demonstrate the burdens presented and that the assorted privileges discussed above apply.”
The discovery dispute is the latest twist (and the second major discovery dispute) in the high profile lawsuit, first filed in June of 2020 by Hachette, HarperCollins, John Wiley & Sons, and Penguin Random House, and coordinated by the AAP.
The suit alleges that the Internet Archive’s program to scan and lend print editions of library books under an untested legal theory known as controlled digital lending is copyright infringement on a massive scale. IA lawyers contend that its program respects the rights of copyright holders and that the scanning and lending of library books under the CDL framework is protected by fair use.
A pre-motion conference is now set for December 2, before magistrate judge Ona T. Wang.