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 Archiveâ€™s requests for production served
on Plaintiffs and (ii) responsive to the Internet Archiveâ€™s subpoena served on the AAP. These withheld
documents are critical to the Internet Archiveâ€™s fair use defenseâ€”specifically the fourth factor, market
harm. The varying views of publishers regarding whether they objected to the Internet Archiveâ€™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 Archiveâ€™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 publishersâ€™ communications
regarding the source of that harmâ€”for example, if the Internet Archiveâ€™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)â€”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) (â€œ[H]istorically, the defense of
copyright misuse has been successfully asserted most often in cases where anticompetitive effects were
alleged.â€). Finally, withheld documents are likely to be relevant to the Internet Archiveâ€™s laches
defense. The requested documents will shed light onto why the AAP (and Plaintiffs), despite being
aware for years of the Internet Archiveâ€™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 Plaintiffsâ€™ 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 AAPâ€™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
executivesâ€™ 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:
Plaintiffsâ€™ privilege logs also suggest that AAP employees who were not attorneys were copied on
withheld documents, including communications staffâ€”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) (â€œno protection attaches to a document prepared for simultaneous review by legal and
nonlegal personnel.â€). Finally, several entries on Plaintiffsâ€™ 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
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.