In a filing last week, lawyers for the Internet Archive told a federal judge that the plaintiff publishers and the Association of American Publishers are refusing to properly comply with discovery requests in their closely-watched lawsuit over the scanning and lending of print library books, and is asking the court to intervene.
According to an October 29 letter, the dispute concerns a range of communications and documents “responsive to subpoenas” that IA lawyers say are needed for their defense. The AAP and the plaintiff publishers, however, are said to be withholding the communications, claiming they are privileged.
IA lawyers are asking for a pre-motion conference before seeking an order to compel the AAP and the publishers to share the disputed documents and communications.
The discovery dispute is the latest twist 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.
The Internet Archive, however, contends 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.
In their October 29 letter, IA lawyers told the court that the communications being withheld by the AAP could be "key pieces of evidence as to whether Internet Archive’s nonprofit library lending causes any substantial market harm," and could aid the IA's defense by 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.”
Further, IA lawyers told the court, the communications could shed light on whether the publishers "conspired here as they did in [The Apple E-books Case],” telling the court that any potential evidence of “anticompetitive conduct” could support an additional defense that might "preclude infringement liability.”
In the filing, IA lawyers say that the AAP and the plaintiff publishers are asserting a range of privilege, including attorney-client and work product privilege. But IA attorneys contend that the AAP has not met the legal burden to assert their privilege claims, and is asking the court to weigh in.
“It is clear to the Internet Archive, after seven written communications (letters and emails) and a lengthy telephonic meet and confer that further discussions between the parties will not be productive,” IA lawyers state.
As of press time, a response from the plaintiffs has not been made public, and court has not yet acted on the IA's request for a conference.
