from the it's-not-the-only-one dept
Last year when a bunch of the biggest publishing houses sued the Internet Archive, in the midst of a pandemic, over their digital library program, I was a bit surprised that the announcement about the lawsuit came not from any of the publishers themselves directly, but rather from the Association of American Publishers (AAP), which is officially not a party in the lawsuit. That alone felt a bit… sketchy.
And, now it may be an issue in the lawsuit itself. Last week, the Internet Archive asked the judge for a hearing because the AAP is attempting to withhold various responsive documents on the discovery requests that were made to the publishers themselves regarding their communications with the AAP, and a separate subpoena served on the AAP. And it appears the AAP really doesn’t want that stuff to get into the hands of the Internet Archive’s legal team.
This dispute concerns documents (i) responsive to the Internet Archive?s requests for production served on Plaintiffs and (ii) responsive to the Internet Archive?s subpoena served on the AAP. These withheld documents are critical to the Internet Archive?s fair use defense?specifically the fourth factor, market harm. The varying views of publishers regarding whether they objected to the Internet Archive?s activities, whether they regarded themselves as having been harmed by those activities, and whether that harm was of a large or of a small magnitude are key pieces of evidence as to whether Internet Archive?s nonprofit library lending causes any substantial market harm.
There’s also a hint in the letter suggesting that the Internet Archive is suggesting that the only real “harm” caused by its Open Library was that it made it more difficult for the big publishers to collude (as they did with Apple regarding ebook prices) to jack up the prices on ebooks sold (but not really sold) to libraries.
And publishers? communications regarding the source of that harm?for example, if the Internet Archive?s activities simply make it more difficult for publishers to agree among themselves on ebook prices, as they did in United States v. Apple, Inc., 791 F.3d 290 (2d Cir. 2015)?will shed light on whether that harm is cognizable under the fourth factor. Further, the Internet Archive is entitled to explore whether Plaintiffs and other publishers conspired here as they did in the Apple case; if so, such anticompetitive conduct here may support an additional defense which could preclude infringement liability. See Saks Inc. v. Attachmate Corp., No. 14-civ-4902-CM, 2015 WL 1841136, at *12 (S.D.N.Y. Apr. 17, 2015) (?[H]istorically, the defense of copyright misuse has been successfully asserted most often in cases where anticompetitive effects were alleged.?). Finally, withheld documents are likely to be relevant to the Internet Archive?s laches defense. The requested documents will shed light onto why the AAP (and Plaintiffs), despite being aware for years of the Internet Archive?s digital lending library, waited until the summer of 2020 to sue.
The AAP is trying to argue that its communications with the publishers is protected by attorney-client privilege, which is made difficult by the fact that the AAP is not acting as the publishers’ lawyers here, but rather as lobbyists.
Plaintiffs have not demonstrated beyond conclusory statements in their privilege logs that communications with the AAP were exchanged to solicit, receive, or give legal advice rather than to discuss business concerns and interests….
…. One of Plaintiffs? justifications for withholding their communications with the AAP is that some AAP staff members are attorneys. But AAP employees who happen to be attorneys wear many hats. For example, the President and CEO of the AAP is also a lawyer, as is AAP?s Senior Vice President of Global Policy. While it is conceivable that these executives do legal work for the organization, the burden is on AAP to justify why particular documents are privileged, given these executives? predominant business roles.
Also, generally speaking, if documents are attorney-client privileged, it means you don’t share it with anyone who is not on the legal team. But, that’s not what happened here:
Plaintiffs? privilege logs also suggest that AAP employees who were not attorneys were copied on withheld documents, including communications staff?which suggests that the predominant purpose of the document may not have been to secure legal advice. United States v. IBM Corp., 66 F.R.D. 206, 213 (S.D.N.Y. 1974) (?no protection attaches to a document prepared for simultaneous review by legal and nonlegal personnel.?). Finally, several entries on Plaintiffs? privilege logs reference communications either (i) solely between non-party third parties or (ii) between Plaintiffs and third parties (like authors and literary agents). Plaintiffs have not met their burden to show that privilege extends to any of these third parties.
There’s some more in the letter, but it does seem pretty clear that the AAP desperately doesn’t want the Internet Archive to know what it was talking about with the publishers regarding the plans around dealing with the Open Library.