Just weeks after the parties asked a magistrate judge to help settle a significant discovery dispute, the parties in a closely watched copyright case over the scanning and lending of print library books have asked the court for a three-month extension for discovery.
“There has been extensive progress on discovery,” wrote Elizabeth McNamara, lawyer for four plaintiff publishers, to Judge John G. Koeltl. “But looking ahead, it has become clear that more time is required to process the voluminous documentary evidence produced in this case. It inevitably takes a lot of time to review and synthesize such large volumes of documents and more time is required to prepare for the substantial number of fact witness depositions that will be required, particularly given additional persons identified in each party’s amended initial disclosures. Given those burdens, it is no longer possible to compete fact discovery by the current September 24, 2021 deadline.”
Lawyers for the Internet Archive have agreed to the extension.
Under a revised schedule proposed by the parties the next deadline would be December 17, 2021, for the end of fact discovery, with all discovery to be completed by April 1, 2022.
The copyright infringement lawsuit was first filed on June 1, 2020, in the Southern District of New York, by four named plaintiffs (Hachette, Penguin Random House, HarperCollins, and Wiley) and is being coordinated by the Association of American Publishers.
The suit alleges that the Internet Archive's program to scan print editions of library books and lend the scans under an untested legal theory called "controlled digital lending" is copyright infringement. The Internet Archive, meanwhile, counters that its program, which is designed to mimic library lending in the physical realm, is protected by fair use.
McNamara's letter also references the still pending discovery dispute before a magistrate judge.
On August 9, lawyers for the Internet Archive told the court it wanted monthly sales data for all the books in print from the four publishers dating back to 2011, in an attempt to show that it’s controversial program to scan and lend books has not had a negative impact on the market for the publishers’ books, a key component of its fair use defense. The publishers, however, have strongly opposed that demand, arguing that providing such data, which would involve “more than 500,000 titles” would be costly, time-consuming, "burdensome in the extreme" and legally "irrelevant."
“The parties respectfully submit that an extension is necessary in order to resolve this discovery dispute—and any others that will likely require the Court’s attention,” McNamara wrote in the new letter.
