In a filing this week, the Internet Archive rejected accusations that it is “stonewalling” discovery in a closely watched lawsuit over the scanning and digital lending of print library books.
The IA response comes after the publishers accused the IA in a November 19 letter of seeking to “run out the clock” on discovery. But IA lawyers told the court that they are complying with or have already complied with all of the publishers’ requests. Furthermore, IA lawyers point out that there is already a conference scheduled to discuss two ongoing disputes involving IA discovery requests—a not so subtle suggestion that the publishers’ complaint is an attempt at gamesmanship.
“As Your Honor is aware, currently pending and set for conference on December 2, 2021 are the Internet Archive’s two letter-motions regarding Plaintiffs and the Association of American Publishers’ failure to produce documents,” the IA letter reads. “While Plaintiffs may be eager to portray the Internet Archive as also refusing to produce relevant documents, there is no basis for Plaintiffs’ assertion that the
Internet Archive is ‘stonewalling.’ Plaintiffs’ requests are for documents that the Internet Archive has either already provided to Plaintiffs, or that the Internet Archive is working diligently to collect and provide with no need for this Court’s intervention.”
In their October 29 motion, IA attorneys told the court that the AAP and the plaintiff publishers are improperly invoking a range of legal privilege to withhold internal communications and other documents from discovery.
In their complaint, lawyers for the publishers accused the IA of “stonewalling” discovery by allegedly withholding requested documents until "toward the end" of the discovery period. The current schedule has fact discovery set to close by December 17.
The high profile copyright infringement lawsuit was first filed in June of 2020 by Hachette, HarperCollins, John Wiley & Sons, and Penguin Random House, and coordinated by the AAP. It 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 counter that its program respects copyright and is protected by fair use.
