Internet Archive's Objections to Landmark Subpoena
Electronic Frontier Foundation
Protecting Rights and Promoting Freedom on the Electronic Frontier
October 27, 2006
Via Facsimile to (415) 788-2019 and U.S. Mail
Amy Briggs
Steefel, Levitt & Weiss
One Embarcadero Center, 30th Floor
San Francisco, CA 9411
RE: Subpoena to Internet Archive
Dear Ms. Briggs:
I am an attorney with the Electronic Frontier Foundation ("EFF"), a public interest law firm and civil liberties organization. I write in response to the subpoena your client, Landmark Education, LLC ("Landmark") caused to be issued to the Internet Archive ("Archive") on October 19, 2006. The subpoena seeks documents sufficient to allow identification of an individual, "Asatgiaire," who you believe uploaded several videos to the Archive. EFF represents the Archive in connection with this matter.
As you may know, on October 6, 2006, the Internet Archive received a letter from Art Schreiber, General Counsel for Landmark, alleging that the videos infringed Landmark's copyrights and contained libelous material. The letter threatened immediate legal action if the material was not removed from the Archive website. In reliance upon Mr. Schreiber's representations that the material infringed Landmark's copyright, the Archive removed the videos.
On further review of the videos and registration referenced, however, we have determined that the allegation of infringement of Landmark's copyright has no merit. As an initial matter, it is clear that the videos do not contain a copy of a "Landmark forum leaders manual" (TXu-1-120-461) referenced in Landmark's letters. Rather, it is a news documentary critical of the Landmark organization in France. Further, even if Landmark's copyrighted works were visible in the documentary, any such limited and transformative use of a copyrighted work for purpose of criticism, commentary and news reporting is self-evidently fair use and, therefore, noninfringing. See 17 U.S.C. 107; 4 Nimmer on Copyright 13.05. Indeed, the use is so evidently fair use under the law that it is difficult to see how the declaration claiming infringement accompanying your subpoena could be consistent with Rule 11. In keeping with this determination, we must decline to comply with the October 19 subpoena. Please see the attached Objections. Moreover, and without waiving our Objections, please note that the Internet Archive does not maintain logs of IP addresses used to upload files.
In addition, we request that your client immediately withdraw the threats of litigation contained in its October 6, 2006, letter. As set forth above, the videos do not infringe any contained Landmark copyright. Further, 47 U.S.C. 230 protects Internet service provides such as the Archive from liability for allegedly harmful comments written by others. See e.g. Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997), cert. denied, 524 U.S. 937 (1998) ("By its plain language, 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service"); Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003); Carafano v. Metrosplash.com, Inc, 339 F.3d 1119 (9th Cir. 2003). Therefore, please confirm in writing, by November 15, 2006, that Landmark does not indent to pursue litigation against the Archive for copyright infringement or defamation.
If Landmark refuses to make this commitment, the Archive will have no choice but to explore its legal options, including, but not limited to, an action for declaratory relief and damages pursuant to 17 U.S.C. 512(f).
If you have any questions, please do not hesitate to contact me.
Regards,
[signature]
Corynne McSherry
Staff Attorney
cc. Art Schreiber, Esq.
General Counsel, Landmark Education LLC
[attached document: "Internet Archive's Responses to Landmark Education LLC's October 19, 2006, Subpoena"]
This work is released under the Creative Commons Attribution-ShareAlike 3.0 Unported license, which allows free use, distribution, and creation of derivatives, so long as the license is unchanged and clearly noted, and the original author is attributed.
Public domainPublic domainfalsefalse
Works by the Electronic Frontier Foundation are licensed under the Creative Commons Attribution-ShareAlike 3.0 Unported license, per EFF's Copyright Policy.